ili«' CORNELL LAW LIBRAR" (50rn?U ICam ^rljool Htbrarj} Cornell University Library KF 411.W551905 V.I A treatise on the conflict of laws; or, 3 1924 018 800 536 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018800536 A TREATISE ON THE CONFLICT OF LAWS OK PRIVATE INTERNATIOML LAW BY FEANCIS WHARTON, LL. D. Membbb of the Institute op Intebnational Law, Adthob OF Teeatises on Ceiminal Law, on Eyidbnce, ON Neqmgence, and on Agency THIRD EDITION BY GEORGE H. PARMELE Or THE PUBLISHEE'S EDITOBIAL STATT YOL. I. EOCHESTEK, N. Y. The Lawtebs' Co-opeeatiye Fubushino Co. 1905. /O '^TiC Entered according to Act of Congress, in the year 1873, by FRANCIS WHARTON, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1881, by FRANCIS WHARTON, In the Office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year nineteen hundred five, by THE LAWYERS' CO-OPERATIVE PUBLISHING CO., In the Office of the Librarian of Congress, at Washington, D. C. E. R. Andrews Printing Company, Eochester, N. T. PREFACE TO SECOND EDITION. Since the publication of the first edition of this book the litera- ture on the topic has more than doubled. In the United States we have as many rulings bearing on private international law since 1870 as were reported prior to that period. But the re- ports form but a small portion of the material which a student in this department is obliged to consult. His duty is to discover not merely the local law in his own country, but the local law in all other countries; not merely the arguments by which we de- fend our own present conclusions, but the arguments by which the systems of other countries and eras are defended ; not merely the national, but the cosmopolitan, phase of jurisprudence. We must consider, therefore, not only the reports of our own courts and of the courts of England, but the reports of the courts of the leading states of the continent of Europe. But, so far as con- cerns the continent of Europe, this forms but a small part of our task. In Grermany, France, Belgium, and Italy, the jurists mould the courts, not the courts the jurists. The judges do not pretend, as do our judges, to give opinions by which their de- cisions are fitted into a symmetrical system of law, and by which the precedent made to-day subordinates itself to the past, and dominates the future. This work is left to the jurists ; the courts do little more than register the decisions in each particular case. It is by jurists, and not by judges or practising lawyers, that codes are framed ; it is by jurists, and not by judges, that a com- mon law is built up. 'No^M it so happens that on this topic of private international law some of the most eminent jurists of Europe have been in the last few years engaged. We have one journal of marked ability devoted exclusively to the topic, — the Journal du droit international prive, — published in Paris. We have another, — the Kevue de droit international, — published in Ghent, whose object is to discuss international law as a whole. IV PREFACE. The Institute of International Law has for eight years been occu- pied with questions of private international law ; and among the colleagues with whom I have the honor to be associated in this Institute are some of the ablest public men in Europe. To the archives of the Institute have been contributed many valuable papers ; and in addition to these we have had numerous inde- pendent treatises bearing on the topic as a whole. To the United States the points discussed by these writers are of peculiar in- terest. If questions of international litigation are important in Europe, much more are they so with us, who, from the union under our Eederal system of forty sovereignties, have five times as much international boundary as all Europe together. Europe, again, is made up of nationalized territories ; we are made up of territorialized nationalities. Into some of our new states these nationalities have poured in vast streams, forming a preponder- ance of the settlers; in all of our new states the settlers come from states either domestic or foreign, with jurisprudences more or less distinct from that of the state which they unite in occu- pying. It is impossible for us to conduct any widespread busi- ness without taking into account one or more foreign jurispru- dences; and in some of our states there are few marriages in which the international status of one of the parties is not of moment, few successions in which a foreign law of distribution does not have to be considered. Other nations may pretend to regard with apathy the progress of international jurisprudence. We cannot. This progress must carry us along, willing or un- willing. In the long run logic must get the better of techni- cal law; and the courts, no matter how reluctantly, will have to give up precedent to conclusions made requisite by a sound reason acting on the conditions of the pertinent period. Erom a mere local standpoint, this cannot be learned. It can be best learned by studying the works of eminent contemporaneous au- thorities who, from various standpoints, are endeavoring to form a system which will be suited to the immediate conditions on which we are pondering ourselves. And in no country is there so great reason to study such works as there is in the United States. Fortunately, when we engage in this task, the material before us is abundant. From this country we have a new and enlarged PREFACE. V edition of President Woolsey's Introduction to International Law;^ an annotated international code by Mr. D. D. Field, which has gone through two editions;^ a treatise on maritime international law by Admiral Dahlgren;* a treatise on extra- dition by Dr. Spear;* a treatise on American interstate law by Mr. Eorer;^ and four vohimes by Mr. Lawrence, in French, of Commentaries on Wheaton, the third and fourth of which vol- umes are occupied with private international law.* From England we have, by Professor Holland, a treatise on the elements of jurisprudence, in which private international law is conspicuously discussed ; "^ a series of lectures on interna- tional law by Mr. Amos;* a second, and, in part, a third edi- tion of Phillimore's international law, private as well as pub- lic;' a treatise by Mr. Piggott on foreign judgments;^'' an annotated edition, by Dr. Abdy, of Kent's chapters on interna- tional law;'-^ a treatise by Mr. Foote on private international law;^^ a scheme bearing on the whole question by Professor Lorimer;^^ a new edition of Mr. Clarke's treatise on extradition;^* an. annotated edition by Sir Sherston Baker of 1 Introduction to the Study of In- ternational Law. By Theodore D. Woolsey. N. Y. 1879. 2 Draft Outlines of an Interna- tional Code. By David Dudley Field. N. Y. 1872. 2d ed. N. Y. 1876. 3 Maritime International Law. By John A. Dahlgren, late Rear-Ad- mlral U. S. Navy. Boston, 1877. * A Treatise on Extradition. By Samuel S. Spear, D. D. Albany, Weed, Parsons, & Co. 1878. 5 American Interstate Law. By David Rorer. Chicago, Callaghan & Co. 1879. 6 Coramentaire sur les flSments du droit international de Henry Whea- ton. Par William Beach Lawrence, Ancien ministre des :fitats-Unis t Londres; Membre de I'institut de droit international. Vols, i.-iv. Leip- zig, 1880. 7 De I'applieation de la loi. Par M. T. E. Holland, Professeur de droit int. a I'universitg d'Oxford. Revne de droit int. vol. xii. (1880) p. 565. This is substantially a trans- lation of the last chapter of Mr. Holland's work on The Elements of Jurisprudence. Oxford and London, Macmillan, 1880. * Lectures on International Law. By Sheldon Amos. London, Stevens & Sons, 1874. 9 Commentaries upon Internation- al Law. By Sir Robert Phillimore, D. C. L. 2d ed. 1871-1874; 3d ed. (vol. i.) 1880. 1 Foreign Judgments : Their Ef- fect in the English Courts. By Francis Taylor Piggott. London, 1879. 11 Kent's Commentary on Interna- tional Law. Edited by J. T. Abdy, LL. D. 2d ed. London, 1878. 12 A Concise Treatise on Private International Jurisprudence, based on the Decisions in the English Courts. By John Alderson Foote. London, Stevens & Haynes, 1878. 13 ProlSgom&nes d'un systeme rai- sonng du droit international. Par J. Lorimer. Revue de droit int. x. (1878) 339. 14 A Treatise on The Law of Ex- tradition. By Edward Clarke. 2d ed. London, Stevens & Haynes, 1874. VI PREFAOa Halleck's international law ; ^ * a treatise on the law of domicil by Mr. Dicey ; ^ * a work on private international law by Mr. Westlake, which is rather a new treatise than a new edition, and an independent paper on domicil by the same author; and works by Sir E. S. Creasy/* and Mr. Hall/® on international law as a whole. Prom Scotland we have a new edition by Mr. Guthrie of his annotated translation of Savigny/" and a new edition by Mr. Eraser of his work on husband and wife, in which the conflict of laws in this relation is elaborately considered. ^ ' Belgium, besides being the seat of the publication of the Eevue de droit international, has given us, in addition to several less bulky treatises, four volumes of a comprehensive work on private international law by M. Laurent, professor at the Uni- versity of Ghent ^^ In the domain of private international law, France, since the Eranco-German War, has been marked by peculiar fertility, and Germany by comparative barrenness. To M. Demangeat, a master as well as a leader in this line, we owe the institution, in part, of the Journal du droit international prive, as well as several valuable articles appearing in that periodical.^* M. Eenault has published on succession by strangers in France,^* and on political crimes in connection with extradition/® M. 15 Halleck's International Law, a lated with notes by William Guthrie, new edition, with Notes and Cases. 2d edition. Edinburgh, 1880. By Sir Sheraton Baker. 2 vols. 2 1 A Treatise on the Law of Hus- Kegan, Paul, & Co. London, 1878. band and Wife. By Patrick Fraaer, 16 A Treatise on the Law of Dom- LL. D. 2d ed. Edinburgh, 1876. oil in England. By A. O. Dicey. 22 Droit civil international. Par London, 1879. p. Laurent, Professeur a I'universite 17 A Treatise on Private Interna- de Gand, i.-iv. Bruxelles, Paris, tional Law, with principal reference 1880. to its practice in England, being in 23 See, i>articularly, articles en- lieu of a second edition of the work titled: Force obligatoire du droit published m 1858. By John West- int. Par Ch. Demangeat. Jour, du lake, Q. C; Hon. LL. D. Edinburgh; droit int. priv€, i. (1874) 7; De la Member of the Institute of Interna- competence des tribunaux frangais tional Law. London, 1880. dans les contestations entre etran- 18 First Platform of International gers. Par. Ch. Demangeat. Jour. Law. By Sir Edward S. Creasy, du droit int. priv«, iv. ( 1877 ) 109. London, 1876. 24 De la succession des strangers 19 International Law. By W. E. en France. Par L. Renault. Jour. Hall, Barrister at law. Oxford, du droit int. privfi, ii. (1875) 330- Clarendon Press, 1880. iii. (1876) 17. 20 A Treatise on the Conflict of 25 Des crimes politiques en ma- Laws. By F. C. von Savigny. Trans- ti6re d'extradition. Par Louis Re- PREFACE. vii Mallet on maritime hypothecation;** M. Lyon-Oaen on private international maritime law;^^ M. Vazelhes on extradition;*^ M. Eivier on the elements of private international law;** M. Masse on commercial \a.w in the same relation;*"* M. Asser on the systematization of private international law;*^ M. Arntz on the itmnutability of the conjugal regime;*^ M. Thomas on international bankruptcy;*® M. de FoUeville on naturaliza- tion;®* M. Glasson on marriage and divorce. ®® From M. Groirand we have an English treatise on the French Code of Commerce;®* from M. Clunet an. essay on the international trademark relations of the United States;®'^ and from M. Calvo a third edition of his standard work on international law, touch- ing many questions discussed in the following pages. ® * In the French language, though issued from Ghent, are the annual publications of the Institute of International Law.®® From Germany we have a new edition of Dr. Bluntschli's Volkerrecht,*" as well as a contribution by the samtC author to the controversy in the de Banff remont Case;*^ a treatise on in- ternational law by Professor Bulmerincq ; * * a treatise on inter- nault, Professeur de droit interna- B3 £itudes sur le faillite: de la tional a. I'ficole des sciences poli- faillite dans le droit franqais et dans tiques. Paris, 1880. le droit gtranger. Par Lgonce 2 6 L'hypothfeque maritime au point Thomas, Avocat. Paris, Larose, de vue thfiorique et pratique. Par 1880. E. Mallet. Paris, 1877. 34 Traitg de la naturalisation. Par 3 7 Etudes de droit int. privg mari- D. de FoUeville. Paris, 1880. time. Par Lyon-Caen. Jour, du 3 6 Mariage civil et divorce. Par droit int. priv6, iv. (1877) 479. E. Glasson. Paris, 1880. Infra, § 205. 2 8 Stude sur I'extradition. Par 3 6 The French Code of Commerce, Et. de Vazelhes. 2 vols. Paris, with a practical Commentary. By 1877. L. Goirand. London, Stevens & 2 9 Introduction a I'gtude du droit Sons, 1880. int. Par A. Eivier. Paris, 1879. 3 7 De I'gtat aetuel des relations in- 3 Le droit commercial dans sea ternationales avec les £itats-Unis en rapports avec le droit des gens et le mati6re de marques de commerce, droit civil. Par M. G. Mass6, Con- Par M. Edouard Clunet. Paris, 1880. seiller a la Cour de Cassation. 3 8 Droit int. thgorique et pratique. Troisifeme edition, revue et aug- Par Ch. Calvo. 3d ed. Paris, 1880. mentfe. Paris, Guillamin, 1874. 3 9 Annuaire de I'institut de droit 31 Droit international priv6 et international. Gand, 1877-1880. droit uniforme. Par M. T. M. C. 4 Das moderne VSlkerrecht der Asser. Revue de droit int. vol. xii. civilisirten Staten als Rechtsbuch (1880) No. 1, p. 5. dargestellt. Von Dr. J. C. Blunt- 32 Observations sur la question de schli. Nordlingen, 1872. 3 Auf. 1878. I'immutabilitS du regime conjugal en ^^Infra, § 210. cas de changement de domicile des 4 2 Praxis, Tlieorie, und Codifiea- 6poux. Par M. Arntz. Revue de tion des VSlkerrechts. Von A. Bul- droit int. vol. xii. (1880) 323. merincq. Leipzig, 1874. viii PREFACE. national criminal law by Dr. Eohland;*' an article on extradi- tion by Professor von Bar, as well as a paper on criminal juris- diction by the same author;** outlines of international law by Dr. ISTeumann,*^ and Dr. Schuitze;*® a treatise on German maritime law by Dr. Lewis ; * ^ and a scheme of international ar- bitration by Dr. Goldschmidt * ® It is an interesting mark of a revival of German literary interest on this topic that a journal mainly devoted to its discussion has been lately started in Leip- zig.*» Switzerland has given us some valuable contributions. M. Soldan has published on domicil;^" M. Homung on interna- tional offenses J®-' Dr. Teichmann on change of conjugal domi- cil;^^ and M. Brocher, not only on the topic before us in its general bearings, but on several special questions. ^ ^ From Spain we have a work by M. JSTegrin on international maritime law.®* To Italy, as befits the country which has recently taken the lead in inaugurating a new school in this department, we are in- *3 Internationales StrafrecM. Von Dr. Rohland. Leipzig, 1877. i i Interpretations divergentes du traits d'extradition de 1842 entre I'Angleterre et les £;tats-Unis. Par Dr. von Bar. Revue de droit int.ix.5. Ueber die Internationale Anwen- dung des Strafgesetzes. Von Dr. von Bar. 28 Gerichtssaal. 4 6 Grundriss des heutigen europai- schen Volkerrechts. Von Dr. L. Neumann. Wien, 1877. 16 Grundiss zu Vorlesungen iiber Velkerrecht. Von Dr. Sehultze, Heidelberg, 1880. 4 7 Das deutsche Seereeht. Von Dr. William Lewis. 2 vols. Leip- zig, 1878. 4 8 Projet de r6glement pour tribu- naux arbitraux internationaux. Par le Dr. Goldschmidt. 1878. 4 9 Zeitschrift fur vergleiehende Rechtswissenschaft. Von Dr. Franz Bernhardt. Bd. 1, Stuttgart, 1877. 6 De I'influence de la loi d'origine et de la loi du domicile sur I'gtat et la eapacite des personnes en droit international priv6. Par C. Soldan. Lausanne, 1877. 61 Note sur la repression des dglits contre leg droits des gens. Par M. Hornung, Professeur a I'universitg de Genfeve. Revue de droit int. vol. xii. (1880) p. 104. 6 2 Ueber Wandelbarkeit und Un- wandelbarkeit des gesetzlichen ehe- liehen Giiterrechts bei Wohnsitz- wechsel. Von Dr. Albert Teichmann. Basel, 1879. 5 3 £!tude sur les conflits de legis- lation en matifere de droit penal. Par Charles Brocher. Revue de droit int. vii. (1875) 22, 169. :6tudes sur la lettre de change dans ses rapports avee le droit inter- national prive. Par Charles Brocher, Gen6ve. Revue de droit interna- tional, vi. (1874) pp. 5, 196. Nouveau traite de droit interna- tional prive. Par Charles Brocher, Gen6ve. Paris, 1876. This work was partially published in advance in the Revue de droit int.^ vols. iv. v. 64 Tratado elemental de derecho internacional maritimo. Madrid, 1873. PEEFACE. ix debted for a series of important publications. The most strik- ing of these emanate from M. Mancini, no less distinguished as one of the leaders in the struggle for Italian unification and in- dependence than as a jurist.^® We have, in addition, from M. Fiore, treatises on private international law,^® on public inter- national law,®'' and on penal law and extradition.®* Italian private international law has been distinctively treated by M. Esperson,® ® who has also given us a work on international mari- time jurisprudence.^** The Italian system has also been dis- cussed by M. Norsa,®^ and by Professor Fertile,®^ and inter- national bankruptcy by M. Carle. ® * From Russia we have an essay on the municipal relations of international law by Count Kamarowsky,®^ a work on the con- sular system in the East by M. Martens,®® as well as an expo- sition of Russian diplomatic history by the latter author.^® From Egypt we have a paper on the local judicial system by Dr. Dutrieux;*'' from Buenos Ayres a commentary by Dr. 5 5 Droit international public. Par P. S. Mancini. Naples, 1871. With this are to be considered the papers devoted peculiarly to private inter- national law, published by M. Man- cini in the Jour, du droit int. privS, vols. i. ii. 6 6 Droit international priv6 on principes pour r^soudre les conflits entre les legislations diverses, en ma- ti6re de droit civil et commercial. Par P. Fiore, Professeur, etc., tra- duit de ritalien, annotS et suivi d'un appendice de I'auteur, comprenant le dernier 6tat de la legislation, et de la jurisprudence; par P. Pradier- Fodgrg, Professeur a I'gcole des sciences politiques et administrat- ives de Lima, P6rou. Paris, 1875. 67 Trattato di diritto internazion- ale pubblico. Par Pasquale Fiore. 2d ed. Turin, 1879. In this edition ex- tradition and diplomatic extra-ter- ritoriality are copiously discussed. 6 8 Traite de droit pgnal int. et de I'extradition. Par P. Fiore, trad, par Ch. /Vntoine. Paris, 1880. B9 Le droit int. priv6 dans la legis- lation Italienne. Par P. Esperson, Professeur a I'universitg de Pavie. Jour, du droit int. privg (1880) 245. 60 De la juridiction Internationale maritime. Par Pietro Esperson, Pro- fesseur de droit int. a Tumversite de Pavie. 1877. 61 Revue de la jurisprudence Ita- lienne en matigre de droit int. privS. Par Cesar Norsa, Milan. Revue de droit int. ix. (1878) 207. 6 2 Elementi di diritto internazion- ale moderno. By Professor Fertile. Padua, 1877. 6 3 La faillite dans le droit int. privS. By M. Guiseppe Carle, Pro- fesseur extraordinaire de I'universite de Turin, traduit par M. Ernest Du- bois. Paris, 1876. 64 Quelques reflexions sur les re- lations entre le droit international et les differentes branches de la ju- risprudence. Par le Comte Kama- rowsky, Moscou. Revue de droit int. vii. (1875) 5. 6 5 Das Consular- wesen und die Consular-jurisdiction im Orient. Von F. Martens, Professor des Volker- rechts, St. Petersburg. Berlin, 1874. 6 6 Eecueil des traitSs, etc. St. Pe- tersbourg, 1874. 6 7 La question jndiciaire en ifigypte. Par le Dr. Dutrieux en Caire). Revue de droit int. viii. (1876) 573. i PREFACE. Eivadavia/* and a course of lectures by Dr. Alcorta;** from Peru the annotations by Professor Pradier-rodere, already noticed; from Japan an article on the mixed tribunals of the East^o With this mass of recent literature before me, when under- taking the revision of my first edition, and in view of the great accumulation of relevant American adjudications, I felt that I was either to expand the work into two volumes, or remodel it by reducing that portion of it which gave the views of the older . jurists, so as to leave room for the necessary additions. The latter course I have preferred, though it has involved much la- bor, and has led to such a change in the structure of the work as to leave unaltered but little of the former material. In mak- ing this change, my object has been to exhibit private interna- tional law as it now is. At the same time, while giving what I believe to be a just exposition of conclusions reached in other countries, I felt it to be a principal duty to vindicate the dis- tinctively American tenets on this important topic. I have done this copiously, and I have made it the most conspicuous feature of my book. The question that primarily emerges is. What determines personal status? The law of nationality, so answer distinguished leaders of the new school now dominant in Italy, in France, and in Belgium; but, while they say this, they admit as exceptions all cases involving local policy and good morals. The difference between my learned colleagues and myself in this relation is, that their exceptions I regard as the principle; their principle as the exception. National policy, I hold, determines personal capacity ; and in this country national policy prescribes that no home restrictions of capacity shall be regarded as clinging to foreigners when they marry or do busi- ness on our shores. '^^ It is here we encounter what may be called the distinctive jurisprudence of the United States. In 6 8Dereeho internacionaJ. Por Luis 70 L'exterritorialitg et les tri- Pintos y Joaquin Rivadavia. Buenos bunaux mixta dans l'extr6me Orient. Ayres, 1874. Yokohama, Japan, 1875. Jour, du 6 9 Derecho internacional privado. droit int. privg, ii. (1875) 168, 249. Curao de 1878, dictado por el Doctor 71 See infra, §§ 102 et seq. (2d A. Alcorta, 144 pp. Buenos Ayres. ed.) This is an analysis of the lectures of Dr. Alcorta, and not an expanded treatise. PREFACE. xi other respects, we adopt the rules held now, not only in France and Italy, but in Germany and England, that succession is gov- erned as to movables by the lex domicilii; that movables as well as immovables are governed, in transactions inter vivos, by the lex situs; that contracts are governed by the law of the place in which they have their distinctive seat; that each sovereign has internationally jurisdiction to punish, if the offenders are found on his territory, offenses against his essential prerogatives. On these points of agreement, as well as on the question of personal capacity, on which we have the misfortune to disagree with our foreign critics, there are now a vast number of decisions by our American courts. These decisions I have sought to collate and systematize. I have compared the results freely with the con- temporaneous conclusions in England, France, Belgium, Swit- zerland, Germany, and Italy. The law in those countries I have endeavored faithfully to give, since that law comes con- stantly up in issues litigated before our courts. But my main object has been to exhibit the law which, if not actually at this moment prevailing as a system in the United States, is the law to which our adjudications as well as our traditions tend. F. W. Febettaey 12, 1881. PREFACE TO THIRD EDITION. The controlling purpose in the preparation of the present edition of this work has been to present the American and Eng- lish decisions upon specific questions relating to the conflict of laws, or involving the application of principles of private inter- national law, and to formulate from those decisions the concrete principles and rules applicable to such questions, rather than to trace general principles and theories through unrelated subjects. The great number of decisions rendered since the publication of the second edition has made this mode of treatment possible and practicable. At the time of the publication of the first edition, the decisions upon many of the specific questions were so lim- ited in number that the rules to be applied could only be deter- mined by deduction from what were deemed to be the broad underlying principles of private international law, as announced in judicial decisions upon analogous subjects, or formulated upon a priori reasoning by jurists and text writers. This was still measurably true when the second edition was prepared. While the decisions upon specific questions had greatly in- creased at the time of the second edition, there were still many questions as to which the adjudications were indefinite and un- certain. Moreover, many of the specific questions had been treated in only one or more of their aspects, leaving other and equally important aspects for future consideration. Dr. Whar- ton, in the second edition, naturally treated the new decisions with especial reference to their bearing upon the text of the first edition, and as thus treated they frequently fail to present as- pects, distinctions, and specific applications that were not then important, but have since become so in the light of their sub- sequent development by later decisions. The great value of Dr. Wharton's work in developing and formulating the general XIV PREFACE. principles of the subject, and in suggesting and exemplifying their specific application to particular questions, and the pro- found study which he devoted to the views of the foreign jurists, require the preservation of the text and notes of the second edi- tion practically intact; and, with a very few exceptions, this has been done. The original section numbers of the second edi- tion have been preserved. In a few instances where the same number, differentiated by letters, was used for several sections, fractions have been substituted for the letters. The new sec- tions are distinguished by the use of letters following the section numbers, and by wider spacing between the lines both of the text and notes. The new matter added to the old text and notes is also distinguished by wider spacing, except when it is inserted in the body of a paragraph, in which case it is inclosed in brackets. The continuity of the original text, when interrupted by the insertion of new sections, may, if desired, be restored, for the purposes of the user of the present edition, by disre- garding the new sections. In order to exhibit the later decisions in their true relation to the older decisions and to the principles and distinctions which have been developed in the process of evolution which this subject has undergone, the present writer has frequently found it advisable to treat specific questions independently of Dr. Wharton's text, citing all cases obtainable upon the subject, whether cited by him or not A studied effort has been made to refrain from forcing decisions beyond their natural import into a preconceived theory. At the same time it is frequently neces- sary, if decisions from the same jurisdiction are to be harmon- ized, to regard the actual decision upon the facts rather than the', general principle to which the court formally refers it. Much of the confusion among the cases upon the subject of conflict of laws arises from the fact that principles which are always theo- retically, and as applied to some facts practically, antagonistic,^ will, when applied to other facts, produce exactly the same re- sult. In such cases the courts are not always careful to refer the decision to the correct principle ; and in consequence sometimes establish an incorrect precedent for later cases. To illustrates When a contract is made and performable in the same state, and the question is simply whetiier it is governed by the law of that PREFACE. XV state or of another state, e. g., the state of the domicil of one of the parties, it is immaterial, so far as the result in the par- ticular case is concerned, whether the decision in favor of the law of the former state be referred to the principle that the law of the place where the contract is made governs, or to the prin- ciple that the law of the place of performance governs; but when the decision is relied upon as a precedent for a subsequent case which presents a conflict between the law of the place where the contract was made and that of the place where it is perform- able, it is obvious that the distinction between the two principles becomes important. Moreover, the courts, by treating a con- tract or transaction as a whole, without distinguishing between its constituent elements, frequently state as a general principle, applicable to the contract or transaction as a whole, a rule which should properly be limited to a particular element of, or a spe- cific question concerning, the contract or transaction. Speaking generally, the true principle by which the governing law of a particular question is to be determined must be ascertained by a comparison and study of the decisions with reference to the actual facts involved in the case, and not by accepting broad statements in the opinions as to general principles. The term "conflict of laws" is somewhat broader than the scope of this work, which is confined to the subject of private in- ternational law, and embraces only the conflict of laws which arises by virtue of the fact that different elements or factors entering into a question have their situs in different states or countries. It does not, therefore, purport to deal with the con- flict between state and Federal laws which arises, not because of a diversity of the situs of the different elements which enter into the question, but because two systems of law extend side by side over the same jurisdiction. The question whether the state or Federal laws apply to a particular subject is one of consti- tutional law or statutory construction, and does not depend upon the principles of private international law. The present writer desires to acknowledge his great indebted- ness to the other members of the editorial staff of the publishers for constant and valuable assistance rendered in the preparation of this edition. Geoege H. Paemele. EocHESTEE, K Y., Febeuaet, 1905. CONTENTS. TOLUME I. CHAPTER I. PRELIMINARY PRINCIPLES. 1. Private international law part of the common law 2 IJ. Does not depend on comity 5 la. Comity of sovereignty as distinguished from comity of court; relation of sovereignty to principles of private international law 7 2. Nor on convention 13 3. Nor on reciprocity 14 4. Penal laws are not extraterritorial 14 4a. Distinctive policy of forum 15 4b. Penal laws, generally 18 5. Expatriation now internationally conceded.. 21 6. Temporary return to native land does not re- vive allegiance 26 7. Political conditions in Italy, Belgium, and France favoring unification of jurispru- dences at home, and recognition of for- eign personal laws 27 8. Political conditions in the United States fa- voring unity in international relations and particularism in interstate relations 2& 9. Indian tribes constitute a distinct national- ity 40 10. All persons born in a state are citizens when internationally subject to its jurisdiction 43 10a. Effect of 14th Amendment upon citizenship 46 lOJ. Consent necessary to change of nationality 50 11. A married woman partakes of her husband's nationality 51 12. Chinese in the United States not naturalized or domiciled 53 1^. Naturalization implied in annexation 6S "Vol. I. CowFL. of Laws — ii. xvii i CONTENTS. 14. Naturalization affects only political status, and does not touch penal disabilities .... 57 15. Jurisdiction exercised by civilized in imper- fectly civilized states 5' 16. Extraterritoriality of diplomatic residences; asylum "^ 17. Aliens entitled to equal civil rights with citizens 64 18. Objective as well as subjective jurisdiction over crime 71 CHAPTEE II. DOMICIL. I. Definition. 20. Domicil determines personal capacity and li- ability 77 21. Domicil is a residence acquired as a final abode 77 21a. Same; residence and intention to remain not essential to continuance of domicil once acquired 78 21b. Distinction between residence and domicil . . 79 22. By Savigny it is a place voluntarily selected as a center of business 81 23. By Vattel it is a residence adopted with the intention of always staying 82 n. HiSTOElCAL DEVELOPIIENT. a. Roman law. 24. By old Roman law, membership of urban community was by origo or domicilium . . 82 2.5. Under origo was included birth, adoption, manumission, and enfranchisement 83 26. By subsequent laws, citizenship was gener- ally conferred 84 27. Domicilium was the result of choice 84 28. In such case animus manendi must be shown 85 29. Domicils might be plural, and there might be persons without domicil 85 b. Modern law. 30. The Roma,n origo no longer exists 86 31. Domicil no longer Involves subjection to an urban community 87 32. Domicil determines applicatory territorial jurisprudence 87 33. Impracticability of other tests of personal law 88 34. Nationality cannot be taken as a substitute 89 CONTENTS. nx III. Pabticuiar relations. a. Domidl of birth. 35. liegitimate children have same domicil with father 90 36. And so as to nationality 91 37. Illegitimate children take the mother's domi- cil 91 38. Legitimated children take the father's domi- cil 92 39. Foundlings are domiciled in place where found 93 40. Nationality distinguishable from domicil ... 93 b. Of infants. 41. Infant's domicil changes with that of father, and cannot be changed by mother, after father's death, unless reasonably and in good faith 94 41a. Domicil of child when father and mother have separated or been divorced 98 42. Guardian cannot change ward's domicil ex- cept by leave of court 99 42a. Domicil of child after death of parents; power of guardian to change 99 c. Of wife. 43. Wife's domicil is that of her husband 102 44. Compulsory domicil of husband does not ex- tend to wife 103 45. Wife's domicil changes with her husband's.. 104 46. Separations effected by law sever domicil.. 104 46a. Same; continuance of unity of marriage re- lation as criterion 105 d. Of servants. 47. Servant's domicil depends upon permanence of service 107 e. Of students. 48. Student's domicil is his home 108 f. Of Corporations. 48i. Corporation's domicil is its center of busi- ness in the place of its creation : 108 g. Of amiassadors and consuls. 49. Domicil of diplomatic officers is their home country 110 h. Of public officers. 50. Soldier's domicil is his home Ill 51. Removal to place of permanent office may constitute domicil 112 CONTENTS. L Of lunatics. 52. Lunatic's domicil to be fixed by court H* 53. Father may change domicil of insane child.. 115 53a. When person becomes insane after attaining majority 1 IS j. Of prisoners und exiles. 54. Imprisonment and exile do not involve chajige of domicil 115 54a. Same 117 IV. Change or domicil. 55. Old domicil presumed to continue until new is assumed . . . . ^ 118 55a. Continuance of old domicil until new one ac- quired; presumption of continuance .... 119 55J. Burden on party asserting residence is not domicil 121 56. Change must be in intention and fact 122 56a. Prima facie and subordinate character of rules based upon special conditions or mo- tives 125 57. Permanent residence and settled business du- ties may constitute change 127 58. A new domicil may be immediately acquired 128 59. Original domicil does not revive on abandon- ment of elective 130 60. Such revival inconsistent with American policy 132 61. Intention to be inductively proved 132 61a. Question of law or fact 134 61J. Recitals in documents admissible 134 62. Declarations admissible to prove intent . . . 135 63. Exercise of political rights at a particular place not conclusive proof of domicil ... 137 64. Naturalization in another country strong proof of domicil in such country 139 65. Payment of personal taxes is cumulative proof 139 66. Domicil not dependent upon time 140 V. Conflict oj? besidbncbs. 67. Home preferred to place of business 141 68. Otherwise as to men without families 143 69. Permanent preferred to occasional residence 144 69J. And so to place for restoration of health . . . 146 70. Commercial domicil may be obtained in for- eign civilized land 149 71. Otherwise as to barbarous lands 150 72. Only one domicil for status and succession 152 CONTENTS. xxi 73. Otherwise as to matters political, commer- cial, and matrimonial 153 74. One domieil only for poll and succession taxes 155 VI. POUTICAL CONSEQUENCES. 75. Domieil does not include political rights... 155 76. Asylum as well as residence required 156 77. Distinctive French rule 156 77i. Domieil not internationally affected by local statutes 157 VII. Want of bomicil. 78. When other conditions fail, residence may be the test 158 VIII. Taxation. 79. Taxation by Roman law generally through municipalities 159 80. Personal taxes governed by personal law; real taxes by lex rei sites 160 80a. Limitation of taxing power as affected by situs of property, generally 163 80b. Property in transit 167 80c. Situs of debts and credits; "business situs" 171 80d. When legal title vested in trustee 178 80e. Corporate shares 180 80i. Succession taxes governed by the lex domi- cilii 182 80f. Principle governing exaction of succession taxes, generally 183 80g. Same; as to real property 201 IX. JUBISDICTION (FORUM) ATTACHED TO DOMICIL. 81. Defendant's domieil in Roman law may fix forum 203 82. So, in modern Roman law 204 CHAPTEE III. PERSONAL CAPACITY. I. Gbneeal peinciples as to peksons. 84. Ubiquity of personal status much contro- verted 207 85. Old solution based on distinguishing person- al from real statutes; personal statutes being ubiquitous, real being local 208 86. Distinction is by itself insufficient 209 87. Nationality not the necessary criterion .... 210 88. Ubiquity of status not required by increase of travel 211 i CONTENTS. 89. In some states domicil is convertible with nationality 212 90. Ubiquity is by old jurists the attribute of personal law 213 91. Their difference as to what personal capacity consists in 213 92. Domicil the statutory test in German states 214 93. French Code ambiguous; rule in Holland, Belgium, and Baden 215 94. By Savigny domiciliary capacity for rights and business is ubiquitous unless incon- sistent with civilization 216 95. Story advocates domiciliary status unless in- consistent with domestic policy 216 96. Westlake excludes foreign status in cases having an English seat 217 97. Phillimore inclines to a larger recognition 218 98. Bar's distinction between capacity for rights and that for business 218 99. By Bluntschli and Sehmid ubiquity is re- fused to artificial incapacities 220 100. By Ware, restrictions of freedom held not extraterritorial 220 101. Better solution is that statutes artificially restricting capacity are not ubiquitous.. 221 102. This distinction recognized by older jurists 222 103. This view conducive to fair dealing 228 104. And also to equalization of civil rights . . . 228 104J. French and Italian reservations of "public order and good morals" lead to same con- clusions 229 104§. In matters of national policy distinctive lo- cal law maintained 231 II. COBPOBATIOIfS. 105. Corporation has no necessary extraterrito- rial status 234 105i. But in ordinary business is protected 236 105a. Capacity of corporation 238 105f. Liability of stockholders to creditors of for- eign corporation determined by law of corporate site 244 105b. Enforcement of liability of stockholder or officer outside the state of incorporation 245 105§. When property is left to foreign corporation, the judex situs will not undertake to di- rect the trust 250 105J. Subject to local municipal law 251 CONTENTS xxiii, m. Pabticiilab belations. a. Slavery and serfdom. 106. Slavery not extraterritorially recognized. . . 251 b. ' Civil death. 107. Ndr civil death, nor disabilities attached to ecclesiastics 252 107 J. Nor judicial declaration of death 253 c. Attainder arid infamy: 108. Nor attainder and infamy 253 d. Distinctions of areed or caste. 109. Nor distinctions of creed or caste 255 e. Incapacity as to negotiable paper. 110. Artificial limitations on negotiable paper do not follow the person 255 111. Lex fori may in such cases prevail, but not to enforce foreign restriction 256 f. Infancy. 112. Guardianship of infants determined prima- rily by their personal law 257 113. The term of minority is a matter of distinct- ive national policy 258 114. Foreign statutes not permitted to override such policy 260 115. Injustice worked by importation of foreign artificial incapacity 263 115a. Capacity of infant to contract 264 116. Foreign parents or guardians not permitted to exercise powers not granted to home parent or guardian 367 117. Foreign guardian not permitted to act except when authorized by home court 269 g. Marriage. 118. Married woman incompetent to contract by her personal law may make a valid con- tract in a state imposing no such disabil- ity 269 118a. Choice between lex domicilii and lex loci contractus as test of married woman's ca- pacity to malce personal contracts 271 118b. Remedy for enforcement of married woman's contract governed by lex fori 279 118c. Choice between lem loci contractus and lex situs as test of married woman's capacity to contract with reference to property. . . 281 119. Conclusion of § 118 denied by advocates of ubiquity of personal law 289 xxlT CONTENTS. 120. Personal marital power not ubiquitous 29* 121. (Omitted.) 291 h. Lunatics and spendthrifts. 122. Lunacy and spendthrift decrees not extra- territorially binding 291 i. Civil rights. 123. Civil rights generally conceded to foreign- ers 294 j. Legitimacy. 124. Status of 294 k. Foreign sovereigns. 124*. Foreign sovereigns exempt from suit 294 rv. Acts done in exercise of personal capacity. 125. Acts done in country of personal law valid everywhere 29& CHAPTER IV. MARRIAGE. I. Generaj. principles. 126. Marriage is not a mere contraetj but an in- stitution 302' 127. By the distinctive policy of the United States marriages are encouraged, and ex- traterritorial artificial limitations of such marriages are disregarded 304 128. Union must be for life 306 128a. Same 306- 129. Must be exclusive 308 130. Indian polygamous marriages invalid SOS 131. And so of Mormon marriages 309 131a. Same 310 IL IjfCAPACITIES. 132. Party already married incompetent to marry again 311 133. Supposed but not actual death of a, party does not dissolve a marriage 312' 134. In some states legitimacy assigned to chil- dren of second bona fide marriage in such case 313 135. Party divorced may marry again, but doubts as to restricted divorce 314 135a. Same; extraterritorial effect of statute for- bidding remarriage 318 13^ By policy of canon law impediments from consanguinity were widely extended 321 CONTENTS. XXV 137. In this country national poli^ limits re- strictions to those of ascent and descent, and laterally in first degree sas 138. By policy of canon law restrictions based on affinity were multiplied 323' 139. In England statute prohibiting marriage of a man with sister-in-law a rule of local policy 334- 140. In the United States such statute would not be regarded as following British subjects to this country 325' 141. By judex domicilii, however, such restric- tions may be enforced, though the mar- riage be in another state where it is valid 325' 141a. Incestuous marriages 326 142. Incapacity of lunacy determinable by place of residence 329' 143. Marriages by force everywhere voidable.... 329 144. But may be validated by subsequent consent 330' 145. Error may invalidate 330 146. So, as to fraud 331 147. Minority a question of state policy exclud- ing foreign laws 332' 147a. Same; validity of marriage as affected by age of parties 333 148. Impotency a cause of nullity determinable by judex domicilii 334 149. But mere barrenness does not annul 334 150. Laws requiring consent of parents or of state, matters of national policy 335 150a. Same; consent of parents 336- 151. By cajion law, marriages without such con- sent valid 337 152. In France, restrictions of this class follow subjects wherever they go 337 153. In England, marriage of subjects abroad valid, though without statutory requi- sites 33» 154. Prohibitions on marriage of ecclesiastics not of extraterritorial force 341 155. So, as to vows 342 156. So, as to prohibition of marriages with Jews or infidels 342 157. So, of marriages between Protestants and Roman Catholics 343 158. So, of marriages locally prohibited on ac- count of inequality of raak 343 71 CONTENTS. 159. So, of marriages locally prohibited on ground of distinction of race 3"** 159a. Same 346 III. Theories as to matrimoniai, capacity. 160. Generally 349 161. Theory that the law of the place of solemni- zation decides 349 162. Objections to this view 349 163. Theory of lex domicilii 350 164. Objections 352 165. Theory that marriage capacity is to be de- termined by national policy 354 165a. General international test of matrimonial capacity 355 1 65b. Distinctive national policy 358 165C. Invoking distinctive policy to validate mar- riage invalid by lex lod 362 IV. How FAE THE PERSONAL RIGHTS OF PARTIES ARE AFFECTED BY CHANGE OF RESIDENCE AFTER MARRIAGE. 166. Marital control regulated by place of resi- dence 364 167. So, as to wife's personal rights 365 168. So, as to duty of parent to child 366 V. Mode of celebration. 169. Prevalent opinion is that the law of the place of celebration rules forms 366 169a. Same 367 170. Modifications suggested to this view 369 171. By canon law, consensual marriages are valid 369 172. So, by common law of England and the con- tinent of Europe 372 173. So, in the United States 374 174. Limitations of Council of Trent not binding even in Roman Catholic states when not published 376 175. State limitations not obligatory on foreign- ers when impracticable 380 176. Nor when violating conscience 383 177. Nor when in barbarous or semi-civilized states 385 178. Nor when not imposed on foreigners 385 179. Exception as to ambassadors' and consuls' houses 386 180. When prescribed forms are obligatory oa subjects abroad 393 180a. Marriage celebrated on high seas 393 CONTENTS. xxvii 181. When foreign law is sought in fraud of home law 394 182-. Difficulties attending test of fraud 395 VI. Local LAWS or foreign states. 183. Local prescriptions of England 395 184. Local prescriptions of France 396 185. Local prescriptions of Germany and Austria 398 186. Local prescriptions of Italy 400 VII. Conflicts as to matrimonial peopeett. 187. English common law conflicts in this re- spect with recent statutes 400 188. Law of community conflicting with English common law 400 189. Exemption statutes of residence conflicting with law of domicil 401 190. Site of matrimonial domicil is intended per- manent residence 402 191. Law of that domicil controls movables 404 192. Law of place of marriage not decisive 407 192a. Lex domicilii generally prevails over lex rei sites as to personal property 409 193. In succession, last domicil determines 415 193a. Distinction with respect to inchoate and vested rights 415 194. When domicil is changed, high authorities hold that first domicil controls 417 195. Intention of parties supposed to point to this result 418 195a. Effect upon personal property subsequently acquired of wife's refusal to accept new domicil 419 196. Acquisitions subsequent to change governed by new domicil 421 197. But vested rights are not thereby devested. . 423 198. Nationality not an adequate test 425 VIII. Conflicts as to mareiage settlements. 199. Marriage settlements governed by law of matrimonial domicil 426 199a. When future acquisitions after change of domicil not within the scope of the con- tract 429 199b. Law governing validity and construction of contract as to property within its scope. . 431 200. Limitations under which foreign law can be applied 434 201. Limitations will not be enforced when con- trary to the policy of the law 434 riii CONTENTS. IX. Gifts between btjsband and wife. 202. By Roman law, gifts between husband and wife invalid 435 203. So, by English common law 436 X. DiVOBCE. a. Foreign divorces to he viewed with disfavor. 204. Marriage to be for life 43ft 205. Power of divorce an attribute of sovereignty 436 206. Foreign divorces should be closely scrutinized on account of looseness of procedure .... 437 207. And also from the fact that marriage is governed by distinctive national policy . . . 439' 208. Domiciliary jxirisdietion and regular pro- cedure essential 440 b. How foreign divorces are regarded on the Continent of Europe. 209. Domicil alone or bona fide nationality essen- tial to jurisdiction 441 210. Place of misconduct does not give jurisdiction 443 211. Nor does the place of the celebration of the marriage 445 212. Wife may retain matrimonial domicil for di- vorce purposes 445 213. Nullity procedure governed by same rules.. 445 214. Eight to remarry determined by law of domicil 446 c. How foreign divorces are regarded in Scotland. 215. Jurisdiction based on local policy 447 d. Sow foreign divorces are regarded in England. 216. Until 1858 no judicial divorces 448 217. At one time held that no foreign state could dissolve an English marriage 448 218. This view no longer held 450 218a. Abandonment of doctfine of indissolubility of English marriage 453 219. Petitioner's mere residence in divorcing state not enough 454 220. Nor is mere residence of defendant 455 221. Husband's domicil the test 458- 222. Tendency to allow wife independent domicil 459 e. How foreign d/ivorces are regarded in the United States. 223. Domicil, not residence or nationality, the test of jurisdiction 463 223a. When local statute substitutes residence for domicil 466 224. Wife may acquire independent domicil 46T CONTENTS. xiU 225. And so may wife after judicial separation. . 469 226. Wife cannot acquire new domicil on volun- tary separation 471 227. If wife wrongfully separates from her hus- band, she may be sued in his domicil 471 227a. Separate domicil of wife for purposes of di- vorce jurisdiction 472 228. Domicil of petitioner must be real 475 229. In Massachusetts, by statute a foreign di- vorce granted in fraud of home law is in- valid 476 230. Record must aver necessary facts, and these facts may be collaterally disputed 477 230a. Impeachment of decree of sister state upon jurisdictional facts 478 231. Domicil at time of offense immaterial 481 231a. Same; modification by local statute 485 232. Place of offense immaterial 485 232a. Same ; modification by local statute 486 233. Place of marriage solemnization immaterial 487 233a. Local statute may base jurisdiction upon local celebration 488 233b. Leos fori governs as to cause of divorce 488 234. Fraud vitiates 489 235. Procedure must be internationally regular. . 490 236. Extraterritorial service not usually adequate 490 237. Summons by publication will not be regarded as internationally conferring jurisdiction when in fraud of defendant's rights • 492 237a. Sufficiency of constructive or substituted service, generally 497 237b. Distinction based upon residence or nonresi- dence of defendant 497 237c. When defendant a nonresident — ^validity of decree and its effect on the status in state where rendered 498 237d. — necessity of conceding validity of decree in state where rendered 499 237e. — mode of constructive or substituted service 507 237f. — theories as to character and extraterri- torial effect of decree 508 237g. — right of spouse who obtained decree to deny its extraterritorial eflfeet 518 237h. — effect of subsequent marriage celebrated in state where decree rendered o'Zf) 238. Service within jurisdiction sufficient, though defendant is nondomiciled ; and so, of ap- pearance 53] : CONTENTS. 239. In Pennsylvania the forum is the matri- monial domicil 582 239^. Judgment may dissolve marriage, yet not af- fect property 522 239a. Award of alimony upon constructive or sub- stituted service 52.? 239b. Effect of divorce in one state upon right of action for alimony in another 524 239c. Enforcing award of alimony in another state 525 239d. Effect of divorce granted in one state upon dower rights in property in another 527 239e. Effect upon other property rights 529 239f. Extraterritorial effect of provision awarding custody of children 530 239g. Commencement of suit in one state while suit pending in another 532 CHAPTEE V. PARENTAL RELATIONS. L Legitimation. a. By subsequent marriage. 240. Conflict of laws as to such marriage legitima- tion 535 241. In England 536 242. In respect to real estate, territorial policy prevails 539 243. Legitimation as affecting succession 540 244. Otherwise as to legacy and succession duty. . 541 245. Nationality cannot be thus imparted 541 246. In France and cognate states, father's per- sonal law at time of marriage prevails. . . 541 247. Conflict of German views 543 248. Form determined by rule, locus regit actum 545 b. Legitimation by sovereign decree (rescriptum prin- cipis ) . 249. Legitimation by personal law valid in Europe 545 250. By English common law such legitimations have no extraterritorial force 546 250a. Legitimacy, generally 547 II. Adoption. 251. Adoption governed by the law of domicil of parties 562 251a. Adoption, generally 565 252. Adoption by Indian tribes 570 CONTENTS. III. . Paternal power. a. As to person. 253. Paternal power over person regulated ly place of residence 571 254. Father's right to custody governed by local law 572 b. As to property. 255. Father's right to child's movables dependent on law of domicil 573 256. Qualifications to this rule 574 c. Alimentation or maintenance of illegitimate children. 257. Aliment of illegitimate children a matter of police 574 257a. Same '. . 575 CHAPTEE VI. GUARDIANSHIP. I. How TO BE CONSTITUTED. 259. Country of ward's personal law has primary jurisdiction 579 260. In England and the United States foreign guardim must have sanction of local courts 580 260a. Jurisdiction to appoint guardian 582 260b. Right of foreign guardian to sue 584 II. How TO BE ADMINISTERED. a. As to person. 261. Foreign guardian at one time refused all authority 585 262. Tendency now to recognize such authority, prima facie, but, if disputed, to require local sanction 585 263. Question one of local policy 586 263a. Same 588 264. Not permitted in case of artificial minority 590 b. As to property. 265. Foreign guardian cannot seize ward's effects without local authority 590 265a. Statutory recognition of foreign guardian . . 592 266. Ancillary guardian to account to his own court 593 266a. Accounting; law determining guardian's duties 594 267. Foreign law as to sale of assets not ubi- quitojis 595 268. By English common law lex rei sites controls 595 xii CONTENTS. III. Peculiarities m cases of lunatics and spendtheifts. 269. Foreign guardian of lunatic may act with local sanction "" ' 269a. Committee or guardian of lunatic 599 270. Decrees as to spendthrifts not extraterri- torially binding 599 CHAPTEE VII. LAW OF THINGS. I. When things become the subject of propebty. 272. Lex situs decides whether a thing is property 606 II. Immovables. a,. Governed by the lex rei sites. 273. Under Roman law immovables governed by lex situs 607 274. So, by English common law as to real estate 607 275. Bankrupt, insolvent, and lunatic assignments do not operate on foreign immovables .... 608 275|. Prescription governed by lex situs 609 275^. So, as to establishing of liens 609 275f . So, of money representing land 609 275^. So, as to succession 609 275f • So, as to alienage 609 275J^. Local laws as to registry must be complied witn 609 276. Exception where all parties to collateral con- tract are bound by another law 610 276J. Claim.i not affecting title governed by per- sonal law 611 276a. Limits of operation of the principle of lex situs; distinction based upon nature of question 611 276b. Questions directly and distinctively affecting title to, or interest in, real property 616 276e. Questions indirectly and incidentally affect- ing real property 621 276d. Questions affecting merely personal rights and obligations 625 276e. Matters pertaining to remedy; lex fori; penal laws 634 b. Reasons for rule. 277. Generally 636 278. Tenure of land to be determined by national policy 636 279. And so, as to questions of mortmain and of monopoly 637 CONTENTS. xxxiii 280. And so, as to the question of alien settle- ments 637 281. Encumbrances adjudicated by lex rei sites.. 638 282. Lew rei sites must, from nature of things, de- cide 638 283. No other arbiter practicable 638 284. Merchantable value depends on assertion of rule 639 285. It alone can give title 640 c. What "immovables" include. 286. They include all interest in land 640 287. Distinguishable in this respect from real estate 640 d. Indirect extraterritorial jurisdiction asserted over immovables. 288. C3ianeeIlor may compel party to do equity as to foreign immovables 641 289. Sale by administrator, trustee, or committee of lunatic, of foreign real estate inopera- tive 646 289a. Scope and extent of jurisdiction of equity over suits aflfecting land beyond territorial jurisdiction 647 290. Exception as to injury to land in another state 659 290a. Actions arising out of contract or tort aflfect- ing real property in another jurisdiction 660 e. Liens on immovables. 291. Liens determinable by lex sitiis 669 292. But law of contract may determine as to mere contract 670 292^. When lien covers indivisible estate in two states 671 f. lAmitations on alienation. 293. Limitations on alienation governed by lex rei sitcB 672 g. Immovables as affected hy operation of law. 294. Realty passing by descent or marriage gov- erned by same law 672 h. Forms of conveyance. 295. And so, of forms of conveyance 672 i. Capacity to acquire and convey; and herein of aliens age. 29€. Capacity to acquire so limited; alienage so determined 673 Vol,. I. CoNix. OF Laws — iii. xiv CONTENTS. IIL Movables. a. Governed by lex situs, 297. Inapplicability of old law that movables are governed by lex domicilii ">* 298. Modern authority tends to lex rei sitce 675 299. This a necessary tendency 675 300. Savigny holds there is no difference between movables and immovables 675 301. He concedes that goods in transit cannot be governed by the lex situs 676 302. On the other hand, he holds fixtures and heirlooms to be immovables 676 303. He maintains that wherever there is loca- tion, there the law of the location deter- mines 676 b. Reasons for rule. 304. Generally 677 305. The policy of sovereignty requires the appli- cation of this rule 677 306. Purchase involves submission to local laws 677 307. Situs the necessary arbiter 677 308. To invoke the lex domicilii is a petitio prin- cipii 678 309. Maintenance of values depends on ubiquity of rule 679 310. Title in rem only acquired in situs 679 311. Conclusion is that movables not in transit are governed by lex rei sitw, except for succession and matrimonial estate 680 311a. Lex situs as opposed to lex loci contractus and lex domicilii, generally 68 1 311b. Different aspects of contracts relating to personal property ; personal aspect 685 311e. Contract as an instrument creating a right or interest in property 690 311d. Distinction between executory and executed contracts of sale 692 311e. Contract as affected by fraud 696 312. In Roman law real rights governed by lex situs 699 c. Liens determined hy situs. 313. And so, as to bailments 699 314. So, as to pledges and pawns 701 315. Prussian Code disallows secret pledges 702 316. In Roman law hypothecation determined by lex situs 703 CONTENTS. XXXV 317. In our law the situs determines lien for pur- chase money, and also fact of chattel mortgage 703 317a. Lien for purchase money 704 317b. Chattel mortgages 706 318. When lien is extinguished by transfer to an- other place 715 318a. Same ; statutory lien 717 319. Conflict as to whether liens can be estab- lished by transfer to another place 718 320. Conflict in this respect among foreign jurists 710 321. As to mechanic's liens, lex situs controls. . . . 720 321a. Mechanics' liens 720 322. Liens of materialmen on ships continue un- less excluded by law of port 724 322^. State can create liens for labor and port dues 725 333. Mortgage on ship postponed to port liens. . . 726 334. Lex situs generally controls 727 325. Patent rights not extraterritorial 728 326. Conflicting rules as to trademarks 729 327. United States treaties and statutes 730 328. Copyrights not extraterritorial 731 d. Capacity of persons to acquire and dispose of mov- ables. 329. Capacity depends on place of transaction . . . 732 330. Distinction between capacity to hold and capacity to act unfounded 733 331. Foreign incapacities inapplicable to this country 733 332. Restrictions on natural capacity not extra- territorial 734 333. Alienage determined by lex situs 734 e. Acquiring and passing title. 334. By Roman law lex situs prevails as to title . . 734 335. So, in Louisiana 735 335a. Necessity of delivery 735 336. Rule question by Story 737 337. Sustained by Savigny 737 338. And by Guthrie 737 339. And by Bar and Wachter 738 340. And by Foelix and Fiore 738 341. And by Westlake and Woolsey 73!) 342. And by Phillimore 739 343. Early English and American dicta indefinite, and based on misapprehension of terms . . 739 344. Analogy from succession inapplicable 740 345. In England the lex situs now alone deter- ndnes titl« 741 CONTENTS. 346. So, in the United States 743 347. Maine, New Hampshire, and Vermont 744 348. Massachusetts 745 349. Connecticut 746 350. Pennsylvania 747 351. Kentucky and Alabama 747 352. Louisiana 747 353. General rule is that an extraterritorial as- signment passes no property in movables unless in conformity to lex situs 747 353J. Foreign voluntary assignments with prefer- ences may be inoperative by local policy . . 749 353a. Extraterritorial eflfect of voluntary assign- ments for creditors; distinction between voluntary and involuntary assignments. . 749 353b. Discrimination between residents and non- residents, generally 751 353c. When foreign assignment not opposed to lex rei sitcE et fori 753 353d. As between law of place where assignor domiciled and that of place where assign- ment made 757 353e. Assignment by corporation 758 353f. As between leso loci of assignment and lex situs of personal property, generally .... 759 353g. Same; formal requisites; taking possession; notice; recording; assent of creditors. . . . 762 353h. As between lex loci of assignment and lex situs of real property 766 353i. Preferences and exemptions as affecting real or personal property 773 353 j. Right of assignee to avoid fraudulent trans- fers and conveyances; effect of assign- ment on previous attachment 777 354. Distinctive rule as to goods in transit 778 355. Stoppage in transitu governed by lex domi- oiUi 778 355a. Questions arising under contracts of sale, affecting title to, or interest in, the prop- erty, generally 779 355b. Conditional sales 779 355e. As to rescission of sale for fraud 783 Ships at sea. 356. Ship part of territory of flag 784 357. In the United States, ship belongs to state of registry 785 358. Ship in port subject to port law 786 358^. Exemption of foreign public vessela 789 CONTENTS. xsxvii g. Debts. 359. Theories as to seat of debts 791 360. Lex lod contractus 791 361. Debtor's domicil 792 362. Place of payment 792 363. Prevailing theory is that law of creditor's domicil determines 792 363a. Situs of debts, and choses in action, gen- erally 793 363b. Assignment of debt or chose in action, gen- erally 794 363o. Assignment of shares of corporate stock .... 796 364-367. These sections are omitted, as the subject- matter is fully covered by the new sec- tions 797 368. Situs of debt is not changed by the fact that it is secured by a, mortgage in another state 797 368a. Place where debt or chose in action may be subjected to attachment or garnishment. . 798 h. Situs of tangible property for purpose of proceeding in rem. 368b. Actual situs prevails 813 i. Where litigating parties are domiciled in the state of the assignment. 369. A court of the situs may hold that an at- taching creditor cannot contest an assign- ment good in his own domicil 815 370. But a, judgment between such parties does not affect third parties 816 371. Such common domicil of foreign litigants cannot override positive prescriptions as to registry by lex situs 817 j. Form of assignment. 372. Form of assignment of immovables must fol- low lex situs 818 373. And so, as to movables whose assignment is regulated by local law 818 374. Local law prevails as to local forms 819 375. On this principle conflicting rulings can be explained 819 376. Assignments on corporation books regulated by local law 820 377. Party to imperfect assignment may be liable for damages 820 IV. Peescription and limitation-. 378. Prescription and limitation governed by the lex situs as to immovables 821 xxxviii CONTENTS. 379. Such prescription by Roman law must be adverse and definite 821 380. Usucaption merged in prescription ^22 381. Even as to movables lex situs must deter- mine 822 382. Prescription cannot be extended by removal of goods after title vests 823 V. Confiscation and escheat. 383. Lex situs determines 823 384. Rule applies to custom-house seizures 823 VI. By WHAT LAW PEOCESSES IN BEM ARE TO BE GOVERNED. 385. Lex fori determines process 824 VII. Bankrupt assignment. 386. Generally 824 a. On the Continent of Europe. 387. Conflict as to nature of bankruptcy 824 388. Conflict as to its extraterritorial effect 825 b. England. 389. Foreign bankrupt assignment does not convey immovables; doubt as to movables 826 c. United States 390. Foreign bankrupt assignment not extra- territorial 828 390J. So, as to state insolvent assignments 831 390a. Same 832 390|. Foreign receivers of insolvents subject to same rule 835 390b. Rights and powers of receiver outside of ju- risdiction of appointment 836 TOLUME II. CHAPTER VIII. OBLIGATIONS AND CONTRACTS. I. Introductory remarks. 393. Complexity of obligations involves com- plexity of jurisdictions 858 394. Seat of obligation varies with relation of obligor to obligee 858 395. Contracts resolvable into obligations 859 (CONTENTS. xxxix 396. Roman law determining forum may indicate local law 860 397. Parties may determine law by constructive consent 860 II. When law of place of performance binds. 398. Place of making a contract is casual, and not necessarily conditioning it 860 399. Otherwise as to place of performance 861 400. Older Eoman authorities inconclusive; later adopt place of performance 861 401. Form determined by place of solemnization; meaning of words by place of agreement; process by place of suit; performance by place of performance 862 402. Mode of payment determined by place of payment 866 403. Illustrations of rule 866 404. Difficulties when place of performance is undetermined 867 405. When principal leaves his business in the hands of a general local agent, then the agent's act is to be imputed to the prin- cipal 867 406. Otherwise as to traveling agent 869 407. Place of final indebtedness determines on litigated accounts 870 408. Conflict whether principal's death revokes power of attorney 871 408a. Creation of agency; contracts or acts of agent 871 409. Insulated acts determined by their particu- lar law 877 410. Obligation assumed at domieil to be per- formed there, unless otherwise provided. . 877 411. Dating at particular place not conclusive; though otherwise when a place of per- formance, other than the place of con- tract, appears in the contract 878 412. Place of business may prevail over domieil. . 879 413. Public officer's debts governed by law of place of contract 879 414. Watering-place debts governed by law of place of contract 880 415. Rule not dependent on time of residence. . . . 880 415a. What to be regarded as place of per- formance 880 CONTENTS. 41S. By Savigny, place of delivery of goods is place of performance 88S 417. So, in our own law 883 HI. When law of place of contbact binds. 418. Place of contract determines interpretation, and generally mode of solemnization 884 418^. Place of ratification is place of contract. . . . 884 419. Place of registry may be place of contract. . . 885 420. So, of place of attestation 885 421. Place of acceptance of proposition is place of contract 886- 422. Inference of place from time 88T 422a. Place where the contract deemed to have been made 888 423. Each obligor may be bound by his special law 890- 424. A unilateral obligation as to a business is governed by the place of business 890' 425. Under Roman law place of acceptance con- trols obligations of heir 891 426. Savigny's tests of local law 891 427. Law in this respect to be uniform 892 427a. Apparent conflict in statements of princi- ples and rules 892; 427b. Contract to be considered with reference to different elements; rules stated in the Scudder Case 897 427e. First two rules of Scudder Case not mu- tually exclusive 897 427d. Intention of the parties, generally 898; 427e. Respective limits of fixed rules and intention of the parties as criteria of governing law 899 427f. Distinction based upon situs of element 901 427g. Consideration 903 427h. Capacity to contract, generally 904 427i. Coverture 907 427j. Infancy 911 427k. Formal validity 912: 4271. Essential validity of contracts 913- 427m. Validity of contract as affected by Sunday laws 916. 427n. Intention of the parties as the criterion of the governing law 918. 427o. Same; how intention ascertained; function of formulated rules 920 427p. Same; law of place of performance as ap- plied to obligation of contract 925- CONTENTS. xh 427q. Measure of damages 928 427r. Character and extent of liability of coparties 930- 427s. Contracts of guaranty and suretyship 934 IV. When there is a positive, absolute law of the jubisdiction WITHIN WHICH THE SUIT IS BROUGHT. 428. Distinctive law of forum to be supreme 937 428a. Principles of comity as applied to con- tracts 93S V. When there are conflicting laws more oe less favorable la THE contract. 429. Law favoring contract to be preferred 944 429a. Same 94& 430. Proper law applied as a matter of right .... 947 Va. General principles of common or commercial law. 430a. Conflicting interpretations of common law. . 947 VI. Particular cases. a. Obscurities and ambiguities. 431. Patent ambiguities to be construed against obligor 951 432. Rules of evidence determined by lex fori. . . . 952 433. Latent ambiguities may be explained by proof of local facts 952 434. Whether local meaning was adopted is a question of intent 953; 435. Usage of place of first employment deter- mines 954 436. So, of place from which term emanates 955 437. Where place of performance is in view, that place determines 955 438. French law is to this effect 956- 439. Kstinotion applicable to sureties on foreign bond 956. 439a. Interpretation of contracts 957 b. Maritime cases. 440. Master's power to bind owner enlarged in foreign port 95^ 441. Master's authority to bind ovpner depends on law of flag 959- 442. Distinctive French rule 961 443. Leas Bhodia de jactu the common rule 961 444. Insurance does not ordinarily cover general average 961 445. Place of destination supplies the rule of adjustment 962 446. Foreign adjustment determines 963 C. Commercial paper. 447. Limitations of capacity not ubiquitous 96S xlU CONTENTS. 447a. Where contract made 964 447b. Negotiability, generally ^O.'? 448. Formalities regulated by lex loci actus 967 448a. Mode of acceptance of bill 968 448b. Character of holder 971 448c. Character and liability of irregular indorser. 973 449. Each party individually bound 974 449a. Nature of drawer's or indoraer's contract. . . 975 449b. Same; substantive liability of drawer or indorser 977 450. Acceptor's obligation determined by place of payment 978 451. And so, of maker's 978 451a. Acceptor's and maker's obligation; in general 979 451b. Same; elimination of lex fori 980 451c. Same; elimination of law of place of in- dorsement 981 451d. Same; as between the law of the place where the note or bill is made, and that of the place where payable 982 452. Days of grace 984 452a. Conditions precedent to liability of the drawer or indorser 985 452b. Necessity of demand and protest 986 452c. Time and manner of demand and protest. . . 986 452d. Necessity of notice 987 452e. Time and mode of notice 987 452f. Necessity of suing primary obligor as condi- tion of holding drawer or indorser 990 453. Interest 992 454, 455. (Omitted) 993 456. (Omitted) 993 457. Place of date not necessarily place of pay- ment 993 458. Bill formally defective in place where made may bind indorsers if good in place of in- dorsement 994 459. Defective intermediate indorsements do not destroy negotiability when good by law of place of payment 994 460. Conflict as to cumulation of expenses on re- exchange 997 461. Assignability and taxability determined by holder's domicil 997 462. Process determined by lex fori 998 CONTENTS. xliii 462J. Defenses that go to the merits dependent on place of payment 998 462a. Right of indorsee or assignee to bring action; sufficiency of indorsement or as- signment 999 462b. Joining primary and secondary obligors.... 1003 463. Interpretation provable by usage 1003 463a. Collateral effect of instrument 1003 464. Accommodation indorser bound by law of place in which paper is to operate 1005 d. Insurance. 465. Insurer's engagements determined by place of principal insurer lOSfi 466. Otherwise as to agencies with power to act 1008 467. In suit for premium, law of place of pay- ment controls 1009 467a. Where contract of insurance deemed to have been made 1009 467b. Governing law; general principles; inten- tion; express stipulation; public policy.. 1020 467c. Local statutes relating to foreign insurance companies and their agents 1023 467d. Laws of state of incorporation as limitation upon powers of insurance company 1025 467e. Law of the place of performance; of place where property situated or where loss occurs 1027 467f. Construction and interpretation of the lan- guage of the policy; beneficiaries 1030 467g. Assignment of policy; disposition of pro- ceeds; validity of change of beneficiary; rights of creditors 1033 467h. Forfeiture; commutation; extended insu- rance ; notice 1038 467i. Effect of misrepresentation in the applica- tion 1041 467j. Suicide; age of insured 1043 467k. Valued policy; estimating loss 1044 4671. Contractual limitation; damages; arbitra- tion; attaching application to policy 1045 467m. Transitory character of action 1048 e. Partnership. 468. Partner holding himself out as such cannot set up restrictions of his domicil 1049 468a. Limitation of partner's liability 1049 469. Otherwise as to secret partnerships 1051 xliv CONTENTS. 470. Foreign partners must be proved to be such. 1051 470a. Other questions relating to partnership.... 1052 f. Common carriers. 471. The interpretation of a bill of lading, so far as concerns its intrinsic quality, is for the state of the carrier's principal office. . 1053^ 471a. In general ; intentioii of parties as ultimate criterion ; law of carrier's domicil 1055 471b. Presumed intention; general rule 1059' 47 le. Application of rule of last section; limita- tion of common-law liability 1072. 47 Id. Same; liability beyond own line; of connect- ing carrier; after arrival at destination.. 1079 471e. Same; miscellaneous matters 1081 471f. Contract of telegraph company 1082 472. Construction of contracts limiting liability for negligence 108S 472^. Limitation of ship's liability by law of flag ubiquitous 108& 473. Liability for tort during the performance of a contract for carriage is determinable by the lex looi delicti 1089' 473J. Law of place of perfoEmance determines mode of performance 1090 473§. Advances on bill of lading bind extrater- ritorially 1090 g. Delicts and torts. 474. Delicts and torts convertible 1091 475. By Roman law lex delicti commissi prevails. 1091 476. By Savigny, place of process controls 1092 477. Distinction between suits for damages and prosecutions for fines 1092 478. Lex fori and lex delicti commissi must eon- cur in making act justiciable 1093 478a. Torts generally; transitory character 1093 478b. Governing law of torts, generally 1098 478c. Damages for tort 1108 479. No remedy for representatives of deceased unless given by both laws lllS t80. Nor will one state enforce in this respect another's penal laws 1113 480a. Statutory tort; transitory character 1114 480b. Same; public policy; similar statute of forum as a condition 1118. 480c. Same; other conditions of jurisdiction 1125 480d. Governing law, generally 1126 480e. Same; who may sue 1132 CONTENTS. xlv 480f. Survival of cause of action for tort; revivor of action 1137 481. (Omitted) 1138 h. Revenue offenses. 482. State will not sanction contract to evade its revenue laws 1138 483. But mere knowledge of intended smuggling does not invalidate sale 1139 484. Contracts to evade foreign revenue laws held not illegal 1139 i. Local statutory bonds. 485. Such bonds not extraterritorial 1140 j. Sales of prohibited liquors and drugs. 486. Sales of unlawful liquors or drugs deter- mined by place of performance 1141 486a. Law governing validity of executed sale; where executed sale deemed to have been made 1141 486b. Action in one state upon executed sale in another; solicitation of order; executory contract; public policy of forum 1147 k. Lotteries. 487. When lotteries are permitted in place of performance, contracts to be judged by that law 1163 488. So, where lotteries are illegal in place of performance 1163 489. Distinction taken in states where lotteries are government institutions 1163 489a. Lotteries 1163 1, Contracts against public policy. 490. Foreign contracts inconsistent with home policy will not be enforced . . . . ; 1170 491. Illustrated by champertous contracts 1170 491a. Champerty 1170 492. By gaming debts 1173 492a. Same; "option" and "future" transactions.. 1173 4924. Contracts in restraint of trade deter- mined by place of performance 1181 493. Immorality tested by the lex fori 1182 494. So, of the slave trade 1182 m. Contracts against law of nations. 495. Contracts conflicting with law of nations invalid 1183 496. So, of contracts involving breach of neu- trality 1183 xlvl CONTENTS. 496i. Otherwise as to supply of munitions of war, and of blockade breach 1 183 n. Contracts with public enemies. 497. Such contracts void 1184 VII. Effects of obligations. a. Specific performance. 498. Specific performance determined by place of performance 1184 b. Rescission, extension, and stay laics. 499. So, of rescissions and renewals 1184 500. Stay laws governed by lex fori 1185 VIII. Interest. 501. How classified. 1185 502. Savigny's rule 1185 a. Interest based on contract. 503. Place of solemnizing contract cannot control 1185 504. Place of performance determines 1186 505. Place of payment not necessarily place of performance 1186 505i. But is usually so with negotiable paper.... 1186 506. Nor does residence or domicil of parties con- trol 1187 507. Hypothesis of most favorable law 1187 508. That of the place where the money is to be used 1 188 509. This view sustained by analogy 1189 510. When mortgage is not merely collateral, law of site prevails 1189 510a. General principle that the intention of the party is to be consulted 1190 510b. Same; when intention expressed 1194 510e. Same; when intention not expressed; func- tion and character of subordinate prin- ciples and rules 1195 SlOd. Presumption that the parties contract with reference to the law of the place of pay- ment 1196 510e. Rate of contractual interest when none is specified 1197 510f. When contract authorized by law of place of payment, but usurious by law of place where contract made 1198 510g. Presumption that the parties intended to contract with reference to a law that would uphold, rather than one that would invalidate, their contract 1200 CONTENTS. xlvii 510h. When contract usurious by the law of the place of payment, but authorized by the law of the place where the contract was made 1201 510i. When contract lawful by lex domicilii, but usurious by lex loci contractus and lex loci solutionis 1204 510j. Effect of other circumstances upon fore- going rules, generally 1204 510k. When loans secured by a mortgage upon real property 1205 5101. Place where money is to be used 1206 510m. Place where the consideration is advanced and received 1208 510n. When contract usurious by both lex loci con- tractus and lex loci solutionis 1208 510o. Qualification as to good faith 1209 610p. CJontracts of foreign building and loan asso- ciation 1210 510q. Effect of restriction as to rate of interest in charter of corporation 1216 510r. Statute forbidding corporation to plead usury 1217 510s. What to be regarded as the contract 1218 511. Lex fori to control process 1220 511a. Lex fori not ordinarily applied on ground of public policy 1220 511b. Applicatory law as affected by penal char- acter of usury laws 1221 51 le. Applicatory law as affected by remedial character of usury statutes 1223 b. When claimed in damages. 512. Conflict of opinion as to damages 1226 c. Moratory interest. 513. Moratory interest to be determined by place of use 1226 513a. Interest as damages for breach of contract. . 1227 513b. Kule of last section as applied to bills and notes 1228 513c. Interest on judgment 1229 IX. COBEENOY IN WHICH PAYMENTS ARE TO BE MADE. 514. Determined by place of payment 1230 515. Real, not formal, value to be recovered 1231 516. Otherwise, when exchange is established by law 1231 517. But internationally plaintiff entitled to full equivalent 1231 518. Legal tender acts not extraterritorial 1231 xlviii CONTENTS. X. How OBLIGATIONS MAY BE BABRED. 519. Modes of barring by Roman law 1232 520. Bar in place of performance good every- where 1233 521. Conditioned upon fairness of procedure 1233 a. Bankrupt and insolvent discharges. 522. Discharge by state without jurisdiction inop- erative 1233 523. Federal bankrupt discharges effective throughout the United States 1234 524. State insolvent discharges operative as be- tween citizens of state and validating creditors 1234 525. But not usually as to other persons 1235 525a. Same 1236 526. Nor as to negotiable paper indorsed abroad . . 1237 527. No exception from debt being payable in dis- charging state 1238 528. Exception as to party to procedure 1238 529. Removal of creditor to another state after debt incurred does not privilege him as against assignment 1239 529a. Effect of discharge upon subsequent action in same jurisdiction 1240 530. Retrospective discharge is inoperative 1243 531. Foreign bankrupt discharges not extrater- ritorial 1243 532. Otherwise as to discharges in special forum or common domicil 1243 533. Distinctive Roman law 1244 b. Statute of limitations. 534. Conflicts between statutes of different grades 1244 535. When statutes are processual lex fori gov- erns 1244 536. Where lex fori outlaws debt, it is barred. . . . 1247 537. Where lex fori continues debt, it is not barred by foreign processual statute 1248 537a. Statutory modification of the rule of the last section 1249 538. Distinction as to statute extinguishing debt. 1256 539. Such statutes bind as to debts due subjects. 1258 540. Nor can such debts be afterwards elsewhere revived 1258 540a. Title by adverse possession 1259 640b. Effect of special limitation of statutory cause of action 1261 CONTENTS. xlix 641. Limitations bind foreign judgment 1266 541J. Distinctive state provisions 1269 542. Statutes as to aet-offa not extraterritorial .. . 1269 543. Exception to statute of limitations applies to foreigners 1269 644. Question as to foreign corporations 1270 545. In Germany the law of the obligation pre- vails 1271 XI. Assignment of obligations. 546. Generally 1271 CHAPTEE IX. SUCCESSION, WILLS, AND ADMINISTRATION. I. Theobt op the Roman law. 548. Successio per universitatem the basis of the Roman law 1276 549. Principle based on the supremacy of home. . 1277 650. Extreme consequences drawn by classical jurists 1277 551. These consequences afterwards repudiated. . 1277 552. Solidarity of family recognized in England and the United States 1278 653. Universal succession qualified by the intro- duction, as to specific objects, of particu- lar succession 1279 n. Theobies or the modeen law. 554. Theory that succession, both as to movables and immovables, is governed by lex rei sitw 1279 555. Theory that succession is generally governed by the lex domicilii 1280 556. Savigny's argument from presumed intent. . 1280 557. This argument does not apply to land 1280 558. So, as to argument from the necessities of commerce 1281 559. Theory that nationality in all cases deter- mines 1281 560. Theory that immovables are governed by lex rei sitw 1281 561. And movables by lex domicilii 1283 562. This distinction not merely feudal 1284 563. Nor unfavorable to prompt liquidation 1284 564. Protects family interests 1285 565. From law of domicil, eases of territorial pol- icy are excepted 1285 "Voii. I. CoNFL. OF Laws — iv. CONTENTS. 566. This exception defended by Savigny 128.5 567. Principle recognized in exemption laws 1285 567 J. Leaseholds are governed by lex rei sites.... 1286 III. Personal capacity of testator. 568. By Savigny, capacity must exist by law of solemnization and law of last domicil . . . 128G 569. Restrictions of Roman law 1286 570. With us, domicil is the test as to personalty and situs as to realty 1286 571. But domicil qualified by the leoo situs [widow's allowance] 1287 572. Conflict of opinion on this point 1289 573. Local policy predominates 1289 574. Mental incapacity determined by lem domi- oilii as to movables 1289 575. As to movables, lex situs 1290 IV. Personal capacity op successors; intestate succession. 576. Lex domicilii determines as to movables.... 1290' 576a. Intestate succession to personal property... 1292 576b. Intestate succession to real property 1296 576c. Whose domicil furnishes the governing law in case of trust or remainder 1298 576d. Character of property as real or personal for purposes of succession 1298 577. Foreign laws in this respect applied 130O 578. But lex situs as to immovables 1301 579. Business capacity of successor determined by his domicil 1301 580. Except as to artificial incapacities 1301 581. Restrictions of lex fori to be applied 1302 582. So, as to alien succession 1302 583. Forms of delivery prescribed by lex situs must be followed 1303 584. Limitations as to necessary succession 1303 V. Mode of solemnization and revocation of wills. 585. Will must be solemnized by forms of last domicil 1303 586. But this modified by statute 1305 587. Lex rei sites determines as to realty 1305 588. By Roman and modern European law, forms of either the domicil or place of solemni- zation will be enough 1306 589. So, by Scotch law - 1307 590. Execution of power determinable by situs.. 1307 590a. Power of appointment, generally 1308 591. Revocation subject to same rules 1317 CONTENTS. li VI. ESSENTIAI, VALIDITT OF PAETICULAB PKOVISIOlir. 591a. Generally 1318 591b. Perpetuities; charitable bequests; mortmain acts; limitation of time and amount of bequests; "spendthrift" trust 1321 VII. Construction of wills. 592. Interpretation as to personalty by law of last domicil 1331 593. Rules of evidence are for judeoo fori 1332 594. Latent ambiguities may be explained by other laws 1332 595. Judgment of court of domicil has ubiquitous authority 1332 596. Foreign law presumed the same as domestic 1333 597. When lex rei sitw determines construction . . 1333 598. Judex fori bound by laws of policy 1334 599. Extraterritorial interference with vested rights not permitted 1334 599a. Construction of wills generally 1334 599b. By what law members of class to be deter- termined 1338 599c. Effect, as distinguished from construction, of will 1342 599d. Equitable conversion 1345 599e. Disinheritance ; election 1346 VIII. Effect of subsequent events upon will. 599f. Revocation; rights of posthumous child; lapse and abatement; after-acquired prop- erty 1350 IX. Capacity of legatee or devisee. 599g. Generally 1353 X. Jurisdiction to construe or determine validity of will. 599h. Generally 1356 XI. Contracts for succession. 600. Same test as with wills 1358 XII. Trusts. 601. Distinctions of Roman law 1358 XIII. Escheats and caduoiary bights. 602. By Roman law, last domicil of deceased owner prevails 1359 603. Otherwise, by our law 1359 XrV. FoEBaoN administrations. a. When foreign administrators may act. 604. Limited to territory of appointment 1360 605. This required by policy of territoriality . . . 1360 606. Also by duty to citizens 1361 607. Local authorization therefore reqiuired 1361 lii CONTENTS. 608. But domiciliary administrator usually rec- ognized by court of situs 1361 609. This the settled rule in England 1362 610. So, in the United States 1362 611. But not when contravening local law 1362 612. Courts may restrain parties as to adminis- trations 1362 612a. Situs of personal property for purposes of administration 1363 613. Foreign administrator cannot sue in his own name 1368 614. But may retain what he has acquired .... 1369 615. So, when he holds negotiable paper 1371 615J. May sue on judgment 1371 615a. Action of ejectment by foreign executor.... 1372 b. Where he may be sued. 616. Only in his own forum 1372 617. Exceptions to rule 1374 618. (Omitted.) 1375 618a. Ancillary administration 1375 619-625. (Omitted.) 1378 c. Payment of debts to a foreign administrator. 626. When payment of debts to foreign adminis- trator is good 1378 626a. Same 1380 d. Conflicts between domiciliary and ancillary adminis- trations. 627-629. (Omitted.) 1382 629a. Conclusiveness of judgment as between rep- resentatives appointed in diflferent juris- dictions 1382 630. (Omitted.) 1383 631. Protection of ancillary administrator's pos- session 1383 632. Domiciliary administrator's title to foreign assets 1384 633. Goods in transit 1384 634. Ancillary administration only accountable for local assets 1385 635. (Omitted.) 1385 636. Application of rules to administration in dif- ferent states of Union 1385 637. Foreign assets received by domiciliary ad- ministrator 1385 638. When several local administrators appointed 1385 639. (Omitted.) 1386 640. As to preferences between local and foreign creditors 1386 CONTENTS. liii XV. Currency in which distributees are payable. 641. Such currency usually determinable by place of administration 1386 642. Practice as to interest 1387 XVI. Taxes on succession. 643. Such taxes generally dependent on domieil.. 1387 XVII. Of probate. 644. Domiciliary probate conclusive 1388 644a. Same 1389 645. Effect of statutory limit of probate appeal 1391 XVIII. Practice in trying the issue as to the validity of a ■WILL. 645J. Trial to be by Jea; /^ori 1392 CHAPTER X. FOREIGN JUDGMENTS. I. Distinctive English and American practice. 646. Foreign judgments, to be binding, must be internationally regular and final 1394 647. In England, such judgments are conclusive 1397 648. So, when offered by plaintiff 1399 649. Judgment based on extraterritorial service invalid 1400 650. Plaintiff may sue on original cause of action, and may waive judgment 1402 651. When plaintiff waives judgment, defendant may defend on merits 1402 662. Judgment for defendant in foreign suits bars domestic suit 1403 653. In this country, rulings of English courts followed 1404 654. Impeachable for want of jurisdiction or fraud 1405 654a. Same 1408 655. Jurisdiction presumed if proceedings are reg- ular 1410 656. Will not be enforced when overriding home policy, nor when for penalty 1411 II. Distinctive practice as to sister states. 657. Judgment of sister state may be pleaded puis darrien continuance 1411 657^. Stay allowed as in original suit 1412 658. Such judgment cannot be disputed collater- ally 1413 659. To judgment of sister state nul tiel record is the proper plea 1413 liv CONTENTS. 660. Want of jurisdiction may be set up to such judgment 1414 661. In divorce, extraterritorial service in some states sustained 1415 662. Fraud a defense to judgments of sister states 1416 III. Probate judgments. 663. Effect of probate judgment 1417 IV. Judgments in rem. 664. Judgment of court having jurisdiction over property everywhere binding as to such property 1417 665. Admiralty and similar judgments in rem good against all the world 1420 666. Procedure must be regular and in point. . . . 1421 667. Judgments in rem do not bind person of owner unless he be a party 1422 668. If grossly unjust, pass no title 1423 V. Judgments as to status. 669. Judgments as to personal status not ubiqui- tous 1423 670. Divorce judgments, when ex parte, do not bind property 1424 VI. Distinctive practice on the continent of Eubopb. 671. Development of Roman law in this relation 1424 672. In French and cognate systems, Judgments are declared exicutoire on application to a judge, but not conclusive 1425 673. In France, execution conditioned on reciproc- . ity 1426 674. Not necessary that defendant should have no , effects in country of judgment 1427 675. judgments for torts not viewed as final . . . 1427 CHAPTER XI. PRACTICE. I. Matters pertaining to remedy. 675a. In general 1432 II. Extern AL formalities of documents. a. Law of place to he followod as to solemnization. 676. Locus regit actum generally accepted in Eng- land and in this country 1430 677. Adopted by foreign jurists and Codes .... 1437 678. Rule not applicable to imperfectly civilized lands 1438 CONTENTS. Iv 679. Doubts as to whether the rule is imperative 1438 680. Presumption to be drawn from omission of local forms 1438 681. Election conceded in Roman and European law as to wills 1439 682. Otherwise, by English common law 1439 683. Where local law requires registry this is im- perative 1439 684. Double solemnization may be prudent 1439 b. Stamps and fiscal impositions. 685. Omission of stamp fatal when requisite to validity of document 1440 686. Exception as to cases of documents casually solemnized 1440 687. Exception when the object of the stamp act was merely revenue 1441 688. Exception when stamp not necessary to va- lidity 1441 c. Statute of frauds, and other statutes requiring cer- tain kinds of evidence to support an ac- tion. 689. Ordinarily, documents valid in place of mak- ing are valid everywhere 1441 690. Exception, in case of statute of frauds .... 1442 690a. Distinction based upon particular phrase- ology 1443 690b. Consequences of adoption of distinction . . . 1444 690c. Extent to which distinction has been fol- lowed 1446 690d. Consequences of repudiation of distinction; other possible distinctions 1448 690e. Statute of frauds as embodying distinctive policy of forum 1452 690f. Conclusion as between law of forum and sub- stantive law of contract 1454 691. Contract made under statute of frauds must conform to it 1456 692. But not necessarily contract made in terri- tory of statute 1456 692a. Same 1457 693. Nor as to contract to be performed in such territory 1457 693a. As between law of place where contract was made and that of place where it is per- formable 1458 '^93b. As between law of place where contract was made and that of place where property is situated 1461 Ivi CONTENTS. 694. Where statute merely goes to evidence, it is not extraterritorial 146S d. When another country is sought, m order to evade home regulations. 695. Document not invalidated by mere fact that it is solemnized in foreign state with in- tention of avoiding home law 1463 696. Otherwise, when the law evaded is based on policy or morals 1464 e. Transfers of property. 697. Lex rei sitw controls 1465 f. Capacity or status of parties. 698. Determinable by national policy 1465 g. Certificates of notaries and other officers. 699. Must be in accordance with local law 1465 700. Lex fori ultimately determines admissibility 1466 701. Need and proof of notarial seal 146& 702. Exemplifications entitled to same respect as originals 1467 703. No distinction between general and special officers , 1467 IIL JtJEISDICTION OP COTJBTS. 704. Foreign privileges as to courts not extrater- ritorial 146T 705. Alienship of parties does not afifect compe- tency of court 1468 706. Otherwise, in France 1468 707. Danger of undue expansion of common-law rule 1468 708. In Roman law, criterion of domicil is based on submission 1469' 709. In the same law, defendant's change of domi- cil devests jurisdiction 1470" 710. Otherwise, as to delicts 1470 711. Local actions to be brought in local courts; otherwise as to transitory actions 1470- 7 Hi. Court may enjoin from suing in other state 1471 712. Competency for transitory suits sustained by intraterritorial service of process 1472 713. By recent legislation, extraterritorial service permitted 1472 714. Foreign corporation may be so served 1473 715. Internationally, jurisdiction cannot be based on mere extraterritorial service 1474 716. Exception in divorce eases 1475- 717. Proceedings in rem give title to thing intra- territorially attached 1475- CONTENTS. Mi 717i. But not extraterritorially 1476 718. Statutory extraterritorial service to follow statute 1476 719. Service when one partner is abroad 1476 720. Consuls not privileged from service 1476 IV. Letters rogatoey. 722. Framing governed by local practice 1477 723. In Europe, are executed by courts 1477 724. Practice of execution that of examining court 1477 725. Discretion allowed examining tribunal .... 1479 726. But competency and admissibility are for court of trial 147£> 727. Privilege determinable by law of place of ex- amination _ 1479 728. Extradition of witnesses provided for in treaties 1479 729. Court of examination determines on produc- tion of papers 1480 730. And so, as to mode of oath 1480 731. Recent statutes provide for executing com- missions by foreign courts 1480 V. Pabties. 732. In our practice alien may sue, but may be compelled to give security for costs 1481 733. Such security may also be required in France 1481 734. Defendant cannot be so compelled 1482 735. Lew fori determines whether assignee can sue in his own name 1482 736. Validity of assignment determined by its own law 1484 736a. Necessary defendants; aggregate name; guardian ad Utem 1484 736b. Suit by third person 1485 737. Alien enemies not entitled to sue 1486 738. With us, foreign defendant may be sued . . 1486 739. Otherwise, where defendant's domicil is test of jurisdiction 1486 740. Arrest of defendant permitted in European states 1486 741. Arrest is now determined by lex fori 1487 742. When nonresident alien enemy may be sued 1487 743. Alienage of parties does not devest jurisdic- tion 1487 744. In Germany, this jurisdiction declined 1488 745. So, in France 1488 Iviii CONTENTS. 746. Exceptions ' 1488 746J. When foreign sovereigns may be parties. . . 1488 VI. FOEM OF SUIT AND PROCESS. 747. Leao fori decides as to process 1489 748. Imprisonment for debt to be so determined 1491 749. Foreign remedies will not be adopted 1491 750. Illustrated in suits by assignees, and by sur- vivors 1492 750a. Conditions of right to sue 1493 VII. Attorneys and pboctobs. 751. Lex fori determines relations of 1493 VIII. Evidence. a. General rules. 752. Difficulty in distinguishing the case itself from the evidence offered to prove it . . . 1493 753. Solution that lex fori determines only mat- ters of form 1494 754. Solution that our distinctive rules of evi- dence are matters of state policy, to be enforced by judex fori in all cases 1494 b. Documents. 755. Proof of documents is for lex fori 1495 756. Seal of foreign sovereign self-proving 1495 757. Exclusionary effect of stamps only local . . . 1496 758. Such defects do not invalidate papers exe- cuted extraterritorially 1496 759. Parish records admissible by Roman and canon law 1496 760. Such records admissible under our law 1497 761. Copies of foreign records provable by seal or by parol 1498 762. Exemplifications of sister states admissible under act of Congress 1499 763. Copies of foreign documents provable by seal or parol 1499 764. Records as well as documents governed by rule locus regit aotum 1500 765. Except as to forms prescribed by lex situs, and as to wills 1500 766. Merchants' book accounts tested by lex fori 1500 767. Tests of relevancy and hearsay for lex fori 1501 768. So, as to parol variation of documents 1501 768a. Same 1502 c. Witnesses. 769. Admissibility of witnesses for lex fori.... 1503 770. But not number necessary to solemnization of document 1503 CONTENTS. lix d. Proof of foreign law. 771. Courts take judicial notice of law merchant and maritime, and of elementary Roman and canon law 1504 772. Otherwise, foreign law must be proved 1505 773. Question one of fact for jury 1505 773a. Whether foreign law question of law or fact 1505 774. Experts admissible to prove foreign law. . . . 1515 774a. Mode of proving foreign law generally 1516 775. Practical knowledge sufficient for this pur- pose 1521 776. Judicial constructions extraterritorially re- spected 1524 777. Foreign statutes may be proved by exempli- fications 1525 778. By treaty and statute, copies admissible . . . 1526 779. Foreign law presumed the same as our own 1531 780. But not as to domestic idiosyncrasies 1531 781. And not to work forfeiture, or defeat inten- tion 1531 781a. Judicial notice of law of foreign jurisdiction 1532 781b. Different theories as to proper course when foreign law not proved 1537 781c. Conflict between presumption in favor of the common law and presumption that law of other jurisdiction is the same as the law of the forum 1539 78 Id. Application of lex fori without indulging any presumption as to foreign law 1559 781e. Refusal to apply any substantive law 1562 e. Pleading foreign law. 781f. Generally 1566 f. Presumptions. 782. Presumptions determinable by lex fori . . . 1575 782a. Presumption; implied contract 1575 g. Question for court or jury. 782b. Generally 1578 IX. Lis pendens. 783. A stay by Roman law 1580 784. With us, prior foreign suit no bar 1581 785. Party may be enjoined from proceeding in foreign land 1581 786. In proceedings in rem,, first attachment holds 1582 787. Foreign attachment may be pleaded pro tanto 1583 787a. Same 1583 Ix CONTENTS. X. Set-opf and want of consideration. 788. Set-off governed by lex fori 1584 789. So, as to assailing consideration 1585 XI. Execution. 790. Execution to be governed by lex fori 1586- 790a. Appraisal of property 1586. 790b. Liability of property to execution dependent upon lex rei sitae 1587 791. So, as to exemption 1588- XII. Exemptions. 791a. Generally 158& CHAPTER XII. BANKRUPTCY. 793. Topic already incidentally discussed 1592" I. Effect of banketiptoy in the country of such bank- ruptcy. 794. In modern Roman law a national execution 1593' 795. In some states decree works business inca- pacity, and is not extraterritorial 1593 796. Local assets pass to assignee 1593^ II. Recipbocal relations of creditors. 797. All creditors may come in 1594 798. But must give credit for extraterritorial payments 1594 III. Effect of bankruptcy on foreign assets. 799. Bankrupt assignment cannot operate extra- territorially 1595' IV. COIXISION WITH local LIENS. 800. As to local liens, lex rei sitce the arbiter . . 1597 V. Questions between local bankruptcies. 801. Each separate fund goes to its particular local creditors 1597 VI. Appucatoey law as to bankrupt's prior transactions. 802. Lex rei sitce decides as to bankrupt's prior property I598. VII. Effect of bankruptcy on subsequent executions. 803. Provisions to this effect are not extrater- ritorial 1598- VIII. Effect of foreign bankrupt discharges. 804. Bankrupt discharges of debts due abroad, not a bar 159!) IX. When foreign bankrupt assignee may sue. 806. Dependent on lex fori 1599' CONTENTS. Ixi X. Summary as to conflict. 806. Conclusion of ubiquity of bankrupt proce- dure based on false assumptions 1600 807. Practical difBculties attending the doctrine of such ubiquity 1601 CHAPTEE XIII. CRIMINAL JURISDICTION. 1. Subjective theories. 809. Generally 1604 810. Jurisdiction assumed by country of arrest of offender, when offense is by a subject, or when necessary for prevention or in- demnity 1004 811. Jurisdiction assumed by country of offend- er's locality at time of crime 1607 II. Objective theory. 812. Jurisdiction assumed by country of locality of offense 1609 III. Particular cases. a. Offenses against government. 813. Such offenses abroad cognizable by offended state 1610 b. Offenses in dariarous and semi-civilized lands. 814. Such jurisdiction assumed 1611 e. Offenses at sea. 815. Piracy cognizable by all civilized states .... 1612 816. Each state has cognizance of offenses in its own ships 1614 817. So, when ship is in foreign port or river . . . 1615 818. Conflict as to jurisdiction over waters bor- dering a coast 1616 d. Offenses iy aliens. 819. Aliens bound to local allegiance 1621 820. Limitation as to offenses abroad 1622 e. Offenses by subjects abroad. 821. Political offenses abroad cognizable at home 1623 822. Conflict as to other offenses 1624 f. Offenses in two or more jurisdictions. 823. Cognizable in both jurisdictions 1625 824. So, as to conspiracies and treason 1620 825. So, as to extraterritorial principals 1628 825a. Offense commenced in one state or country and concluded in another, generally .... 1630 825b. Same; particular offenses 1633 825c. When agency of mails or carrier employed. . 1638 Ixii CONTENTS. 826. So, as to continuing offenses 1640 826a. Same 1641 IV. Defenses. a. Foreign judgments. 827. Foreign judgments a bar 1643 828. But this, dependent on jurisdiction 1644 829. Proceedings must have been regular 1646 830. Offenses must have been the same 1646 b. Pardon. 831. Pardon by proper sovereign effective 1646 c. Statutes of limitation. 832. So, as to statutes of limitation 1647 V. Penal judgments. 833. Such judgments have no extraterritorial force 1648 CHAPTEE XIV. EXTRADITION. 835. Generally limited to treaty 1649 836. By law of nations, offense must be one recog- nized by asylum state 1655 837. Treaties are retrospective 1656 837a. Change of allegiance of place of offense . . . 1657 838. Extradition refused vphen there can be no fair trial 1657 839. And so, for political offenses 1658 840. Nor for escape from military service 1663 841. Extradition not refused because person de- manded is a subject of the asylum state. . 1664 842. No surrender vi'here asylum state has admi- ralty jurisdiction 1666 843. Conflict of opinion as to vchether a foreign state can claim a subject who has commit- ted a crime in a third state 1667 844. When there is a treaty, extradition does not lie for a case not enumerated 1669 845. Nor where the defendant is in custody for another offense 1670 846. Should be restricted to the particular offense charged 1670 847. Preliminary requisites 1675 848. Complaint should be special 1676 849. Warrant; arrest; involuntary presence of ac- cused within jurisdiction 1677 850. Evidence should be duly authenticated .... 1679 851. Terms to be construed as in asylum state i. 1680 CONTENTS. Ixiii 852. Evidence must show probable cause 1683 853. Evidence may be heard from defense 1684 854. Circuit court has power of review 1686 855. Surrender at discretion of Executive 1688 856. Extradition may be conditional 1689 856a. Delay in removing accused 168& 857. Treaties to be construed on fixed principles 1690 857a. Effect of change of status of one of the par- ties to the treaty 1691 857b. Extradition between states as affected by general principles of international law . . 1693 TABLE OF CASES CITED. A. Abberger v. Marrin 865, 1141, 1145, 1151, 1152 Abbett, Re 195 Abbott V. Abbott & Godoy 1498 V. Coburn 1363, 1385 Abdul-Messih v. Parra 40, 1304 Abell V. Douglass 1444, 1461 Abererombie v. Caffray 1297 V. Stillmaa 1370 Abington v. North Bridgewater 118, 153 Able V. McMurray 993 Abouloff V. Oppenheimer 1407 Abraham v. Plestora 816 Abston V. Abston 1283, 1304 Abt V. American Trust & Sav. Bank 1004 Aeker v. Priest 614 Ackerson v. Erie E,. Co 1094 Acklen v. Franklin 138 Acme, The 1140 Adams v. Adams 477, 478, 489, 490, 560, 1376 V. Broughton 714 V. Clutterbuek 617, 1446 V. Colonial & U. S. Mortg. Co 174 V. Cordis 1231 V. Coullard 1155 V. Farley 1336 V. Fitchburg E. Co 1114 V. Gay 917, 918, 1566 V. Great Western R. Co 109 V. Hayes 427 V. Honness 272 V. Kerr 1490 V. Lindsell 886, 887 V. Norris 1331, 1332, 1392 V. Palmer 437 Ixv I- Ixvi TABLE OF CASES CITED. Adams v. People 1625, 1627, 163S V. Robertson 1209 V. Ross 237 V. Scott 1438 V. Wait 1580 V. Way 1545 Adams Exp. Co. v. Walker 1077 Adkins v. Loueks 596. Adriance v. Lagrave 1652, 1672, 1674 Adutt, Re 1671, 1677, 1682 Advocate General v. Ranee Surnomoye Dossee 151 Aertsen v. The Aurora 938 Affick, Re lOO Aganoor, Re 1292 A. G. Edwards Brokerage Co. v. Stevenson. . .1175, 1177, 1178, 1180, 1550' Ah Fong, Re 54 Ah Yup, Re 5.^. .Mken v. Blaisdell 1156, 1159 Aikman v. Aikman 118, 53S Ainsley v. Mead 648, 670 Aitchison v. Dixon ' 142, 145 Akers v. Demond 1194, 1208, 1222 V. Jefferson County Sav. Bank 949 Alabama G. S. R. Co. v. Carroll 1094, 1104, 1130 V. Fulghum 1115 Albes V. Hodgson ' 1440 Albion P. & L. Ins. Go. v. Mills 869, 876 Albreteht v. Sussmanu 1487 Albro V. Manhattan L. Ins. Co 1014, 1022, 1042, 1048 Alcalda v. Morales 889" Alcock V. Smith 682, 996, 1000, 1003 Aldrich v. Aldrich 937 V. Anchor Coal & Development Co 247, 248 V. lanney 1404, 1414 Alexander v. Barker 872, 914 V. Burnet 1260 V. Pennsylvania Co 950, 1104, 1107, 1506 V. Tolleston Club 657 V. Torrence 1260- V. Waller 1297, 1299 Alexander's Estate 197 Goods 1308, 1310 Alexandria, A. & Ft. S. R. Co. v. Johnson 920, 1547 Alexandria Canal Co. v. Swann 1489' Alford v. Baker 979, 1004, 1546, 1567 Alison, Re 363, 395, 392 Alivon V. Furnival 1396, 1483 TABLE OF CASES CITED. Ixvii Alle V. Dundas 1418 Allegheny v. Allen 244 Allen V. Allen 402, 408, 410, 526, 618, 1260, 1568 V. Bain 682, 748 V. Bratton 971, 979 V. Dundas 828 V. Harrah 987, 988 V. Hill 1254 V. Kemble 975, 977, 978 V. Massey 1598 V. National State Bank 174 V. Philadelphia Sav. Fund Soc 198 V. Schuehardt 1443, 1459, 1463 V. Shanks • 1378 V. Thomason 98 V. United Cigar Stores Co 807 V. Watson 1530, 1531 Alien- West Commission Co. v. Carroll 1554, 1565 Allgood V. Williams 96, 122, 153 Alliance Bank v. Carey 1246 Allin V. Connecticut Eiver Lumber Co. 662 Allison V. Allison 481 V. Campbell 621, 647 Allison's Case 481 Allshouse V. Ramsay 953, 1459 AUsop's Case 1668 Alston V. Newcomer 94 Alter V. Waddill 118 Alvany v. Powell 188 Amalia, The 1088 Ambler v. Whipple 1267, 1416 Amedie, The 251 American Alkali Co. v. Huhn 1573 American & Foreign Christian Union v. Yount 237, 243 American Cent. Ins. Co. v. Hettler 806, 1588 American Credit Indemnity Co. v. CarroUton Furniture Mfg. Co. . . . 1042 American Freehold Land & Mortg. Co. v. Jefferson 1190, 1204, 1224 V. Sewell . . r 1202, 1204 V. Woodworth 248 American Ins. Co. v. Cutler 1009 American Life Ins. & T. Co. v. Eosenagle 1498, 1523 American Oak Leather Co. v. Union Bank 1554 American Refrigerator Transit Co. v. Hall 171 American U. Teleg. Co. v. Middleton 660, 662 Ames, Re 1370 V. Benjamin 1198 V. Duryea 112, 114 Ixviii TABLE OF CASES CITED. Ames V. McCamber 746, 748, 1513, 1529 Ames Iron Works v. Warren 681, 692, 709, 712 Amherst College v. Ritch 1328 Amsden v. Danielson 1382 Anderson v. Anderson 82, 1 14 V. Doak 713 V. Gregg 1360 V. Laneuville 121, 136 V. May . 1448, 1462 V. Milwaukee & St. P. R. Co 1102 V. Watt 106, 120, 121 V. Wheeler 1235, 1237 Anderson's Case 1684 Anderson County Deposit Bank v. Turner-Looker Co 970 Andrews v. Andrews 465, 467, 474, 479 V. Bacon 1263 V. Herriot 1405, 1490, 1585 V. His Creditors ■ 223, 266, 863, 912 V. Hoxie 1198 V. Pond 862, 1008, 1170, 1198, 1209 V. Torrey 671, 1189 Andrews' Heirs 592 Andros v. Andros 553 Andruss v. People's Bldg. Loan & Sav. Asso 1212 Angela Maria, The 786 Angell V. Van Schaick 872, 1569 Angler v. Angier 52, 102 Ann, The 154 Anstedt v. Sutter 1141, 1160 Anstruther v. Adair 427, 429, 433 V. Chalmer 1291, 1331, 1353 Antelope, The 233, 788 Antes V. State Ins. Co 1014, 1039 Anthon v.. Fisher 1184 Anthony v. Rice 509 Appeal Tax Ct. v. Patterson 161, 172 Apperson v. Bolton 612, 1297, 1347, 1350, 1360, 1378 Apple's Estate 1292, 1363 Applegate v. Smith 1282, 1296, 1301, 1306, 1333, 1353 Appleton V. Braybrook 1500 V. Campbell 1182 Arapahoe County v. Cutter 173 Arayo v. Currell 959, 1064 Arbuekle v. Reaume 916 Archer v. Dunn 1197 V. National Ins. Co 892 V. Preston 642 TABLE OF CASES CITED. Ixix Arendell v. Arendell 404 Argent v. Argent 457 Arglasse v. Muschamp 643 Arizona Cattle Co. v. Huber 1372 Arkansas City Bank v. Cassidy 709 Armani v. Castrique 1594) Armendiaz v. De La Serna 1139, 1560 V. Stillman 664, 667 Armitage v. Spahn 711 Armitage-Herschell Co. v. Potter 713 Armorer v. Case 414 Armour Bros. Bkg. Co. v. St. Louis Nat. Bank 809 Armstrong v. Beadle 1 127 V. Best 273, 275, 278, 910 V. Foote 1094 V. Lear 1304, 1306, 1360, 1389, 1532 V. Toler 1139, 1170, 1182 Arndt v. Arndt 1400, 1421, 1422 V. Griggs 611 Arnold v. Arnold 186 V. Eastin 714 V.Potter 864, 945, 979, 1188, 1190, 1203, 1204, 1207, 1209, 1222, 1223 V. Shade 783 V. United Ins. Co Ill Arnott V. Groom 112 V. Eedfern 1397 Arrington v. Arrington 510, 530, 1266 Arthur v. Hughes 1374 Artisans' Bank v. Park Bank 975, 986, 987, 991 Ash V. Baltimore & O. R. Co 1116, 1123, 1124 Ashley v. Quintard 809 Ashurst V. Ashurst 1 195 Askew V. La Cygne Exeh. Bank 755 Aslanian v. Dostumian 1540 Aspden v. Nixon 1383 Astley V. Capron 120, 124 Astor's Goods 1389 Atehison v. Lindsey 1374 Atchison, T. & S. F. R. Co. v. Betts 1544 V. Dickey - 1563 V. Keller 1098 V. Maggard 1590 V. Moore 1101 Atherton v. Atherton 473, 483, 498, 512, 514, 516 Athlone's Claim 1498 Atkins V. Atkins 492 Ixx TABLE OF CASES CITED. Atkins V. Little 720 V. Wabash, St. L. & P. R. Co 836, 846 Atkinson v. Atkinson 1548 V. Staigg 1336, 1348 Atlanta & C. Air Line R. Co. v. Tanner U06, 1131 Atlantic Phosphate Co. v. Ely 687, 69.5 Atty. Gen. v. Campbell 182, 183, 187, 1388 V. De Wahlstatt 133 V. Dimond 1373, 1379 V. Hope 1373, 1388 V. Jackson 186 V. Kent 110, 128, 135 V. Mill 1302, 1328, 1334 V. Napier 112, 155, 182, 186 V. Newman 190 V. Pottinger 123 V. Rowe 77, 112 V. Sturge 250 V. Winans 121 Atwater v. Seely 617 V. Townsend 1245, 1489 V. Walker 671, 1189 Atwood V. Protection Ins. Co 765, 792, 816 V. Walker 628, 928 Aubert's Appeal 1313 August, The 1067 Augusta V. Dunbar 161 V. Kimball 180 Augusta Ins. & Bkg. Co. v. Morton 284 Augusta R. Co. v. Glover 1132 Aultman's Appeal 246 Aultman &, T. Co. v. Syme 697, 1250 Aultman & T. Mach. Co. v. Kennedy 707, 709, 715 Aultman M. & Co. v. Holder 694 Auriol V. Thomas 997 Austin V. Austin 48? V. Gage 1297 Ayer v. Tilden 1227 v. Weeks 116, 118, 119, 15;i Aymar v. Sheldon 956, 976, 986-988, 993, 1584 Ayrea v. Des Fortes 774 B Babbitt t. Babbitt 104, 46« Babcock v. Collins 1378 TABLE ar CASES CITED. Ixxi Babcoek v. Marshall 1417 Backman v. Jenks 864, 865, 869, 884, 1008, 1141, 1151 V. Mussey 1148 V. Wright 1148, 1156 Bacon v. Bacon 1480 V. Hooker 173 V. Home 706 V. Howard 1267 V. Hunt 1148 V. State Tax Comrs 181 Badische Anilin & Soda Fabrik v. A. Klipstein & Co 1519 Baeder v. Carnie 723 Baer Bros. v. Terry 273 Baetjer v. La Compagnie ■ 1076 Bagby v. Atlantic, M. & O. R. Co 841 Baglehole, Ex parte 1 184 Bagley v. Tyler 246, 248 Bagnell Timber Co. v. Missouri, K. & T. R. Co 723 Bagwell V. McTighe 1554 Bailey v. Heald 993 V. Hope Ins. Co 1019, 1030 V. Hudson River R. Co. 1090 V. M'Dowell 1530 V. Ryder 656 Bailie v. Bailie 512 Baily v. Milner 1183 V. Schrader 476, 530 Bain v. Northern P. R. Co 1102, 1115 V. Richmond & D. R. Co 169 V. Whitehaven & F. Junction R. Co 862, 1443, 1495 Baird v. Byrne 26 V. Vines 1553 Baiz, Ex parte 63, 64 Baker, Ex parte 1699 Re 568, 592 V. Smith 1374 V. Spaulding Bros 1012, 1025 Baker Case , 511- 514 Will 490 Bald, Re 1317 Baldwin v. Gray 223, 260, 930, 945 V. Hale 1235, 1237- 1239 V. Hill 780 V. Hosmer 845, 847 V. Shine 179 V. Washington County 179 Balk V. Harris 804, 805, 1528, 1588 Ixxn TABLE OF CASES CITED. Ball V. Anderson 245, 248 T. Consolidated Franklinite Co 889, 1198 V. Davis 1178, 1179 Ballantine v. Golding 1233 Ballard v. Great Western Min. & Mfg. Co 709 V. Puleston 120' V. Winter 711, 740 Ballister v. Hamilton 870, 1228 Ballston Spa Bank v. Marine Bank 1218 Balme v. Wombough 863, 866, 1202 Baltimore v. Chester 116 V. Hussey 172 Baltimore & O. E. Co. v. Baugh 1106 V. Glenn 235, 743, 953 V. Harris 251, 1491 V. Joy 1138 Baltimore & O. S. W. E,. Co. v. Adams 808 V. Hollenbeck 1546, 1588 V. Jones 1546 V. Read 1101, 1546 Bancher v. Fisk 1237 Banohor v. Cilley 1146, 1156 V. Gregory 1568 V. Mansel 1141, 1159 Banco de Portugal, Ex parte 827, 1595 Banco De Sonora v. Bankers' Mut. Casualty Co 1028, 1522, 1525, 1540 Bangor v. Brewer 136 Bangs V. Edwards 1543 Bank of Alabama v. Dalton 1267 Bank of Augusta v. Earle 235, 236, 238, 243 Bank of Australasia v. Mas 1397, 1399, 1402, 1407, 1418, 1491 Bank of Australasis v. Harding 1402, 1491 Bank of China v. Morse 1507 Bank of Columbia v. Walker 15, 424 Bank of Commerce v. Fuqua 1573 Bank o* England v. Tarleton 622 Bank of Galliopolis v. Trimble 1584 Bank of Georgia v. Lewin 1188, 1200 Bank of Harrison v. Gibson 1220 Bank of Illinois v. Brady 990, 1228 Bank of Kentucky v. Adams 1090 V. Adams Exp. Co 1069 Bank of Louisiana v. Williams 232, 262, 275 Bank of Louisville v. Hill 712 Bank of Michigan v. Jessup 1481 Bank of North America v. Eindge 248 v. Wheeler 1413 TABLE OF CASES CITED. Ixxiii Bank of Orange County v. Colby 864, 877, 884 Bank of Rochester v. Gray 987, 1437, 1440, 1463, 1466- Bank of the Metropolis v. New England Bank 1504 Bank of Topeka v. Eaton 930, 1484 Bank of United States v. Donnally. .953, 999, 1245, 1246, 1433, 1490, 1491, 158& V.Lee 428,714, 818 V. United States 993 Bank of Washington v. Arkansas 295' V. Triplett 984 Banks v. Greenleaf 1235, 1243, 1599- Banning v. Gotshall 591, 593 Banta v. Moore 1360> Barbe v. Glick 1583; Barber v. Barber 104, 105, 471, 526; V. Bell 986. V. Ellis 1288 V. Hildebrand 1521 V. International Co 1523 V. Lamb 1402, 1403 V. Root 440, 488 Barbour v. Boyce 802^ Barclay v. United States 1642 Bard v. Poole 1217 Barger v. Farnham 987, 1529' Barhydt v. Alexander 1541, 1551 Baring v. Clagett 1407, 1422- Barker, Ex parte 1699 V. Brown 1588, 1520 V. Central Vermont R. Co 841, 842 V. Stacy 712: Barkhansted v. Parsons 1626 Barkman v. Hopkins 1529- Barley v. Gittings 845- Barlow v. Coggan 1383 V. Steel 1401 Barnard v. Field 862, 1141, 1156. Barnes v. Gibbs 1411, 1412- V. Wheaton 248 V. Whitaker 15, 1222 Barnett v. Brandao 1504 V. Kim-nell 306 V. Kinney 773 Barnett's Trusts 1359 Barney v. Burstenbinder 663 T. DeKraft 510 V. Patterson 1404 Ixxiv TABLE OF CASES CITED. Barney & S. Mfg. Co. v. Hart 705 Barnum v. Barnum 546, 549 Baron De Bode's Ca'3e 1517 Barranger v. Baum 1533 Barrera v. Alpuente 223, 224, 266 Barrett v. Barrett 995, 1369, 1371 V. Central Bldg. & L. Asso 1212 V. Dodge 881, 889, 964, 983 V. Failing 527, 528 V. Gillard 1370 V. Kelley - 780 V. Walker 892 Barretto v. Young 1308 Barrick v. Buba 1487 Barringer v. Ryder 1230, 1546 Barrow v. Wadkin 66 Barrows v. Downs 1049-1051, 1518, 1523 Barry v. Equitable Ins. Co 1009, 1035, 1036 V. Snowden 616, 1212 Barry Case. See Babey v. Equitable Life Assuk. Soc. Barstow v. Sprague 1389 Barth v. Backus 750, 752, 833, 834 V. Iroquois Furnace Co 1483 Bartlet v. Knight 1404 Bartlett, Ex parte 99 V. Ball 1297 V.Collins 17, 882, 1174, 1178, 1179, 1566 V. McNeil 1415 V. Spicer 1415, 1421 Bartley v. Hodges 1244 Barton v. Barton 116 V. Higgins 1371 V. Wheeler 1062, 1080, 1089 Bartsch v. Atwater 1231 Baruch, Re 1675 Bascom v. Albertson 1283, 1323 V. Nichols 1331 V. Zediker 1209 Batchelder v. Batchelder 475, 483, 484 Bates V. Day 249 V. Virolet 554 Bath Gaslight Co. v. Claffy 949, 1560 V. Rowland 935, 936, 949, 1529 Baubichon, Re 422, 428 Baum V. Birchall 288, 908 Bauserman v. Charlott 1267 Baxley v. Linah 1411 TABLE OF CASES CITED. Ixxv Baxter v. New England Marine Ins. Co 1421 V. Vincent 804 V. Wiley 618 Baxter Nat. Bank v. Talbot 977, 1001, 1445, 1490, 1493, 1502 Bay V. Church 1544 Bayley v. Bayley 1283 Bayliffe v. Butterworth 1504 Beach v. Bay State Co 1126 V. Bay State S. B. Co 1094, 1113, 1126, 1127 Beacham v. Portsmouth Bridge 1068 Beal V. State 1642 Beale v. Berryman 1414 Beall V. Williamson 713 Beam v. Barnum 932 Bean v. Briggs 1546, 1560, 1574 V. Iioryea 1235 Beard v. Beard 523, 524 Beasley v. Lennox-Haldeman Co 802 Beason v. State 136 Beaumont, Re 98 Becket v. Becket 485 Beckford v. Wade 609, 1256, 1260 Beckham v. Carter 707 V. Wittkowski 1369 Beckwith v. Cheever 886 Becquet v. McCarthy 1399 Beeraft v. Lewis 1364 Bedell v. Scruton 1238, 1240 Bedford v. Eastern BIdg. & L. Asso 1211 Beeler v. Dunn 1374 Beeman v. Kitzman 465 Beer v. Hooper 1235 Beers v. Arkansas 295 V. Rhea 1235 V. Shannon 1367, 1368 Beggs V. Bartels 782, 898 Behrensmeyer v. Kreitz 122, 12i9 Beirine v. Patton 775 Belegenland, The 1532 Belfast, The 726 Belfast Sav. Bank v. Stowe 752, 753, 755 Belford v. Bangs 987, 988 Belgenland, The 1105 Bell V. Bell 465, 478 V. Bruen 862, 934 T. Farwell 244, 246, 249 V. Graham 368 Ixxvi TABLE OF CASES CITED. Bell V. Kennedy 118, 122, 124, 128, 12& V. Packard 271, 272, 275, 889, 910, 911 Belmont v. Cornen 635 Belvidere, The 78& Bemis v. MeKenzie 1546 Bempde v. Johnstone 116, 141 Benatar v. Smith 672 Benedict v. Chicago G. W. E.. Co 1103 v. Parmenter 757 Benedict, The 10» Benham v. Mornington 1439 Benne v. Schnecko 1550 Benners v. Clemens 953, 1231 Bennett, Re 1667 V. Cadwell 1476 V. Eastern Bldg. & L. Asso 1212, 1216 Benny v. O'Brien 49 Benson v. McMahon 1681, 1685, 1686 Bent V. Lauve 1229 Bentley v. Whittemore 615, 748, 773, 774 Benton, Re 100, 582, 591, 593 V. Benton 331, 481 V. Burgot 1404 V. German- American Nat. Bank 280 T. Singleton 17, 1174, 1175 Benton's Succession 470, 478, 484, 509 Berger v. Buckland 647 Bergner y. Chicago & A. R. Co 1081 Bergner & E. Brewing Co. v. Dreyfus 1236, 1240 Berkshire Mut. P. Ins. Co. t. Sturgis 238 Bernard v. Barry 991 V. Equitable Guarantee & T. Co 593 Bernardi v. Motteux 1420, 1422 Bernet v. Herran 1476 Berney v. Drexel 1572 Berrien v. Wright 1198 Berry Bros. v. Davis 801 Berthelot v. Fitch 1296 Berthemy's Case 51 Besse v. Pellochoux 404, 406, 422, 427, 428, 430 Bethell v. Bethell 611, 630, 631, 642, 657 V. Hildyard 310 Betty V. Horton 136 Bettys V. Milwaukee & St. P. R. Co 20, 1112 Beverson's Estate 375 Beverwick Brewing Co. v. Oliver 1148 Bibesco Case 443 TABLE OF CASES CITED. Ixxvii Bible Society v. Pendleton 1299 Bidal V. Thompson 1440 Biddle v. Wilkins 1372 Bidlack v. Mason 838 Bierhaus v. Wes.tern U. Teleg. Co 1568 Bigelow V. Ames 1245 V. Burnham . . . 1198 Biggs V. Lawrence 1 139 Billinghurst v. Spink County 176 -Bimeler v. Dawson 1404 Bingham's Appeal 647, 1288, 1308, 1313, 1314, 1334 Binney's Case 643, 650 Binnington v. Wallis 1182 Bird V. Com 1523 V. Hayden 245 V. Munroe 1448 V. Olmstead 1565 V. The Josephine 726 Birdseye v. Baker 762 V. Underhill 762 Birkley v. Presgrave 962 Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co 721, 723 Birmingham Waterworks Co. v. Hume 409, 1543 Birt V. Barlow 1497, 1498 V. Boutinez 450 Birtwhistle v. Vardill 539, 540, 541, 548, 551, 1282, 1296, 1301 Bischoff v.Wethered 1400, 1474 Bishop, Re 184, 195 V. Bishop 482, 483 V. Globe Co 797 V. Holcomb 748 V. Mersey & C. Nav. & Steam Co 1006 V. Middleton 812 Bishop Case 482 Bissell V. Bissell 375 V. Briggs 1404, 1413, 1422, 1423 V. Lewis 970 V. Terry 1448, 1461 Bittinger's Estate 201, 202 Black V. Braybrook 1500 V. Moore 697, 1555 V. Zacharie 755, 797 Blackburn v. Crawford 374 Black Crusher Co. v. New Haven 837 Blackstone, Re 192 V. Miller 173, 199 Blackstone Mfg. Co. v. Blackstone 162, 163 Ixxviii TABLE OP CASES CITED. Blaekwell v. Webster 914, 1171, 1172 Blain, Ex parte : . . . 830, 831, 1474 Blaine v. Curtis 1223 Blair v. Newbegin 248 Blaisdell v. Bickum 328 Blake v. Blake 645 V. Davis 646 V. Dudley 467 V. MeClung 242, 752, 848 V. Smith 1406 V. Williams 746, 828, 1483 Blakes, Ex parte 827 Blanehard v. Andrews 593 V. Russell 947, 1170, 1233, 1238, 1525 Blanchet v. Powell's Llantivit Collieries Co 1055 Blanehi's Goods 1362 Blandford v. State 1671 Blane v. Drummond 828, 829, 1483, 1599 Blasini v . Blasini 375 Blethen v. Bonner 407, 425, 1554, 1559 Bligh V. James 1141 Bliss V. Brainard 1160, 1170 V. Houghton 980, 1584 Blithman, Re 830 Bloch, Re 1695 Block V. Cross 424 Blodgett V. Durgin 984, 985 Blohm, The, 1055 Blood V. Sayre 163 Bloodgood V. Grasey 1525, 1529 Bloomer v. State 1627 Bloomingdale v. Lisberger 1035 V. Maas 795 V. Weil 767 Blount V. Walker 1309, 1312, 1391 Blueher v. Milsted 142, 143 Bluefields Banana Co. v. New Orleans 176 Blumenthal v. Tannenholz 96, 100, 467, 477 Blumer, Ex parte 130 Blystone v. Burgett 712 Blythe v. Ayres 91, 555, 557, 559, 561 V. Crump Bros 713 B-n V. B-n 334 Boardman v. Lake Shore & M. S. R. Co 1270 Board of Charities v. Moore 482 Bock V. Lauman 1507 Bodurtha v. Qoodrich 1400 TABLE OF CASES CITED. Ixxix Boehme v. Rail 240, 625, 1574 Bofenschen's Succession 1053 Boigt V. Brown 909 Boissonneau v. Ch. d. fer du Nord 1088 Beit V. Maybin 1141 Bollard v. Spencer 1369 Boiling V. Boiling 1348, 1349 Bollinger v. Gallagher 1520, 1521, 1560 V. Wilson 1152, 1159, 1160 Bolton V. Gladstone 1420 V. Street 1187, 1197, 1202, 1228 Bonafous v. Walker 1371 Bonaparte v. Appeal Ta^ Court 172 V. Bonaparte 456 Bonaparte, The 959 Bonati v. Welsch 408, 419, 420, 818 Bond V. Ciimmings 273, 423, 910 V. Graham 1360, 1372, 1389 Bonelli's Goods 1522 Bonham v. Badgley 322, 325 Bonnaffe, Re 1595 Bonneau v. Poydras 1547 Bonnifield v. Price 1247, 1255 Booth V. Clark 828, 836, 844 Boothby v. Plaisted 1141, 1143 Borden, Re 175, 178 V. Borden 1360 V. Fitch 471, 493, 494, 1405 Borland v. Boston 119 Born V. Home Ins. Co 1013, 1039 V. Shaw ■ 736 Borton v. Brines-Chase Co 240 Boske V. Security Trust & S. V. Co 179 Boston V. Boylston 1362, 1372, 1373 Boston & A. R. Co. v. Pearson 1051 Boston & M. R. Co. v. Hurd 1114, 1262 V. McDuffey 1104, 1124, 1132 Boston India Rubber Factory v. Hoit 1404 Boston Iron Co. v. Boston Locomotive Works 745 Boswell V. Otis 1422 Botanieo-Medical College v. Atchinson 947, 1525 Botna Valley State Bank v. Silver City Bank 120 Bottomley v. Metropolitan L. Ins. Co 1020, 1028, 1047 Boucher v. Lawson 1440 Bouchier v. Taylor 1418 Boulden v. Pennsylvania E. Co 1136 Boiddin v. Miller 596 Ixxx TABLE OF CASES CITED. Boulting V. Boulting 521 Boulware v. Davis 839 Bourcier v. Lanusse 433, 434 Bourke v. Ricketts 1387 Bouvier, Re 1&72, 1673 Bovard v. Dickenson 1544 Bovey v. Smith 1334 Bowdle V. Jeneks 626 Bowen v. Bradley 1188, 1197 V. Newell 984 V. Pope 815 Bowers v. Bowers , 322 V. Durant 642 Bowles V. Field 272, 276, 910 Bowman v. Bowman 470 V. Miller 863, 1186 V. Sanborn 1500 Bowman Distilling Co. v. Nutt 1151, 1156 Bowne v. Joy 141 1 V. Olcott 1000 Boyce v. Edwards 1228 V. Grundy 609 V. Wabash R. Co 1094, 1116 Boyd V. Boyd 1554 V. Clark 1262 V. Ellis 863, 864, 866, 877 V. Glass 584 V. Nebraska 51 V. Rockport Steam Cotton Mills 775 Boydson v. Goodrich 712 Boyer v. Dively ; 307 Boyes v. Bedale 558, 1291 Boyle V. Griffin 593 V. Musser-Saimtry Land, Logging & Mfg. Co 801 V. Southern R. Co 1122 V. Zacharie 870 Boyles v. Latham 527 Bozzelli, Re 327 Brabston v. Gibson 975, 977, 983, 909 Brackett v. Norton 1509, 1532 Bradford v. Cooper 1504 Bradlaugh v. De Rin 995, 1001, 1002 Bradley v. Bauder 181 V. Burton 1625 V. Cole 1255 v. Johnson 281, 1551 V. Lowry 1305 TABLE OF CASES CITED. Ixxxi Bradley v. Northern Bank 1528 V. West 1526 Bradshaw v. Mayfield 1554 Bradstreet v. Bradstreet 121, 123 V. Neptune Ins. Co 1420, 1422 Brady v. McGehee 982 Bragg V. Gaymor 804 V. State 125 Brainard v. Fowler 1413 Braithwaite, Re 1346 V. Harvey 1382, 1383 Brand v. Green 828 Brandao v. Barnett 1504 Brandoly's Case 1672 Brandon Printing Co. v. Bostick 695, 781 Branley v. South Eastern R. Co 863 Jirannock, Re 709 Brantford City, The 939, 1068, 1076, 1106 Braun v. Davis 807 Braunn v. Keally 69S Braynard v. Marshall 793, 1235 JBreadalbane v. Chandos 1302, 1334 Breckinridge v. Moore 624, 1171, 1172 Breedlove v. Nicolet 1236 Breitung's Estate 1036 Bremer v. Freeman 102, 157, 1305, 1529 Brent v. Chapman 823, 1256 V. Shouse 705, 747, 779 Brereton v. Canadian P. R. Co 663, 660 Bresser v. Saa.rman 1546 Brett V. Brett 469 Brettilot v. Sandoa 1487 Brewer v. Cox 612, 1296, 1298 V. Linnaeus Ill, 143 Brewster v. Chicago & N. W. R. Co 1101 Bride V. aark 1527 Bridger v. Asheville & S. R. Co 1100 Brien Dit Desrochers v. Marchildon 403 Briggs V. Briggs 461 V. Latham 889, 976, 986, 987, 992 V. Morgan 335 V. Rochester 94 V. The Upper Cedar Point 791 Brigham v. Gilmartin 272, 275, 277 V. Henderson 1234 Bright V. Judson 971, 978 ^Brighton Market Bank v. Meriek 1235 Vol. I. CoNFL. of Laws — vi. btxxii TABLE OF CASES CITED. Prine v. Hartford F. Ins. Co 611 BrinhaJl v. Van Campen 1550, 156& Brinker v. Scheunemann 695- Brinkley v. Brinkley 375, 378, 1396, 1413 Brinkman v. Luhrs 1551 Brisbane v. Dobson 526 Briscoe, Be 1699 V. Bank of Commonwealth 295 Bristol V. Washington County 165, 175 Bristow V. Sequeville 1440, 1463, 1522. Britain v. Rossiter 1447 British American Land Go. v. Ames 235. British American Mortg. Go. v. Bates 1202 British Linen Co. v. Drummond 1245, 1247, 1456, 1495- British South Africa Go. v. Gompanhia de Mocambique 662, 665 Brittenham v. Exjbinson 136 Broadhead v. Noyes 863, 864 Broadstreet v. Clark 1588- Broadway Nat. Bank v. Baker 248, 1264 Brock V. Frank 1291, 1296, 1301, 1333, 1390 Broekway v. American Exp. Co 1067, 1074, 1075- V. Maloney 1152. Brodie v. Barry 133a V. Brodie 136, 458 Broh V. Jenkins 1259- Bronson, Re 183, 191, 194 V. Kinzie 1588. V. St. Croix LiMiber Co 619, 636, 1576 Bronte v. Leslie 983. Brook, Re 1400 v. Brook 325, 327, 340, 344, 351, 358, 361 V. Vannest 971 Brooke v. New York, L. E. & W. R. Co 874 V. Potowmack Go 596 Brooklyn City & N. R. Go. v. National Bank 948 Brookman v. Hamill 725, 726 Brooks V. Floyd 1371 Brookshire v. Dubose : 1373 Broome, Re 1598. Brown, Ex parte 1695, 1698- V. Alexander 1173 V. American Finance Oo 942, 1202. V. Bashford 1297 V. Bridge 1235, 1420 V. Brown 335, 464, 1259, 1291, 1374, 1379 V. Browning 277, 281, 917, 918 V. Butler 120. TABLE OF CASES CITED. Ixxxiii Brown v. Camden & A. R. Co 930, 1058, 1061, 1087, 1696 V. Chesapeake & 0. Canal Co 653 V. Dalton 289 V. Desmond 642 V. Early 624 V. Freeland 945, 1190, 1196 V. Gardner 1190 V. Gates 622, 917 V. Gracey 1558 V. Irwin 662 V. Jones 988 V. Knapp 671, 1374 V. Koenig 706 V. Lynch 98 V. National Bank 620 V. Nevitt 1208 V. Nichols 1400 V. Parker 1256 V. Ransey 432, 1341 V. Richardson 957 V. San Francisco Gaslight Co 1370 v. Smart 775, 835, 1235 V. Smith 112 V. Stone '... 1245 V. Thornton 1495, 1500 V. Todd 1229, 1581 V. Trail 248 V. United States 57, 94 V. Wieland 1144, 1145, 1159 V. Wright 1560 Brown's Appeal 1034 Brown Case. See Bbown v. Camden & A. R. Co. Brown County v. Standard Oil Co 167 Browne v. Dexter 23 V. Joy 1581 Brownell v. Troy & B. R. Co 251 Browning, Re 758 V. Abrams 1697 V. Merritt 973 Brownlee ,v. Lockwood 1372, 1373, 1385 Bruce, Re 186, 1387 V. Bruce 113, 118, 121, 158 V. Cincinnati R. Co 1111, 1120, 1122, 1134, 1135 V. Luck 1245, 1267 V.Ross 1173 V. Smith 748 Brundred v. Del Hoyo 143 Ixxxiv TABLE OF CASES CITED. Bruneau v. Bruneau 422 Brunei v. Brunei 138, 139 Brunswick v. Hanover 295 Brunswick Terminal Co. v. National Bank 1263, 1264 Brush V. Wilkins 1524 Bryan v. Brisbin 610, 775 V. McGee 1373 Bryant v. Edson 881, 984, 985 V. United States 1674, 1685 Bryne v. Crowninshield 1249 Buccleuch v. Hoare 1283 Buchanan v. Cook 139 V. Deshon 673 V. Drovers' Nat. Bank 889 V. Hubbard 1540, 1546 V. Rucker 1474 Buck V. Beach 173, 177, 178 V. Johnson 1372 V. Miller 166, 176, 177 Buckeye Pipe Line Co. v. Fee 814 Buckinghouse v. Gregg 1221, 1546 Buckles V. Filers 1116 Buffalo Coal Co. v. Rochester & State, Line R. Co 712 Buffit V. Troy & B. R. Co 1090 Bugbee, Re 1595 Building & L. Asso. v. Bilan 1214 V. Griffin 1214, 1215 V. Logan 1212 Bulger V. Roche 1248, 1249 Bulkey's Case 442 Bulkley v. Honold 682, 688 Bullard v. Chaffee 802 V. Perry 1295 v. Thompson 1187 Bullock V. Bullock 320, 526, 527, 651 V. Caird 1053, 1491 V. Rogers, 1363, 1385 Bump V. New York, N. H. & H. R. Co 127 V. Smith 142, 476 Bimbury v. Bunbury 641 Bunnell v. Shilling 1037 Burbank v. Payne 1360 Burchard v. Dunbar 280, 1483 Burdick v. Burdick 481 V. Freeman 1097 Burgess v. Clark 136 V. Western U. Teleg. Co 1085, 1554 TABLE OF CASES CITED. Ixxxv Burgett V. Williford 1245 Burlen v. Shannon 409, 472, 475, 493, 51 •'> Burley, Re 1672 Burlington & M. River R. Co. v. Thompson 801 Burlington Lumber Co. v. Willetts 107 Burlock V. Taylor 757 Burn V. Cole 1302 Burnet v. Burnet 592 Burnett v. Pennsylvania R. Co 1000 Burnham v. Webster 984, 985, 1404, 1406 Burnley v. Stevenson 042, 646, 651, 052, 1414 Burns v. Davidson 655 V. Grand Rapids & L R. Co 1115,1110,1118,1120, 1122 Burr, Re 193 Burrell v. Fleming 1115, 1119 V. Root 1444, 1401 Burroughs v. Norwich & W. R. Co 1090 Burrows, Re 423 V. Hannegan 975, 992 V. Jemino 992 Burtis V. Burtis 470. 472 Burton v. Burton 53, 4.56, 459 V. Fisher 116 Bush V. Garner 409, 1519, 1520, 1521, 1530, 1540 V. Nance 804 Bushby v. Camac 1229 V. Munday 1582 Bushnell, Re 192 Buswell V. Supreme Sitting, 0. I. H 847 Butler V. Delaplaine 251 V. Edgerton 803, 1198 V. Freeman 369 V. Goreley 1234 V. Hopper 25 1 V. Myer 803, 866, 1197, 1209, 1545 V. Washington 503 V. Wendell 773 Butterfield v. Beall 620 Butters v. Olds 992, 1197, 1202 Buttriek v. Allen 1498 Byanj v. Byam 427 Bye, Re 123, 784 Byers v. Brannon 1171 v. Tabb 762, 777 Byrd v. Badger 1235 Ixxxvi TABLE OF CASES CITED. o C'aballero's Succession, 536, 554, 560 Cable 1 . McCune 245 Cabrera, Ex parte 61 Cade V. Davis 411, 423, 1552 Cadwalader v. Howell 120 Cady V. Bard 1374 Cagill V. Wooldridge 835-837 Cahalan v. Monroe 409, 423 Calahan v. Babcock 784 Calcutta Jute Mills Co. v. Nicholson 109, 110 Ca,lder's Case 1675 Caldwell v. Carrington 862 V. Harding 1372 V. PoUak 120 V. Seivers 159 1 V. Sigourney 1172 V. State 43 V. Vanvlissengen 2, 229 Caledonia Ins. Co. v. Wenar 1554 Calef V. Calef 467 Calhoun v. Insurance Co 1421 Calhoun County v. Galbraith 983 Calkin ». United States 788 Callahan v. Woodbridge 196, 201 Callander v. Dittrich 1404 Callender, McA. & T. Co. v. Flint 935 Calloway v. Doe 1308 Callwell V. Callwell 457, 463 Calvert v. Bovill 1422 Calvin's Case 67 Cambioso v. Maffett 1139 Cambridge v. Charlestown 140 Cameron v. Vandergriff 1 130 V. Watson 415 Camfranque v. Burnell 862, 1586 Cammell v. Sewell 741, 744, 789, 960, 1418 Camp v. Hartford & N. Y. S. B. Co 1072 Campbell v. Brown 1369 V. Campbell 120, 498 V. Colorado Coal & I. Co 755, 760 v. Coon 720, 722 v. Crampton 274, 323, 357, 893, 905, 907, 912, 926 V.Dent 611, 798 v. Gullatt 375 V. Holt 1261 TABLE OF CASES CITED. Ixxxvii Campbell v. McGregor 665 V. Miller 1548 V. Nichols 863, 889, 992, 1187 V. Rogers 1 127 V. Sheldon 1362, 1389 V. State 1637, 1648 V. Tousey 1374 V. Wallace 1362 Canada Southern R. Co. v. Gebhard 238 Canadian F. Ins. Co. v. Robinson 1556 Canadian P. R. Co. v. Johnston 1257 Canale v. People 336, 369, 383, 152Q Candee v. Clark 932 Cannan v. Brice 1 139 Cannon, Re 1697 Cannon's Estate 98 Canterbury v. Wyburn 1329 Canton Ins. Office v. Woodside 1031 Cantu V. Bennett 1082 Capdevielle, Re 153, 187 Cape May & D. B. Nav. Co. Re 1370, 1380, 1384 Capling V. Herman 1499 Capper, Re 1546 Carey v. Cincinnati & C. R. Co 1569 V. Mackey 882, 915 Carey's Appeal 124, 1304 Carib Prince, The 1076 Carleton v. Bickford 477, 1400, 1405, 1411 Carlin v. Wallace 1270 Carling v. Seymour Lumber Co 1234 Carlisle v. Chambers 975, 983, 991, 992 V. Pullman Palace Car Co 171 V. Tuttle 97, 593 V. United States 1482 Carmena v. Blaney 316 Carmichael v. State 375 Carmisales v. State 1643 Carnahan v. Western U. Teleg. Co 1086 Carnegie v. Morrison 971 Carnegie Steel Co. v. Chattanooga Oonstr. Co 973, 974 Carpenter v. Bell 1287 T. Carpenter 113 V. Dexter 617, 1505 V. Grand Trunk R. Co 1062, 1548 V. Lewis 1213, 1223 V. Strange 648, 650, 651 Carpentier v. Minturn 124.^ Ixxxviii TABLE OF CASES CITED. Carr, Ex parte 1636: V. Corcoran 804 V. FraciB 1095^ V. Lowe 1282, 1303, 1376 V. State 1696- V. Wellborn 584, 585 Carrier v. Gordon 163- Carrington v. Brents 1461 Carroll v. Carroll 1417 V. East St. Louis 235, 237, 244 V. MePike 1375, 1377 V. Nisbet 714 V, Renich 402, 432 V. Upton 988. V. Waters 1049' Carrollton Furniture Mfg. Co. v. American Credit Indenmity Co. 1012, 1042-. Carron Iron Co. v. Maclaren .' 109, 1582 Carson v. Carson 437 V. Dunham 642 V. Hunter 1257, 1491 V. Memphis & C. R. Co 1588; Carter v. Adamson 1248. V. Board of Education 1329 V. Carter 483 V. Goode 1096 V. Putnam 129, 144 v. Union Bank 987 Carter-Battle Grocer Co. v. Jackson 755, 760, 763^ Carteret v. Petty 643 Cartier v. Page 1257 Cartright v. Pettus 658 Cartwright v. Cartwright 1522 V. Greene 1189, 1228 V. New York R. & M. R. Co I486. Carver v. Adams 1245, 1269, 1584 Cary v. Cleveland & T. R. Co 1090' Case V. Case 375. V. Dodge 272, 277 V. Heffner 993 V. Riker 1168, 1169 Cash V. Kennion 1231 Caskie v. Webster 793, 1483' Casola V. Kugelman 1552 Cass V. Gunnison 143 Cass's Succession 583, 584 Cassidy's Succession 632 TABLE OF CASES CITED. Ixxxix Cassilly v. Meyer 1376 Castioni, Re 1080 Castleman v. Jeflfries 405, 612, 681, 117ft V. Templeman 838, 881 Castrique v. Behrens 1396 V. Imrie 680, 743, 789, 817, 1397-1399, 1405, 1407, 1419, 1422, 1424, 1476 Castro V. De Uriarte 1678 V. lilies 422, 43ft Catlett V. Pacific Ins. Co 1499 Catlin V. Gladding 142, 144 V. Hull 162, 176 V. Trinity College 201 V. Wiloox Silver-Plate Co 751, 836, 837, 841, 842 Catterall v. Catterall 373, 384 V. Sweetman 373 Catterina Chiazzare, The 1581 Catterlin v. Hardy 714 Caulfield v. Sullivan 1337, 1349 Cavallaro v. Texas & P. R. Co 1544 Cavan v. Stewart 140ft Cavanagh v. Ocean Steam Nav. Co 1262 Cavender v. Guild 123ft Cecil Bank v. Barry 1506 Central Nat. Bank v. Cooper 1198 V. Hume 1038 Central R. & Bkg. Co. v. Carr 1097 Central R. Co. v. Brinson 802 V. Kavanaugh 1070, 1079 V. Swint 1135 Central Trust' Co. v. Berwind-White Coal Co 1485 V. Burton 1569 V. Charlotte, C. & A. R. Co 1094 V. Chattanooga, R. & C. R. Co 806 Certain Logs of Mahogany, Re 1583 Chace, Ex parte 336 Chafee v. Fourth Nat. Bank 754, 767 Chaine v. Wilson 143 Chamberlain v. Chamberlain 1301, 1319, 1322-1324, 1326 Chambers v. Prince 136, 137 Chambers Bros. v. Church 914 Champion v. Doughty 66ft V. Wilson 1175, 156ft Champollion v. Corbin 1300 Champou v. Champon 484 Chandler v. Grieves 1504 V. Kennedy 983 xc TABLE OP CASES CITED. Channel v. Capen 1293 Chanoine v. Fowler 1516, 1523 Chapin v. Dobson 1531 Chapline v. Moore 1294 Chapman v. Bradley 327 V. Brewer 1551 V. Chapman 470, 509, 530 V. Cottrell 993 V. Fish 1363 V. Headley 1372 V. Robertson 672, 1188, 1189 Chappell V. Jardine 618 Chariton County v. Moberly 138, 146 Charkieh, The 63, 790 Charleston, Re 1677 Charleston & W. C. R. Co. v. Miller 1545 Charlotte v. Chouteau 1607, 1516, 1519 Charlton v. Donnell 1156 Chartered Mercantile Bank v. Netherlands India Steam Nav. Co.. . . 1067 Chase v. Alliance Ins. Co 1531 V. Blodgett 1503 V. Chase 133, 135, 136, 140, 464, 466, 477, 522, 1372 V. Henry 1237 Chatenay v. Brazilian Submarine Teleg. Co 873, 875, 880 Chattahoochee, The 1076 Chattanooga, R. & C. R. Co. v. Jackson 1520, 1581 Chavasse, Ex parte 1 183 Cheely v. Clayton 472, 486, 489, 518 Cheever v. Wilson 437, 469, 470, 477, 485, 486, 488, 518 Chemical Nat. Bank v. Tuttle 764 Cherokee Nation v. Georgia 43, 44 Cherokee Tobacco Case, The 41 Cherry v. Speight 1286, 1413 V. Sprague 1549 Chesapeake & N. R. Co. v. Venable 1547 Chesapeake & 0. R. Co. v. Paine 810 Chevrier v. Robert 1254 Chew V. Read 987 Chicago & A. R. Co. v. Wiggins Ferry Co 1536 Chicago & E. I. R. Co. v. Rouse 1102, 1115, 1120 Chicago & N. W. R. Co. v. Johnson 1510 V. Ohle 122 V. Tuite = 1107, 1506, 1520, 1529 Chicago & W. I. R. Co. v. Schroeder 1127 Chicago, B. & Q. R. Co. v. Gardiner 1078 Chicago, M. & St. P. R. Co. v. Keokuk N. L. Packet Co 836, 837 Chicago, R I. & P. R. Co. v. Sturm 799, 800, 811, 1588 TABLE OF CASES CITED. xci Chicago, St. L. & N. 0. R. Co. v. Doyle 1119, 1130 Chichester v. Donegal 105 Chillingworth v. Eastern Tinware Co 698 China Mut. Ins. Co. v. Porce 1068, 1395 Chipman v. Peabody 835 Chitty V. Chitty 116, 117 Chomqua v. Mason 1260 Chouteau v. Chevalier 1498 Christiana, The 1089 Christie v. Secretan 1422 Christie's Succession 102, 103, 408, 415, 1588 Christmas v. Biddle , . 810 V. Russell 1267, 1400, 1407, 1413, 1416 Chumasero v. Gilbert 1560, 1567 Church V. Crossman 1546 V. Hubbard : 1499, 1524, 1529 V. Rowell 118 Cigala, Re 182, 187 Cincinnati, H. & D. R. Co. v. McMullen 1106, 1127, 1130 V. Thiebaud 1136 Citizens Nat. Bank v. Culver 717 V. Hine 1051 V. Sharp 1381 City Bank v. Eastern Boot & Shoe Co 695 City Ins. Co. v. Commercial Bank '. 834, 836 City of Carlisle, The 1493, 1494 City of Erie, The v. Canfield 726 City of Mecca, The 1421 City of Norwalk, The 1121 City Sav. Bank v. Bidwell 1202, 1557 Claflin V. Mayer 704 Clanton v. Barnes 422 Clardy v. Wilson 1554 Claremont Bridge v. Royce 237 Clark, Re 1690 V. Barnes 1541, 1560 V. Blackington 1360, 1364 V. Child 1227, 1230 V. Clark 320, 368, 437, 476, 477, 483, 488 V. Cochran 1503 V. Connecticut Peat Co 764, 792, 793, 796 V. Dales 886 V. EUinge 27n V. Field 331 V. Graham 617 ■ V. Harmer 621) V. Hatch 123."i xcii TABLE OF CASES CITED. Clark V. Holt 1369 V. Lake Shore & M. S. R. Co 1248 V. Mulliek 1495 V. Parsons 1404 V. Porter 983 V. Russell 1100' Y. Scudder "SI V. Seagreaves ti.')4 V. Searight , 880, 983, 993 V. State 1643 V. Tanner 929 V. Tarbell 709 Clarke v. Pratt 1230 V. Taylor 1228 V. Territory 138 V. Union F. Ins. Co 1011 <:!larke's Appeal 1346, 1350 Clason V. New Orleans 172 Clay V. Smith 1238 V. Stephenson , 1480 Claybook v. Wade 1476 Clay F. & M. Ins. Co. v. Huron Salt & Lumber Mfg. Co 1007, 1029 Clayton v. Gregson 953, 955 V. Gresham 1417 V. Warden 375 Clegg V. Levy 1440 Clendenning v. Clendenning 313 V. Conrad 593 Cleveland v. Burrill 642 Cleveland, C. C. & St. L. R. Co. v. Druien 1077 Cleveland Maeh. Works v. Lang 695, 780, 782 Cleveland Rolling Mill Co. v. Crawford 840 Cloete, Ex parte 64 Clopton V. Booker 644, 648, 1374 Cloud V. Greasley 642 Clough V. Kyne 120 Clugas V. Penaluna 1139 Coad V. Home Cattle Co 1198 Coales, Re 186 Cobb V. Buswell 711 V. Griffith & A. Sand Gravel & Transp. Co 1507 V. Lime Rock F. & M. Ins. Co 1031 V. Rice 116, 118 Coburn, Re 1318, 1351 Cochran v. Benton 267. 282 V. Ward 627, 629, 1447, 1449, 1451, 1462, 1528, 1530 Cochrane v. Boston 134 TABLE OF CASES CITED. xciii Cockerell v. Barber 1231 V. Dickens 608, 826, 827 Cockrell v. Cockrell 122, 140, 141 Coddington v. Coddington 464 Codma.n v. Krell 691, 1340 Coe V. Errol 165, 167 ■Coffee V. Neely 1536 Coffin V. Coffin 1588 V. Otis 1305 Coffman v. Bank of Kentucky 977 ■Goflin V. Kelling 755 Coghlan v. Soutli- Carolina R. Co 922, 1227, 1228 Cohen v. Southeastern K. Co 1078, 1087 Cohn V. Jones 1682, 1683 Coit, Re 1364, 1380 Colbert v. Daniel 1374 Colburn v. Colbum 127, 466, 485 Cole v. Cole 477, 490 V. Cunningham 833, 1240, 1396, 1471 v. His Executors 414, 421 Coleman's Estate 203 Colesbury's Estate 592 Coleson v. Blanton 1259 Collard v. Beach 1097 Collett V. Keith 1411 Collier v. Rivaz 117 Collins V. Ashland 122, 132 V. Bankhead 1385 y. Green 165 V. Manville 1255 V. Merrell 1181 V. Miller 172 Collins Co. V. Brown 237, 729 V. Reeves 237, 729 Collins Iron Co. v. Burkam 803, 866, 1491 CoUiss V. Hector 402, 429, 443, 452, 1405 Colt V. Colt 1485 V. O'Oallaghan 704 V. Partridge 1581 Colton V. Longmeadow 118 Columbia Falls Brick Co. v. Glidden 1237 Columbia F. Ins. Co. v. Kinyon 13, 1009, 1023, 1024 Columbian Bldg. & L. Asso. v. Rice 1212, 1553 Columbian Government v. Rothschild 1489 Columbus, S. & H. R. Co.'s Appeal 1228 Colville V. Lauder 130 Colvin V. Reed 472, 482, 522 xciv TABLE OF CASES CITED. Comer v. Cunningham 2, 781 Oomitis V. Parkerson 23, 53 Commercial Bank v. Auze 1204 V. Barkadale 987 V. Jackson 613, 926, 1553 Commercial Nat. Bank v. Davidson 929 V. Motherwell Iron & Steel Co 842 V. Simpson 9*7 Com. T. American Dredging Co 166, 169 V. Aves 251, 1170 V. Blanding 1635 V. Blood 492 V. Bostvvick 577 V. Bradley 1636 V. Chesapeake & 0. R. Co 172' V. Clary 32 V. Coleman 202 V. Cullins 1642 V. Dorrance 1638 V. Ferrell 1635 V. Gillespie 162S V. Graham 336, 1549 V. Green 254, 1413, 1503, 164S V. Griffith 1369'' V. Hawes 1652, 1671, 1673 V. Holder 1642 V. Hunt 314 V. Karpowski 1640 V. Kelleher 113 V. Kenney 377 V. Lane 224, 310, 311, 314, 326, 358 V. Luckness 1615 V. Macloon 1620, 1634 V. Maize 482 V. Munson 375, 378, 379 V. Parker 1642 V. Parmenter 1637 V. Pennsylvania Coal Co 172 V. Pettes 1638 V. Eoxbury 1619 V. Shuler 482 V. Smith 197 V. Stevens 482 V. Stump 375 V. Taylor 482 V. Uprichard 1641 V. Van Tuyl 1636 TABLE OF CASES CITED. xcv Com. V. White 1627, 1635, 1642 V. Williams 175 V. Wright 1697 Com. ex rel. Lueas v. Ayer & L. Tie Co 170 Lewis V. Holloway 251 Sage V. Sage 572 Com. use of Todd v. Ehoads 598 Commonwealth Mut. F. Ins. Co. v. Edwards 102-5 V. Fairbank Canning Oo 1012 V. William Knabe & Co. Mfg. Co 1012, 1013, 1024 Companhia De Mocambique v. British South Africa Co. . .662, 665, 1098 Compton V. Bearcroft 340, 395 V. Wilder 1697 Comstock V. Frederickson 836, 838, 83!) Conahan v. Smith 991 Concha v. Murrieta 1518 Conoord v. Rumney 115 Cone V. Cone 102 V. Hooper 1414 Congregational Church Building See. v. Everitt 1355 Congregational Unitarian Soc. v. Hale I3I9, 1326, 1327, 1528, 1571 Connecticut Mut. L. Ins. Co. v. Cross 23? V. Duerson 1271 V. Westervelt 272, 275, 510, 889, 1036 Connell v. Crosby 202 Connelly v. Connelly 365 Conner v. Elliott 401, 406 Connery v. Quincy, 0. & K. C. R. Co 813 Connolly v. Woolrich 309, 311 Connor v. Bellamont 1189 V. Connor 404 V. Omaha Nat. Bank 762 Conrad, Re 889 V. Conrad 481 V. Nail 143 Gonsequa v. Fanning 59, 862, 871 V. Willing 1506 Consolidated Real Estate & Fire Ins. Co. v. Cashow 1520 Consolidated Tank Line Co. v. Collier 756, 1570 Constitution, The 790 Contee v. Lyons 647 Continental Ins. Co. v. Webb 1009, 1014, 1032 Conty's Case 542 Converse v. Poster 1148, 1162 V. Starr 1283 Conway v. Beazley 357, 447, 456 Good V. Cood 1006, 1498 xcvi TABLE OF CASES CITED. Coode's Goods 1389 Oooley V. Scarlett 654 Cook, Ee 1695 V. Cook 509, 511, 515, 526 V. Dey 1472 V. Greenock Ins. Co 1006 V. Gregson 1386 V. Hart 1698 V. Litchfield 988 V. Mofl:at 1187, 1235 V. Van Horn 750 V. Wimberly 593 Cooke V. Addicks 1502 V. Orange 837 V. Sholl 1418, 1420 Cooper V. Beers 102, 106, 120, 1293, 1363 V. Cooper 496 V. Cotton 414 V. Dismal Swamp Canal Co 672 V. Ives 648, 1296, 1297 V. Pacific Mut. L. Ins. Co 1009 V. Philadelphia Worsted Co 713, 781 V. Reaney 1190, 1400, 1531, 1550, 1556 V. Standley 1550 V. Waldegrave 992, 993, 1186, 1228 Cope V. Alden 671, 798 V. Doherty 1089, 1092, 1093 V. Wheeler 1189, 1190 Copeland v. Collins 1528 Copenhagen, The 962 Copin V. Adamson 1400, 1401 Copley V. Sanford 704, 1535 Coppell V. Hall 1183 Coppin V. Coppin 818, 1282, 1306 Corbett v. Littlefield 712 V. Nutt 647, 651, 652 Corbin v. Planters Nat. Bank 1000 Corley v. Travelers' Protective Asao 1048 Cornelison v. Browning 1391 Cornett v. Williams i 1479 Corn Exch. Bank v. Rockwell 848 Corning, Re 196 V.Abbott 1151, 1156 Cornwall, Re 1594 Corrie's Case 368, 403, 1292, 1375 Corsair, The 1121, 1128 Cosgrove v. Winney 1672 TABLE OF CASES CITED. xevii Cosio V. De Dernales 290 Cosnahaa's Goods 1287, 1332, 1388 Costro V. De Uriarte 1675 Cotting V. De Sartiges 1313, 1314 Cottrell V. Oottrell 1305, 1318 Coughan v. Banks 975 Council Bluffs Sav. Bank v. Griswold 1551, 1538 Counhaye, Ex parte 1669, 1679 Courtois V. Carpentier 1226 Courtright v. Courtriglit 326, 336, 358 Covey V. Cutler 751, 755 Cowan V. Braddwood 1401, 1406, 1411 Cowden v. Jackson 1373 Cowen V. Equitable L. Assur. Soc 1040 Cowles V. Townsend 935 Cowpertbwaite v. Sheffield 993 Cox V. Adams 976, 991 V. Cox 477, 524 V. Morrow 1543 V. National Bank 978, 983, 994 V. United States 862, 879, 930 V. Von Ashlefeldt 1296 Coy, Ex parte 1671 Crafts V. Clark . 1395, 1400, 1556 Cragie v. Lewin 113 Cragin v. Lamkin 1525, 1526, 1529 V. Lovell 662, 663, 665 Craig V. Dimock 1440, 1463 V. Donovan 630 V. Radford 66, 1302 V. Williams 712 Craighead v. Pike 1338 Craigie v. Lewin 128 Craignish, Re 125, 159 Crake v. Crake 1527, 1546 Crampton v. Valido Marble Co 757, 835 Crandall v. Great Northern R. Co 1534, 1537, 1569 Crandell v. Barker 1299 Crane v. Hardy 376, 1549 V. Reeder 46, 57 Cranstown v. Johnston 643, 644 Crapo v. Kelly 748, 749 784-786, 818 Craven v. Atlantic & N. C. R. Co 1198, 1209. 1218 V. Craven 469 Cravens v. New York L. Ins. Co 1014, 1022, 1040 Crawford v. Branch Bank 976, 993 V. Graves 1369 7oL. I. CoNFL. OF Laws — ^vii. xeviii TABLE OF CASES CITED. Crawford v. Simonton 1229' V. State 321 V. The William Penn 1184, 1486 Crawley v. Isaacs 140(i Crayeroflf v. Morehead 411 Crebbin v. Deloney 1222, 122S Creighton v. Murphy 1383 Crenshaw v. Hedrick 1214 Creole Case 1616 Crescent, The 727 Cressey v. Tatom 423, 1540, 1553 Cribbs v. Adams 984 Crippen v. Laighton 246, 248 V. Rogers 833 Crispin, Ex parte 830, 1600 V. Doglioni 1332 Criswell v. Whitney , 1034 Crocker v. Arey 1257 Crofoot V. Thatcher 1247 Croker v. Hertford 154 Cromwell v. Eoyal Canadian Ins. Co 1014 V. Sac County 945, 1187, 1203 Cronan v. Fox 715 Crone v. Dawson 1230 Cronin v. Foster 804 Croninger v. Crocker 863, 1228 Cronise v. Cronise 437 Crookenden v. Fuller 2, 118, 1303, 1307 Crosby v. Berger 432 V. Huston 712 Crosland v. Wrigley 1032 Cross, Re 1683 V. Armstrong 1038 V. Cross 478, 512 V. De Valle 66, 1302 V. Petree 977 V. United States Trust Co 1319, 1324 Grossman v. Lurman 687 Crouch V. Hall 981, 991, 1540 V. Louisville & N. R. Co 1079, 1550 Croudson v. Leonard 1420, 1421 Crouse v. Phoenix Ins. Co 761, 775 Crow V. Coons 1235 Crowell V. Skipper 683 Crowley v. Panama R. Co 1113, 1127 Crozat V. Brogden 1407 Crozier v. Bryant 1558 TABLE OF CASES CITED. xcix Crozier v. Hodge 154t> Cruger v. Phelps 135, U7 Crum V. Bliss 1328, 1525 Crumlish v. Central Improv. Co 939 Crusoe v. Butler 1337, 1378 Cubbedge v. Napier 1531, 1570 Cudahy P. Co. v. New Amsterdam C. Co 1028 Cullum V. Casey 993 Culver V. Benedict 700, 704 Culver's Appeal 115, 138 Ciuuberland Coal & I. Co. v. HoiJman Steam Coal Co 655 Cimimings v. Banks 1377, 1404 V. Brown 1529 V. O'Brien 1507 Cummington v. Belehertown 515 Cunningham v. Cureton 781 V. Jacobs 1546 Curling v. Thornton 135 Curnow v. Phoenix Ins. Co 1014 Curran v. State 1038 Currie v. Bircham 1383 Curtis V. Bradford 1093 V. Delaware, L. & W. R. Co 1061, 10S8 V. Hutton 672, 1302, 1300, 1329 V. Leavitt 1197, 1217 V. Smith 591 Curtiss V. JEtna L. Ins. Co 1014 Cushing, Re 192 V. Perot 246- 248 V. Wells, F. & Co 1231 Cushman v. Luther 712 Oust V. Goring 1283 Cutler V. Thomas 1050 V. Wright 945, 1531, 1557 Cutter V. Davenport 608, 818, 1282, 1370 Cutts v. Haskins 114 Cuykendall v. Miles 246 33 Dacosta v. Davis 681, 863, 1442, 1443, 1456, 1458, 1460, 1463 Daggs V. Orient Ins. Co 1044 D'Aglie V. Fryer 1498 D'Aguilar v. D'Aguilar 305 Dahlonega Gold Min. Co. v. Purdy 7^0 Dailey v. New York, 0. & W. R. Co 12G2 c TABLE OF CASES CITED. Dainese v. Hale 58 Dakin v. Pomeroy 1560 Dale V. Atchison, T. & S. F. R. Co 1109, 1114, 1116, 1123 Dalgleish v. Hodgson 1420, 1422 Dalglish V. Davidson 962 Dalhousie v. M'Douall 90, 92, HI, 536, 538, 553, 560, 561 Dalpay, Re 775 Dalrymple v. Dalrymple 2, 336, 340, 368, 1522 V. Gamble 1357 Dalter v. Laue 863, 1141, 1158 Dalton V. Murphy 274, 908 V. Taliaferro 631, 1545, 1556 V. Webb 1591 Daly, Re 105 Dame v. Flint 1145, 1151 Dammert \ . Osborn 1305, 1324, 1325 Daniel v. Gold Mill Min. Co 809, 1555 V. Hill 101 V. Sullivan , 77, 143, 204 Daniell v. Boston & M. R. Co 939 Daniels v. Hudson River F. Ins. Co 1007-1009, 1014, 1042 V. Pratt 1349 V. Stevens 651 V. Willard 7.57 Dannelli v. Dannelli 325, 327, 536, 550, 1283, 1290 Danner v. Brewer 625, 1542 Danville v. Putney 116 Darby v. Mayer 818, 1282 D'Arey v. Ketchum 1400, 1414, 1422, 1474 Dater v. Earl 1156 Datz V. Chambers 806 Dauphin v. United States 1526 D'Auvilliers v. Her Husband 486 Davenport v. Davenport 490. 508 V. Karnes 402, 429, 433, 1460 V. Mississippi & M. R. Co 161, 162, 173 Davidow v. Pennsylvania R. Co 1124, 1131 Davidson, Re 830 V. Hill 1132 V. Sharpe 1400 Davis V. Aetna Mut. F. Ins. Co 923, 1012, 1021 V. Bronson 1158, 1170 V. Chicago, :^. & St. P. R. Co 1056, 1074, 1075 V. Chicago, R. I. & P. R. Co 1077, 1546 V. Clemson 975, 1189, 1199 V. Cornue 1472 V.Davis 375,481,512,521, 571 TABLE OF CASES CITED. ci Davis V. Estey 1386 v. Gray 296 V. Harper 1249, 1255 V. Headley 642, 648, 649, 651 V. Hudson 583 V. Jaequiu 15 V. Lloyd 1498 V. Maey 179 V. Mills 246, 795, 1261, 1263 V. Morton 981, 1581, 1584 V. New York & N. E. E. Co 1137 V. Osgood 782 V. St. Vincent's Inst, for Insane 1577 v. Tandy 1202, 1209 V. Upson 1304, 1506 V. Williams 712, 714 V. Wood 1423 V. Zimmerman 422 Davis's Trusts 1466 Davison's Will 1286 Dawes v. Boylston 1290, 1385 V. Head 1383, 1386 Dawson, Ex parte 592 Re 1089 V. Hayden : 617 V. Jay 588 V. Peterson 939, 1528 Day V. Postal Teleg. Co 836 Dayton v. Adkisson 554 D — e V. A— g 334 Dealy v. United States 1627 Dearborn v. Hoit 1147, 1156 Dearing v. McKinnon Dash & Hardware Co 697 De BaxiSremont, Re 37, 444, 446, 471 Debevoise v. New York, L. E. & W. R. Co 1127 De Bode's Case 1518, 1522, 1524, 1526 De Bonneval v. De Bonneval 116, 138, 1283, 1303: De Brlmont v. Penniman 233, 366, 1411 Deck V. Deck 462, 471 Decker v. Patton 1374 De Cosse Brissae v. Rathbone . 1399, 1423 Decojiche v. Savetier 428, 432, 1245, 1292 DeCouroy v. Stewart . 662 Dedham v. Natick 97 Deem v. Grume 1230, 1556 De Ende v. Wilkinson 1413 Degant v. Michael 1695 cii TABLE OF CASES CITED. Degaramo, Re 512 De Giaeomo, Re 1656 De Haber v. Portugal 295 De Harn v. Mexican Nat. R. Ck) 1117, 1127, 1131 Dehon v. Foster 1471 De Jarnett v. Harper 97 De Klyn v. Watkins 650, 654 De La Chaumette v. Bank of England 995, 990 Delafield v. Hand 1498 DelaMontanya v. DelaMontanya 524, 531, 582, 583 DeLane v. Moore 427, 428, 714, 748 De La Saussaye's Goods 1389 De la Vega v. Vianna 862, 953, 1245, 1456, 1487, 1489 De La Vergne Refrigerating Mach. Co. v. New Orleans & W. R. Co.. 706 Delegal v. Naylor 1231 Delop V. Windsor 712, 718 Delta, The 1581 V. The Erminia Foseolo 1581 Del Valle's Appeal 1376 De Meli v. De Meli 122, 467, 478, 498, 512 Dempster v. Stephen 1545 Den ex dem. Ridgevpay v. Underwood 1165 D'Enghien Case 1611 Denick, Re 498 Denison v. Denison 375 V. Hyde 1415, 1420, 1421 Denistoun v. Payne 1412 Dennett v. Chick 931 Dennick v. Central R. Co 1115, 1119, 1135 Dennis v. State 113 V. Superior Court 24rij Denny v. Bennett 1238 " V. Faulkner 708, 1380 V. Williams ..." 862, 1443, 1444, 1459 Denston v. Cairns 997 Dent V. Smith 963, lOWl Denton v. Denton 1476 Denver v. Sherret 124 Denver & R. G. R. Co. v. Church 166 Department of Public Parks, Re 597 Depas V. Mayo 405, 424 Depau V. Humphreys 945, 975, 992, 1188, 1201 Derby v. Derby 470 De Rfinne's Estate 1323 De Rothschild v. United States 1526 Derr v. Lehigh Valley R. Co 1131 Derrickson v. Smith 15, 245, 1411 TABLE OF CASES CITED. ciii Derringer v. Plate 729 Desoadillas v. Harris 1231 De Serre v. Clarke 404, 410 Desesbats v. Berquier 1283, 1304, 1305 Desmajre v. United States 118 Desmazes v. Mutual Ben. L. Ins. Co 1007, 1008, 1016, 1018, 1039 Des Moines Life Asso. v. Owen 1047 Desnoyer v. McDonald 1550, 1556 De Sobry v. DeLaistre 863, 1182, 1499, 1505 Despard v. Churchill 641, 1285, 1286, 1299, 1323, 1376 D'Este, Ee 1315 J)etroit V. Detroit 174 V. Lewis 172, 175, 179 De Turek v. Woelfel 764 Devanbagh v. Devanbagh 335 Devaughn v. Hutchinson 1337, 1343 Dever v. The Hope 725 Devoe, Ke 1340 Dewar v. Maitland 1283 Dewey v. Des Moines 163, 167 De Wilton v. Montefiore 327 Dewitt V. Buchanan 1093, 1469, 1481 V. Burnett 670 DeWolf V. Johnson 15, 611, 671, 867, 953, 955, 992, 1189, 1205, 1230, 1259 V. Middleton 554 De Wiitz v. Hendricks 1183 Dexter v. Berge 1380 V. Edmands 1247, 1264 Deyo V. Morss 1297, 1552 D'Huart v. Harkness 1309, 1310 D'Huart Case. See D'Huart v. Hakkness. Dial V. Gary 1370, 1381 Diana, The 149 Dickerson v. Brown 375 Dickey v. Pocomoke City Nat. Bank 1548 V. Vann 1304 Dickinson v. Branch Bank 1228 V. Dickinson 477 V. Edwards 938, 945, 1005, 1187, 1188, 1203 V. Hoomes 644 Diekson, Ex parte 1695 V. Dickson 315 V. Grissom 1499 Didisheim v. London & W. Bank 597 Diez, Re 1500, 1505 Digman v. Nelson 1554 eiv TABLE OF CASES CITED. Dillard v. Harris 1374 Dimick v. Brooks 1 140 Dingman, Ee 195 Diukins v. Cruden-Martin Woodenware Co 803 Direct U. S. Cable Co. v. Anglo-American Teleg. Go 1621 Di Savini v. Lousada 586, 588 Di Sora v.. Phillips 954, 1332, 1392, 1522 Ditson V. Ditson 464, 466, 470, 485, 486, 488, 504, 509 Dixon V. Cock 141» V. D'Armond 1361 V. Dixon 421 V. Eamsay 1283, 1304 V. Walker 1292 Dobree v. Napier 1093 Dobson V. Festi 1484 V. Pearce 141ft Dodge V. Colby 662, 667, 668 Doe ex dem. France v. Andrews 1498 Wollaston v. Barnes 1497 Brealcey v. Breakey 373 Davis V. Gatacre 1498 Lewis V. M'Farland 1372 Gouverneur v. Robertson 68 Birtwhistle v. Vardill 402, 450, 538, 540, 551, 553, 739 Wynne v. Wynne 1353 Doerr v. Forsythe 529 Doetsch, Re 1378 Doglioni v. Crispin 540, 1291, 1296, 1397 Dohan v. Murdock 135, 406 Dolan V. Green 865, 884, 1141, 1145, 1151, 1152 V. Mutual Reserve Fund Life Asso 1019, 1042 Dolman v. Cook 671, 1189 Dolphin V. Robins 103-105, 452, 453, 456 Don, Re 540, 541, 551 V. Lippmann 975, 1008, 1245, 1256, 1266, 1399, 1400, 1456, 1474, 1495, 1500 Donald v. Hewitt 727, 788, 1525 Donaldson v. IScClure 119 V. Phillips 609 V. Thompson 1421 Donegan v. Wood 986, 1543 Donnelly v. Corbet 1235 Donovan v. Pitcher 17 Doolittle V. Lewis 1379 Dord V. Bounaffee 876 Dormidy v. Sharon Boiler Works 1103, 1104 Dormitzer v. German Sav. & Loan Soo 479, 1555 TABLE OF CASES CITED. cv Dorntee Casket Co. v. Gunnison 780 Dorr Cattle Co. v. Des Moines Nat. Bank UOi) Dorris v. Miller 179 Dorsey v. Brigham 52 V. Dorsey 481, 488, 489, 1290, 1487 V. Kyle 1487 Doss V. Campbell 422, 424 V. Secretary of State 1473 Dos Santos Case 1652 Doty, Re 1594 V. Detroit Citizens' Street R. Co 1446 V. Hendrix 1326 Doucet V. Geoghegan 133, 136 Dougherty v. Curie 1463 V.Snyder 1519 Doughty v. Doughty 468, 477, 490, 495, 507 Douglas V. Bank of Commerce 764, 987 V. Douglas 99, 101, 118, 139, 142 V. Forrest 1401, 1474 v.- Oldham 1490, 1585 Douglas, H. & Co. v. Palmer 1006 Douglass V. Phenix Ins. Co 807, 1581 Doulson V. Matthews 662 Dow v. Blake 526 V. Gould & C. Silver Min. Co 102, 422, 820 V. Rowell 982, 983 V. Sudbury 161 Dowdale's Case 1385 Downer v. Chesebrough 862, 1001, 1003, 1442, 1445, 1446, 1450, 1501, 1502 Downs V. Minehew 1543 Dows V. Glaspel 1553 Dows's Case 1698 Doyle V. Bouler 1259 V. Continental Ins. Co 237 V. McGuire 282 Drake v. Found Treasure Min. Co 1253 V. Glover 424 V. Lake Shore & M. S. R. Co 802, 1589 V. Rice 796 Draper v. Hatfield 161 Draycott v. Talbot 14^7 Drayton's Appeal 202 Dresser v. Edison Illuminating Co 96 Drevon v. Drevon 133, 138 Drerw v. Smith 780, 1443 Drinkall v. Spiegel 1696 ■cvi TABLE OP CASES CITED. Droege v. Stuart 960 Drummond v. Magruder 1499 V. Tillinghiat 1481 Dryden v. Swinburne 51 D. Sargeant, The 1486 Dubois V. Jackson 423 V. Mason 1531 Du Breuil v. Pennsylvania Co 663 Dubuque v. Illinois C. R. Co 171 Dubuque F. & M. Ins. Co. v. Oster 984 Ducat V. Chicago 235, 230 Duchess V. Orleans's Goods 116 Ducktown Sulphur, Copper & I. Co. v. Barnes 663, 667 Dudley v. Buckfield 11 60 V. The Superior 786 V. Warde 1256 Dues V. Smith 404, 410 Duffies V. State 15, 575, 577 Dufify V. White 282, 405 Dufresne v. VVeise 109-! Dugan, Re 1677, 168:. V. Lewis 1204 Duke V. Fulmer 48!) V. Taylor 24> Dulaney v. Merry 7(; t Dulin V. McCaw 273, 281 Dumaresly v. Fishly 36,i Dumas, Re 120 Dumont v. Dumont 478 Dunbar v. Dunbar 1282, 1296, 1301 V. Locke 115) Duncan v. Cannan 425, 427 V. Dick 1295 V. Duncan 375 v.Helm 1188, 1198 V. Petty 594 V. Stokes 1420 V. United States 879 Dundas v. Bowler 624, 671, 749, 774, 819, 981, 990 V. Dundas 818 Dunham v. Boston & A. R. Co 1070, 1081 V. Dunham 470, 478, 485, 509, 532, 533 V. Halloway 1567 V. Lamphere 1620 V. McNatt 795 V. New England Mut. Ins. Co 1420 Dunlap V. Byers 652, 658 TABLE OF CASES CITED. cvii Dunlap V. Rogers 745, 816, 1304 Dunlop V. Curdy 1406 V. Dougherty 1499 V. Dunlop 470 V. Higgins 886, 887 Dunn V. Adams 991 V. State 1153 V. Welsh 977 Dunnigan v. Stevens 991 Dunning v. Chaniberlin 1269, 1490 Dunstan v. Higgins 1404, 1406 Dupont V. Quebec S. S. Co 1 105 Dupre V. Boulard 344- 346 Dupuy V. Seymour 134 V. Wurtz 120, 122, 134, 145, 146, 157, 1305, 1307 Durie v. Blauvelt 1373 Durkee v. Moses 1150, 1156 Durocher v. Degrg 395 Durward v. Jewett 847 Dussanoe v. Dussance 339 Duteher v. Dutcher 104, 466, 470 Du Val V. Marshall 1370 Duvall V. Fearson 1407, 1416 Dye V. Dye 423 Dyer v. Brannock 375 V. Hunt 862 V. Smith 1505, 1520 Dygert v. Vermont Loan & T. Co 1212 Dyke v. Erie R. Co.. .181, 864, 877, 893, 1059, 1078, 1089, 1104, 1108, 1110 Dykes v. Lockwood Mortg. Co 174 Dysart v. Peerage Case 368 Dyson v. St. Paul Nat. Bank 699 E Eachus V. Illinois & M. Canal 663 Eadie v. Slimmon 1036 Eagan v. Connelly 1 528 Eager v. Brown 42 1' Earhart's Succession 1357 Earl, Re 1460 V. Dresser 592, 593 V. Godley 307 Earl's Goods 1287, 1361 Easterly v. Goodwin 124, 138, 1235 Eastern Bldg. & L. Asso. v. Williamson 1532 cviii TABLE OF CASES CITED. Eastern Township Bank v. Beebe ] 402 East Omaha Street R. Co. v. Godola 11UI> East St. Louis v. Wehrung 23S East Side Bank v. Columbus Tanning Co 240, 7^>9 East Tennessee, V. & G. R. Co. v. Kennedy L'lSS V.Lewis IIOO Eastwood V. Kennedy 12.50 Eaton V. MeCall 653 V. Melius 1227 Eaton & H. R. Co. v. Hunt , 653 Eau Claire Nat. Bank v. Benson 24U Eaves v. Gillespie 1445, 1463 Eaves Costume Co. v. Pratt 122 E. B. Ward, The 1127, 1128 Eby's Appeal 1414 Eecles v. Herriek 1202 Eclipse, The 789 E. C. Weseott Co. v. Berry 1234 Eddie v. Eddie 561 Edgerly v. Bush 085, 711, 744 Edgeworth v. Wood 1485 Edie v. East India Co 1504 Edith, The 725 Edmondson v. Hyde 1598 Edrington v. Mayiield 410 Edson V. Edson 477, 489 Edwards v. Ballard 669 V. Elliott 725, 72C V. Green 484 V. Warren Linoline & Gasoline Works 1485 Egbert v. Baker 758, 773, 776 Egleson v. Battles 577 Einer v. Beste 1235 V. Deynoodt 816 Eingartner v. Illinois Steel Co 1096, 1098, 1102, 1107, 1532 Eisele v. Oddie 120 Ekins V. East India Co 1231 Ela v. Edwards 1304, 1362 V. Ela 1551 Elder Dempster Shipping Co. v. Pouppirt 1106 Elgee V. Lovell 1486 Elias, Re 592, 598 Eliason v. Henshaw 88ti Eliza Cornish, The .' 960 Eliza Lines, The 962 Elk V. Wilkins 41 Elkins V. East India Co 1092 TABLE OF CASES CITED. cix Ellenwood v. Marietta Chair Co 662, 668 Elliott V. Hawley 407 V. Minto 611, 66t) V. Wood 613 Elliott Nat, Bank v. Western & A. R. Co 874, 1525 Ellis, Re 479, 480 V. Commercial Bank 987 V. M'Henry 1244 V. Maxson 1531, 1549 V. Northwestern Mut. L. Ins. Co 1038, 1288, 1365 ^ . Wiley 1528 Ellis's Appeal 513 Ellison V. Martin 496 Elmendorf v. Elmendorf 523 V. Taylor 947, 1525 Elmer v. Hall 1370 El Paso & N. W. R. Co. v. McComas 1105 Elting V. First Nat. Bank 1373 Elton V. O'Connor 1243 Ely V. James 865, 1505, 1512 V. Webster 1141, 1155, 1156 Emanuel v. White 971, 973 Embree v. Hanna 1583 Embury, Re 184, 191 Emerson v. Patridge 982 Emerson Co. v. Proctor 693, 781, 888, 1548 Emery v. Batehelder 1357 V. Berry 1529 V. Burbank 940, 1358, 1436, 1451, 1452 V. Clough 662 T. Hill 250 Emily Souder, The 789 Emperor of Austria v. Day 1489 Energia, The 962 Enfield v. Ellington 138 Engel V. Scheuerman 1471 Engler v. Ellis 1202 Engs V. Priest 1150, 1151, 1155 Ennis v. Smith 116, 120, 121, 134, 136, 1283, 1290, 1294, 1295, 1523, 1524, 1526, 1529, 1532 Enohiu v. Wylie 1283, 1201, 1295, 1304, 1331, 1362, 1376 Ensley Lumber Co. v. Lewis 692, 780 Ensor v. Graflf 115, 122 Enston, Re 181, 190 Equitable Bldg. & L. Asso. v. Hoffman 1212 V. King 1 546 V. Vance 1212 ex TABLE OF CASES CITED. Equitable Life Assur. Soe. v. Clements 1014, 1015, 1018, 1019, 1039 V. Frommhold 1027, 1570 V. Nixon 1015, 1018, 103» V. Trimble 1018, 103» V. Vogel 1363, 1365, 1369, 1372, 1381 V. Winning 1019, 1030 Eriekson v. Nesmith 245, 249, 1492, 1586 V. Pacific Coast S. S. Co 1129. 1135 Erman v. Lehman 694, 705, 876 Erwin v. Stafford 1153 Eslava v. Mazange 1479 Essenwine v. Pennsylvania Co 1116, 1122, 1124 Este T.' Smyth 387, 392, 427, 433, 434 Estes v. Kyle 1267 Eubanks v. Banks 313, 358, 1170, 1546 Eureka Ins. Co. v. Parks 1025 European, The 1072 Evans v. Anderson 895, 939, 979, 982 V. Beaver 285 v. Cleary 273, 910, 1268, 1542, 1553 V. Dunkelberger 747 V. Pease 846 V. St. John 978 V. Tatem 1373, 1385 V. White 1229 Evansville Ice & Cold Storage Co. v. Winsor 1318, 1352, 1390 Everett v. Connecticut Mut. L. Ins. Co 806 V. Morrison 333 V. Vendryes , . .978, 983, 996, 1002, 1003 Evey V. Mexican C. R. Co 1107, 1112, 1115, 1117, 1122, 1123, 1125, 1126 Ewer V. Coffin 1422 Ewin, Ee 182, 186, 1388 Ewing V. Ewing 1357 V. Toledo Sav. Bank 1217 Exchange, The v. M'Faddon 294, 791 Exchange Bank v. Apalachian Land & Lumber Co 929 V. Cooper 143, 145 V. Hubbard 969 Expressman's Mut. Ben. Asso. v. Hurlock 1017, 1019, 1028, 1032 Eyre v. Storer 1283, 1291, 1352 Ezeta, Re 1663, 1679, 1685 F Pabel V. Cleveland, C. C. & St. L. R. Co 1132, 1133 Faber v. Hovey 1413 TABLE OF CASES CITED. exi an V. Boyle Ice Mach. Co 721, 723 Fain v. Crawford 124 Fairehild v. Fairehild 480, 507, 532, 1581 V. Hagel 1368, 1389 V. Hunt 775 V. Philadelphia, W. & B. R. Co 1064 Faires v. Young 143 Fairfax v. Hunter 67 Faison v. Grandy 1205 Fales T. Mayberry 1183 Falk V. Janes 841 Falke v. Terry 1356, 1374 Fall River Iron Works v. Croade 746, 766. Falls V. United States Sav. Loan & Bldg. Co 1213, 1528- Fally V. Steinfleld 698. Fanning v. Consequa 1228. Fant V. Miller 878, 994, 1226, 1440, 1463 Fanton v. Middlebrook 126a Farez, Re 1675, 1678-1680, 1687 Farez's Case 1676, 1677, 1683, 1685 Farley v. Shippen 651 Farmers' & M. Bank v. Champlain Transp. Co 1090" V. Smith 1235, 1243 Farmers' & M. Ins. Co. v. Harrah 238 V. Needles 836^ Farmers' & M. Sav. Bank v. Brewer 1344 Farmers & M. Sav. Co. v. Eazore 1212: Farmers' Bank v. Burchard 1217 Farmers' Loan & T. Co. v. Bankers' & M. Teleg. Co 653, 841 V. Ferris 1357 V. Postal Teleg. Co 652, 653 Farmers Nat. Bank v. Sutton Mfg. Co 948, 98S Farmers Sav. & Bldg. & L. Asso. v. Kent 1212 Farmers Trust Co. v. Sehenuit 1567 Farnum v. Pitcher 1512 Farris v. Sipes 96, 159a Faulkner v. Delaware & R. Canal Co 1271 V. Hart 948, 1070, 1071, 1081, 1090 V. Hyman 766 Faulkner Case. See Faxji,knkb v. Haet. Fawcett v. Supreme Sitting, O. I. H 847 Faxton v. MeOosh 180 Fay V. Haven 1372, 1373, 1379, 1385 F. B. Hauck Clothing Co. v. Sharpe 273, 905, 910, 965 Fears v. Sykes 821, 1259 F. E. Creelman & Co. v. Lesh 713 Feineman v. Saehs 1156, 115* exii TABLE OF CASES CITED. Felch V. Bugbee 745, 748, 828, 1235, 1237 Felice B. The 786 Fell V. Darden 736, 737, 747 Fellows V. Fellows 475, 483 V. Miner * 1327 Felt V. Felt 507 Felton V. Fuller 1145 Fennell v. Pauley 167, 168 Fenton v. Edwards 759, 760 v. Livingstone 229, 440, 547 V. Reed 374 Fenwick v. Sears 1360 Fergus, Re 1678 Ferguson v. Clifford 712, 1436 V. Flower 1049 V. Mahon 1399, 1400, 1406, 1474 V. Neilson 1097 V. Sherman 246, 248 V. Wright 120 Fergusson, Re 1340, 1341 V. Fyflfe 862, 1186, 1245, 1586 Fernandes's Case 1360, 1387 Fernandez v. State 1528, 1643 Ferneau v. Whitford 599 Ferraris v. Hertford 1304 Ferry v. Ferry 479 Fessenden v. Taft 623 Fetter, Re 1652, 1696 Feurt V. Rowell 712 Fidelity Ins. Trust & S. D. Co. v. Mechanics' Sav. Bank 248 V. Nelson 840, 1555 Fidelity Mut. Life Asso. v. Ficklin 1026 V. Harris 1014, 1015, 1027, 1028, 1042, 1043 V. Jeffords 1042 V. MeDaniel 1026 Fidelity Trust & Safety Vault Co. v. Preston 136, 147 Field V. Gibbs 1401 Fightmaster v. Beasly 700 Filippi V. Liepori 386 Filkins v. Nunnemacher 838, 839 Finch V. Finch 1248 V. Mansfield 884, 1152, 1156, 1443 V. York County 175 Findlay v. Hall 1188 Finnell v. Southern Kansas R. Co 1257 Finney v. Guy '■ 13, 250 Fire Asso. v. New York 242 TABLE OF CASES CITED. cxiii Krebrace v. Firebrace 291, 366, 459 First Nat. Bank v. Baleom 120, 131, 153, 159 V. Dean 971 V. Gustin Minerva Consol. Min. Co 247, 248 V. Hughes 770 V. Kelly 1090 V. Mann 1190 v. Mitchell 272, 274, 276, 910, 911 V. National Broadway Bank 795, 797, 1552 V. Price 15, 245, 1411 V. Shaw 275, 889, 910, 958, 1090, 1091 V. Walker 755, 776 Firth V. Firth 120, 136, 147 JTischer v. Sztaray 1480 Fish V. Hobart 1239 Tishburne v. Kunhardt 715 Fisher v. Donovan 1551 V. Fielding 1404, 1406, 1409, 1410 V. Fisher 404 V. Friedman 707 V. Lord 940, 1156, 1159 V. Ogle 1421, 1422 V. Otis 1187, 1189 V. Parry 631 V. Rush County 175 Fishli V. Fishli 469 ITisk V. Braekett 1482 V. Chandler 735 V. Chester 132 V. Chicago 122, 142 Fiske V. Foster 828, 1235 V. Peebles 782 Fitch V. Fitch 481 V. Eemer 1188-1190, 1197, 1202, 1207 Fitchburg v. Winchendon 134 Fithian v. New York & E. R. Co 801, 806 Titton, Re 1697 Fitzgerald v. Fitzgerald & M. Constr. Co 1551 Titzsimmons v. Johnson 411 Titzsimons v. Newport Ins. Co 1422 Flagg V. Baldwin 9, 940, 942, 943, 1173, 1551, 1566 Tlash V. Conn 244, 246 Flato V. Mulhall 970, 1541, 1560 Tleming v. People 375 V. West 523 Pletcher v. New York L. Ins. Co ^ 1042 V. Sanders 1367 Vol. I. CoNFL. op Laws — viii. cxiv TABLE OF CASES CITED. Fletcher v. Spaulding . ; 1245 Flickey v, Loney 796 Florence, Re lOS Florida C. & P. R. Go. v. Sullivan 1137 Floss V. Nutting 1482, Floumoy v. First Nat. Bank 1545 Flower v. Flower 507 Floyd V. Calvert 375 Flynn v. Central R. Go 1004 Fogarty v. St. Louis Transfer Go 1102: Foley-Bean Lumber Go. v. Sawyer 1234 Folger V. Columbian Ins. Go 477, 1405, 1414 V. Slaughter 13& Foliamb's Case 448 Folliott V. Ogden 254, 1482 Folsom V. Ohio State University 1319, 1330, 1356; Fonseca v. Gunard S. S. Go 1074-1076- Forbes v. Adams 609 V. Cochrane ! 251, 1170, 1183 V. Forbes 96, 113, 129, 131, 144-14S V. Scannell 818, 1438 V. Steven 203 Force v. Providence Washington Ins. Co 959 Ford V. Buckeye State Ins. Co 864, 1010, 1014, 1024, 1025 V. Ford 402, 403, 1322, 1337, 1345, 1356 Fordyee v. Bridges 1322, 1328 V. Nelson 983 Forepaugh v. Delaware, L. & W. R. Go 950, 1071 Fores y. Johnes 1170 Foresman v. Byrns 161, 172 Forgo V. Domaine 1281 Fornshill v. Murray 368 Forsyth Gases 1669 Ft. Dearborn Nat. Bank v. Berrott 1554 Fortier v. Pennsylvania Co 107!> Forward v. Harris 1444, 1459 Fosdick V. Fosdick 127, 466 Foss, Ex parte 1669 V. Foss 134, 475, 483 V. Nutting 998, 999 Foster v. Alston 590 V. Lumbermen's Min. Go 1459 V. Stevens 181 V. Waterman 564, 565 Fouke V. Fleming 728 Fourth Nat. Bank v. Francklyn 247 Fowler, Re 1680 TABLE OF CASES CITED. cxv Fowler v. Bell 696 V. Fowler 559, 562 V. Ifamson 248 Fowler's Appeal 1328 Fox V. Adams 754, 755 V. Carr 1381, 1386 V. Hicks 98 V. Matthews 1448 V. Tay 1369 Frame v. Thormann 123, 315, 1391 Franconia Case 1617, 1619 Frank, Ke 1681 V. Bobbitt 773 V. Hirsh 411, 427, 1490 V. Morehead 622 V. O'Neil 1141, 1155 V. Peyton 667 Frankfort v. Fidelity Trust & S. V. Co 173 Franklin v. Lee 550 V. Twogood 948 Franklin's Succession 1321 Franklin Ins. Co. v. Louisville & A. Packet Co 1009, 1019 Franklin L. Ins. Co. v. Galligan 1042 Franks v. Hancock 1554 Franzen v. Hutchinson 750, 752, 833 V. Zimmer 759, 1552 Frary v. Frary 469, 470, 476 Frasher v. State 304 Frayes v. Worms 1395, 1403 Frazier v. Boggs 1353 V. Fredericks 755 V. Warfield 983 V. Willcox 1217 Fred v. Fred 1551 Frederickson v. Louisiana 1387, 1388 Fred Miller Brewing Co. v. De France 1155, 1546, 1557 V. Stevens 914 Freeland v. Charnley 617 Freeman v. Baldwin 1259 V. Fairleie 1386 Freeman's Appeal 275, 872, 910, 934, 1283, 1331, 1373 Freeman's Bank v. Ruckman 863, 864, 983 Freeport v. Stephenson County 115 Freese v. Brownell 889, 964, 976, 978, 1199, 1229 Freetown v. Taunton 97 Freil v. No. 4 Fidelity Bldg. & Sav. Union 1575 Freke v. Carbery 641, 1286, 1299 cxvi TABLE OF CASES CITED. Frelson v. Tiner 712 French v. French 862, 1197 V. Hall 736, 744, 862, 1420 V. People 1012, 1024 V. Robinson 1238 Frierson v. Galbraith 1229 V. Irwin 1259 V. Williams ..'. 283, 637, 673 Frink v. Sly 1401 Frohlich v. Alexander 695 Frost V. Frost 484 Frothingham v. Barnes 1400 V. Shaw 196 Froude v. Froude 1477 Fry's Election Case 109 Frye v. Parker 1251 Fryer v. Meyers 654 Fugate V. Moore 1374 Fulham v. Howe 136, 138, 140 Fuller V. Bean 1161 V. Fuller 315, 320 V. Hunt 1157 V. Steiglitz 774 Furrow v. Chapin 1547 Fuss V. Fuss 415, 422, 428^30 Fyock's Estate 482 a Gable, Re ,1375, 1376 V. Mays 135, 144 Gaetano and Maria, The 1067 Gage V. McSweeney 983 G. A. Gray Co. v. Taylor Bros. Iron Works Co 705 Gaines, Re 1357 Gaines's Succession 1357, 137fi Gainus v. Cannon 422, 1543 Galbraith v. Neville 1399 Gale V. Davis 224, 422 V. Eastman 15 V. Southern Bldg. & L. Asso 1212, 1215, 1216 Gallaudet v. Sykes 965 Galliano v. Pierre 940 Galloway v. Holmes 689 V. Standard F. Ins. Co 1012, 1016, 1046 Gallup'a Appeal 188 TABLE OF CASES CITED. cxvii Galpin v. Page 1414 Gait V. Dibrell 715 Cambier v. Gambier 2G8, 573, 592, 1334 Ganer v. Lanesborough 1522 Gans V. Frank 1245, 1256, 1257 Garden City Sand Co. v. Miller 630, 642 Gardiner v. Houghton 862, 1243 Gardner v. Board of Education 139 V. Commercial Nat. Bank 770 V. Ladue 1332 V. Lewis 16, 698, 1521 V. New York & N. E. R. Co 1115, 1118 V. Ogden _. 644 V. Thomas 1093, 1472, 1487 Garfield v. Paris 1 146 Garland v. Rowan 1290, 1295 V. Tucker 1404 Garner v. Wright 1560 Gamier, Re 291, 592, 598 V. Poydras 223, 224, 273, 410 Garrett v. Kansas City Coal Min. Co 029 Garrettson v. North Atchison Bank 888, 970 Garrick v. Chamberlain 617, 620 Garrigues v. Harris 1499 Gassaway v. Hopkins 1246 Gaston v. Gaston 442 Gates V. Bingham 264 V. Gaither 619 V. Paul 058 V. Renfroe 930 Gaty V. Casey 720, 721 Gault V. Van Zile 030 Cause V. Bullard 718 Gautt V. Gautt 1466 Gay V. Rainey 889, 987 Gaylord v. Duryea 1550 V. Johnson 992 V. Soragen 1156, 1158, 1159 Gebhard v. Gebhard 512 Geils V. Geils 447, 1464 Gelsthorpe v. Furnell 183 Gelston v. Hoyt 1420 General Assembly v. Guthrie 1354 General Iron Screw Collier Co. v. Schurmann 1088 General Smith, The ' 725, 72{; General South American Co. Re 997 General Steam Nav. Co. v. Guillou 245, 1093, 1397, 1401, 1403, 1411. 1583 cxviii TABLE OF CASES CITED. Gtenest v. Las Vesgas Masonic Bldg. Asso 721 Genet v. Delaware & H. Canal Co 1519 Gentili's Goods 1299 Geohegan v. Atlas S. S. Co 1107, 1520 Georgia v. Tutty 344, 358 Georgia & A. R. Co. v. Stollenwerck 800 German Bank v. American F. Ins. Co 806, 1546 German Sav. & L. Soc. v. Dormitzer 480 Gettys V. Gettys 465 Geyer v. Aguilar 1418 Gibbes, Re 194 Gibbins v. Adamson 174 Gibbs V. Fremont 992, 993 V. Howard : 1584 V. MeGuire 617 V. Queen Ins. Co 237 Gibson v. American Loan & T. Co 642 V. Burgess 648 V. Connecticut F. Ins. Co 1013, 1021. 1045 V. Dowell 1293, 1375 V. Gibson 368 V. Holland 1442, 1447 V. Sublett 281, 286, 1433, 1434 Gidding v. Eastman 1172 Gidney v. Moore 422 Gilkey v. Pollock 425 Gill V. Barron 1599 V. Everman 1532, 1554 V. Kaufman 1144 Gillett V. Hill 1269 Gilliland v. Inabnit 651 V. Phillips 884 Gilman v. Brown, 626 V. Gilman, 118, 120, 135, 140, 145, 146, 152, 153, 159, 1283, 1288, 1304 V.Jones 1171, 1172 V. Ketcham 841 V. Lock-wood 1235, 1238, 1240 Gilmer v. Gilmer 143 Gipps V. Gipps 521 Gipps Brewing Co. v. De France 1155 Girard v. Philadelphia 1531 Girolamo, The 1088, 1089 Gist V. Western U. Teleg. Co 1173, 1560 Givens v. Western Bank 986, 987 Glaser v. Priest 598 Gleason v. Gleason 496, 503 TABLE OF CASES CITED. cxix Glen V. Gibson 647 V. Hodges 1093, 1094, 1481 Glendale, The 1121 Glenmavis, The 1076 Glenn v. Busey 1483 V. Glenn 400, 402, 403, 423, 424, 427, 1497 V. Hunt 1520 V. Liggett 244, 1246, 1415 V. Thistle 611, 630 Glidden v. Chamberlin 976, 1199 Glide, The 725 Glover v. Equitable Mortg. Co 1202 V. United States 613 V. Wells 795, 800 Gluck V. Cox 1540 Godard v. Gray 1397-1399, 1406, 1407, 1420 Goddard v. Reagan 1554 V. Sawyer 609, 611, 617, 623, 670, 867, 877, 1189 Goddin v. Shippley 983, 984 Gold V. Canham 1399 Golden v. Cockril 710 Goldgart v. People 172, 175 Goldsmith v. Chicago & A. R. Co 1550 V. Ladson 273 V. Sawyer 1504 Goldstein v. Scott 1445, 1460, 1461 Golson V. Ebert 694, 876, 885, 1444 Gooch V. Faucett 940, 1173, 1552 Goodall V. Marshall 1292, 1385, 1386 Goodell V. Jackson 44 Goodhue v. O'Leary 807 Goodlett V. Anderson 1364 Goodman, Re 537, 541, 551, 553, 558, 1291 V. Goodman 536, 537, 1291 V. Munks 1259 V. Winter 1390 Goodnow V. Litchfield , 1546 V. Stryker 1255 Goodrich v. Houghton 1 167 V. Williams 1210 Goodsell V. Benson 1243 Goodwin v. Claytor 805, 1590 V. Holbrook 793 V. Jones 1384, 1483 V. Morris 1260, 1553 V. Provident Sav. Life Asaur. Soc 1020, 1047, 1527, 1546 V. Robarts 919, 966 cxx TABLE OF CASES CITED. Goodwin v. Young IISO Gookin v. GraJiam 715 Gordon v. Brown 1331, 1332 Gorgier v. Mieville 966 Gorham v. Shepherd 120, 122; Gorman v. Marsteller 1471 Gorrisson's Succession 269, 580' Gosline v. Dunbar 712 Gott V. Dinsmore 1049, 1051 Gould V. Crow 496, 500, 522, 527, 529' Gove V. Gove 1370' Governor v. Rector 340' Grace v. Hannah 1000 Gracie v. Bowne 1030 Grady v. Bowe 758. Graham v. Bennet 313 V. First Nat. Bank 265, 273, 412, 683 v. Graham 467 V. Merrill 1184 V. Monsergh 15, 577 V. Stull 1288 V. Whitely 617 V. Williams 1531 Granby v. Amherst 109- Grand v. Livingston 1057, 1067, 1070, 1074 Grand Trunk R. Co. v. Stevens 1069 Granger, Re 1595 Grangers' L. Ins. Co. v. Brown 1007, 1047, 1228 Grant v. Barry 577 v. Dalliber 116 V. Healey 870, 1231 V. Henry Clay Coal Co 1526 V. Jones 172 V. M'J^ehlin 744, 1420, 1422 V. Reese 1292, 1373, 1384 Grattan v. Appleton 1283, 1290 Gratton v. Weber 527 Graveley v. Graveley 1376 Graves v. Cameron 1552 V. Johnson 1157, 1160 V. Weeks . . , 1248, 1289 Gray v. Craighead 1370 V. Holmes 569 V. Jackson 1062, 1089 V . Larrimore 1476 V. State 1227, 1228 V. Swan 1422 TABLE OF CASES CITED. cxxi Gray v. Western U. Teleg. Co 929, 1083, 1085, 1111 Gray's Appeal 1381 Grayson v. Robertson 1364 Greason v. Davis 1371, 1520, 1529 Great Harrington v. Berkshire 180 Great Falls Mfg. Co. v. Worster 657 Greathead v. Walton 862, 937, 97(> Great Western Mfg. Co. v. Hunter Bros 721 Great Western R. Co. v. Miller 1097, 1099, ] 567 Great Western Teleg. Co. v. Purdy 1247 Greaves v. Greaves 380 Greeley v. Stilson 668 Green v. Alden 1306, 1378 V.Bond 976, 993 V. Collins 1008, 1158 v. East Tennessee & G. R. Co 1525 V. Equitable Mut. L. & Endowment Asso 1568, 1571 V. Farmers' & C. Bank 804 V. Gross 617, 767 V. Heritage 1369 V. Kennedy 971 V. Lewis 1444, 1459 V. Sanborn * 1403 V. Sarmiento 1235,' 1243, 1599 V. Starr 1412 V. State 345, 1634, 1643 V. Van Buskirk 680, 683, 692, 709, 710, 743, 744, 747, 816, 817, 831, 1587 V. Wallis Iron Works 774 Greene v. Bentley 713 V. Greene 105, 143, 153, 154, 464, 471 V. Windham 77, 143 Greenfield v. Camden 120, 121, 135 Greenhow v. James 344, 347, 359 Greenla-iV v. Greenlaw 475, 483, 596 Greenough, Re 1696 Greenville Nat. Bank v. Evans-Snyder Buel Co 712, 1553 Greenv^ald v. Kaster ; 932 Greenwood v. Curtis 224, 323, 744, 864, 1139, 1170, 1182 V. Tennessee Mfg. Co. & Agri. School 720 Greer v. Poole 960, 1021 Gregerson v. Imlay 1171, 1172 Gregg V. Sloan 766 V. Union P. R. Co 1094 Gregory v. Gregory 465, 477, 478 Grell V. Levy 863, 1170-1172 Grevenig v. Washington L. Ins. Co 1014, 1039 cxxii TABLE OF CASES CITED. Grey v. Manitoba & N. W. R. Co 653 V. Stamford 553 Grider v. Driver 1543, 1544 Griefgwald, The 1421 Griesemer v. Mutual L. Ins. Co 1027, 1040 Oriffin V. Griffin 614 Griggsby Conatr. Co. v. Freeman 165, 168 Grimball v. Patton 1296 Grimes v. Butsch 589 V. Grimes 481 V. Pennsylvania R. Co 1370 Grimmett v. Witherington 100, 593 Grimshaw v. Bender 993 Grimwood v. Bartels 608 Grin v. Shine 1675, 1677, 1680, 1686, 1688 Gring v. Vanderbilt 1444 Grisham v. State 375 Griswold v. Golding 283 V. Pitcairn 1496, 1498 V. Union Mut. Ins. Co 1006 V. Waddington 1184, 1487 Grogan v. Egbert 840 Gross V. Feehan 1144, 1150 V. JorSan 688 Grote V. Pace 424 Grove, Re 558, 560, 561 Guarantee Trust & S. D. Co. v. Delta & Pine-land Co 653 V. Maxwell 1345 v. Philadelphia, R. & N. E. R. Co 847 Guardians of Poor v. Nathans 375 Gude V. Dakota F. & M. Ins. Co 1025 Gugpratte v. Young 272, 273, 1436 Guerard v. Guerard 1339, 1340 Guerney v. Moore 246, 248 Guernsey v. Wood 1236 Guest V. Guest 472 Guiding Star, The, 727 Guier v. O'Daniel 77, 95, 121, 138, 140 Guild v. Guild 656 Guildhall, The 1076 Guilford v. Western U. Teleg. Co 240 Guillander v. Howell 748, 775, 793, 810 Guinet Case 1622 Gumm V. Hubbard 51, 52 Gunderson v. Gunderson 1562 Gunn V. Harper 654, 1260 Guthrie v. Pittsburgh, C. & St. L. R. Co 179 TABLE OF CASES CITED. cxxiii Guttierez, Ex parte 1304 Guyer v. Smith 1302 Haekett v. Potter 1512, 1525, 1520 Haekettstown Bank v. Mitchell 102 V. Rea 1180, 1217 Hackney v. Welsh 1697 Hadfleld v. Jameson 1498 Hadley v. Freedman's Sav. & T. Co 235, 238 V. Gregory 1540 V. Russell 245 Hager v. National German- American Bank . . . i 274, 905, 909 Hahnemannian L. Ins. Co. v. Beebe 235 Haile v. Hill 1389 Hairston v. Hairston 121, 122, 146, 416, 422 Hakes v. National Bank 999 Haldame v. York Bys. Co 1006 Haldane v. Ecliford 133, 141, 142 Hale V. Hardon 250, 838 V. New Jersey Steam Nav. Co 1057, 1072 V. lyier , 250, 838 Hale's Estate 202 Hall, Re 392, 466, 521, 548, 561, 1497, 1540 V. Boardman 816 V. Cordell 912, 913, 922, 968, 970 V. Costello 862, 1183, 1505, 1530 V. Fayetteville 179 V. Garbert 556 V. Hall 153 V. Harris 965 V. Kimball 1556 V. Lanning 1415 V. Little 1269 V. Odber 1396, 1398, 1402, 1413 V. Pillow 712, 1543 V. Schoenecke 122 V. Williams 1413, 1414 Hall Case, See Hall v. Coedell. Hallam v. Ashford 839 V. Telleren 929 Hallet V. Bassett 118, 120, 123, 153 Hallett V. Collins 379 Halley v. Ball 271, 280, 1491 The 1095 cxxi-v TABLE OF CASES CITED. Hallgarten v. Oldham 683 Hallowell v. Saco 136 HalJyburton's Goods 1305, 1310> Halsey v. Beer 53 V. McLean 15, 245, 1263, 1411, 1492, 1586 Halstead v. Skelton 978 HaJsted v. Straua 757, 774 Hainan v. Brennan 124 1 Hamill v. Talbott 467, 523, 524 Hamilton v. Carrington 1373 V. Dallas 95, 136, 157, 1387 V. Fowler 1198- V. Hamilton 512, 521 V. Hannibal & St J. R. Co 1116, 1127, 1132, 1262 V. Hooper 1259' v. Lycoming Mut. Ins. Co 886, 887 V. State 1642 V. Wilson 174 Hamlyn v. Talisker Distillery 915, 924 Hammond v. Hammond 530 V. Hastings 797 V. Stovall 1260' Hammond Beef & Provision Co. v. Best 1236 Hampden v. Levant 123 Hampton v. M'Connel 1413, 1416. Hanberry v. Hanberry 470, 486 Hanchett v. Rice 1545 Hancock Nat. Bank v. Ellis 248. V. Farnum 247, 248 Hand v. Savannah & C. R. Co 671 Handley, Re 202 V. Harris 713 V. Palmer 1326, 1327 Haney v. Marshall 617 Hanford v. Paine 743, 745. Hanger v. Abbott 1486 Hanks v. State 1637 Hanley v. Donoghue 1416, 1532, 1536 Hanna v. Grand Trunk R. Co 1108, 1109, 1122, 1124 Hannaford v. Hunn 1418 Hannay v. Eve 1139 Hannibal & St. J. R. Co. v. Crane 800 Hanover v. Turner 464, 465, 477, 490 Hanover Nat. Bank v. Howell 275 Hanrick v. Adams 8 V. Andrews 1199. 1201, 1228 Hansel v. Chapman 648, 681, 1289, 129S« TABLE OF CASES CITED. cxxv Hantz V. Sealy 375 Happy V. Prickett 754 Haibaugh v. Costello 1234 Harberger, Re 135 Hardaway v. Semmes 709 Hardin, Re 1594 Harding v. Alden 10:i, 368, 395, 469, 470, 486, 489, 496, 509, 522 V.Weld 581 Hardy v. De Leon 117 V. Smith 465, 477 Harford v. Morris 329, 370, 374, 383, 395 Hargadine-McKittrick Dry-Goods Co. v. Hudson 1266 HargTOves v. Thompson 340 Harkins v. Arnold 122 Harley v. Stapleton 937 Harman, Re 1316 Harmer v. Bell 1583 Harmon v. Hart 1214 Harmon ex dem. Fay v. Taft 617 Harmony, The 140, 150 Harper v. Butler 1369 V. Lee 1302, 1334 V. People 780 V. Stanbrough 1302, 1334 Harral v. Harral 115, 122, 123, 139, 157, 408 Harrall v. Wallis 1346 Harrill v. South Carolina & G. E. R. Co 1100, 1101, 1135 Harrington, Re 1544 V. Clinton 623 V. Harrington 484, 1412 Harriott's Petition 1699 Harris v. Alexander 1547 V. Allnutt 1548 V. B«rry 206 V. Firth 82 T. Harris 510, 549, 1250, 1268 V. Quine , 1248 T. Scaramanga 983 V.White 1176 Harris's Case 887 Goods 1389 Harrisburg, The 1121, 1262 Harrison v. Edwards 927, 980, 1584 V.Harrison 465, 471, 488, 489, 496, 645, 12.30, 1283, 1296, 1301 V. Nixon 1283, 1304, 1331, 1332, 1335,- 133G, 1339 V. Pike Bros 977 V. State 322 cxxvi TABLE OF CASES CITED. Harrison v. Sterry 727, 831 V. Weatherby 1337 Harrod v. Harrod 306 Harrold, Re 57 Harryman v. Roberts 1528 Harshberger v. Harshberger 524 Harshey v. Blackmarr 1415 Hart V. Barney & S. Mfg. Co 781 V. Lindsey 476 V. Livermore Foundry & Mach. Co 922, 926 V. Pennsylvania R. Co 1050, 1069, 1079 V. Sansom 652 V.Wills 1187 Harteau v. Harteau 105, 468-470, 472, 483, 488 Hartford v. Champion 122 Hartford Steam Boiler Inspection & Ins. Co. v. Lasher Stocking Co. 1011-1013, 1025 Hartland v. Church 162 Hartman v. Aveline 1994 Hartmann v. Louisville & N. R. Co 1529, 1577 Hartwell v. Jackson 313 Harvard College v. Gore 136, 140 Harvey v. Archbold 1188 V. Ball 1296, 1301 V. Doty 1173 V. Edens 767 V. Parnie '. . .449, 452, 461 V. Great Northern R. Co 804, 1584 V. Harvey 496 V. Merrill 1181, 1558, 1566 V. Richard 1290, 1376, 1383 V. Watson 777 Hascall v. Hafford 136, 138, 139 Haskell v. Bailey 1099 Hastings v. Hopkinson 1050 Hatch V. Hanson 1168, 1568 V. Spofford 1581 Hatcher v. McMorine 976, 984, 987 Hatfield v. Com 1634 Hatton V. Tlie Melita 788 Hauerstein v. Lynham 67 Hauteville Case 572 Hawkins v. Ireland 751, 1471 V. Ragsdale 509, 527 Hawley v. Bibb 1175, 1177, 1542 > . Hunt 1235 V. Hurd 803 TABLE OF CASES CITED. cxxvii Hawley v. James 644 Haws V. Cragie 1257 Hawse v. Burgmire 1247 Hawthorne, Re 658 Hay V. Green 1482 V. Northcote 393 Hayden v. Davis 862 V. Nutt 423 V. Stone 277, 280, 281 V. Yale 658, 767 Hayes v. Hayes 138 V. Southern Home Bldg. & L. Asso 1212, 121S Hayne v. Deliesseline 161 Haynes v. Forno 252 Hays V. Cage 1251, 1257, 1402 V. Cecil 1377 V. Pacific Mail S. S. Co 16» Hajrward v. Board of Review 172 Hazard v. New England Marine Ins. Co 1031 Hazel V. Chicago, M. & St. P. R. Co 1066, 1074, 1077 Hazelett v. Woodruff 633 Hazelhurst v. Kean 975, 1226 Hazzard's Estate 554 Headman v. Rose 53 Healy v. Gormaji 1229 V. Reed 1328 v. Root 244 Heath v. Griswold 1209 V. Heath 484 V. Samson 110, 117 Heathfield v. Chilton 61 Heaton v. Eldridge 895, 1433, 1447, 1449, 1452 Hebblethwaithe v. Hepworth 377 Heberd v. Myers 1519 Hecla Powder Co. v. Sigua Iron Co 1528 Hedenburg v. Hedenburg 1375 Hedley, Ex parte 1637 Heebner Eagle Ins. Co 869, 886, 1009, 1014, 1045 Heelman, Re 574 Heery v. J. I. Mott Iron Works Co 1485, 1547 HeflFerlin v. Sinsinderfer 1587 Hegeman v. Fox 147 Heidelback, Ex parte 983, 993, 1008 Heidenheimer v. Mayer • 99S Heilbronn, Re 1686, 1687 Heiman v. Phoenix Mut. L. Ins. Co 1009, 1017 Heine v. Mechanics & T. Ins. Co 432, 629 cxxviii TABLE OF CASES CITED. Heinrich's Case 26 Hekldng v. Pfaff 470, 509, 523 Helena, The Hi, 1420 Helfenstein v. Cave L590 Hellman, Re 223, 225, 201, 267, 945 Helton v. Alabama Midland R. Co 1094, 1108, 1494 Hemmaker v. State 1640, 1642 Hempstead v. Reed 1574 Henderson v. Henderson 1395, 1396, 1399, 1404, 1406, 1424 V. McBee 644 V. Rost 1360 V. Scliaas 775 V. Stamford 1402, 1412 V. Thayer 711 V. Trousdale 422, 423 Hendricks v. Australasian Ins. Co 963 V. Isaacs 282 Hendr^-x \ . Evans 1533 Hennessey v. Farrelly 1520 Henning, Re 99, 102 Henrich, Re 1675, 1678, 1680, 1686, 1687 Henry v. Allen 1536 V. Doctor 646, 647 V. Lennox-Haldeman Co 803 V. Philadelphia Ware-house Co 1090 V. Sargent 1094 Henry B. Hyde, The 1057, 1072 Henshaw v. Pleasance 1419 Hepburn v. Skirving- 114 Herbert v. Herbert 291, 36S Herdic v. Roessler 9?.2 Herf cfc F. Chemical Co. v. Lackawana Line 1080 Her Majesty's Procureur v. Bruneau 1301 Hermano v. Mildred 874 Hernandez v. Aaron 712 V. Garetage 1548 Hernandez's Succession 320 Herres, Re 1675, 1685 Herrick v. King 714 V.Minneapolis & St. L. R. Co 1102, 1115, 1120 Herriman v. Stowers 160 Herron v. Keeran 172, 175 Herschfeld v. Dexel 775, 864 Hervey v. Rhode Island Locomotive Works 683, 782. 1587 Hess, Re 1547, 1696, 1699 Hettrick v. Hettrick 402, 1588 Hewes v. Baxter 138 TABLE OF CASES CITED. cxxix Hewit, Ee 1.344 V. Bank of Indiaji Territory 1526 Hewitt V. Morgan 1295, 1546 Heyer v. Alexander 754, 767, 834 Heyward v. Williams 1368, 1370 Hibbs, Ex parte 1671 Hibemia Nat. Bank v. Lacombe 832, 977, 993 Hibler v. State . . .' 1695 Hicinbothem v. Interstate Loan Asso 1214, 1215 Hick V. Hick 103, 485, 486 Hickman v. Alpaugh 1544 Hiokox V. Elliott 1172 Hicks V. Brown 975 V. Ewhartonah 43 V. National L. Ins. Co 1019, 1039 V. Pope 410, 422 V. Powell 646 V. Skinner 120, 131, 158, 427, 429, 925 Hieronymous v. New York Nat. Bldg. & L. Asso 1212, 1215 Hiestand v. Kuns 99, 221 Higgins V. Central N. E. & W. R. Co. . .1111, 1115, 1116, 1120, 1122, 1125, 1134 High, Re 370 V. Padrosa 803 Hijo V. Hoffman 936 Hilbish V. Hattle 509, 530 Hilburn v. Harris 1554 Hildreth v. Shepard 885 V. Thibodeau 814 Hill V. American Freehold Co 1202 V. Chase 272, 890, 910 V. Frazier 1411 V. Grigsby 1531 V. Hill 470 V. M'Dermot 423, 1433 V. Mendenhall 1414 V. Nelson 662 V. Pine River Bank 225, 273, 289 V. Spangenberg 143 V. Spear lO08, 1141, 1156, 1158 V. The Golden Gate 786 V. Townsend 410, 1283, 1301, 1304 V. Tucker 1383, 1385 V. Wilker 917, 1566 Hill Case. See Mittual L. Ins. Co. v. Hux. Hill's Goods 1361, 1362 Hills V. Carlton 1236, 1240 "Vol. I. CoNFL. of Laws — ix. cxxx TABLE OF CASES CITED. Hills V. Richmond & D. R. Co 1094 Hilton V. Guyot 8, 1395, 1397, 1398, 1404, 1406, 1409, 1424 Hindman's Appeal 82, 121, 140, 15S Hinds, Re 1597 V. Hinds 79, 94 Hine, The v. Trevor 728 Hinkley v. Marean 1245, US* Hinkson v. Williams 281 Hiram v. Pierce 313, 33ft Hirsch v. C. W. Leatherbee Lumber Co 780, 782 Hirschfeld v. Smith 990 Hirschorn v. Canney 1055, 1091 Hitchcock V. Aieken 1404 Hitchins v. Hitchins 1479' Hoadley v. Northern Transp. Co 1433, 1493, 1575, 1577 Hoag V. Dessan 1220 v. Hunt 816 Hotobs, Ex parte 1699 Re 344 V. Henning 1421, 1422 V. Memphis & C. R. Co 153ft V. National Bank of Commerce 1264 Hobson V. Hale 1321 Hochstadter v. Hays 281 Hodge V. Sawyer 576, 577 Hodges V. Cummings 1567 V. Kimball 1137 Hodgins v. McNeil 325 Hodgson V. De Beauchesne 78, 150 Hoes V. New York, N. H. & H. R. R. Co 1097, 1135 V. Van Alstyne 1516, 1520, 153* Hoffman v. Hoffman 4G5, 477, 494, 514, 521, 1400 Holbrook v. Bowman 612 V. Bronson 491 V. Ford 840, 846, 847 V. Vibbard 986, 987 Holeomb v. Phelps 1367 V. Wright 1346 Holden v. Brooks 1150 V. Putnam F. Ins. Co 237 Holderman v. Pond .' 662, 668, 1099 Holdridge v. Farmers' & M. Bank 932 Holland v. Mobile & 0. R. Co 806 V. Silver Bow County 174 Hollis V. Drew Theological Seminary 1329 Holman v. Hopkins 1282, 1296, 1301, 1306 TABLE OF CASES CITED. exxxi Holman v. Johnson 1139, 1440 Holmes v. Bank of Ft. Gaines 983 V. Barclay 664 V. Charter Oak L. Ins. Co 1039 V. Hengen 1254 V. Holmes 375, 379, 394, 486, 494, 611 V. Oregon & C. R. Co 159, 1115 V. Remsen 829, 1283, 1483, 1583 V. Reynolds 272, 277 Holt V. Knowlton 781 V. Ladd 805, 807 V. MeCann 971 V. Salmon 986, 987, 991 Holthaus V. Farris 1547 Holyoke v. Haskins 97, 114, 1392 \ . Union Mut. L. Ins. Co 1366 Home Ins. Co. v. Davis 238 v. Pennsylvania R. Co 663 Homer v. Barr Pumping Engine Co 844 Home Sav. & L. Asso. v. Mason 1212 Honey v. Clark 546 Hood V. Barrington 1286 V. Hood 471, 472, 47.5-477, 492, 515 V. New York & N. H. R. Co 1090 V. State 465, 509 Hood's Estate 124, 135, 163 Hooker v. Hooker 467 V. Olmstead 1362, 1379 Hooper v. Gvunm 742, 789 V. Tuckerman 835 Hoover v. Kansas City Packing Co 758 V. Pennsylvania Co 1127 Hope v. Brewer 1318, 1322-1324, 1326, 1327 V. Carnegie 1363 V. Hope 1170, 1182 Hopkins v. Hopkins 388, 437, 476, 483 V. Shepard , 1227, 1230 Hopper V. Hopper 1377 Horn, Re 194, 195 Home V. Green 172 V. Rouquette 976, 988, 990. 993 Horner v. Perry 1255 V. United States 1 165 Hornthall v. Burwell 712 Horton v. Home Ins. Co 1031 V. New York L. Ins. Co 1014, 1016, 1017, 1022, 1040 V. Reed 1529 cxxxii TABLE OF CASES CITED Hosford V. Nichols 612, 867, 1282 Hoskina v. Matthews 147 Hotchkiss V. Pinan 1 155 V. Middlekauf 621 Houdaj'er, Re 192 Hough V. Texas & P. R. Co 1106 Houghtaling v. Ball 1443, 1444, 1447, 1459, 1538, 1550 Houghton V. Maynard 1237 ^ . Page 862, 1222 Houlditch V. Donegal 1399, 1400 House, Re 512 1-. Lockwood 652 Houseman v. The North Carolina 962 House of Mercy v. Davidson 1328 Houston V. Nowland 608 Houston & T. C. R. Co. v. Baker 1554 Houstoun, Re 223, 291, 597, 598 Hovis V. Richmond & D. R. Co 1101 Howard v. Branner 1197 V. Chesapeake & 0. R. Co 412 V. Fletcher 936 V. Great Western Ins. Co 953 v. Ingersoll 663 Howarth v. Angle 248 V. Ellwanger 838 V. Lombard .' 248, 838 Howcott V. Kilbourn 874 Howden's Goods 1389 Howe V. Ballard 1525 Howell V. Hair 1259 V. Manglesdorf 246 Howenstein v. Barnes 958, 983 Hower v. Aultman 1249 Rowland v. Chicago, R. I. & P. R. Co 806 V. Granger 105 Hoyt V. McNeil 1550, 1575 V. Sprague 584, 585, 591, 594 V. Thompson 671, 743, 836, 1599 Hubbard, Re 581-583, 585 V. Andrews 714 V. Exchange Bank 912 V. Sayre 622, 1175, 1177, 1543 Hubbell V. Hubbell 486, 488, 496, 503 Hubble V. Morristown Land & Improv. Co 1554. 1565 Huber V. Steiner 1245, 1248, 1256, 1257 Huber's Goods 1311 Hudson V. Clementgon 1090 V TABLE OF CASES CITED. cxxxiii Hudson V. Daily 1229 V. Guestier 1422 V. Miller 165 V. Northern P. E,. Co 1074, 1075, 1546 Hudson Furniture Co. v. Harding 974 Hudson-Kimberly Pub. Co. v. Young 1407 Hudson River Pulp & Paper Co. v. H. H. Warner & Co 717 Huet V. Le Mesurier 1498 Huettinger v. Huettinger 1471 Huey's Appeal 221, 265, 267, 912 Huff V. Borland 406 Hughes, Re 1376, 1696 V. Abston 707, 712 V. Cairo 236 V. Hughes 1347 V. Klingender Bros 863 V. Pennsylvania R. Co 1057, 1058, 1060, 1061, 1063, 1064, 1074, 1075, 1078, 1080 Hughes County v. Livingston 1228 Hughs V. Cornelius 1420 Hugo, The 1076 Hulbert v. Topeka 1132 Hulbert Bros., Re 759, 1552 Hulett V. Hulett 140 Hull V. Augustine 1186, 1565 V. Hull 471, 481, 489, 496 V. Vreeland 1094 V. Webb 1536 Hullin V. Faure 747 Humboldt Lumber Mfrs. Asso. v. Christopherson 1128 Hummel v. Hummel 1310 Humphrey v. Cole 1253 Himiphreys v. Collier 991 V. Hopkins 837 Hundley v. Mount 712 Hunt V. Board of Supers 1 75 V. Columbian Ins. Co 836 V. Gilbert 836, 840 V. Hunt 98, 105, 476, 478, 494, 495, 498, 512, 979, 1197, 1525 V. Jackson 829, 1483, 1599 V. Johnson 1526 V. Jones 912, 946, 1458, 1459' V. Perry 180' V. Pownal 1140' V. Standart 976, 979, 991, 992 V. State 43 Hunter v. Bryson 1290 cxxxiv TABLE OF CASES CITED. Hunter v. Ferguson 1533 V. Fulcher 252 V. Hunter 127 V. Potta 827, 828 V. State 1634 V. Stewart 1404 Huntington v. Attrill 14, 18, 19, 20, 246, 1411 Huntley v. Merrill 1008, 1011 Hurd V. Elizabeth 838 V. Miller 662 Hurley v. Missouri P. R. Co 1551 Huse V. Hamblin 986, 988 Huss, Re 1354 V. Central R. & Bkg. Co. 1270 Hussey v. Sargent 1323 Hutcheson v. Peshine 608, 828, 834 Hutehings v. Lamson 1265 Hutcliins V. Barnett 1587 V. Kimmell 368, 375, 377, 1549 V. State Bank 1370 Hutchinson v. Board of Equalization 175, 177 Hutchinson Invest. Co. v. Caldwell 612 Huth V. New York Mut. Ins. Co 1531, 1560 Huthwaite v. Phaire 1379, 1380 Hyatt V. Bank of Kentucky 863, 864, 877, 975, 991, 992, 998 V. James 1184 V. New York 1694 Hyde v. Goodnow 869, 884, 1006, 1008, 1011, 1025 V. Hyde 304, 307, 310, 1515 V. Wabash, St. L. & P. R. Co 1109, 1116, 1137 Hydrick v. Burke 1543 Hylton V. Brown 1499 Hyman v. Bayne 1252 V. MeVeagh 1252 V. Sehlenker 120, 273, 410 Hynes v. McDermott 308, 377, 1510, 1520, 1531, 1560 V. Winston 1368 Hysinger v. Supreme Lodge, K. & L. of H 1031 I lasigi. Re 64 I. B. Rosenthal Millinery Co. v. Lennox 1536 Ida County Sav. Bank v. Seidensticker 136 Hderton v. Ilderton 368 lies V. Elledge 1415 TABLE OF CASES CITED. cxxxv Illinois C. R. Co. v. Beebe 1002, 1074, 1075 V. Copeland 1090 V. Cra.gin 1117 V. Crudup nil V. Harris 1101 V. Ihlenberg 1101 V. Jordan 1100 V. Smith 802, 813 Illinois Mutual F. Ins. Co. v. Peoria 236 llsley V. Merriam 1235 V. Nichols 1406 Imlay v. Ellefsen 1487, 1489 Imrie v. Castrique 1398, 1420 Indiana ex rel. Stone v. Helmer 1414 Indiana, I. & I. R. Co. v. Masterson 1104 Indian Chief, The 58, 111, 149, 151 Industrie, The 1068 Infanta, The 938, 939 Inge V. Murphy 951, 1529 Inglis V. Robertson 702 V. Usherwood 716, 779 Ingraham v. Geyer 746, 766, 1483 V. Hart 1505, 1506 Ingram v. Drinkard 1230 Innes v. Dunlop 1482 luslee V. Lane 779 Insurance Co., Re 1013 Insurance Co. of N. A. v. McLimans 1048 International Bridge & Tramway Co. v. Holland Trust Co 653, 659 International Nav. Co. v. Lindstrom 1128 Interstate Bldg. & L. Asso. v. Powell 1212 Iowa, The 1076 Irby V. Wilson 472, 492, 510 Ireland v. Atchison, T. & S. F. R. Co 721 V. Globe Mill. & Reduction Co 809 Irvine v. Barrett 863, 867, 1197 irvmg V. Ford 556 V. M'Lean 1294 Irwin V. Bailey 1543 V. Granite State Provident Asso 839, 846, 847 V. Williar 1178, 1181 Irwin's Appeal 1284, 1305 Isaacs V. McAndrew ,. 1228 Isola V. Webber 1110 Isquierdo v. Forbes 1399 Ives V. Farmers' Bank 972, 1226 V. McNicoll / 561 cxxxvi TABLE OF CASES CITED. Ives V. Salisbury 1390" Ivey V. Lalland 9, 682, 864, 940, 1139, 1433 Jack V. Jack 447' V. Walker 173 Jacks V. Nichols 1190 Jackson v. American Mortg. Co 1190, 1191, 1202 V. Com 1634 V. Green 630- V. Hanna 611, 661 V. Jackson 310, 346, 358, 301, 368, 490, 523, 550, 1521 V. People 1497 V. Phillips 1369 T. Pittsburgh, C. C. & St. L. R. Co 1127" V. Spittall 1472 V. Tiernan 794 Jackson ex dem. Dies v. Winne 375- Jacobs v. Credit Lyonnais 923, 1082. Jacobson v. Adams Exp. Co 1061 Jaffray v. Wolf 689 Jaffrey v. McGough 403, 423, 1543 Jahier v. Rascoe 1293 James, Re 194, 478, 507, 509 V. Catherwood 1139, 1440, 1463' V. James 1554 Jameson v. Gregory 1169 J. & J. Eager Co. v. Burke 1149, 1150 Janeway v. Burton 1252 Jaquith v. American Exp. Co 717 Jefferson, Re 175- V. Beall 1373 Jeffersonville R. Co. v. Hendricks 1136, 1137' Jeffery v. M'Taggart 1482 Jemmerson v. State 1641 Jenkins v. Guaranty Trust & S. D. Co 1330 Jenks V. Ludden 751, 833 Jenne v. Harrisville 1509, 1520- Jennes v. Landes 1567 Jenness v. Jenness 469- 471 Jennings v. Jennings 1333, 1349 Jennison v. Hapgood 116, 120, 158, 1302 Jephson v. Riera 415, 672 .Jerningliam v. Herbert 669 J. E. Rurabell, The 726, 72r TABLE OF CASES CITED. cxxxvii Jessup V. Carnegie 1525 Jeter v. Deslondes 424, 427 V. Fellowes 728 Jewel V. Center 1504 Jewell V. Jewell 306 V. Wright 864, 984, 1005, 1203 J. F. Spencer, The 789 J. L. Pendergast, The 786 J. M. Atherton Co. v. Ives 755, 766 Jo Daviess County v. Staples 1545 John A. Tolman Co. v. Reed 889, 922, 934, 950 John Ha,ncock lee Co. v. Rose 168 Johns V. State 1626 John Shillito Co. v. Richardson 1255 Johnson, Re 96 V. Ammons 1695 V. Chambers 1545 V. Chicago & N. W. R. Co 1100, 1108, 1577 V. Com 1635 V. Copeland 97, 98, 1283, 1292, 1304 V. Dalton 1481 V. De Bary-Baya Merchant's Line 168, 170 V. Hanover Nat. Bank 686 V. Hesser 1516, 1527 V. Hughes 714 V. Johnson 307, 308, 464, 472, 479 V. Kimbro 642, 643, 648, 651 V. Matthews 523 V. Mutual L. Ins. Co 1047 V. New York L. Ins. Co 1040 V. Parker 747, 748, 755, 828 V. Powers 1308, 1382 V. State , 152T V. Telford 1283 V. 13 Bales & 13 Oases 1486 V. Union Pacific Coal Co 1102 V. Wallis 1399, 1374 V. Williams 1228, 1509 Johnson & L. Dry Goods Co. v. Cornell 1271 Johnston v. Gawtry 283, 889 V. McKinnon 1382 v. Oshkosh 134 V. Rogers 839 .Jolmstone v. Baker 611, 069 V. Beattie 146, 223, 268, 209, 572. 581, 585-587 Jollett V. Deponthieu 827 Jones V. Aetna Ins. Co 411i exxxviii TABLE OF CASES CITED. Jones V. Bowman 589 V. Cliicago, St. P. M. & 0. R. Go 1108, 1577 V. Cliett 1368 .-. Dreury 1386 V. Fales 1504 V. Fidelity Loan & T. Co 636, 1113 V. Gerook 1304 V. Habersham 1326 V. Hook 1268 V. Hunter 1304 V. Jamison 1402 V. Jerock 1297 V. Jones 480, 488, 503, 513, 999, 1248, 1382, 1383 V. Kansas City, Ft. S. & M. U. Co 1134 V. Leonard 1694 > . McMasters 1302 V. Mafifet 1523, 1530 V. Jlarable 1298 V. Murphy 1412 V. National Cotton Oil Co 1445 V. Palmer 1500 V. Rice 279, 1545 V. Robinson 1388 V. Spencer 1400, 1422 V. Surprise 9, 940, 1150 v. Taylor 711, 728, 1436 V. Tevis 340 V. Warner 1414, 1415 Jopp V. Wood 95, 122, 123 Jordan v. Thornton , 999 Joslin V. Miller 123.) Joyslin, Re 183, 189, 1597 Juando v. Taylor 22 Juillard v. May 773 Junction R. Co. v. Bank of Ashland 864, 1186, 1198 J. Walter Thompson Co. v. Whitehead 754 K Kahl V. Memphis & C. R. Co 1107 Kahn, Re 697 Kaine, Ex parte 1683, 1686 Re 1677, 1679, 1687 Kalyton v. Kalyton 308 Kanaga v. Taylor 713 Kane v. McCarthy 53 TABLE OF CASES CITED. oxxxix Kane v. Pond 1364 Kansas City, Ft. S. & M. R. Co. v. Becker 1104, 1130 V. Cunningham 812, 1589 Kansas City, P. & G. R. Co. v. Parker 805 Kansas Indians, The 43, 45 Kansas P. R. Co. v. Cutter 1137, 1547 Kashaw v. Kashaw 470 Kate Hinohman, The 727 Kaufman v. Gerson 943 Kayanaugh v. Day 1189, 1197, 1227, 1228 Keagy v. Wellington Nat. Bank 1553 Kean v. Supreme Sitting, 0. 1. H 847 Keane v. Chamberlain G13, 768, 709, 771 Keating v. American Refrigerator Co 803 Keegan v. Geraghty 508, 569 Keenan v. Stiinson 712 Keeney v. Morse 1345 Keith V. Eaton 549, 1337, 1342 V. Keith 1390 V. Stetter 136, 143 Keiwert v. Meyer 1146, 1448, 1451, 1400 Kellam v. Toms 1413 Kellar v. Baird 132 Keller, Re 1695, 1696 V. Alexander 1370 V. Paine 709, 710 Kelley, Re 1675, 1677, 1678, 1685 V. Drury 1238, 1240 V. Kelley 1537, 1549 V. Rhoades 166, 168 V. Telle 889 Kellogg, Re 618 V. Brennan 788 V. Oshkosh 138 V. Winnebago County 163 Kellow V. Kellow 482 Kelly V. Crapo 786, 831 V. Davis 284 V. Owen 52 V. Smith , 983 Kelsey v. Green 582, 589 V. Skidmore 1209 Kelstadt v. Reilly 756 Kemna v. Brockhaus 120, 132, 133 Kempe v. Bader 1251 V. Kennedy 1487 Kempson v. Kempson 147 1 cxl TABLE OF CASES CITED. Kendall v. Coons 419 Kennard v. Kennard Io20 Kennebec Co. v. Augusta Ins. & Bkg. Co 1008- Kennebrew v. Southern Automatic Electric Shock ilach. Co 1543 Kennedy v. Cassillis 1399' V. Cochrane 864, 1160 V. Knight 798, 864, 1189 V. Lee 886 V. Palmer 1322 V. Ryall 9.5, 97, 132, 136 Kennett v. Chambers 1 139, 1 18.3: Kenningham v. Kenningham 1374 Kenny v. Clarkson 1516, 1521 Kensington, The 17, 916, 1057, 1076, 1079 Kent V. Burgess 341, 367, 392 V. Dawson Bank 889, 926 Kentucky v. Bassford 17, 1141, 1163, 1166 V. Dennison 1696 Kenyon, Ex parte 571 V. Smith 945 Keokuk & H. Bridge Co. v. People 180 Ker V. Illinois 1653, 1698 Kermott v. Ayer 1516, 1549, 1556 Kern v. Field 480 Kerper v. Wood 1246 Kerr v. Condy 1407 V. Dougherty 1301, 1302, 1329 V. Kerr 465, 478, 494, 1405, 1414 V. Moon 009, 818, 1282, 1283, 1296, 1301, 1388 V. State 636 V. XJrie 282, 797 V. White 1296, 1301, 1333 Kerrison v. Kerrison 316 Kerwin v. Doran 1151, 1550 V. Sabin IIS Kessler v. Best 64 V. Kessler 1300 Key V. Harlan 1390 V. Vaughn 1499 Keyes v. Keyes 331 V. Bines 1591 Keyser v. Pilgrim 410, 424 V.Rice 793, 1471 Kidd V. Manley 1499 Kidder v. Tufts 745. 816, 828 Kiefer v. Grand Trunk R. Co 1110, 1127, 1128 Kiernan, Re 100 TABLE or CASES CITED. cxli Kilburn v. Bennett 136 Kilgore v. Bulkley 1525 V. Dempsey 945, 1189, 1202, 1207 Kllmgemann's Goods 1518 Kilpatrick v. Bush 1369 Kimball, Re 512, 521 V. Davis ' 246, 1479 V. Kimball 470, 484 V. Lee 775 V. Plant 764 K.indel v. Beck & P. Lithographing Co 242 Kinehart v. Howard 179 King V. Burdett 1038 V. Cross 800, 832 I . Doolittle 971 V. Fleming 916 V. Foxwell 130 v. Glass 707, 776 V. Johnson 774, 1638 V. Lane 1269 V. Martin 1292 V. National Min. & Exploring Co 1270 V. Sarria 295, 1049-1051 V. United States 121 King Briek Mfg. Co. v. Phoenix Ins. Co 1028, 1029 Kingman County v. Leonard 174 King of Greece v. Wright 1481 King of Spain v. Maehado 947 King of the Two Sicilies v. Willeox 1489, 1503 Kingsbury v. Burnside 1352 Kingsbury's Case 1664, 1696 Kingsley, Re 1594 Kingston v. Lesley 1498 Kinney v. Com 344, 345, 347, 359 Kinnier v. Kinnier 479, 495, 521, 522 Kintzing v. Hutchinson 182, 198 Kildahi v. Basha 655 Kirker v. Owings 847 Kirkland v. Whately 100 Kirrigan v. Kirrigan 490, 521 Kirtland v. Hotchkiss 161, 171, 172, 793, 798 V. Wanzer 1466 Kirtley v. Holmes 250 Kirwan, Re 1310 Kittel V. Augusta, T. & G. R. Co 830 Kittle V. De Lamater 1164 Kleeman v. Collins 1443, 1444, 1446 cxlii TABLE OF CASES CITED. Klein v. French 161, 793, 1371, 1372, 1376, 1379-1381 Klenke i'. Noonan 1547 Klinck V. Price 938 Kline v. Baker 783, 865, 1054, 1055, 1505, 1512 V. Kline 507, 509, 531 Kling V. Fries 1141, 1151, 1444, 1459, 1557 «. Sejou'r 632 Kloebe, Re 1377, 138G Knapp \ . Hoboken 841 V. Knapp 526, 1230, 1549 V. Lee 1371 Knauth Nachod v. Stern 1484 Kneeland v. Ensley 402-404, 422 Knickerbocker L. Ins. Co. v. Gorbaeh 51 V. Norton 1009 Knight V. Railroad Co 1118 V. West Jersey R. Co 1119, 1127 V. Wheedon 1390, 1391 Knights Templar & M. Life Indemnity Co. v. Berry 1014, 1044 Knights Templars & M. Mut. Aid Asso. v. Greene 1031, 1032 Knoedler, Re 195 Knott V. Botany Worsted Mills 1076 Knowles, Ex parte 1694 V. Logansport Gaslight & Coke Co 1400, 1414 Knowles Loom Works v. Vacher 782 Knowlton v. Doherty 1156 V. Knowlton Ill, 525 Knox V. Bank of United States 1217 V. Barker 1299 V. Jones 1283, 1290, 1320 Kobogur.i V. Jackson Iron Co 311 Kochersperger v. Drake 183 Kohn T. Mileher 1159 V. The Renaisance 1139, 1441 Kohne's Estate 267, 1354 Kolbe V. People 15, 575, 578 Kollock V. Emmert 1551 Koppel V. Holm 130B Kopperl V. Nagy 153S Koster v. Merritt 736, 786, 787 Koszta's Case 26, 94, 1611 Kraemer v. Kraemer 423 Kraft V. Wickey 583-585, 587 Kreitz v. Behrensmeyer 23, 136 Krogg V. Atlanta & W. P. R. Co 1106, 1107, 1263 Krone v. Cooper 80 Kruger v. Bank of Commerce 840 TABLE OF CASES CITED. cxliii Krulder v. Ellison 695 Kruse v. Kruse 488 Kuehling v. Leberman 1400, 1421, 1477 Kuenzi v. Elvers 1548 Kuhn V. Morrison 889 Kuppenheimer v. Wertheimer 695 Kurner v. O'Neil 698 Kurzman v. Lowy 1322 Labatt v. Smith 1254, 1558 Labellot v. Boursier 339 Laoey v. Lacey 512, 519 V. Palmer 1632 Lachman v. Block 934 Lackmann v. Supreme Council, 0. C. F 840 Lacon v. Higgins 369, 1524 Lacoste v. Benton 1246 Lacroix's Groods 2, 1307 Ladd V. Dulany 688 Lafayette County Bank v. Metcalf 712 LaiTerty, Re 1594 Lafitte V. Lawton 432 Lafond v. Ruddock 1269 Lagrave, Re 1069 Laing v. Rigney 1558 l^aird v. Connecticut & P. R. Co 1094 V. Hodges 863, 1491 Lake v. Hardee 1374 Lalce Shore & M. S. R. Co. v. Andrews 1120 Lally V. Holland 709 Lamar v. Micou 97-102, 580, 589, 594, 1536 V. Scott 1297 Lamb v. Bowser 1000, 1011 V. Fries 608, 767 V. Lamb 1009 Lambert v. Jones 1440, 1441 Ijamberton v. Grant 1268 Lamington, The 10«9 Lamprey v. State 613 Lampson, Re 1 330 Lamson Oonsol. Store Service Co. v. Boston 166 Lancashire Ins. Co. v. Corbetts 799, 800-808 Lancaster v. Spotswood 804, 805 Land v. Land 402, 403 cxliv TABLE OF CASES CITED. Landsdowne v. Landsdowne 427 Lane v. Lane 1313 Laneuville v. Anderson 77, 1283, 1303, 1307, 1333 Lang, Re 1354 V. Holbrook 1398 V. Lynch 1150 V. Smyth 966 Langdon v. New York, L. E. & W. R. Co 20, 1112 V. Potter 1360 V. Sherwood 612 V. Young 1094, 1096, 1099, 1531 Langton v. Hughes 1141 Langworthy v. Little 712, 744 Lanier v. Union Mortg. Bkg. & T. Co 1195 Lanigan v. North 248 Lanussee v. Barker 870, 871 Lanz V. Randall 33 Lapham v. Olney 1304, 1306 Lapice v. Smith 1229 La Plant v. People 578 Larendon's Succession 617 La Riviere v. La Riviere 307 Larquie v. His Wife 123 Lai-well V. Hanover Sav. Fund Soc 1533 Lascelles v. Georgia 1697 V. State 1697 La Selle v. Woolery 1588 Lassiter v. Norfolk & C. R. Co 1552 Latham v. de Loiselle 1560 Latimer v. Citizens' State Bank 24S Latrobe v. Winans 628, 889 Lauderdale Peerage Case 560, 561 Laughlin v. Harris 1368 V. Solomon 1368, 1374 Laustalan v. Laustalan 403 Latour v. Teesdale 380, 385 Law V. Smith 272 V. Western R. Co 1115 Lawford v. Da vies 341, 367 Lawler v. Burt , 245 Lawrence v. Ballou 1270 V. Bassett 973, 974 V. Batcheller 1050 V. Elmendorf 1380 V. Jarvia 1414 V. Kitteridge 1286, 1295 TABLE OF CASES CITED. cxiv Lawrence v. Lawrence 1360 V. Nelson 1373 V. Remington 1584 V. Smith 804 Lawrence's Case 1671, 1673 Estate 1317 Layne v. Pardee 403-405, 641 Lazier v. Westcott 1404, 1499 Lazovert v. Lazovert 470 Loach V. Greene 1482, 1483, 1491 v. Linde 1528 V. Pillsbury 476, 1551, 1562 Leake v. Bergen 1552 Leary, Ee 1696 Leavenworth v. Broekway 1505 Leavitt, Be 192 Leazotte v. Boston & M. E,. Co 1099, 1106 Lebel v. Tucker 995, 996, 1001 Lebeuf v. Levallee 1139 Le Blanee v. Covenant Mut. Ben. Asso 1573 Le Breton v. Miles 427, 433 V. Nouchet 223, 273, 402, 403, 409, 422 Le Chevalier v. Lynch 828 Lee V. Abdy 1033, 1037 V. Dawson 175 V. Selleek 975, 991, 1220 V. Smith 313 V. Stanley 143 V. State 1642 V. Sturges 181 V. Wilcocks 1231 Leech v. Guild 406 Xe Forest v. Tolman 1093, 1130 Legg, Re 782 Lehman v. Feld 1176 Leisy v. Hardin 1 142 Leith V. Leith 464, 476, 477, 483, 484 Leman v. Baltimore & 0. R. Co 1129 Le Mesurier v. Le Mesurier 453, 457 Lemonius v. Mayer 941, 1173 Lenard v. Columbia Steam Nav. Co 1525 Lenox v. United Ins. Go 962, 1030 Leonard v. Braswell 560 V. Columbia Steam Nav. Co 1115, 1118, 1121, 1127, 1135, 1564 V. New Bedford 165, 168 Leopold, Re 193 Le Prince v. Guillemot 432 Vol. I. CoNFL. OF Laws — ^x. cxlvi TABLE OF CASES CITED. Leroux v. Brown 1442-1448, 1450, 1455, 1457, 145& Le Roy v. Beard 035, 1490 V. Crowinshield 956, 1246, 1248, 1599 Le Sueur v. Le Sueur 104, 463 Lett V. Thurber Whyland Co 840 Letters v. Cady 306. Leucke v. Tredway 245, 247 Leverich v. Adams 587, 592 Levy V. Cohen 976, 991 V. Kentucky Distilling Co 697 V. Levy 1189, 1482, 1483 V. Solomon 1331 Ijewis, Ex parte 222 Re 1346, 1347 V. Adams 1372. V. American Naval Stores Co 837, 839, 847 V. Barry 608-610, 739, 747 V. Bush 796 V. Castello lOO V. Chester County 179 V. Clark 1212 V. Headley 864, 880 V. Hyams 1252, 1253 V. Lewis 482 V. McCabe 1143, 1145 V. Marshall 1497 V. Owen 978, 1233, 1243 V. Parrish 1374, 1375 V. Rutherford 1386. V. Woodfolk 940, 1554 Lewis's Estate 199 Succession 98 Lewisohn v. National S. S. Co 1076 L'Fit V. L'Batt 1389- Lichtenberger v. Graham 428, 1546 Lichtenstein v. Gillett Bros 84] Liekbarrow v. Mason 1090 Lide V. Parker 655 Lienow v. Ellis 661 Lightfoot V. Tenajit 1139 Limekiller v. Hannibal & St. J. E. Co 1132 Limerick Nat. Bank v. Howard 950, 972, 1433, 1490, 1493, 1580 Linceeum v. Lincecum 313 Lincoln v. Battelle 1245, 1256, 1480, 15l6 v. Perry 1340, 1356, 1357 Lindeman v. Rosenfield 979, 1004 Lindley v. O'Reflly 642, 648, 651, 654, 1391 TABLE OF CASES CITED. cxlvii Lindo v. Belisario 366 Lindsay v. Hill 15, 1220, 1226 V. Murphy 79, 120 Lindsey v. State 1627, 1636, 1638 V. Stone 1155 Lindsley v. Union Silver Star Min. Co 649 Line v. Mack 1516 1519 Line's Estate 197 Lingen v. Lingen 538, 541, 549, 550, 1283 Linton v. Moorhead 282, 620 Linville v. Hadden 836, 840, 841 Lipe V. McClevy 1545 Lipman, Re 1594 V. Link 773 Lister v. Wright 1094 Litowich V. Litowich 465, 475, 477 Little V. Chicago, St. P. M. & O. E. Co 664 V. Eiley 862, 866, 1197 Littlefleld v. Brooks 118 Liverpool & G. W. Steam Co. v. Phenix Ins. Co 915, 921, 970, 1057, 1068, 1073, 1074, 1532 Liverpool & L. & G. Ins. Co. v. Board of Assessors 172, 176 Liverpool Marine Credit Co. v. Hunter 728, 742, 789, 1407 Livingston v. Jefferson 660, 662, 663, 666, 667 V. Maryland Ins. Co 1519 Lizardi v. Cohen 978, 1241 Lloyd V. Guibert 784, 785, 790, 921, 959, 960, 961, 1067, 1089, 1560 V.Johnson 1182 V. Matthews 1536 V. Perry 1253 V. Petitjean 392 V. Scott 671 Loaiza v. Superior Court 656, 1544 Lobenstine v. Union Elev. R. Co 613 Locke V. MePherson 410 Lockname v. United States Sav. & L. Co 1213 Lockwood V. Crawford 1508, 1525 V. Lindsey 982, 1000 V. Lockwood 1306, 1391 V. Weston 165, 166, 181 Lodge V. Phelps 999 Loftus V. Farmers' & M. Nat. Bank 281, 282, 683 Logan V. Fairlee 581 V. Fairlie 186, 1387 V. United States 1503, 1648 Logansport Gaslight & Coke Co. v. Knowles 1413 Logue V. Smith 999 uxlviii TABLE OF CASES CITED. Ijoker V. Gerald 472, 515 Lokes V. Lokes 482 Looey's Case. See Eex. v. Lolley. Lomas v. Hilliard 1382 Lomb V. Pioneer Sav. & L. Co 1570 London & D. R. Co. v. Southeastern R. Co 1488 London Assur. Co. v. Companhia de Moagens do Barreiro 1030 Londonderry v. Chester 374 Long V, Girdwood 766, 833 V. Hess 430, 549, 555 V.Long 1198 V. Ryan 80, 153 V. Templeman 937 Lonsdale v. Lafayette Bank 970 Look Tin Sing, Re 53 Loomis V. Farnum 1377 Looney v. Reeves 633 Lord V. Staples 1529 Loring v. Thorndike 380, 383, 385, 536, 561 Lothian v. Handerson 1420-1422 Lottawanna, The 725, 726 Loud V. Hamilton 1554 V. Loud 479, 521 Lougee v. Washburn 1226, 1556 Louisiana & N. W. R. Co. v. Phelps 1543, 1544 Louisville v. Sherley 101 Louisville & N. R. Co. v. Dooley ., 802 V.Graham 1103, 1111 V. Nash 802, 809 V. Pool 1252 V. Shivell 1120 V. Stuber 1106 V. Sullivan 949 v. Whitlow 1100, 1109 V. Williams 1127, 1130, 1131, 1543, 1564 Louisville, N. A. & C. R. Co. v. Shires 1573 Loustalan v. Loustalan 117, 1351 Love V. Love 495 V. Pusey & J. Co 248 Lovelace, Re 182, 187 Loveland v. Davidson 1266, 1268 Loving V. Pairo 608, 612, 672, 818 Lov? V. Andrews 1444 V. Bartlett 1382 V. Burrows 1369 V. Routledge 731 Lowell V. Newport 96 TABLE OF CASES CITED. exlix Lower v. Segal 1119, 1127, 1132 Lowndes v. Gooch 1353, 1364 Lowiey v. Ulmer 783 Lowry v. Irnnan 246, 248 V. Moore 1572 Lueas v. Ladew 1550 V. Tucker 613, 672, 818, 1282, 1296, 1301, 1300 Luce V. Manchester & L. R. Co 1370 Ludlam v. Ludlam 4.i Ludlow V. Bingham 983 V. Ramsey . . '. 1487 V. Van Rensselaer 1139, 1440, 1441 Luhrs V. Eimer 52 Lum Lin Ying, Re 368 Lusk V. Kimball 1368 Lyall V. Lyall 182, 1388 V. Patton 123 Lyde v. Taylor 714 Lyman v. Brown 1402 V . Campbell 1 257 Lynch v. Paraguay 254, 1305 V. Stott 1151 Lynde v. Lynde 526, 527 Lynes v. Coley 1362, 1385 Lyon V. Boston & M. R. Co 1134 V. Callopy 1588 V. Ewings 1218 V.Knott 408, 410, 410, 422, 423 V. Lyon 477 Lyons v. Erie R. Co 1110 Lyster v. Lyster 521 Lytle V. Lytle 524 m: Maas V. German Sav. Bank 1381, 1384 Maberry v. Shisler 749, 774 Mabon v. Ongley Electric Co 837, 846 McAfee v. Doremus 1436, 1466 V. Kentucky University 102 McAnally v. O'Neal 1542 MoArthur v. Goddin 1245, 1267, 1268 Macartney v. Garbutt 63 McBee v. Purcell Nat. Bank 803 McCabe, Ex parte 1G52, 1653, 1665 Re 16f).!oseby v. Burrow 651, 652, 835, 843 V. Williams 821 Moses V. Boston & M. R. Co 1081 Moss V. Rowland 1374, 1547 Moss's Estate 669 Mosselman v. Caen 608, 828, 1599 Mostyn v. Fabrigas 665, 666, 1092, 1487, 1531 Mothland v. Wireman 1385 Mott V. Rowland 1190, 1204 V. Wright 990 Moultrie v. Hunt 2, 1283, 1304, 1305 Mount V. Tuttle 1326 Mowat V. MeFee 1621 Mowry v. Chase 1400, 152 1 V. Cheesman 1267 V. Crocker 757 V. Latham 115 V. McQueen 15-50 Moye V. May 1292, 1377 Moyer v. Koontz 503 Mullen V. Morris 992, 993 V. Mutual L. Ins. Co 1040 Vol. I. CoNFi.. of Laws — xi. clxii TABLE OP CASES CITED Mullen V. Reed 1033 MuUer v. Dows 645, 653 V. Hilton 484 Muller's Case 1656 Mumford v. Canty 704, 711, 716, 778, 892 V. Munford 1486 V. Sewall 174 Munday v. Baldwin 583 Munn V. Cook 1396 Munos V. Southern R. Co 1262. Munro v. Merchant 66 V. Munro 92, 122, 536, 538, 539, 553, 560, 561 V. Pilkington 1396, 1399 V. Saunders 537, 553 Munroe v. Douglas 113, 129-131 V. Guilleaume 1243, 1526 V. Munroe 129, 144 Munson v. Exchange Nat. Bank 1370 V. Erazer 769 Murphy v. Collins 866', 917, 1549 V. Crouse 1364, 1371 V. Hunt 120, 134 V. Murphy 422, 427, 430 V. State 120& Murray, Re 1595, 1597 V. Charleston 162 V. Cone 1230 v. De Rottenham 1241 V. Gibson 982 V. Roberts 1239 V. State 1642 Murrell v. Jones 623, 1482 Murtey v. Allen 846, 1532, 1533 Muschamp v. Lancaster & P. Junction R. Co 1090 Musser v. McRae 1576 V. Stauflfer 1502, 1553, 1567 Mussina v. Ailing 655 Musson V. Fales 1184 V. Pall Back Planting & Mercantile Co 596 V. Lake 975, 987 V. Trigg 271 Mutual Ben. Ins. Co. v. Wayne County Sav. Bank 1033, 1035 Mutual Ben. L. Ins. Co. v. Robison 1014, 1022 V. Tisdale 1417 Mutual P. Ins. Co. v. Phoenix Purniture Co 1415 Mutual Home & Sav. Asso. \ . Worz 1547, 1565 Mutual L. Ins. Co. v. Allen 1033 TABLE OF CASES CITED. clxiii Mutual L. Ins. Co. v. Cohen 1014, 1027, 1040, 1041 V . Hathaway 1040 V. Hill 1014, 1015, 1022, 1027, 1040, 1041 V. Pinney 1015 V. Terry 1035 Mutual Reserve Fund Life Asso. v. Hurst 1033 V. Minehart 1040 Muus V. Muus 410 Myatt V. Ponca City Land & Improv. Co 238 Myers v. Carr 1145 V. Chicago, St. P. M. & 0. R. Co 1115, 1550, 1564 V. MeGavoek 596 V. Manhattan Banlc 235 Nalle V. Ventress 1547 Nash V. Tupper 1245 Nashua Sav. Bank v. Anglo-American Land, Mortg. & Agency Co. . . 1530 V. Sayles 890, 973, 974 Nashville & C. R. Co. v. Eakin 1089, 1093, 1104, 1113, 1127 A.Sprayberry 1104, 1115, 1119, 1127, 1132 Nashville, C. & St. L. R. Co. v. Foster 1107, 1115, 1119 Nat. V. Coons 1305, 1331 Natchez v. Minor 623 Nathan v. Lee 239, 613, 625 V. Louisiana 162 National Bank v. Furtiek 800 V. Green 948, 976, 991 V. Indiana Bkg. Co 1004 V. Lake Shore & M. S. R. Co 810 National Bank of Bristol v. Baltimore & 0. R. Co 1549 National Bank of Commerce v. Morris 713 National Broadway Bank v. Sampson 804, 843 National Bldg. & L. Asso. v. Wilson 1214 National Dredging Co. v. State 169 National Exp. & T. Co. v. Morris 1494 National F. Ins. Co. v. Chambers 806, 815 V. Ming 806, 807 National German-American Bank v. Lang 1552, 1556, 1567 National Loan & Invest. Co. v. Stone 1214 National Marine Underwriters v. Melchers 962 National Mut. Bldg. & L. Asso. v. Ashworth 1212 V. Brahan 1213, 1215 v. Burch 1207, 1213, 1215 V. Culberson 1214 clxiv TABLE OF OASES CITED. National Mut. Bldg. & L. Asso. v. Farnham 1214, 1215 V. Hulet 1214 V. Pinkston 1218 V. Retzman 1214 National Trust Co. v. Gleason 1503 V. Hughes lOSU V. Miller 846 National Union v. Marlow 1044 Naylor v. Baltzell 960, 1054 Neal V. Cottingham 827 V. New Orleans Loan, Bldg. & Sav. Asso 1212 Neale v. De Garay 1092 Neally, Re '. 597 Nederland L. Ins. Co. v. Hall 1483 Neederer v. Barber 986 Needham v. Grand Trunk E. Co 1113, 1127, 1128, 1131, 1138 Neely, Re 1655 V. Henkel 1658, 1664 Neese v. Farmers' Ins. Co 1546 Neff V. Beauchamp 478 V. Pennoyer 1420 Negaubauer v. Great Northern R. Co 1262, 1264 Neil V. First Nat. Bank 1229 Nelson v. Bridport 609, 1518, 1522, 1524 V. Chesapeake & 0. R. Co 1115, 1120, 1129, 1135 V. Goree 405, 409 V. Nederland L. Ins. Co 1043 V. Potter 1390, 1391 V. United States 1477 Nelson, The 961 Nenno v. St. Louis & S. F. R. Co 1079, 1550 Neufelder v. German American Ins. Co. 800 V. North British & M. Ins. Co 778 New V. Bonaker 250 Newark City Bank v. Fourth Ward Assessor 180 Newberry v. Robinson 1372 Newburgh Petroleum Co. v. Weare 235, 238 Newbury v. Brunswick 325, 383 Newby v. Blaliey 823, 1256 V. Von Oppen 237, 1473 Newcomb, Re 192 V. Mutual L. Ins. Co 1034 V. Newcomb 1390, 1414 Newcombe v. Leavitt 1170, 1259, 1587 Newcomer v. Orem 405, 408, 1298 Newell V. Hayden 1588 V. Newell 1323 TABLE OF CASES CITED. elrv New Englajid, The 1076 New England Mortg. Security Co. v. McLaughlin 1197, 1202 V. Vader 1207 New England Mut. L. Ins. Co. v. Woodworth 696, 1365 Newman, Re 1678, 1679 V. Brigantine Beach R. Co 1493 V. Cannon 705 V. Goddard 1094 V. Kershaw 671, 798, 1189, 1205, 1218, 1224, 1259 New Orleans v. Stempel 173, 175, 176 New Orleans, J. & G. N. R. Co. v. Wallace 1094, 1104 Newton v. Bronson 642 V. Gray 982 V. Manning 292, 592, 598 New World, The v. King 962 New York v. McLean 166, 167 New York, The 1532 New York C. R. Co. v. Lockwood 1069 New York, L. E. & W. R. Co. v. McHenry 1402 V. Pennsylvania 163 New York Life Ins. & T. Co. v. Viele 569, 1341 New York L. Ins. Co. v. Aitkin 635, 1248 V. Babcock 1014, 1016 V. Best 110 v. Block 1042 V. McKellar 973, 974 V. Russell ... 1022 V. Smith 1366 New York Security & T. Co. v. Davis 880, 983 V. Keyser 597 Niagara County Bank v. Baker 1525 Niboyet v. Niboyet Ill, 207, 351, 456-459, 461, 463, 464 Nichol & S. Co. V. Marshall 910 Nicholas v. Maddox 484 V. Murray 1594 Nichols V. Hooper 801 V. Mase 684, 712: V. Porter 976, 977 Nichols, & S. Co. V. Marshall 274, 278 Nicholson v. Leavitt 609, 655 Nickals, Re 585, 592 Nickels v. People's Bldg. Loan & Sav. Asso 1212 Nienaber v. Tarvin 1506 Nigh V. Nigh 481 Niles V. Howe 662 Nimick v. Mingo Iron Works Co 246, 248 Nixon V. Halley 273, 910 clxvi TABLE OF CASES CITED. Njus ». Chicago, M. & St. P. R. Co 1107 Noble V. Smith 743, 757 V. Thompson Oil Co 747, 1400, 1414, 1418 Noblom V. Milborne 1184 Noell V. Wells 1418 Nonce v. Richmond & D. R. Co 1263 Noonan v. Bradley 59I V. Kemp 408, 410, 1283 Norfollc iS: W. R. Co. v. Pennsylvania 241, 242 Norman v. Norman 394, 1532 Norris v. Atkinson 1240 V. Chambres 609, 645 V. Harris 1331, 1333, 1540, 1541, 1559 V. Hoyt 673 V. Mumford 735 V. Norris 483 V. Sovvles 711 V. State 1639 Norris's Appeal 1418 Nortliampton Mutual Live Stock Co. v. Tuttle 888, 1011, 1025 North Bank v. Brown 1411 North Carolina R. Co. v. Alamance 180 V. Jackson 672 Northern Indiana R. Co. v. Michigan C. R. Co 649, 657, 1471 Northern P. R. Co. v. Babcock 1109, 1115, 1129 >-. Mase 1106, 1107 Northern Queen, The 1121 Northfield v. Vershire 374 North Pacific Lumber Co. v. Lang 717 North Packing & Provision Co. v. Western U. Teleg. Co 1084 Northrup v. Foot 916 North Star, The 961 North Western Bank v. Poynter '. . 702 Northwestern Life & Sav. Co. v . G ippe 807 North Western Lumber Co. v. Chehalis County 169 Northwestern Masonic Aid Asso. v. Jones 1032 Northwestern Mut. L. Ins. Co. v. Elliott 1013, 1014, 1024 V. Lowery 1252 North Yarmouth v. West Gardiner 158 Norton v. Florence Land & Public Works Co 646 v. Norton 810 Succession 415 Nortons's Case 1699 Norwood, Ex parte 836 Nott V. Nott 405 Novelli V. Rossi 1405 Novello V. Toogood 4, 61 TABLE OF CASES CITED. clxvii ;Noyes v. State 1627 Nugent V. Bates 143 V. Smith 1063 V. Vetzera 223, 269, 581, 586-588 Nutting V. Connecticut River R. Co 1090 Nye V. Liscombe 804 V. Macdonald 1466 o Oakey v. Bennett 617, 828, 834, 1596 V. Murphy 1412 Gates V. First Nat. Bank 948 V. Union Pacific R. Co 1133, 1134 Obear v. First Nat. Bank 1246, 1446 Oberly v. Lereh 1300 Obicini v. Bligh 1406 O'Brien v. Woody 1282 Oohsenbein \ . Papelier 1399, 1406 Ockerman v. Cross 763 O'Connell v. Russell 1173 O'Dea V. O'Dea 507, 512, 513 O'Dell V. Rogers 266, 267 Odiorne's Appeal 402, 1588 O'Donnell v. Lewis 1252 OflFutt V. Earlywine 1094 V. Flagg 712 O'Gara v. Eisenlohr 375 Ogden V. Folliott 15, 254 V. Saunders 1234 V. Warren 839 Ogdensburg & L. C. R. Co. v. Pratt 1090 Oglivie V. Crawford County 167 Ohio V. Hinchman 1505, 1536 Ohio & M. R. Co. V. Tabor 1077, 1081 Ohio Ins. Co. v. Edmondson 8, 1170 Oleott V. Tioga R. Co 1270 Old Dominion S. S. Co. v. Com 169 Oldtown V. Bangor 46 Old Wayne Mut. Life Asso. v. Flynn 1570 Olga, The 786 Olivar v. Thames & M. Marine Ins. Co 963 Oliver v. Boott Cotton Mills 180 V. Clarke 844 V. Loye 661 V. Robertson 423 clxviii TABLE OF CASES CITED. Olivet V. Whitwxjrth 1308 Olivier v. Townes , 735, 746, 74& Olivieri v. Atkinson 124 Olmstead v. New England Mortg. Secur. Co 1209 Olney v. Angell 1390 Olson V. Veazie 1230 Olson's Will 153 Omealey v. Wilson 148ft O'Neale, Re 1594 O'Neil V. Clason 1476 v. Nagle 775 O'Neill V. Henderson 427 Oney v. Ferguson 1374 Onslow V. Cannon 1307 Oranmore, The 1073 Oreutt V. Hough 881, 982, 983 V. Nelson 704, 1144, 1151 V. Orms 1384 Oreutt's Appeal 198 Ord Nat. Bank v. Massey 712 Ordronaux v. Bey 428 O'Regan v. Cunard S. S. Co 1074-1076 O'Reilly v. Greene 1571 A . New York & N. E. R. Co 1114, 1120, 1138 A-. Utah, N. & C. Stage Co 1110 Oriental, The 959 Orient Ins. Co. v. Daggs 241 Orleans' Goods 1362 Ormes v. Dauehy 914, 1166 Ornelas v. Ruiz 1663 O'Rourke v. O'Rourke 917, 1549, 1566 Orpen, Re 1675 Orr V. Aniory 1483 Orrell v. Orrell 1283, 1347, 1349 Ortiz, Re 1373 Ory > . Winter 982, 1235, 1584 Osborn v. Adams 608, 831 Osbourn v. McCartney 1356 Oscanyan v. Winchester Repeating Arms Co 940, 943 Osgood V. Artt 1253 V. Bauder 1176 V. Maguire 843 O'Shields v.Georgia P. R. Co 1262 Osmajili, The 961 Ostell V. Lepage 1581 Oteiza y Cortes, Be 1680, 1686, 1687 Otis V. Boston 124 TABLE OF CASES CITED. clxix Otis V. Gregory 282 Otis Co. V. Missouri P. R. Co 1057, 1073 Ott V. Lake Shore & M. S. E. Co -. 1104, 1126 Otteridge v. Thompson 1486 Outhwite V. Porter 1400, "-1422 Overby v. Gordon ISOO" Overend v. Robinson 708 Overton v. Bolton 889, 964, 994 Owen V. Boyle 1540' V. Miller 815 V. Moody 1370 V. Roberts 835 Owens V. State 57a Owings V. Hull 869, 873 V. Nicholson 1499' Pabst Brewing Co. v. Reeves 1005 Pace V. Pace 1032 Pacific Bldg. Co. v. Hill 1214, 1210 Paeifle Coast Sav. Soc. v. San Francisco 172' Pacific Exp. Co. v. Foley 1077 V. Pitman 1533 Pacific Pneumatic Gas Co. v. Wheelock 1528 Pacific States Sav. Loan & Bldg. Co. v. Green 1212 Packard v. Hill 1499, 1524, 1530 Packwood's Succession 414, 422, 424, 681 Page V. McKee 1420, 1476. V. Melvin 1258. V. Page 993 Page's Estate 1283 Paget V. Ede 611, 652 Paige & S. Lumber Co., Re 758, 763, 765 Paine v. Drew 1245, 1248 V.France 1163-1165. V. Lake Erie & L. R. Co 1526 v. Lester 747, 748, 831 V. Schenectady Ins. Co 1411-1413, 1505, 1526, 1536, 1581 Pairpoint Mfg. Co. v. Philadelphia Optical & Watch Co 239' Palmer v. Atchison, T. & S. F. R. Co 1079, 1544 V. Cross 714 V. Goodwin 1235 V. Hampden 123. V. Hudson River State Hospital 1521 V. Marshall 1567 clxx TABLE OF CASES CITED. Palmer v. Mason 767 V. Minar 982 V. Morse 1269 V. Palmer 9, 521, 941, 1182 Pana v. Bowler 1227, 1228 Panama R. Co. v. Napier S. Co 1095, 1098 Paneoast v. Travelers Ins. Co 1202, 1204 Paquete Habana, The 1532 Paradise v. Farmers & M. Bank 778 Pardo V. Bingham 1247, 1386, 1441 Pardee v. Merritt 1549 Parham v. Pulliam 936, 1198 Park Bros. & Co. v. Kelly Axe Mfg. Co 912, 1052 Parken v. Royal Exch. Assur. Co 1006, 1008, 1188 Parker, Re 599 V. Brown 683, 764 V. Byrnes 784 V. C. Lamb & Sons 839 V.Moore 1174 V. Strauss 166, 176 Parker's Appeal 322, 1362 Parks V. Cadwallader 1253 V. Williard 714 Parks Bros. v. Branch Crookes Saw Co 691 Parlement Beige, The 63, 294, 791 Parr v. Brady 712, 713 Parrett v. Palmer 403 Parrott v. Nimmo 424 Parsons v. Bangor 122, - 136 V. Charter Oak L. Ins. Co 847 V. Columbia Ins. Co 1584 V. Lyman .' 743, 1331, 1379 V. Trask 944 Parsonsfield v. Kennebunkport i 96 V. Perkins 142 Partee v. Kortrecht 1375 V. Silliman 273, 682, 909, 1437 Parton ■/. Hervey 377 Pascal, Ex parte 830, 1601 Patchin v. Wilson 1371 Pate V. Pate 470, 486 Paterson v. Macqueen 1173 Patrick v. Shedden 1397 Pattee v. Paige 1239 Patterson v. Carrell 1546 V. Continental Ins. Co 1029 V.Gaines 368, 374 TABLE OF CASES CITED. olxxi Pafterson v. Garrison 1547 V. Kennedy 1520 V. Hanson 1305 Pattillo V. Alexander 949, 1545 Pattison v. Mills 869, 876, 886, 1006, 1011 V. Wilbur 1241 Patton V. Philadelphia 375, 379 V. Pittsburgh, C. & St. L. R. Co 1133 Paul V. Chenault 654 V. Key 1397 V. Virginia 235, 241 Pauska v. Daws 1554 Pawashick, The 1505, 1526 Pawcatuck Nat. Bank v. Barber 984 Pawling V. Sartain 1228 V. Willson 1404, 1423 Paxon V. Brown 769 Paxton V. Macreight Ill Payne v. Dunham 115 Payson v. Payson 467, 470, 475, 483, 484, 486 V. Withers 244, 863 Peabody v. Carrol 1548 V. MeGuire 1548, l.'^OO Peacock v. Collins 122 Peale v. Phipps 836 Pearoe v. Olney 1416 V. Rhawn 1570 V. State 143 Pearl v. Hansborough 22.3, 271, 272, 410, 413, 910 Pearaall v. Dwight 862, 1245, 1248 Pearson v. Pearson 345 Peat, Re 1260 Pechell V. Hilderley 1305 Peck V. Hibbard 884, 1571, 1584 V. Hozier 1245, 1491 V. Mayo 976, 979, 11S7, 1197, 1228, 1229 V. Parchen 1546 Pedan v. Robb 99 Peebles v. Patapsco Guano Co 1422 Peet V. Hatcher 622, 1175, 1177, 1540, 1543, 1559, 1530 Pelham v. The Woolsey 726 Pellecat v. Angell 1139 Peltier's Trial 1022 Pemberton v. Hughes 1394, 1406 V. Klein 772 Pembina Consol. Silver Min. & Mill Co. v. Pennsylvania 241, 242 Penfield v. Chesapeake & 0. S. R. Co 1256 elxxii TABLE OF CASES CITED. Penfleld v. Tower 1345 Peninsular & 0. Steam Nav. Co. v. Shand 1054, 1066, 1074, 1086, 108!) Peninsular Trading & Fishing Co. v. Pacific Steam Whaling Co 658 Penn v. Baltimore 642, 643 Pennegar v. State 315, 319, 326, 328, 346, 348, 359-361 Pennel v. Weyant 1499 Penninghaus v. Jacobs 684, 783 Penn Mut. L. Ins. Co. v. Mechanics Sav. Bank & T. Co 1041 Pennoyer v. Neff 12, 497, 502, 505, 508, 518, 523, 1400, 1401, 1415, 1420, 1422, 1473, 1474 Pennsylvania v. Ravenel 134 Pennsylvania Co. v. Fairchild 1055, 1079, 1087 V. Fishack 1 106 V. Kennard Glass & Paint Co 1551 V. McCann 1108, 1577 Pennsylvania R. Co. v. Hughes 1056, 1069 V. Naive 1554 V. Pennock 1418 V. Rogers 804, 807 Penny v. Christmas 1340 V. Weston 423 Pennywit v. Foote 1415 Penobscot & K. R. Co. v. Bartlett 236, 862, 866, 1008, 1521, 1525, 1529 Penobscot First Nat. Bank v. Gustin Minerva Gonsol. Min. Co 244 Pensacola Teleg. Co. v. Western IJ. Teleg. Co 242 People V. Baker 495, 510, 512, 1400 V. Botkin 1631, 1634 V. Burke 1640 V. Cady 116 V. Calder 375, 1526, 1530 V. Chase 316, 519 V. Connell 147 V. Dawell 464, 465, 477, 500, 522 V. Eastman 161, 174 V. Gardner 1642 V. Gray 1673 V. Hall 1626 V. Home Ins. Co 177 V. Johr 1495 V. Ketchum 42 V. Lambert 1516, 1523 V. Lougliridge 1642 V. McQuaid 1521, 1528 V. Matlier 1627 V. Moir 120, 124, 136 V. Mosher 1635 V. Murphy 1637 TABLE OF CASES CITED. clxxiii People V. Newell 51 V. Piatt 138 V. Staples 1642 V. Thurber 23() V. Williams 1641 People ex rel. Allen v. Allen 530, 531 Day V. Barker 171) Edison Electric Light Co. v. Campbell 181 Mygatt V. Chenango County 161 Darrow t. Coleman IT'J Stevens v. Fidelity & C. Co 243 Budd V. Holden 112 Corkran v. Hyatt 1693 Westbrook v. Ogdensburg 162 Draper v. Pinkerton 1695 Jefferson v. Smith 178 Public Charities & Correction Comrs. v. Smith 40'i, 475 Young V. Stout 1671 Hoyt >'. Tax & A. Comrs >. . . 162, 163, 166 Trowbridge v. Tax & A. Comrs 181 Pacific Mail S. S. Co. v. Tax & A. Comrs 786 Pacific Mail S. S. Co. v. Tax Comrs 181 People use of Kaiser v. Medart 584 People's Bldg. Loan & Sav. Asso. v. Backus 1532. 1551 V. Berlin 1212 V. Bessonette 1214 V. Fowble 1214, 1215 V. Kidder 1205 V. Parish 1214 V. Schaffer 1214 V. Tinsley 1212 People's Ferry Co. v. Beers 726 People's Nat. Bank v. Cleveland 681, 810 Pepin V. Bruyfire 1299 Percy v. Percy 404 Perin v. McMicken 1304 Perkins, Be 597, 599, 608 V. Guy 1249, 1257 v. Quint 1237 V. Stone 1375, 1386 Perley v. Mason 1238, 1239 Perlman v. Sartorius 695, 783 Perry v. Barry 829 V. Dwelling-House Ins. Co 1016, 1017, 1020, 1042 V. Haines 725, 726 V. Mt. Hope Iron Co 1459 V. Perry 1483 clxxiv TABLE OF CASES CITED. Perth, Re 1498, 1522 Pertreis v. Tondear 110, 392 Peru V. Wegualin 1489 Petchell V. Hopkins 1250 Peter Adams Paper Co. v. Cassard 1553 Petermans v. Laws 1499i Peters v. Warren Ins. Co .' ! 1420, 1422 Petersen v. Chemical Bank 1370, 1371, 1384 Peterson v. Kaigler 714 Petit, Re 597 Petit's Succession 549, 555, 1293-1295 Pett V. Hatcher llSOi Pettit V. Walshe 1656 Peugnet v. Phelps 316 Peyton v. Desmond 664 V. Heineldn 1198. Pfirrman v. Wattles 596: Phelps V. American Sav. & L. Asso 1212, 1532 V. Baker 523, 1476 V. Borland 1239, 1241, 1243: V. Brewer 1422, V. Decker 661 V. Holker 1422 V. Kent , 1188: Philadelphia v. Williamson 374 Philadelphia use of Wetherby v. Wetherby 482 Philadelphia & R. R. Co. t. Pennsylvania 162 Philadelphia Loan Co. v. Towner 1189, 1220 Philadelphia, W. & B. R Co. v. Quigley 109S Philips V. Hunter 827, is'ss Phillips V. Allan 1233, 1243 V. Bury 1418: V. Energia 1076 V. Eyre 1093, 1098 V. Gregg 368, 383 V. Hunter 1043, 1399' T.Madrid '. 315, 320 V. Moore 6(> V. People 1844 Philpott V. Missouri P. R. Co 265, 1132, 1551 Philson V. Barnes 764, 818. 864 Phinney v. Baldwin 863, 1170, 1182, 1221 V. Mutual L. Ins. Co 1022, 1040 Phipp, Re 194, 195 Phipps's Goods 112: Phoenix Bridge Co. v. Castleberry 1414 Phoenix Mut. L. Ins. Co. v. Simons 265, 272, 275, 276, 889, 905, 910. 012 TABLE OF CASES CITED. elxxr Phoenix Nat. Bank v. Batcheller 1238, 1240 Pickard v. Bailey 1498, 1511 Picker v. London & County Bkg. Co. 96ard v. Hynes 711 Sharon v. Hill , 132 Sharp V. Davis 1198 v. Sharp 1333 Sharpe v. Crispin 95, 111, 114, 115 Shattuek v. Cassidy 642 V. Chandler 1547 V. Mutual L. Ins. Co 1007, 1019, 1020, 1039 Shaver v. Brainard 1400 Shaw v. Atty. G«n 452, 455, 462 V. Gould 314, 357, 452, 453, 456, 462, 540, 548, 1407 v. Hartford 165 v. Postal Teleg. Cable Co 1083 TABLE OF CASES CITED. cxci Shaw V. Shaw 118, 129, 469, 486, 1379 Shaw's Appeal 1053, 1386 Sheay v. State 576, 577 Sheazle, Re 1650, 1667 Shedd V. Moran 1115, 1119, 1127 Shedden v. Patrick 537, 538, 539, 553 Sheehy v. Professional Life Assur. Co 1395 Shegogg V. Perkins 1377, 1386 Shelby v. Guy 823, 1256, 1259 V. Harrison 593 Shelby Steel Tube Co. v. Burgess Gun Co 693 Sheldon v. Blauvelt 774 V. Forsman 131 V. Haxtun 1193, 1202 V. Kiee 1360 V. Wheeler 754 Shelley's Case 1342 Shelton v. Tiffin 138, 1405 Sheppard v. Steele 725 Sheridan v. Ireland 1420 Sherley v. MeCormick 1152 Sherlock v. Ailing 1128 Sherman v. Estey Organ Co 710 V. Gassett 864, 1220, 1222, 1223 Sherrill v. Hopkins 1235, 1531 Sherrod v. Calleghan 432 Sherwood v. Ray 572 Shickle v. Watts 1230 Shields v. Union Cent. L. Ins. Co 938, 1366 Shiff V. Louisiana State Ins. Co 962, 1030 Shillito V. Reineking 920 Shinney v. North American Sav. Loan & Bldg. Co 846 Shipman v. Bailey 881 V. Thompson 1369 Shoe & Leather Nat. Bank v. Wood 980, 981, 1512 Short, Re 197 V. Galway 648, 1289, 1292 V. Trabue 863, 878, 977 Shorter v. Williams 583 Showalter v. Rickert 1572, 1573 Shreck v. Shreck 469, 488, 489 Shuenfeldt v. Junkermann 1 153 Shultz V. Pulver 1290 Shimiway v. Lealiey 1544 V. Stillman 1414, 1415 Shute V. Sargent 106 Sibley v. Young 1560 cxcii TABLE OF OASES CITED. Sickles V. New Orleans , 1327, 1336 Sidar Gurdyal Singh v. Faridkote 1400 Sidwell V. Evans 1506 Siegel V. Robinson 1444, 1461 Sierra Madre Constr. Co. v. Brick 1520 Sievers, Re 1234 Sieverts v. National Ben. Asso 1546 Sill V. Worswick 222, 739, 793, 827, 1283, 1303 Silliman v. Thornton 1554 Silverman v. Lessor 1235, 1240 Silvia, The 1076 Sime V. Norris 1220, 1221 Simmon's Succession 121, 122 Simms v. McKee 713 Simonds v. Simonds 437 V. White 962 Simonin v. Mallac 336, 340, 352, 393, 449, 1473 Simonson v. Waller 1357 Simpkins v. Smith & P. Gold Co 843 Simpson v. Cureton 1288 V. Fogo 728, 742, 789, 1397, 1399, 1407, 1419 V. Jersey City Contracting Co 809, 811 V. Mirabita 1244 V. State 1635, 1642 Sims V. Marryat 1504 V. Sims 1503, 1648 Sinclair v. Fraser 1406 V. State 1528 Singer Mfg. Co. v. Bennett 1533 V. Fleming 812 Sinks V. Reese ^ 32 Sinnott v. Moore 1331 Skiff V. Solace 711, 716, 728, 745 Skinner v. East India Co 660 V. Tinlser 1440, 1441 Skottowe V. Young 553, 541, 1291 Skottowe's Case 542 Slack V. Gibbs 15 V. Waloott 1369 Slacum V. Pomeroy 975, 993, 1226 Slater v. Mexican Nat. R. Co 1125 Slaughter v. Com 235 V. Garland 415, 1293, 1350 V. Metropolitan Street R. Co 1507 Slaughter-House Cases 32, 33 Slauter v. Chenowith 1382 Slave Grace, The 251, 252 TABLE OF CASES CITED. cjcciii Sleeper v. Paige 123 Sloan V. Kane 331 V. Torry 1541 V. Waugh 1248, 1250, 1255 Slocomb V. Breedlove 409 V. Slocomb 1283 Sloeum V. Sanford 1364, 1367 V. Western Assur. Co 1048 V. Wheeler 1421 Small V. Smith 843 Small's Estate, • 197 Smead v. Chandler 683, 697, 709, 710 Smedley v. Smith 758 Smith, Ex parte 1626 Ee 187 V. Allen 1148 V. Anderson 890 V. Blatchford 980 V. Brown 816 V. Buchanan 793, 1233, 1243 v. Bull 1094, 1481 V. Burnham 1448, 1462, 1463 V. California Ins. Co 1047 V. Chapell 432 V. Chicago & N. R. Co 795 V. Crocker 1581 V. Croom 122, 129, 138, 143 V. Cuyler 1369 V. Davis 642, 647 V. Derr 541, 546, 549, 567 V. Downey 810 V. Eighth Ward Bank 839 V. Fidelity Bldg. Loan & Invest. Asso. 840 V. Frame 272, 275, 889, 910 V. Godfrey 1147, 1158, 1170 v. Gould 1531, 1560 V. Howard 1288 V. Hutchings 712 V. Ingram 282, 617, 630 V. Jones 736 V. Kelly 539, 554 V. Lamson Bros 754, 760 V. MeAtee 16, 411, 419, 422 V. McCutchen 263 V. McLean 713 V. Mason 1551, 1567 V. Mead 862 Vol. I. CoNFL. of Laws — xiii. cxciv TABLE OF CASES CITED. Smith V. Montgomery 1378 V. Morehead 102, 427 V. Mulligan 67 V. Muncie Nat. Bajik 1003, 1198, 1259, 1546 V. Mutual L. Ins. Co 244, 1018, 1039 V. New York L. Ins. Co 696 V. Nieolls 1372, 1395, 1398, 1402, 1474 V. Parsons 1195, 1203, 1235 V. Peterson 423, 1546 V. Potter 1530 V. Shaw 1231 V. Smith . .313, 368, 395, 464r^66, 470, 472, 476-478, 485, 486, 509, 521, 612, 647, 743, 817, 1234, 1300, 1531 V. SpinoUa 1245, 1489 V. State 577 V. Stotesbury 1170 V. Taggart 847 V. Thornton 550 V. Union Bank 1377, 1598 V. Wabash R. Co 1108 V. Webb 1371 V. Weguelin 919 V. Whitaker 945, 1531 V. Wiley 592 Smith's Appeal 755, 775 Goods 112 Smithwiok v. Anderson 980 Smoot V. Bell 594 V. Russell 1548 Snaith v. Mingay 862 Snashall v. Metropolitan R. Co 412 Sneed v. Ewing 310, 323, 549, 550, 613, 1292, 1306, 1390 Snider v. Koehler 1 150 Snook V. Snetzer 1471 Snow V. Perkins 988 V. Schoma,cker Mfg. Co 688 Snyder v. Fidelity Sav. Asso 1214, 1215 V. Pharo 1585 V. Yates 712 Sobernheimer v. Wheeler 838 Soldiers' Business Messenger & Dispatch Co., Re 709 Solinsky v. Fourth Nat. Bank 1370 Solomons v. Ross 793, 827 Somerset v. Stewart 251, 1183 Somerville v. Somerville, 90, 95, 113, 135, 136, 141, 144, 153, 154, 1334 Sondheim v. Gilbert 940, 1174 TABLE OF CASES CITED. cxcv Sortwell V. Hughes 1150, 1152, 1156 Sottomaior, Ee 598 Sottomayor v. De Barros 224, 322, 327, 336, 351, 352, 356, 357, 363 South African Breweries v. King 946 South Boston Iron Co. v. Boston Locomotive Worlcs 831 South Carolina & G. R. Co. v. Thurman 1101, 1121 South Carolina R. Co. v. Nix 1107, 1136 Southern Bldg. & L. Asso. v. Atkinson 1214 V. Harris 1214 V. Biggie 1214 Southern Exp. Co. v. Caldwell 1069 V. Shea 1090 V. Thornton 1090 Southern Illinois & M. Bridge Co. v. Stone 239, 1532 Southern Ins. Co. v. Wolverton Hardjware Co 1554 Southern L. Ins. Co. v. Packer 1217 Southern P. Co. v. Graham 1094 Southern E. Co. v. Harrison 1071 V. Mayes 1270 Southey v. Sherwood 1170 South Nashville Street E.. Co. v. Morrow 171-173, 180 Spalding v. Preston 1 141 Spanish Consul's Petition 1477 Spaulding v. Steel 103 V. Vincent 1496, 1498, 1530 Spearman v. Ward 275, 279 Spears, Ex parte 1534 V. Sliropshire 432 V. Turpin 1547 Speed V. Kelly 1293 V. May 755, 793 Spencer v. Myers 1019, 1034 V. State 1642 Spies V. National City Bank 976, 978 Spindle v. Shreve 1345 Spinney v. Miller 1546 Sprague Nat. Banli v. Erie E. Co 662, 668 Spratley v. Mutual Ben. L. Ins. Co 1007 Springer v. Foster 1235 Springs v. South Bound E. Co 1066, 1080 Sproul V. McCoy 1690 Spurrier v. La Cloche 1022 Stack V. Stack 320, 554 Stacy V. Baker 980 V. Thrasher 1382, 1383 Stadtler v. School Dist. No. 40 40 Stahl V. Mitchell 773 oxcW TABLE OF CASES CITED. Staigg V. Atkinson 1349 Stainer v. Droitwich 1497 Stallknecht v. Pennsylvania R. Co 1115, 1135 Standard Oil Co. v. Bachelor 167 Standridge v. Standridge 488, 489 Stanford, Re : . 200 V. Pruet 991, 1530 V. San Francisco 181 Stanglein v. State 1496, 1498 Stanhilber v. Mutual Mill Ins. Co 1048 Stanley v. -Bernes 117, 1303, 1304 V. State 1641 Stansell v. Georgia Loan & T. Co 1202 Stanton v. Crosby 490, 495 V. Demerritt 866 V. Harvey 927 Stanton's Estate 197 Stanwood v. Flagg 1231 Stapleton v. Conway 955, 1189 Starace v. Rossi 1148 Starbuck v. Murray 1414 V. Starbuck 512, 520 Stark, Re 592 V. Olsen 964, 984, 1551 Starke v. Scott 120 Starkweather v. American Bible Soc 237, 1355 Starr v. Hamilton 304 State V. Abbey 1523, 1530 V. Adams 46, 95 V. Armington 126, 465, 475, 477 V. Ascher 1 149 V. Ayers 1626 V. Babcock 1635 V. Bailey 1638 V. Barnett 1635 V. Barrow 402, 403, 410, 422 V. Bartlett 1641 V. Bauton , 1642 V. Behrman 1523 V. Bell 346, 347, 361 V. Bennett 1642 V. Bentley 320 V. Bowen 1634 V. Brevard 188 V. Brim 200 V. Brown 1642 V. Buchanan 1642 TABLE OF CASES CITED. excvii Btate V. Butler 1640 V. Caldwell 1625, 1634 V. Candler 1503 V. Carter 1612, 1634 V. Central P. E. Co 1420 V. Chapin 1626, 1633 V. Clay 1550 V. Colby 1631 V. Cummings 1642 V. Cutshall 1630, 1636 V. Dalrymple 184, 199 V. Dooris 1498 V. Doxtater 42 V. Du Bose 1624 V. Earl 173 V. Ellis 1642 V. Fidelity & Deposit Co 166, 175, 177 V. Fleak 478 V. Foley 1503 V. Fosdick 235 V. Garrison 1634 V. Geasert 1634 V. Gibbs 729 V. Gibson 344 V. Glover 1697 V. Goodrich 486 V. Grady 578, 1626 V. Groome 123, 143 V. Habib 1640 V.Hall 1624, 1631, 1633, 1634, 1693-1695, 1697 V. Hallett 138 V. Harbourne 1632 V. Haskell 1637 V. Hill 1642 V. Horn 1497 V. Hudson 1637, 1638 V. Humphreys 200 V. Johnson 1632, 1642 V. Kealy 1697 V. Kelly 1634 V. Kennedy 344, 359, 361 V. Kief 1642 V. Le Blanch 1642 V. Lichliter 1639 T. London & N. W. American Mortg. Co 175 V. Lord 1635 V. McCoy 1634 excviii TABLE OF OASES CITED. State V. McGlynn 1284 y. Minnick 79, 94 V. Moore 1626 V. Morrill 1641 V. Morrow 1639 V. Newell 21, 42 V. Newman 1642 ;,, V. Palmer 122 y. Patterson 375, 1697 V. Eicliardson 317 V. Ross 345, 361, 1698 V. Rowe 1676 V. Schlachter 469, 492 V. Shaeffer 1636 V. Shattuck 317, 1554 V. Shuey 1641 V. Smith 172, 173, 174, 1698 V. Snyder 128 V. Spiegel 1674 V. Stripling 1632 V. Ta-cha-na-tah 43, 306 V. Terry 1636 V. Travelers Ins. Co 180, 181 V. Underwood 1641 V. Vanderpool 1671 V. Wallace 1497 V. Weatherby 316 V. Whittle 1508 V. Williams 43, 1020 V. Worthingham 779 V. Wyckoff 1626, 1638 State ex rel. Mechanics & T. Ins. Co. v. Board of Assessors 165, 177 Beckett v. Bordentown 155, 160, 1470 Cunningham v. Carroll 425 Eamey v. Dayton 122 Drake v. Doyle 237 Sandlin v. Eleventh Dist. Judge 1468, 1486 Nelson v. Fournet 204 Hannon v. Grizzard 80, 113 Stone V. Helmer 15, 575 Dunnica v. Howard County Court 175 Raymond v. Lawrence 114 Petry v. Leidigh 1697 Berge v. Patterson 577 Burner v. Richter 1695 Taylor v. St. Louis County Ct 162 Vale V. School District 122 TABLE OF CASES CITED. excix State ex rel. Egan v. Steele 138, 139 Armour Packing Co. v. Stephens 170 Brown v. Stewart 1697 Garth v. Switzler 183 State use of Faulkner County v. Bowen 20 Gilbreath v. Bunce 263, 266 Gentry v. Fry 488 Bank of Wayne, N. C. v. Fulton 1382 Cone V. John 1140 Newman v. Kimbrough 319 Allen V. Pittsburgh & C. E. Co 1113, 1127, 1128, 1548, 1564 State, Fish, Prosecutor, v. Branin 180 Detmold, Prosecutor, v. Engle 168 Potter, Prosecutor, v. Koss 163 Crispin, Prosecutor, v. Vansyckle 173 State Bank v. Bowers 1229 V. Carr 711 v. First Nat. Bank 683, 840, 841 State Board v. Comptoir National D'Escompte 175 State Freight Tax Case 168 State Ins. Co. v. Du Bois 1046 State Mut. F. Ins. Asso. v. Brinkley Stave & Heading Co. . 1011, 1012, 1024 State Nat. Bank v. Cudahy Packing Co 948 V. Sayward 249 State of Alabama, The 1106 State Sav. Asso. v. Howard i 124 State Tax on Foreign-held Bonds 161, 171-173 Stayte v. Farguharson 331 Steadman v. Powell 376 Stearine, Kaarsen Fabrick Gonda Co. v. Heintzmann 1522 Stearns v. Bumham 1370, 1371 Stebbins v. Leowolf 953, 1177 Stedman v. Patchin 718, 719, 724, 744 Steel V. Goodwin 764 V. Smith 1422 Steele v. Braddell 336, 340, 395, 408 V. Connecticut General L. Ins. Co 1367 V. Curie 1490 Steer, He ill Steere v. Walling 162 Steers's Succession 120-125, 131, 410 Stein V. Bowman 1499 Steinkauler's Case 46, 48 Stent T. M'Leod 1290 Stephens v. James 581, 592 V. M'Farland 262 V. Williams 1546 CO TABLE OF OASES CITED. Stephens's Succession 100, 581, 587, 591 Stepp V. National Life & Maturity Asso 1047 Sterling v. Hunt 1257 Stern v. La Compagnie Generale Transatlantique 1121, 1262 Stemaman, Ex parte 1677 Stems V. Bumhajn 995 Stetson V. Stetson 530 Stevens v. Bomar 1499 V. Brown 1588 V. Gaylord 1379 V. Gregg 980, 981, 983, 1584, 1585 V. Norris 1234 V. Phoenix Ins. Co 237 T. Rasin Fertilizer Co 1017, 1019, 1024 Stevenson v. Gray 315, 325, 326, 328, 329, 344, 349 V. King 1235 V. Payne 1184 V. Sullivant 539 Stewart, Re 1287 V. Baltimore & 0. R. Co 1115, 1119, 1124, 1133 V. Garnett 1331 V. Jessup 1636 V. Northampton Mut. live Stock Ins. Co 1009 V. Northern Assur. Co 806 V. Schall 1178, 1179 V. Spalding 1229 V. Swanzy 1496, 1498, 1530 V. Terre Haute & I. R. Co 1090 V. Thomson 813, 1588, 1590 V. Union Mut. L. Ins. Co 1552 Stewart's Estate 1330 Stiokney, Re 1354 V. Jordan 881, 983 Stiles V. Easley 1184, 1480 Still V. Woodville 130, 148 Stillman v. White Rock Mfg. Co 667, 1260, 1635 Stinson v. Geer 617 V. People 1642 Stirk V. Hamilton 714 Stirling-Maxwell v. Oartwright 1385 Stirn V. McQuade 1240 Stix V. Mathews 1000 Stockbridge v. Quicke 1498 Stocken v. Collen 886 Stodiham v. Sinmions 1^71 Stodcnmn, Re 96, 589 Stockton V. Staples 122 TABLE OP CASES CITED. eci Stockwell V. McCraeken 1413 Stoddard v. Harrington 1235, 1239 V. Key 1053 V. Lum 250, 838 Stoeckman v. Terre Haute & I. R. Co. 1124, 1129 Stokes, Re 203 V. Maeken 423, 1552 Stoltz V. DoeriDg 549, 555 Stone V. Groton Bridge & Mfg. Co 1132 V. Minor 1547 V. Scripture 1379 V. Tibbetts 1234 Stoneman v. Erie R. Co 1491 Storch V. Griffin 522 Story V. Thompson 1253 Stout V. Leonard 80, 153 V. Sawyer 722 V. State 1634 V. Wood 1094, 1096, 1099 Stowe V. Belfast Sav. Bank 755 Strache v. Insurance Co 235 Strader v. Graham 436 Strait v. Strait 465, 478 Stramal v. Mairesse 442 Strathmore Peerage Cause 537, 538 Straus V. Chicago Glycerine Co 807 Strause Bros. v. ^Etna F. Ins. Co 805, 807 Strauss v. New York, N. H. & H. R. Co 112f Strawberry Point Bank v. Lee 965, 983 Strawbridge v. Robinson 1 188 Street v. Augusta Ins. & Bkg. Co 1420 Strehler's Case 293 Streitwolf V. Streitwolf 465, 478 Strieker v. Tinkham 748, 749, 774 Stringer v. English & S. Marine Ins. Co 1420 Strithorst v. Grjeme 1269 Strong, Re 1129 V. Farmington 115 V. Lewis 1252, 1253 Strouse v. Lanetot 916 Strouther v. Com 1642 Stuart V. Bute 223, 269, 587, 588 Stubbs V Colt 987 Studebaker Bros. Mfg. Co. v. Hinsey 991 Stull's Estate 315 Stupp, Re 1652, 1668, 1670, 1686, 1688 Sturdevant v. Pike 644, 646 ccii TABLE OF OASES CITED. Sturdivant v. Memphis Nat. Bank 983, 1202 V. Neill 1305 Sturges, Re 1326, 1327, 1354 V. Crowninshield 1243 V. Vanderbilt 251, 1491 Sturm Case 801, 802 Sturtevant v. Arrasby Co 833 Suarez v. De Montigny 433 V. New York 1283 Suit V. Woodhall 865, 884, 1141, 1143, 1145, 1155, 1443 Sullivan v. Babeoek 1552 V. German Nat. Bank 17, 1174, 1544 V. Sullivan 1444 Sultan, Re 1636, 1695 Sulz V. Mutual Reserve Fund Life Asso 1365, 1366, 1367 Summers v. Fidelity Mut. Aid Asso 1046, 1047 V. Mills 1197 Summerside Bank v. Ramsey 1267 Sunday Lake Min. Co. v. Wakefield 656 Sunderland's Estate 568, 569 Sun Mut. Ins. Co. v. Wright 1006, 1007 Supreme Council, 0. C. F. v. Garrigus 1646 Supreme Lodge, K. of H. v. Nairn 1026, 1031 Surman v. Fitzgerald 434 Suse V. Pompe 997 Susquehanna Canal Co. v. Com 162 Sussex Perrage Case, The 343, 356, 379, 380, 1517, 1522-1524 Suter V. Suter 472 Sutfin V. People 577 Sutphen v. Fowler 642 Sutro Tunnel Co. v. Segregated Belcher Min. Co 1228 Sutton V. Tatham 1504 V.Warren 224, 323, 325, 326 Suydam v. Barber 932, 934 V. Broadnax 1242 Swaizie v. Swaizie 526 Swales, Re 512, 519 Swan V. Crafts 746 Swaney V. Scott 1367, 1368 Swanger v. Goodwin 706, 158S Swank v. Hufnagle 282, 284, 1570 Swann v. Swann 917, 918 Swatzel V. Arnold 1360, 1362 Swayzee v. Miller 593 Swearingen, Ex parte 1696 V. Morris 748, 1283, 1304 TABLE OF CASES CITED. cciii Swearingen v. Nash 1292 V. Pendleton 1373 Swedish American Nat. Eank v. Bleeckor 806 V. Dickinson Co 1412 V. First Nat. Bank 702, 777, 894 Sweeny v. Hunter 812 V. Sweeney 126 Sweet V. Brackley 1403, 1413 Swett V. Dodge 1197 Swickard v. Bailey 1248 Swift, Re 183, 202, 1177 V. Kelly 336 V. Winchester 1236 Swing V. Bentley & G. Furniture Co 839 V. Munson 1023, 1024 Swink V. Deehard 628 Sylvester v. Crohan 987 V. Danziger 1239 Syme v. Stewart 1548 Szymajiski v. Blumenthal 1 132 T Taberrer v. BrentnaJl 1257 Taft V. Ward 1049, 1051 Tagart v. Indiana 1269 Talbot V. Chamberlain 115 V. Peeples 1519 V. Seeman 1523, 1532 Talbott V. Merchant's Despatch Transp. Co 945, 1055, 1066, 1074, 1075 Talmage v. Chapel 1369, 1371 Tambisco v. Pacifico 1481 Tanner v. Allen 576 Tappan v. Merchant's Nat. Bank 163, 180 V. Poor 1245 Tarbox v. Childs 1004 Tardy v. Morgan 651 Tarleton v. Baker 1175 T. Tarleton 1399 Tatnall v. Hankey 1305, 1308, 1314 Tatum V. Wright 784 Tayloe v. Merchants' F. Ins. Co 886, 887, 1010 Taylor, Ex parte 1498 Taylor, Re 1657 T. American Freehold Land Mortg. Co 1202 V. Atlantic & G. W. R. Co 836 cciv TABLE OP OASES CITED. Taylor v. Bank of Illinois 1530 V. Barclay 1183 V. Barron 1404 V. Benham. 1302 V. Best 61 V. Boardman 728, 744, 745, 748, 1609 V. Carpenter 1481 V. Columbian Ins. Co 746, 831, 835, 836 y. Hollard 1402 V. Jeter 587 V. Nichols 593, 599 V. Pennsylvania Co 1115, 1129, 1134 V. Phelps 1404 V. Pickett 1154 V. Royal Saxon 1582 V. Sharp 273, 910 V. Slater 1532 V. Swett 1521 V. Syme 1368 V. Taylor 481 V. Union P. E. Co 1250 V. Western U. Teleg. Co. 1085, 1112 Taylor, P. & Co. v. Western U. Teleg. Co 20 Teal V. Sevier 563 V. Walker 942 Tecumseh Mills v. Louisville & N. R. Co 1058 Tegler v. Shipman 1153, 1158 Tempel v. Dodge 1554 Temple v. Brittan 1572 v. Pasquotanck County 1521 Templeton v. Brown 1532 V.Sharp 1570 V. Tyree 380 Tenant v. Tenant 936, 1530 Ten Broedc v. Reynolds 1481 Tennessee v. Jackson 1694 Terlinden v. Ames 1687, 1693 Terraz, Ex parte 1652, 1679, 1680 Re 1689 Terrell v. Crane 1369 Territory v. Delinquent Tax List 173 v.Hefley 1641, 1642 Territt v. Bartlett 1141, 1148, 1156 v. Woodruff 1521 Terry v. Little 249 V. Robbins 1552 Texaricana & Ft. S. R. Co. v. Gray 1564 TABLE OF CASES CITED. ear Texas & P. R. Co. v. Cox 1115, 1118 V. Davis 1072 V. Gay 836 V. Humble 411, 412 V. Richards 1117, 1118, 1127, 1138 V. Richmond 1073, 1078 Thatcher v. Morris 942, 1166, 1558 Thayer v. Boston 146, 161 V. Brooks 662, 663, 667 v. Elliott 917 V. Marsh 633 Thden v. Thelen 465, 478 Theo. Hamm Brewing Co. v. Young 1151, 1160 Theroux v. Northern P. R. Co 1262, 1264 Thibodeau v. Levassuer 1245 Thieband v. Sebastian 1298 Third Nat. Bank v. Steel 1444 Thomas, Re 1675 V. Beckman 937, 1556 V. Crow 1237 V. Davis 1175, 1176 V. First Nat. Bank of Belleville 1173 V. Grand Trunk R. Co 1570 V. Hukill 649 V. Mason County Court 172 V. Morrisett 1389 V. Pendleton 1553 V. Rhymney R. Co 1090 V. Wabash, St. L. & P. R. Co 1058, 1069 V. Western U. Teleg. Co 1083 Thomas Fletcher, The 143 Thomen v. Sullivan 1547 Thommesen v. Whitwill 1106 Thompkins v. Adams 772 Thompson v. Commercial Bank 1499 V. Edwards 1190, 1207 V. Ellenz 772 V. Fry 756 V. Ketchum 223, 262, 295, 906, 911, 1558 V. Love 103 V. Monrow 1230 V. O'Hanlen 1418 V. Powles 1183 T. Read 1255 V. Reed 1249 V. St. Paul City R. Co 721 V. State 464, 478, 485, 486, 489, 496, 509, 1627 ecvi TABLE OF OASES CITED. Thompson v. Stewart ■ 1498 V. Taylor 275 V. Texas Land & Cattle Co 1271 V.Thompson 485, 509 V. Tioga U. Co 1270 V. Traders' Ins. Co 1047 V. Waters 2, 235, 237 V. Whitman 477, 1400, 1414 V. Wilson 995, 1371 Thorns V. King 509, 527, 529, 533 Thomson v. Advocate General 140, 154, 155, 160, 182, 186, 1387, 1388 V. Kyle 282, 285 V. State 143 Thomson-Houston Electric Co. v. Palmer 889, 939, 1004, 1507, 1568 Thorman v. Broderick 1381 Thorn v. Morgan 625 V. Weatherly 423, 1543 Thomdike v. Boston 82, 136, 154 V. Thomdike 1363 Thorae v. Watkins 222 Thornton v. Curling 1291 V. Dean 1222 V. Western Reserve Farmers' Ins. Co 1491 Thorp V. Craig 984, 986-988 V. Thorp 316 Thorpe v. Union P. Coal Co 1133 Throop V. Hatch 1552 Throop Grain Cleaner Co. v. Smith 1444 Thum V. Pingrce 811, 836, 839 Thuret v. Jenkins 736, 737, 786 Thurman v. Kyle 720 Thurmond v. Bank of Georgia 1554 Thurston v. Rosenfield 610, 749, 774, 816 V. Thurston 480, 524 Thwing V. Great Western Ins. Co 1009, 1019, 1031 Tibbitts V. Townsend Ill Tickner v. Roberts 1440, 1463 Tidmarsh v. Washington F. & M. Ins. Co 1031 Tighe V. Tighe 1398 Tilden v. Blair 889, 965, 978, 1005, 1187, 1201 Tilliard v. Hall 1246 Tillinghast v. Boston & P. E. Lumber Co 881, 888 Tillman v. Drake 712 Tillotson V. Prichard 633, 661 Tingley v. Bateman 804 Tinkler V. Cox 423, 424, 1545 Tipton V. Tipton 81 TABLE OF CASES CITED. ccvii Tirveillot v. Tirveillot 338 Titania, The 1067, 1076 Title Guaranty & T. Co. v. Trenton Potteries Co 1518 Tittman v. Thornton 1372 Titus V. Hobart 1245 V. Scantling 939 Tivnan, Re 1661, 1667 Tllexan v. Wilson 1548 Tod, Ex parte 1695 Todd V. Missouri P. R. Co 803 V. Neal 988 V. State Ins. Co 1007, 1014, 1043 Tolen V. Tolen 469, 485, 486, 488, 489, 496 Toller V. Carteret 652 Toof V. Miller 751 Toomer v. Diekerson 936, 1492 Toomey v. Supreme Lodge K. of P 243, 1044 Tootle V. Coleman 803 Top V. White 630 Topsham v. Lewiston 116 Toronto General Trusts Co v. Sewell 1037 Torrance v. Third Nat. Bank 782, 1094 Torrey v. Corliss 1156 Tourigny v. Houle 1404 Toume v. Tourne 431 Tourville v. Wabash R. Co 801 Tovey v. Lindsay 449, 471 Towle V. Wilder 807 Towne v. Rice 994 V. Smith 835, 1235, 1237 Townes v. Durbin 408, 409 Townsend, Re 237 V. Allen 690 V. Coxe 750, 767, 833 v. Downer 1389 V. Hargraves 1448, 1449 T. Jemison 1245, 1248, 1249 V. Kendall 99, 101, 586, 589 V. Maynard 432 V. Riley - 798, 1188, 1203 Trabue v. Short 975, 977, 99} Tracy v. Tracy 121, 125, 127, 472 Traders Ins. Co. v. Sheppard 1047 Train v. Kendall 774 Trommell v. Trammell 96, 99, 100 Trasher v. Everhart 1490, 1505, 1511 Travelers Ins. Co. v. California Ins. Co 1046 ccviii TABLE OF OASES CITED. Travelers Ins. Co. v. Frieke 1270 Treadwell v. Anglo-American Packing Co 688 Trecothick v. Austin 1360, 1379 Tredway v. Biley 940, 1160 Trent Case 748, 1611 Trevelyan v. Myers 1402 Trimbey v. Vignier 862, 953, 956, 975, 995, 1002, 1456, 1495, 1509 Trimble v. Dzieduzyki 102, 1346 Trinacria, The 1077 Trotter v. Trotter 1331-1333, 1347 V. White 1369 Troutman, Ee 1699 Trowbridge v. Metcalf 1321 V. Spinning 526, 1536 Trower Bros. v. Hamilton 708, 1224 True V. Rauney 325, 329 V. True 490 Tryon v. Rankin 1519 Tucker v. Tucker 481 Tulane, Re 194 TuUoch V. Hartley 643 Tullos V. Lane 120 Tupper V. Morin 1094 Turcott V. Yazoo & M. Valley R. Co 1271 Turner v. Fenner 714 V. Hamilton 1584 V. Interstate Bldg. & L. Asso 1212 V. Johnson 1547, 1567 V. Liuam 1360 V. Risor 1382 V. St. Clair Tunnel Co 1099 V. Turner 470, 522, 533 Turnow v. Hochstadter 1442, 1443, 1460 Turpin v. Povall 1226, 1259 V. Turpin 479 Tutor V. Winn 1305 Tuttle V. Holland 1144, 1151, 1156 V. National Bank 247, 248, 249 V. Wood 120, 128 Tyer v. Charleston Rice Milling Co 1369 Tyler v. Currier 722 v. Peatt 1400 V. People 1620, 1634 V. Piatt 1422 V. Thompson 1377 V. Trabue 983, 1521 Tyree v. Sands 8, 706 Tyson v. McGuineas 662, 668 TABLE OF CASES CITED. ccix TJ njdny V. Udny 90, 92, 93, 111, 116, 130, 136, 153, 158, 458, 536, 538, 539, 558, 561 Ufford V. Spaulding 1512 Uhl V. Com 1648 Uhler V. Semple 1221 Underwood v. American Mortg. Co 1202 Union Bank v. State 180 Union Cent. L. Ins. Co. v. Caldwell 1519, 1521 V. Pollard 920, 1041, 1043, 1507, 1530 V. Thomas 1009 V. Woods 1033 XTnion Locomotive & Exp. Co. v. Erie E. Co 16, 863, 1181 Union Mut. L. Ins. Co. v. Hanford 635, 1485 V. McMillen 1009 Union Nat. Bank v. Chapman 274, 906, 909 V. Hartwell 274, 281, 282 Union P. R. Co. v. Baker 808 Union Refrigerator Transit Co. v. Lynch 171 Union Sav. Bank & T. Co. v. Indianapolis Lounge Co 765 Union Tank Line Co.'s Appeal, Re 170 Union Trust Co. v. Olmstead 653, 659 United States v. Armstrong 1620 V. Assia 1615 V. Bank of United States 749 V. Bender 594 V. Benner 61 V. Bennett 1614 V. Caldwell 1671, 1672 V. Cisna 43 V. Conrad 1639 V. Crosby 617, 818, 1282, 1296, 1301, 1306 V. Cruikshank 32 V. Davis 1614, 1652, 1653 V. Delespine 1499 V. Dewey 1402 V. Fowkes 1694 V. Fox 609, 612, 1356 V. Garlinghouse 910 V. Grossmayer ^. 1184 V. Guiteau 1634 V. Hamilton 1614 V. Hamer 1639 V. Howell 1625 v. Jackson 1614 Vol. I. OoNFL. of Laws — ^xiv. • OCX TABLE OF CASES CITED. United States v. Koch 731 V. Lafontaine 61 V. Lawrence 1672 V. Lewis '. 1613 V. McGill 162ft V. Morel 1614 V.Nash 1664, 167ft V. Newton 1627 V. Nieholls 594 V. North Carolina 122S Y. O'Brien 1269 V. O'Keefe 1481 V. 100 Barrels of Cement 1486 V. 1,756 Shares of Capital Stock 1184, 1486 v. Ragsdale 45, 570 V. Hauscher 1652, 1653, 1670, 1674, 1675 V. Rodman 1496, 1499 V. Rogers 45, 570, 1615, 1616 V. Sacoo-da-cot 43 V. Sanders 45' V. SteflFens 730 V. Stephenson 879 V. The Isaae Hammett 1486 V. Trumbull 64 V. Wagner 1489 V. Wiggins 1496, 1499 V. Wilder 63, 791 V. Wiltberger 1614, 1622 T. Wong Kim Ark 49, 50, 53 V. Yellow Sun 4S United States ex rel. Devine v. Rodgers 328 United States use of Maekey v. Coxe 1376, 1379 United States Invest. Co. v. Phelps & B. Windmill Co 720 United States Mortgage Co. v. Sperry 1217 United States Rolling Stock Co., Re 836 United States Sav. & L. Asso. v. Colson 1213 United States Sav. & Loan Co. v. Harris 1210, 1212, 1216 V. Miller 1212 V. Scott 1213, 1214 V. Shain 1212 United States Trust Co. v. Harris 378 V. Lee 237 Upton V. Hubbard 745, 831, 835, 1483 V. Northbridge 114 Urqulia,rt v. Butterfield 91, 115 Urton V. Hunter 123& Usher v. D'Wolfe 148^ TABLE OF CASES CITED. ccxi Usher v. West Jersey R. Co 1115, 1118, 1129, 1133 Utterton v. Tewsh 447, 1464 Vadala T. Lawes 1407 Vail V. Central R. Co 1581 T. Knapp 1471 Val Blatz Brewing Co. v. Bobrecker Bros 1151 Vallee v. Dumergne 1400, 1475 Valz V. First Nat. Bank 1572 Van Aerman, Ex parte 1686, 1687 Van Buskirk v. Hartford F. Ins. Co 682, 76 n^a n i tn Barnes v. Whitaker, 22 111. 606. ^*^' *^ ^'"- ^^P" ^^^' ^""'^ °^' ^°- Thus the bastardy statutes of one lumbia v. Walker, 14 Lea, 299. 16 PRELIMINARY PRINCIPLES. [Chap. I. purposes, be as broad as the principles to which, it attaches. The exception is sometimes stated in the form that the foreign Jaw cannot be recognized if opposed to the positive law of the forum. ^ If by positive law is meant a statute of the forum that explicitly applies to cases involving foreign elements, the .statement is, of course, true, though it confines the exception within too narrow limits ; but if by positive law is meant merely i .a common-law or statutory rule of the forum dealing generally with certain rights, obligations, duties, or relations, without ■defining its own scope relatively to the situs of the elements with which it is concerned, the statement in this form is much "too broad. The distinctive policy of the forum which operates ix) substitute the law of the forum for the proper foreign law, •or, at least, to reject the latter law as the governing law, is not to be inferred from the law of the forum alone, — unless, in- ■deed, it is explicit with reference to the situs of the elements upon which it is to operate, — but from that law, viewed in the light of its history, the purpose of its adoption, the object to be accomplished by it, and the local conditions. A statute not -explicit in this respect may, by reason of peculiar local condi- tions, be regarded as embodying a distinctive public policy which requires its extension to eases involving foreign elements that would otherwise be governed by a foreign law ; whereas, a •similar statute in another jurisdiction, where different local ■conditions prevail, may be held not to embody a distinctive policy, and, therefore, to be confined to cases involving local •elements only, leaving a clear field for the operation of the j)roper foreign law.* It is obviously impossible to state any uniform and infallible i;est by which the existence of this distinctive policy may be ^Gardner v. Lewis, 7 Gill, 395; 3See, as illustrating the point of .Smith V. McAtee, 27 Md. 420, 92 Am. the text, post, § 165b, with reference, Dec. 641 ; Union Locomotive d Exp. to local statute affecting matrimonial Oo. V. Erie B. Co. 37 N. J. L. 23. capacity. PRELIMINARY PRINCIPLES. 17 detected. The exception is stated in various general forms;* but they all come to the point that the foreign law will not be recognized or applied, if contrary to the distinctive policy of the forum, and nothing more definite is possible until the ap- *The following are representative statements of the exception: In The Kensington, 183 U. S. 263, 46 L. ed. 190, 22 Sup. Ct. Rep. 102, the United States Supreme Court said: "It is true, as a general rule, that the leai loci governs, and it is also true that the intention of the parties to a contract will be sought out and enforced. But both these elementary principles are subordinate ■to, and qualified by, the doctrine that neither by comity nor by the will of contracting parties can the public policy of a country be set at naught." Sullivan v. German Nat. Ba/nlc (Colo. App.) 70 Pac. 162, says that the general rule, as expressed by the more modern authorities, is that the law of the foreign state should con- trol, and should be enforced unless it is clearly against good morals, or re- pugnant to the positive institutions •of the state in which the enforcement is sought. All comity between states and citi- zens of different states, so far as rights, privileges, and immunities are not guaranteed by the Constitution of the United States, rests upon the principle that it cannot be extended in violation of the laws and policy of the state. The extension of comity in violation of the law and policy of the state would have been an abdication of the law and sovereignty of the «tate, and a recognition of the su- periority, not the equality, of the foraign state. Every state judged ^or itself of the nature, extent, and Vol. I. CoNFL. op Laws — 2. utility of the recognition of the foreign laws respecting the state and condition of persons, and was not bound to recognize them when preju- dicial to their own interests. Dono- van V. Pitcher, 53 Ala. 411, 25 Am. Rep. 634. The exception to the doctrine of comity has been incorporated in the political Code of Gteorgia (§ 9), which provides that the courts of Georgia shall give recognition to the doctrine of comity of states only when "its enforcement is not con- trary to the policy, or prejudicial to the interests, of this state." Benton V. Singleton, 114 Ga. 548, 58 L. R. A. 181, 40 S. E. 811. Comity between different states does not require a law of one state to be executed in another, where it would be against the public policy of the latter state. Pope v. Hanhe, 155 111. 617, 28 L. R. A. 568, 40 N. E. 839. The laws of one state being of no efficacy in another ex proprio vigore, but by comity only, the courts of the latter state may and ought to de- termine in each case how far that comity shall extend. If the law sanctions what is plainly contrary to morality, the public rights, etc., the courts of the forum will not aid in administering it. Kentucky v. Bass- ford, 6 Hill, 526. In Bartlett v. Collins, 109 Wis. 477, 83 Am. St. Rep. 928, 85 N. W. 703, infra, the court said that, even if the contract in question was held to 18 PRELIMINARY PRINCIPLES. [Chap. I. plication of the exception to specific classes of questions is reached. * 4b. Penal laws, generally. — The United States Supreme Court states the criterion of penal laws in an international sense, as follo"wrs : "The question whether a statute of one state, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another state, depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by wrongful acts." ^ This language, when read in connection with other portions of the opinion, seems to confine the rule that the courts of one state or country will not enforce the penal laws of another, to prosecutions and sentences for crimes and mis- demeanors, and suits in favor of the state for the recovery of \ pecuniary penalties, and to exclude actions by the individuals ' wronged to enforce, for their own benefit, the statutory liability imposed upon the wrongdoer.^ This criterion clearly does not exclude from the rule actions or prosecutions by public officials, or even by a member of the public in the character of a comanon informer, though part, or all, of the recovery inures to his be an Illinois contract, it could not To contracts generally, see post, §J have been enforced, because it is a 428a, 490. universal principle that the courts of To insurance contracts, see post, % no state will hold valid any contract 467b. which is injurious to the public To carriers' contracts, see post, § rights of its people, offends their 471c. morals, contravenes their policy, or To contracts for sale of intoxieat- violates public law. ing liquor, see post, § 4SBb. 5For the application of this ex- To lotteries, see post, § 489a. ception — To ''options" and "future" trana- To capacity of infant, see post, §§ actions, see post, § 492a. 113, 114, 115a. To usury, see post, §§ 510a et seq. To capacity of married woman, i Hunting ton v. Attrill, 146 U. S. see post, § 118a. 057, 36 L. ed. 1123, 13 Sup. Ct. Rep. To matrimonial capacity, see post, 224. §§ 141a, 147, 147a, 159a, 165a, 165b, 2In Huntington v. Attrill [1893] 165c. A. C. 150, 157, 62 L. J. P. C. N. S. 44, S 4b1 PRELIMINARY PRINCIPLES. 19 benefit.' It does, however, seem to exclude actions by individ- uals, actually or presumably wronged, to enforce, for their own benefit, the liability imposed upon the wrongdoer, even though that liability is for a fixed amount, and bears no especial rela- tion to the amount of damages sustained, suggesting that the primary purpose of the statute was punitive. In this respect, however, the doctrine is broader than the facts of the case re- quired.* The fact that the recovery inures to the benefit of I private individuals, who may be presumed to have sustained ) damages by the wrongful act, has not always been regarded as [ sufficient to characterize the statute as remedial, or to take it out of the rule that no state or country will enforce the penal laws of another. Thus, the fact that a statute creating a lia- bility for negligent homicide imposes a minimum liability, — whether the persons to whose benefit the recovery inures sus- tained any damages by the death of deceased or not, — and ap- portions the liability above the minimum, not according to the damages sustained by such persons, but according to the degree of the wrongdoer's fault, has been regarded as characterizing the statute as a penal law not enforceable in another jurisdic- tion; while, upon the other hand, the fact that the amount of the recovery is not fixed, but depends upon the amount of damages sustained by the individuals to whose benefit the re- covery inures, has been regarded as showing that the statute was remedial, and not penal in an international sense. ° 68 L. T. N. S. 320, 41 Week. Rep. 575, liable for its debts in case of the 57 J. P. 404, it was said: "A pro- publication of false reports of its ceeding, in order to come within the financial condition. The same statute scope of the rule, must be in the was involved in Huntington v. At- nature of a suit in favor of the state trill [1893] A. C. 150, 62 L. J. P. C. whose law has been infringed." N. S. 44, 68 L. T. N. S. 326, 41 Week. '^M<*. Rep. 575, 57 J. P. 404, where it was < The statute, which was held in also held not to be a penal statute this ease not to be penal in the inter- within the rule of the text, national sense, was one rendering of- 5 gee post, § 480a. ficers of a corporation individually So, statutes providing for a penal- 20 PRELIMINARY PRINCIPLES. [Chap. I. Assuming that a statute is penal, a personal judgment recov- ered thereunder is not enforceable in another jurisdiction; and this, in spite of the "full faith and credit" provision of the Tederal Constitution, is true with respect to a judgment recov- ered in a sister state under such a statute.® A judgment in rem rendered under such a statute, which works a forfeiture of the title to specific property within the jurisdiction, and vests the same in the state, will, however, be recognized and upheld by the courts of another jurisdiction in which the title to the property is subsequently brought in issue.'' The rule against the extraterritorial enforcement of penal laws does not prevent the enforcement in one state or country of a bond, given in conformity with the laws of another, upon the issuance of a writ of ne exeat, to secure the defendant there- in for his costs and damages.* A statute may be penal in one aspect, and, to that extent, un- enforceable in another jurisdiction, and yet it may also operate to invalidate a contract having a local situs, and prevent the enforcement thereof even in another jurisdiction.® A penal statute will not be applied, even by the courts of the state or country in which it is enacted, to a transaction that ty recoverable by the sender or ad- for killing cattle is penal, and not dressee of a telegram have been held enforceable in another state. Bettys to be penal, and not enforceable by v. Milwaukee & St. P. R. Co. 37 Wis. the court of another state. Rogers 323. V. Western U. Teleg. Co. 122 Ind. 395, ^Wisconsin v. Pelican Ins. Co. 12Y 17 Am. St. Rep. 373, 24 N. E. 1.57; U. S. 26S, 32 L. ed. 239, 8 Sup. Ct. Taylor, t'. & Co. v. yVestern U. Teleg. Rep. 1370; Huntington v. Attrill, 146 Co. 95 Iowa, 740, 64 N. W. 660. U. S. 657, 36 L. ed. 1123, 13 Sup. Ct. And a statute making a, common Rep. 224; State use of Faulkner carrier liable for treble damages for County v. Bowen, 22 Wash. L. R • ^ "• ""<=^"<=^ ,, %..,,„, , , . J ju ^ married woman can be naturalized the United States, being under the age ;„ a foreign country is discussed by of twenty-one years at the time of the Holtzendorff, in the Jour, du droit naturalization of their parents, shall, int. privg for 1876, 5. By the Eng- if dwelling in the United States, be Hsh naturalization statute of May 12, ., , ... ,, c c 18/0, "a married woman shall be considered as citizens thereof. See ^^^^^ ^^ ^^ ^ ^^j^.^^^. ^^ ^^^ ^^^^^ the following eases construing this of which her husband is for the time section: Boyd v. Nebraska, 143 U. being a subject;" and "a widow, S. 135, 36 L. ed. 103, 12 Sup. Ct. Rep. being a natural-bom British subject, 375; Gumm v. Euhlard, 97 Mo. 311, ^^° ^^ become an alien, by or in in A di T. oici n c3 w ci consequence of her marriage, shall be 10 Am. St. Rep. 312, 11 S. W. 61, ^^^^^ ^o be a statutory alien, and People Y. Newell, Zi'Bvia,7S;Dryden may, as such, at any time during v. Swinburne, 20 W. Va. 89. widowhood, obtain a certificate of re- admission to British nationality in «See post, §§ 41, 42. manner provided for by this act." 33 6The above points are ably sus- Viet. chap. 14, § 10. This, however. 52 PRELIMINARY PRINCIPLES. [Chap. L cations. The first is, that as the wife can acquire, according to our law, at least for divorce purposes, an independent domi- cil,^ she may, at least for divorce purposes, acquire an inde- pendent nationality. The second is, that when the husband cannot compel the wife to follow him to a new country, she does not, while remaining at her old home, lose her old nationality.* only controls British subjects, and la femme, on admet assez ggnSrale- does not touch such questions as that ment qu'elle ne peut 6tre privfie de of an Irishman returning from this sa nationalitg fraugaise qu'autant country to Ireland and leaving his qu'elle y a consenti." M. Brocher wife behind. That a wife's refusal to (Brocher, Droit int. privS, p. 197), follow her husband to a new domicil however, doubts this conclusion, ex- is desertion on her part, affording cept in cases where fraud is shown; ground for divorce, see Angier v. and Foelix denies it m toto. Revue Angier, 7 Phila. 305. Etrang6re, vol. x. To the same effect Bluntschli, in the Revue de droit is Mass6, i. No. 998. It has been int. for 1870, p. 107, lays down the ruled in France that while a French following rules: A woman acquires woman who marries a foreigner loses by marriage her husband's nation- her nationality in his, she recovers ality. This is the rule on the conti- her French nationality on his death, nent of Europe. In England, how- she residing at the time in France, ever, an English woman is held not Jour, du droit int. priv6, 1874, pp. to lose her nationality on marrying a 243-5. foreigner; though, somewhat illogic- ally, a foreign woman marrying an The principle stated in the text Englishman is held to become Eng- ig expressly recognized, with reference lish. The wife and legitimate chil- ^o citizenship in the United States, dren of an emigrant, who continue to rr o t. n ^> a cj. her Jiusband to a foreign state has "l- 250, 42 L. R. A. 809, 69 Am. St. been much discussed. Pothier argues Kep. 228, 52 N. E. 303. The natural- in the negative (Puissance Maritale, ization of the husband after the mar- No I) ; and Fiore (Op. cit. § 66) ^j j^ g^ffieient to bring the wife holds that while a woman owes .,?..,. . ,, f , . , duties to her husband, she also owes ^^^^"^ ^^^ ^^"^^ o^ *^« sta*"*^' ^^'^ duties to her country; and that a thus make her, also, a citizen. Kelly court asked to intervene to compel v. Oioen, 7 Wall. 496, 19 L. ed. 283. her to follow her husband should de- 2 See post S 224 termine the question, not as of abso- „..,.',,,. , tt o t. lute right, but as dependent on the 'But it is held under U. S. Rev. circumstances of the case. "Quant a Stat. § 1994, U. S. Comp. Stat. 1901, § 12] PRELIMINARY PRINCIPLES. 63 12. Chinese in the United States not naturalized or domiciled. — By the 14th Amendment to the Constitution of the United States, which has been already cited, "all persons born or nat- uralized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside." Are Chinese bom in the United States citizens within the above clause? If the reasoning above given, to the effect that the children born in the United States of a foreigner are not internationally subject to the jurisdiction of the United States, be correct, then Chinese born of Chinese non-naturalized parents, such parents not being here domi- ciled, are not citizens of the United States. ^ Nor are Chinese comprehended within the Federal naturalization statutes. By the naturalization statute of 1804, only whites can be natu- ralized. When it was determined, during the late civil war, to confer full political privileges on the African race, a bill was introduced by Mr. Sumner, striking out the qualification "white." This, however, excited the opposition of the Pacific states, who were determined to resist the naturalization of the Chinese. To exclude them, the statute was finally shaped so as to confine the privilege of naturalization to "aliens [being free white persons, and to aliens] of African nativity, and to persons of African descent."^ The 15th Amendment applies p. 1268, that an alien woman, by non-naturalized Chinese parents, who marrying a citizen of the United had a permanent residence and domi- States becomes a, citizen thereof her- eil in the United States, is a. citizen self, though she does not come to the of the United States within the 14th United States. Ealsey v. Beer, 52 Amendment, and that it was beyond Hun, 366, 5 N. Y. Supp. 334; Head- the power of Congress, by the man v. Rose, 63 Ga. 458; Kojne v. Chinese exclusion acts, to withhold McCarthy, 63 N. C. 299; Burton v. citizenship from such a person. Re Burton, 1 Keyes, 359. Look Tin Sing, 10 Sawy. 353, 21 Fed. See further, upon this subject, 22 905, is to the same eflfect. L. E. A. 148, note. As to the eon- 2U. S. Rev. Stat. 1875, § 2169, U. verse of the foregoing proposition, S. Comp. Stat. 1901, p. 1333, as see Gomitis v. ParJcerson, 22 L. R. A. amended by Supple, act, p. 1435. See 148, 56 Fed. 556. ante, § 5, note 2. ^'\°A^'^^/"'=|, ^TV^IS^ .^c^''*- ???• ' , , ' , •, ^ -4. iaRe Ah Yup (1878 5 Sawy. 155, lit has now, however, been definite- j-gj, Cas. No. 104, it was held by ly settled by the United States Su- Sawyer, J., that a native of China, preme Court in United States v. of the Mongolian race, is not entitled Wonq Kim Ark, 169 U. S. 649, 42 L. *° ^<=°°^« '^ f">^^" of the United J onn TO o r.^ T. ^^o Iv i. States under the Revised Statutes as ed. 890, 18 Sup. Ct. Rep. 456, that a amended in 1875. Rev. Stat. § 2169, child born in the United States of U. S. Comp. Stat. 1901, p. 1333; 54 PRELIMINARY PRINCIPLES. [Chap. I. only to citizens of the United States, and does not, therefore, touch the Chinese. That the Chinese are not, taking them as a population, domiciled in the United States, is plain. They do not expect to remain permanently in this country; all of them look forward to a return, sooner or later, to China. If the rules of private international law are applicable in such cases, their domicil continues in China.* By the 5th article Amendment, Rev. Stat. p. 1435. It was further held that a Mongolian is not a "white person," within the mean- ing of the term as used in the naturalization laws of the United States. In Be All Fong, 3 Sawy. 144, Fed. Cas. No. 102^ it was held that a statute of California prohibiting Chinese emigrants of certain classes from landing, until bonds were given, was in conflict with the Constitution and statutes of the United States. The census of 1880 gives the total population of San Francisco as 233,- 000, of which 21,000 are Chinese. The House Report of 1878, cited in- fra, estimates the aggregate of Chi- nese in the Pacific states at 150,000, the average annual Chinese immigra- tion from 1871 to 1874 being 13,000. 3See post, §§ 100-104, 128-131. By the Chinese Penal Code, all per- sons renouncing their country are be- headed, their property confiscated, and their immediate relatives ban- ished. The mere attempt to renounce allegiance is punished by strangling. 14 West. Jur. 440 (October, 1880). This may explain the unwillingness of Chinese to surrender their nation- ality. The penalty on themselves they could escape, but they could not avert the penalty from their rela- tives. Laurent, commenting on the posi- tions taken, in this connection, in the first edition of this work, says (Lau- rent, Droit int. privg, ii. 169) : "II y a un autre malentendu dans le reproche que Wharton fait au statut personnel, c'est que ce statut est hors de cause quand il s'agit de lois 6trang6res qui sont contraires k la morale et a la libertS. Qui a jamais dit que la personalitg des statuts per- met a des 6trang6rea qui sont con- traires a la morale et a la libertS." But if the "personality of statutes" does not permit polygamy, how can it be construed to establish the civil In- capacity of a Chinese son as long as his father lives? Is it consistent with "public order and good morals" to treat the Chinese population of our Pacific coast as permanently sub- ject to the disabilities of Chinese law? These questions are discussed in a note to § 7, ante. In a report made to the House of Representatives on February 25, 1878, by the unanimous vote of the Com- mittee on Education and Labor (House Reports, 1877-8, No. 240), it is agreed that the claim of the Chinese "to be protected in the full enjoyment of all the rights and privileges which they have acquired under the treaty cannot be justly de- nied." It is stated, also, that as "the great majority of the immigrants em- bark from the port of Hong Kong, a British colony," "a change or abro- gation of our present treaty with China will not check the evil." But it is proposed to open negotiations with England and China for a re- vision of the whole topic, and this for reasons bearing strongly on the question of national policy, a ques- tion, as we have seen, to be con- sidered by the courts when determin- ing how far a foreign personal status is to be accepted as bringing its pre- rogatives to our shores. The reasons given by the Committee may be thus analyzed : — 1. The Chinese have no homes. "They bring with them neither wives, families, nor children. One hundred Chinese will occupy a room which, if subdivided, would not accommodate five American workingmen with their families. . . . Here they both sleep, eat, and cook." "No material advantages, however great, arising S 12] PEELIMINAEY PRINCIPLES. 65 of the Burlingame treaty (ratified November 28, 1868), it is provided that "the United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citi- zens and subjects respectively from the one country to the other for purposes of curiosity, of trade, or as permanent residents." 16 Stat, at L. 739. It is further provided that citizens of the United States, visiting or residing in China, shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation; and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China nor upon the subjects of China in the United States. See treaty negotiated in 1880, 1881, limiting Chinese emigration. The Chinese in the United States, there- fore, while not capable of naturalization, and while not accept- from Chinese frugality and industry, 5. The Chinese remain "a distinct can compensate for the loss of the and alien element." "They have been homes" essential to the moral and in this country over a quarter of a political security of the nation. century. Their employment as house 2. "The crowded condition in servants and laborers has brought which the Chinese live renders the them into close and immediate con- observance of hygienic laws and sani- tact with our people, but no change tary regulations almost an impossi- in them has been produced. What bility," by which pestilence is en- they were when they came here they gendered. are to-day, — the same in dress, the 3. With them infanticide, so far as same in disposition, the same in concerns female children, is, in many language, the same in religion, the cases, meritorious. Women are same in political feeling. They indi- slaves, and are sold by their fathers cate no desire, either by word or and husbands. action, to become identified with us. 4. "Respectable persons are de- To make money is their sole object, terred both by law and prejudice, and When they have accomplished this as a rule only the most indigent and they do not invest their earnings in desperate characters consent to leave land or homesteads, but return with their native country. The female im- them to their native clime. They migrants are bought and sold like come with no desire to make this chattels, and practise the most re- their permanent home." "They re- volting vices." Imprisonment is not main a quiet, united class, distinct regarded with dread, as it is rather from us in color, in size, in features, an amelioration of their condition, in dress, in language, in customs, in and the only punishments they fear habits, and in social peculiarities." are those wjfiich in this country we refuse to inflict as barbarous. 5G PRELIMINARY PRINCIPLES. [Chap. I. ing a domicil, are yet entitled to the same rights in the United States as are citizens of European nations who may be tem- porarily resident on our soil. The treaty giving them this right, as long as it continues in force, is the supreme law of the land, which cannot be overridden by state legislation.* But while this is the case it is important to keep in mind the bear- ing of this peculiar condition on the doctrine of the ubiquity of personal laws, as already stated. To apply that doctrine to the Chinese in the United States, retaining as they do their Chinese nationality, would make the question of the personal capacity, as to business as well as to marriage, of a considerable section of our Pacific population, determined, not by our own law, but by the law of China. The objections to this have been already stated. 13. Naturalization implied in annexation. — Whether the sep- aration of a territory from one state, and its annexation to an- other state, naturalizes the subjects of the annexed territory in the state to which it is annexed, depends in a large measure on the terms of annexation. Mere military occupation does not work such naturalization; though it is otherwise when the an- nexation is brought about by treaty, or is finally established by the consent of the annexed state. In the French-German treaty of 1871, the inhabitants of Alsace, who elected to remain in that country after a definite period subsequent to the treaty of peace, became German subjects. After the annexation of Algeria to France, when Algeria became French territory, Al- gerians were held to be French subjects. By the treaty of 1860, providing for the cession of Savoy to France, all inhab- itants of Savoy, who did not transfer their domicil to Italy *A bill to abrogate the treaty following year (22 Stat, at L. 826), passed Congress in 1879, but was ve- by which the government of China toed by -President Hayes, March 1, ^ ^^ ^.j^^^ ^j^^ goyernment of the 1879, and then failed for want of the ? .,,„,, °,, , , ,. ., requisite majority. The veto was TJ^it^d States might regulate, limit, based on the position that the ques- or suspend the coming of Chinese tion was executive, not legislative. laborers to the United States, or their residence therein. This supple- A statute was subsequently passed mentary treaty has been carried into (21 Stat, at L. 133, chap. 88) pro- effect by various acts, collectively viding for the appointment of com- knovm as Chinese exclusion acts, be- missioners to negotiate a supplemen- ginning with the act of May 6, 1882, tary treaty with China; and such a by which the privileges extended to treaty was concluded on November the Chinese emigrants by the treaty 17, 1880, and ratified in May of the of 1868 have been much restricted. § 13] PRELIMINARY PRINCIPLES. 57 within a year after the ratification, were held to be French sub- jects. In the United States, this kind of naturalization was recognized in the treaty of 1803 with France for the cession of Louisiana, in that of 1819 with Spain for the cession of Florida, and in that of 1866 with Russia for the cession of Alaska. And after the annexation of Texas, by a joint res- olution of Congress in 1845, Texas assenting to the annexation, all citizens of Texas became citizens of the United States. The same result was reached by the treaty of Guadalupe Hi- dalgo in 1848, and the Gadsden treaty in 1854.-^ 14. Naturalization affects only political status, and does not touch penal disabilities. — ISTaturalization, not only under the Constitution of the United States, but under the statutes of most European states, is limited to the establishment of the citizenship of the person naturalized in the naturalizing state. It does not confer any special civil status; nor, while removing disabilities arising from foreign birth, does it remove those arising from conviction of crime. ^ 15. Jurisdiction exercised by civilized in imperfectly civilized states. — The commercial settlements made in Asia and Africa by European traders were necessarily subject to the laws of the countries from, which the traders came. There being no local courts competent to decide questions in litigation in such settle- ments, these questions were determined sometimes by arbitra- tion, sometimes by tribunals established by the settlers them- selves; but generally, and ultimately almost universally, by consular courts appointed by the state by whose subjects the set- tlement was established. "In the East, from the oldest times, iSee Minor v. Happersett, 21 Wall. iViviani's Case, Court of Cass. 162, 22 L. ed. 627; Brovm, v. United Paris, 1874, Jour, du droit int. privg, States, 5 Ct. CI. 576. p. 439. It was held in a judgment of In Re Harrold, 1 Clark (Pa.) 214, the French Court of Cassation, that the rule was applied to the transfer while the terms of naturalization are of possession of Detroit under Jay's settled by the country which the emi- treaty. grant enters, the terms of expatria- A British subject who resided at tion are settled by the country which Detroit before, and at the time of, he leaves. Jour, du droit int. privg, the evacuation of the territory of 1877, p. 9. The effect of the imposi- Michigan, under the provisions of tion on a French subject of national- Jay's treaty, and who continued to ity by a foreign state is discussed in reside there afterwards, without, at the Jour, du droit int. priv6 for 1875, any time prior ro June 1, 1797, de- p. 180. As to change of nationality' daring his intention to remain a, see articles in 11 Am. Law Rev. p. British subject, became, ipso facto, 447: Jour, du droit int. priv6, 1877, for all purposes, an American citizen, p. 389. Crane v. Reeder (1872) 25 Mich. 303. 58 PEELIMINARY PRINCIPLES. [Chap. I. an immiscible character has been kept up; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and sojourners as all their fath- ers were: Doris amara svtxim non intermisceat undam."^ Hence, under such circumstances, the law is personal, not ter- ritorial.^ As Mr. Lawrence has well observed,' the states of iThc Indian Chief, 3 C. Rob. 29. 2That no domicil is acquired by merchants settling in barbarous lands; see post, § 71. In Dainese v. Hale, 91 U. S. 13, 23 L. ed. 190, the following points were ruled: (1) Judicial powers are not necessarily incident to the office of consul, al- though usually conferred upon con- suls of Christian nations in pagan and Mahometan countries, for the de- cision of controversies between their fellow-citizens or subjects residing or coramorant there, and for the punish- ment of crimes committed by them; (2) the existence and extent of such powers depend on the treaties and positive laws of the nations con- cerned. In Turkey, for example, the judicial powers of consuls depend on the treaty stipulations conceded by the government of that country, and on the laws of the several states ap- pointing the consuls; (3) the treaty between the United States and Tur- key, made in 1862 (if not that made in 1 830 ) , has the effect of conceding to the United States the same privi- lege in respect of consular courts and jurisdiction which are enjoyed by other Christian nations, including civil as well as criminal jurisdiction; and the act of Congress of June 22, 1860, established the necessary regu- lations for carrying this jurisdiction into effect; (4) but as this jurisdic- tion is, in terms only, such as is al- lowed by the laws of Turkey, or its usages in its intercourse with other Christian nations, those laws or usages must be shown in order to know the precise extent of the juris- diction. A commission was organized in 1874 by the Institute of International Law, to determine how far the law of nations is applicable to Oriental .states. The commission consisted of Messrs. Asser, Field, Holtzendorff, Lorimer, Martens, Rivier, and Sir Travers Twiss. A report by Mr. Field, discussing the question with great ability, will be foimd in the Revue de droit int. for 1875, pp. 657 et seq. This report gives the follow- ing conclusions: (1) Oriental, or, more strictly speaking, non-Christian nations, are to be admitted to the en- joyment of the rights, and subjected to the performance of the duties, at- tached to Eastern, or in other words, Christian nations, as such rights and duties are defined by international law, with the single exception; (2) until a more complete assimilation is established between the judicial insti- tutions of Eastern and of Western nations, it is desirable that courts of this class should be internationally recognized by the great powers. In a report by Sir Travers Twiss, presented to the Institute of Inter- national Law in 1879, the internation- al relations of the Oriental states are further considered. Mahometan countries, it is maintained, stand in peculiar seclusion, from the fact that by their religion they are forbidden to have dealings, national or per- sonal, with persons not Mahometans. The systems of Confucius, and of the Buddhists, are inert and tolerant; all they ask is equality of rights. It is otherwise with Mahometanism, which refuses to concede, not only political, but personal, rights to those whom it regards as infidels, when living under Mahometan sway. And though in 1856 an edict was issued by the Sultan granting equal rights to all his subjects, this decree, so far as it permits Christians to be examined as \vitnesses in suits before the Turkish tribunals, is regarded by the Turkish courts as a nullity, not having been confirmed by the ecclesiastical au- thorities of the state. 15] PRELIMINAKY PRINCIPLES. 59 Spanish America, exposed as they have been to constant revo- lutionary movements, occupy in this respect an intermediary That such consular jurisdiction is provisional appears from Mahoney v. Vnited States, 10 Wall. 62, 19 L. ed. 864, where it was held by the Su- preme Court of the United States, that when Algeria became a French province, the functions of an Ameri- can consul, there resident, were es- sentially modified, and that the extra- territorial authority previously ex- ercised by the consul would cease. Whether the penal systems of China, and other Asiatic states, are sufficiently humane to justify the withdrawal from' those states of the consular jurisdiction exercised in them by the European powers, and by the United States, was discussed in 1879, in London, by the Associa- tion for the Reform of the Laws of Nations, and in Brussels by the Institut de Droit International. Sir Travers Twiss, in his report to the latter body, said that so far as con- cerns the Oriental states, all Euro- pean experts with whom he had con- ferred agreed that the time had not yet arrived when European states could dispense with this mode of pro- tecting their interests. On the other hand, Mr. Robert Hart, inspector general of the Chinese customs, and organizer of the Chinese department at the French Exposition of 1878, in a memorandum to the English govern- ment on the convention of Che-Foo, argues that the practice of the Chinese courts is sufficiently humane and the laws sufficiently just to per- mit England to renounce those clauses in its treaties with China which give the English consuls extra- territorial jurisdiction. But facts stated in the controversy which fol- lowed show that Mr. Hart's idea of "humanity" and "justice" was drawn from Chinese rather than English traditions. A correspondent of the Times (September 13, 1879) narrates ■a, case in which a political offender was not only sentenced to capital execution, but of his numerous chil- dren and grandchildren several were put to cruel deaths, while of the re- mainder the girls were sold as slaves and the boys were castrated. Jour, du droit int. privS, 1879, p. 409. The following are extracts from a pamphlet by Mr. David Dudley Field, on the "Applicability of Internation- al Law to Oriental Nations," pub- lished in New York in 1875: — "Among the published Opinions of the Attorneys General of the United States is one on the functions of con- suls (vol. 7, pp. 348, 349), in which are these passages: — "In our relations with nations out of the pale of Christendom, we must and shall retain for our own citizens and consuls, though we cannot con- cede to theirs, the right of extra- territoriality." . . . "Notwithstanding these and sim- ilar authorities, there are instances in which the local laws of Eastern countries have been applied to deal- ings between their people and citizens of the United States. Thus in the case of Consequa v. Fanning, 3 Johns. Ch. 587, Chancellor Kent decided that the Chinese law, in respect to the in- terest of money, should be taken as the rule of decision by our courts. "How shall they be dealt with? So long as the judicial institutions of Oriental states remain as they are, it is impossible to subject Americans and Europeans to their jurisdiction. No one accustomed to the judicial procedure of the West would ever willingly be subject to the procedure of the East. There torture is in con- stant use, oaths are rarely adminis- tered, advocates are unknown, and, instead of fixed rules of decision ac- cording to lawj the caprice of the judge or a vague notion of justice controls the decision. I have myself seen accused persons brought up for trial before a Chinese judge. Each one was brought in with a chain around his neck, the end of which was fastened to a heavy stone that he was obliged to lift when he moved; on en- tering the judge's presence he sank upon his hands and feet, and re- mained so during the trial, scarcely 60 PRELIMINARY PRINCIPLES. [Chap. I. position between Turkey, China, and other semi-harbarous states, on the one side, and Christian states, where life and lib- erty are secure, on the other side. The right of the United States, for instance, to intervene for the protection or indem- daring to look up ; a crowd of retain- sulate, that within eight months they ers surrounded the judge and took had examined fifty-two criminal part in the trial, interrupting him, cases, and sent forty-two accused per- suggesting questions, and making sons to Italy for judgment." As to statements; and when the poor crea- Egyptian scheme, see same volume, ture dared to deny the charge, he was p. 926. instantly put to the torture by men A statement of the character and in waiting, who seemed as much part working of the international court of of the court as the judge himself. Egypt will be found in Foreign Rela- The punishments inflicted in all Ori- tions U. S. 1879, pp. 231 et seq. See ental nations are strange and cruel, also articles in Appleton's Journal — crucifixion being often among them, for September and October, 1880. It would be revolting to subject our That an appeal lies in England countrymen to such an ordeal, and from a consular court, see Pitts v. La the chance of such a punishment." Fontame, L. E. 5 App. Cas. 564. In China, as appears from' a letter The structure of the consular from Mr. Bailey, the United States courts in Egypt is discussed elabo- consul-general at Shanghai, dated rately in a correspondence published Shanghai, September 15, 1879, "Civil by the state department in Foreign cases by the Chinese against our peo- Relations U. S. 1 879, pp. 988-9 et seq. pie have been tried in the court for It is stated by Mr. Evarts, July 22, this consular district, the consul-gen- 1879, that "the United States con- eral sitting alone as judge. Similar sular courts in Egypt retain jurisdie- cases by our people against Chinese tion to try and punish citizens of the subjects have been tried in the mixed United States for offenses (crimes) courts of the foreign settlements, pre- which they have committed in the do- sided over by the Chinese magistrate, minion of the Khedive, as conferred Chow-Fu-Shlin, and the United States by the fourth article of the treaty of interpreter acting as American as- 1800 between the United States and sessor." Foreign Relations U. S. the Ottoman Empire, and prescribed 1879, p. 229. by the act of Congress of the 22d of A statement of the mode of execut- June, 1860." ing judgments in Shanghai is given An interesting article on the juris- in a letter from Mr. Bailey, consul- diction of mixed tribunals in Japan general of the United States at that will be found in the Jour, du droit place, in Foreign Relations U. S. int. privS, 1875, pp. 169-249. . 1879, p. 235. The subject of consular jurisdic- Mr. Fairman, American consul in tion is elaborately discussed by Mr. Egypt, in a letter to Mr. Evarts, W. B. Lawrence, in the Revue de dated Cairo, April 5, 1878 (Foreign droit int. for 1879, p. 45, and in the Relations U. S. p. 917 ) , says : "Ex- 4th volume of his Commentaire sur traterritorial rights are admitted and Wheaton (1880), pp. 105 et seq. enjoyed in Egypt to their fullest ex- Comp. 1 Halleck, International Law, tent. Foreigners are sometimes ar- Baker's ed. 333-4. rested by the local authorities, but It was held by the German Su- they are immediately delivered to the preme Tribunal of Commerce, in consuls of their respective countries. 1871, at Leipzig, that a partner in a The number of criminal eases brought house of business established at Hong before the consular courts is very Kong, China, summoned before the large. I was informed a few days German court of his own domicil, is since by an official of the Italian con- entitled to invoke the English laws S 15] PRELIMINAEY PRINCIPLES. 61 nity of its citizens in the South American states is claimed in cases where such citizens are exposed to injuries in the states of their sojourn in violation of treaty obligation.* 16. Extraterritoriality of diplomatic residences; asylum. — The residence of a foreign minister is regarded as part of the territory of the state from which he is sent; and not only his diplomatic attendants, but his family and servants, are exempt from the jurisdiction of the state to which he is accredited.^ in force at Hong Kong, on condition of proving them before the judge. 3 Comment, sur Wheaton, iii. 139. HUd. 1 That such is the case with diplo- matic officers of a legation, see Eas parte Cabrera, 1 Wash. C. C. 232, Fed. Gas. No. 2,278; United States v. Benner, Baldw. 234, Fed. Gas. No. 14,568; United States v. Lafontaine, 4 Cranch, C. C. 173, Fed. Cas. No. 15,550. That interference with for- eign ministers is indictable, see Wharton, Grim. Law, 8th ed. § 1899. See, for criminal trials, post, § 814. A foreign minister does not lose his privilege by engaging in trade. Taylor v. Best, 14 C. B. 487, 2 C. L. Rep. 1717, 23 L. J. C. B. N. S. 89, 18 Jur. 402, 2 Week. Rep. 259. But see infra. The statute of 7 Anne, chap. 12, § 3, which declares null and void all writs and processes sued forth against the person of ajiy public min- ister of a foreign state, or of any do- mestic servant of such minister, is said by Lord Tenterden to be "only declaratory and in confirmation of the common law. It must, therefore, be construed according to the com- mon law, of which the law of nations must be deemed a part." Novella v. Toogood, 1 Barn. & C. 554, 2 Dowl. & R. 833, 1 L. J. K. B. 181, 25 Revised Rep. 507; Magdalena Steam Nav. Co. V. Martin, 2 El. & El. 94, 28 L. J. Q. B. N. S. 310, 5 Jur. N. S. 1260, 7 Week. Rep. 598. The service, how- ever, must be bona fide, for a party claiming to be a servant to avail himself of the privilege. Heathfield V. Chilton, 4 Burr. 2016; post, § 720. The authorities are thus grouped in Foreign Relations U. S. 1879, pp. 375 et seq. Wheaton, International Law, 8th ed. 1806: § 224. From the moment a public minister enters the territory of the state to which he is sent, during the time of his residence, and until he leaves the country, he is entitled to an entire exemption from the local jurisdiction, both civil and criminal. § 225. This immunity extends not only to the person of the minister, but to his family and suite, secre- taries of legation, and other secre- taries, his servants, movable eflfects, and the house in which he resides. § 226. The wife and family, ser- vants, and suite of the minister par- ticipate in the inviolability attached to his public character. S 241. The privilege of extraterri- toriality consists in the right of the diplomatic agent to be exempt from all dependence on the sovereign power of the country near the government to which he is accredited. 2 Phillimore's International Law, 2ded. 1871, p. 193: § 153. Thirdly, the right of invio- lability applies to whatever is neces- sary for the discharge of ambassa- dorial functions, "Nam omnis coactio abesse a legato debet, tam quae res ei necessarias, quam quae personam tangit, quo plena ei sit securitas." Grotius ii. chap, xviii. § iv. _ § 186, p. 218. With these excep- tions all civilized nations unanimous- ly accord to ambassadors complete exemption from the civil jurisdiction of the country in which they resid* These extraterritorial privileges ari also extended by positive interna- tional law, as much as the rights of inviolability to the family, and es- pecially to the wife of the ambassa^ dor; his suite and train (comites) 62 PEELIMINAEY PRINCIPLES. [Chap. L It is, however, open to doubt whether a foreign minister, by taking into service subjects of a state to which he is accredited, can exempt such subjects from the operation of the laws of the latter state.* are also entitled to these privil^es, a, violation of which in their persons affects the honor, though in a less degree, of their chief. §188. . . . Difficulties have arisen from persons perhaps not subjects of the state from which the embassy is sent, claiming without sufficient war- ranty to belong to it. It has there- fore been enacted by the municipal laws of some countries, and it ought to be the usage of all, to require a list of the persons composing the suite to be delivered to the minister for foreign affairs, or other proper officers. Bluntschli, Das modern Volker- recht der civilizunten Staaten, 3 edi- tion, 1878: § 145. The exemption from local state authority extends also to the family officials, suite, and servants of the extraterritorial personage. § 212. Immunity from the penal authority of the state to which the minister is accredited, and subjection to the penal authority of the accred- iting state, extends also to such serv- ants of foreign ministers as are sub- jects of the foi-mer state. Alt, Handbuch des europaischen Gesandtschaftsrecht, etc., Berlin, 1870: § 130. To the private servants, who may be divided into three classes, be- long, firstly, the minister's own pri- vate physician, his private secretary, his house teachers, then his house officers (officiers de la maison) , and finally his liveried servants {gens A Uvr4e). By the term "house officials" are meant butlers, stablemasters, cellarmasters, equerries, valets, Swiss; and among liveried servants are reckoned runners, cooks, coach- men, postilions, stablemen, chasseurs, lackeys, heiduchen. All these stand, as already mentioned, under the par- ticular protection of international law and enjoy the privilege of extra- territoriality. Mirus, Das europaische Gesandt- schaftsrecht, Leipsic, 1847: § 239, p. 264. All persons in the private service of a minister, includ- ing liveried servants, etc., stand like the rest of the suite under the par- ticular protection of international law, and are not subject to the au- thority of the state in which the min- ister is accredited. Vattel, Droit des Gens (ed. Pra- dier-Foderg, Paris, 1863), vol. ill. livre iv. chap, ix: § 120. De la suite de I'Ambassa- deur. La inviolabilltg de I'Ambassa- deur se communique aux gens de sa suite, et son independence s'etend a tout ce qui forme sa maison. Toutes ces personnes lui sont tellement at- tachges qu'elles suivent son sort. Biles dependent de lui seul immedi- atement et sont exemptes de la juri- diction du pays oH elles ne se trou- vent qu'avec cette reserve I'Ambassa- deur doit les protfiger et on ne pent les insulter sans I'insulter lui-mSme. Si les domestiques et toute la mai- son d'un ministre Stranger ne depend- aient pas de lui uniquement, on sent avec quelle facilitfi 11 pourrait 6tre molests, inquiete et troublS dans I'ex- ercice de ces fonctions. Ces maximes sont reeonnues partout aujourdhui, et conflrmSes par I'usage. See post, § 720. Mr. Hall (International Law, 1880, § 31), says that "in England this extent of immunity is not recog- nized." 2 This question is discussed at length on a claim of the United States legation at Berlin to exempt a German, whom it employed as a serv- ant, from military jurisdiction. For- eign Relations U. S. 1879, pp. 373 et seq. As to service of suit on con- suls, see post, § 720. In The Parlement Beige (1879), 40 L. T. N. S. 231, cited post, § 358ys, Sir R. Phillimore said : "The analogy between the immunity of the ambas- sador and the ship of war is obvi- § 16] PRELIMINARY PRINCIPLES. 63 To give to a foreign minister unlimited prerogatives of asy- lum would enable him not only to make his residence an in- ous. It has been holden by high au- jurisdiction as the sovereign author- thorities, both in this and other ity which he represents would be." countries, that an ambassador may lose his privileges by engaging in A citizen of the United States, a commerce. Indeed, Lord Campbell resident of New York, who is consul- was of opinion that in such a case i c c ■ j. j. ■all his goods unconnected with his S^"^"^^ °* ^ ^"'^'^^ government at diplomatic functions may be arrested New York, and is also authorized to to force him to appear, and may communicate to the Secretary of State afterwards, while he continues am- any matter in relation to that gov- bassador, be taken in execution on j. • ii. i. * -i. ■ • the judgment.' Tlie Magdalena ^™°'«°* "" ^^^ ^^^^"""^ "^ '^ "'•""- Steam Nav. Co. v. Martin, 2 El. & El. <^er, is not its diplomatic representa- 94, 114, 28 L. J. Q. B. N. S. 310, 6 tive or minister during such absence, Jur. N. S. 1260, 7 Week. Rep. 598, nor entitled to the diplomatic priv- cited in The Gharkieh, L. R. 4 Adm. ■,„ t x ■ • • j. m j. & Eccl. Rep. 59, 42 L. J. Adm. N. S. '^^S"" °^ ^ ^""""g^ minister. Eco pwrte 17, 28 L. T. N. S. 513, 1 Asp. Mar. ^"■i^> 135 U. S. 403, 34 L. ed. 222, 10 L. Cas. 581. 'A distinction,' says Sup. Ct. Rep. 854. Story, J., 'has been often taken by But a British subject accredited to writers on public law as to the ex- n_^t. Ti„;i.„i^ u ■. c ■ emption of certain things from all ^^^* ^"^^"'^ ^^ * ^"-"^^g" g°^^^°- private claims; as, for example, ™e°t as a member of its embassy is, things devoted to sacred, religious, unless he has been received by the and public purposes, things extra British government upon the express commeroiuni et quorum non est com- „„_,/iu,-«„ t-\.„t. v,» .i, ii i, i.- ^ mercium. That distinction might «°"dition that he shall be subject well apply to property like public thereto, exempt from the local juris- ships of war, held by the sovereign diction of his own country; and jure coronw, and not be applicable to therefore where this condition has the common property of the sovereign j. u^ ■„, j i.- j. x, i. of a commercial character, or en- ''f !'«'^" '""^^ ""^ >>"" «■* the time gaged in the common business of com- °' ^'^ reception, his household fumi- merce.' United States v. Wilder, 3 ture is privileged from seizure for Sumn. 308, Fed. Cas. No. 16,694," nonpayment of parochial rates. Ma- also cited m The Gharlaeh, supra. „„„j „ i^^t t,«.„^ Sir R.Phillimore's judgment, as to ™^*""^ ^- ^"'■*""' ^- ^- 2* Q- B. the extraterritoriality of The Parle- ^'^'^- 368, 62 L. T. N. S. 368, 38 Week. ment Beige, was reversed on appeal Rep. 559, 54 J. P. 437. n- ^^07 '^o^^W^''^' ^-.^o ^'^r^- 2"* ^ ^^^^''^ s"l>J«'=t ^^O' f°^ the Div. 197, 28 Week. Rep. 642, 4 Asp. . j. j.- , . ,J . , Mar. L. Gas. 234. In the judgment P^^^PO^e of protecting himself against of Brett, L. J., in which James, L. J., his creditors, secured, through the in- and Baggally, J., concurred {post, advertence of the Persian Ambassa- §§ 1241/2 358%), it is stated that the dor, an appointment as honorary at- immunity of an ambassador from ^ , . .i , . .... the jurisdiction of the country to ^""^^ °* ^^e embassy, is not privil- which he is accredited is based upon ^S^ from civil process in bankruptcy his being the representative of the proceedings against him, founded independent sovereign or state which upon a judgment recovered, after his sends him, and which sends him on • j. x • ^■ the faith of his being admitted to be aPP°™ment, m aji action commenced clothed with the same independence IJ^fore his appointment, where his ap- of, and superiority to, all adverse pointment has in no way been recog- 64 PRELIMINARY PRINCIPLES. [Chap. L violable refuge for offenders of all classes, but to constitute it the base of political revolt.^ Consuls are not, upon principles of international law, enti- tled to the immunity from the jurisdiction of the courts of the country to which they are accredited, that is enjoyed by ambas- sadors and ministers,* though the consuls of France and of some other countries have been exempted by express treaty pro- vision from the obligation to appear as witnesses in the courts of the United States.^ 17. Aliens entitled to equal civil rights with citizens. — So far as concerns the enjoyment of civil rights, alien friends, visit- ing a country, should be put on the same basis as citizens. In England and this country this is granted so far as concerns the right to resort freely to courts of justice for the settlement of litigated issues.-^ This equality, however, while conceded nized by the British government, al- A trading consul in all that con- though his name has been sent to the cems his trade is liable to ordinary foreign office as a member of the am- process, the same as a native mer- bassador's suite. Ex parte Gloete, 65 chant. Scott v. Hole, 108 Wis. 239, L. T. N. S. 102. 84 N. W. 181. But documents which are a part of 3 The objections to the continued ^^e archives of a foreign consulate existence of the right of asylum, as • •, j », , operating to encourage revolt, and to "^''^ privileged. Kessler v. Best, 121 assure immunity for crime, are forci- Fed. 439. biy stated by Mr. Langston in a let- sUnited States v. Trumbull, 48 ter from Hayti, dated April 24, 1878, p^^. 94, held that a vice consul of a m the Report on the Foreign Rela- . . ,.,,,. , , tions of the United States, 1878, foreign nation holding an unrevoked p. 443. See, for cases of refusal of exequatur issued by the Presi- asylum. Foreign Relations U. S. 1876, dent could avail himself of a treaty service of process requiring attend- *Eai parte Baiz, 135 U. S. 403, 34 ance as a witness, when subpoenaed L. ed. 222, 10 Sup. Ot. Rep. 854; as a witness by the United States in United States v. Trumbull, 48 Fed. » criminal prosecution, although the 94; He lasigi, 79 Fed. 751; Wilcox v. government by which he was accred- Luco, 118 Cal. 639, 45 L. R. A. 579, ited had been overthrown and an ap- 62 Am. St. Rep. 305, 45 Pac. 676, 50 parently successful revolutionary Pac. 758. See note to 45 L. R. A. government established in its place. 679 upon Exemptions and Privileges ^ See post, §§ 705, 743, et seq. of Consuls. ^ 17] PRELIMINARY PRINCIPLES. 65 in Italy, has not yet obtained acceptance in France, where raliens cannot ordinarily refer their litigations to civil courts, and where their capacity to hold property is determined by reciprocity. ^ By the English common law, although technically an alien's real estate escheats, this is only on office found ; and unless such proceedings are perfected, the alien may both possess and con- Aliens are within the protection of "the provision of the 14th Amendment, that no state shall deprive any per- son of life, liberty, or property with- •out due process of law; nor deny to any person within its jurisdiction the ■equal protection of the laws. Yick Wo V. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064. So, aliens within the territory of the United States are entitled to the protection of the 5th and 6th Amend- ments of the Federal Constitution, regulating procedure in criminal ■cases. Wong Wing v. United States, 163 U. S. 228, 41 L. ed. 140, 16 Sup. Ct. Rep. 977. 2 See post, § 745. Laurent, in the second volume of hia Droit civil international, p. 13, ■shows that both Phillimore and Bar are in error in stating that the Code Napoleon assigns to the foreigner equal rights with the citizen. The ■distinctive French legislation in this respect is discussed in future para- graphs in the present section. According to Laurent, the French nation, which undertook a revolution to establish the equality of man, has adopted a< code by which this equality is repudiated. By enacting that there shall be no civil rights afforded to foreigners without reciprocity, it en- acts that foreigners have no rights in France unless protected by treaty. Austria and Holland taike a more lib- eral view, providing that there shall be equality in privileges in all cases in which inequality is not- expressly toomraanded. Italy has adopted what Vol. I. CoNFL. of Laws — 5. Laurent considers the right rule, of holding that foreigners should enjoy in Italy full civic rights. As to the limitations of Germany, see post, § 744. England, we are told by Laurent, is still feudal; and the common law, impregnated with feudalism, has passed, he informs us, to the United States, putting the American democ- racy under laws dating from the Nor- man Conquest. The Wager of Battle, he seems to think, still continues; and with this he couples other tradi- tions equally odious. The law (droit) of the United States, he tells us, is as narrow and barbarous as that of England, for which he says he has American diplo- matic authority (aussi 6troit, aussi barbare, le mot est d'un diplomat© Amerieain, que celui de Angleterre). As sustaining this position, he con- fines himself to referring to the state- ments in the text on the limits im- posed by some of our states on the acquisition of real estate by foreign- ers. It is enough to say that such limitations are in most states nominal (e. g., Pennsylvania, where the limi- tation is 5,000 acres), and that in other states they have ceased to exist. In no other respects, so far as con- cerns property not covered by the navigation act, is a foreigner in the United States refused rights which are enjoyed by citizens. See article in Jour, du droit int. privS for 1858, p. 309. By the present Italian Code, the equality of foreigner and of citizen is made the basis of private interna- tional law; and by the Code the for- eigner is entitled to equal civil rights with the citizen. It is not necessary, in order to enable him to claim such rights, that the foreigner should be a 66 PRELIMINARY PRINCIPLES. [Chap. I. \ej land inter vivos.^ But an alien has been held to have no capacity for transmitting by descent; and on his death, his land vests in the Cro"wn by mere operation of law, vpithout of- fice found.* This taint is now eradicated from English legis- lation.^ In this country, so far as concerns lands held by the Federal government, aliens are not excluded from taking by purchase or succession;® but, as to property under state juris- diction, each state (unless overriden by Federal treaties) is supreme. The legislation that has ensued is very diversified, and is modified from year to year, though at present the states may be divided into two general groups, — those which have re- moved all restrictions on alien land proprietorship, and those which make such proprietorship dependent on residence, al- lowing, at the same time, to aliens taking by descent a reason- able time to dispose of their estates.' ISTor would it be just to impute this limitation to feudal traditions or to provincial resident in Ita,ly. See summary by 1 Wall. 5, 17 L. ed. 515; Phillips v. Professor Esperson, of Pavia, in Moore, 100 U. S. 208, 25 L. ed. 603; Journal du droit int. priv6, 1879, Mimro v. Merchant, 28 N. Y. 9. See p. 329. Barrow v. Wadkin, 24 Beav. 1, 3 Jur. The true position to be assumed in N. S. 679, 5 Week. Eep. 695. this relation is exhibited with much ability by M. Charles Broeher, pro- So, it is established by the United fessor of civil law in Geneva, in a states Supreme Court, in the absence series of articles in the Revue de ^^ ^ ^^^^^^^ ^^ ^^^ contrary, that an droit int. et de 16gis. comparee, vol. , , , , iii. pp. 412, 540; vol. iv. p. 189; vol. ^li™ may take real property by deed V. pp. 137, 390. He starts with the or devise, and hold it against anyone following principles : (1) Everyman but the sovereign, until office found, is entitled to enjoy civil rights, ^^^ ^^ ^^^^_ Gouverneur v. Robert- whether at home or abroad ; (2) every , .„„ man is entitled to know by what laws «o». ^ Wheat. 332, 6 L. ed. 488; his person, his conduct, and his prop- Gross v. De Valle, 1 Wall. 5, 17 L. ed. erty will be judged; (3) this should 515. be determined in a way to preserve vested rights. And he quotes the fol- 4 Oomyns' Digest, Alien, C. (3). lowing striking remark from Neckar : 5 See post, § 332. "The government which would dis- 6 See Brightly's Digest, title Land, courage foreigners from visiting our Pre-emption. See also Lawrence realm, and there exchanging their Com. sur Wheat, iii. 89; post, § 582. gold for the productions of our in- dustry, acts as irrationally as the '^ The general tendency of legisla- government which would pass a law tion in the states is toward the re- directly forbidding the exportation of ^^^^^ ^^ ^jj restrictions upon the such productions." Jour, du droit .,,„,. j. . ,, , _j.„ int. privS, 1874, p. 113. ^^^^^ °^ *'^^"^ *° ^°^^ ^^^^ property. 3 Comyns' Digest, Alien, C. (3); Any generalization upon the subject, Co. Litt. 2 b; Craig v. Radford, 3 however, is of little value, as it is Wheat. 594, 4 L. ed. 467; Doe exdem. governed by the local statutes of the Gouverneur v. Roiertson, 11 Wheat. ,. . . 332, 6 L. ed. 488; Cross v. De Valle, respective states. § 17] PRELIMINARY PRINCIPLES. 67 prejudices. The states adopting it have been the foremost to welcome immigrants. They hold, however, as a matter of policy, that it is better that their soil should be occupied and tilled by bona fide settlers, than that it should be held unoccu- pied and untilled, in large blocks, by foreign capitalists. And however mistaken this may be, the issue between resident pro- prietorship and absentee proprietorship is one as to which lib- eral statesmen may be allowed to differ, and which can properly be remitted to local policy to determine. For some time it was an open question whether the Federal government, by treaties with foreign states, could override state laws limiting the capacity of aliens to hold real estate.® It is now finally settled that treaties executed by the Federal gov- ernment with foreign states, giving the citizens of such states power to hold lands, are part of the local law of each state. ^ On the acquisition by aliens of personal property the Eng- lish common law places no restriction. "An alien friend may, . . . by the common law, have, acquire, and get within this realm, by gift, trade, or other lawful means, any treasure or goods personal whatsoever, as well as an Englishman, and may maintain any action for the same."-"* Such has always been accepted as the common law in the United States, subject, however, to such restrictions as local policy may impose upon the right of holding and transferring interests in those public institutions or engines of trade whose existence is politically associated with that of the state. A conspicuous illustration of this exception is found in the navigation acts of England and of the United States, by which, under a policy which, how- ever mistaken, is undoubtedly within the exercise of constitu- tional administrative prerogative, none but subjects or citizens can be owners of registered ships, entitled to the protection of 8 See Ware v. Hylton, 3 Dall. 242, sonable time. The constitutionality, 1 L. ed. 240 ; Fairfax v. Bunter, 7 so far as concerns the states, of these Cranch, 627, 3 L. ed. 461; 8 Ops. treaties, is discussed by the same Atty. Gen. 415; Halleck, Interna- learned author. Ibid. pp. 88, 89. tional Law, 157; 4 Kent, Com. 420; ^Hauerstein v. Lynham,, 100 U. S. 3 Jeff. Works, 365; Dana's Wheaton, 483, 25 L. ed. 628. p. 139, note. In Smith v. Mulligan, 11 Abb. Pr. In Lawrence Com. sur Wheat, iii. N. S. 438, it is held that the fact of 86, ia given a summary of the trea- the alienage of the father will not ties of the United States with other impede the descent of real property powers which give subjects of such from one brother to another, both be- powers the right, if incapacitated by ing citizens. a state law from inheriting real es- lo Lord Coke, in Calvin's Case, 7 tate or disposing of it within a rea- Coke, 17 a. 68 PRELIMINARY PRINCIPLES. [Chap. I. the national flag. This restriction, it is argued, is necessary, not merely to ascertain and protect maritime ownership, ^ ^ but to prevent an essential branch of national industry and wealth passing into foreign hands. The same reasoning also applies to restrictions by which the control of our great railroad and banking corporations is placed under territorial check. ^^ When war exists between states, however, these reciprocal rights of their subjects cease. Contracts witJi an alien enemy are void ; nor can he maintain suit during war ; nor, even after peace, as to a cause of action arising during war.-'^ Aliens, in the United States, may take out patents,^* but not copyrights, which are restricted to citizens or residents.^' But no vessel can be registered as of the United States, imless wholly owned by a citizen, and commanded by a citizen. ■'•* In Canada, ISTova Scotia, British Columbia, 'New South Wales, Greenland, New Zealand, India, and, in fact, the Eng- lish dependencies in general, aliens have the same rights as subjects as to holding or devising lands.-''' Holland adopts the test of reciprocity, but subjects nondom- iciled aliens to several onerous restrictions in matters of proc- ess. They are liable to arrest on mesne as well as on penal process, and are excluded from the benefits of bankruptcy.'* Domicil may be obtained by special license, or by continuous residence for six years, accompanied by an announcement to the government of the animus manendi. ^ ® Prussia imposes no restrictions on the capacity of individual aliens to acquire, hold, or alienate any species of property. Eoreign corporations, however, and other artificial persons cannot, without license, either take under wills or hold immov- able property. The relations of aliens, so far as concerns busi- ness capacity, are governed by the principles of reciprocity. Unnaturalized foreigners, however, by the law of October 28, 1867, cannot adopt, when OAvners of merchant ships, the !N"orth 11 Maclachlan, Merchant Shipping, chap. 565, § 13 (26 Stat, at L. 1110, p. 27^ note 1. U. s. Gomp. Stat. 1901, p. 3417), 12 See po^t %l 305 etseq. ^j^j^j^ ^^ ^^ ^.j^^ rinciple of reci- 13 See post, §§ 497, 737. \ J j . 14 See post, § 325; U. S. Rev. Stat, procity as to granting of copyrights I 4887, U. S. Comp. Stat. 1901, to citizens and subjects of other p. 3382. countries. 16 See post, § 327; U. S. Rev. Stat. % 4971. 16 U. S. Rev. Stat. § 4133. 17 Cockburn, Nationality, p. 176. This reproach has since been re- is Code, §s 710, 769, 770. moved by the act of March 3, 1891, is Ibid. § 8. § 17] PRELIMINARY PRINCIPLES. 69 German flag and nationality; nor can foreign companies, for insurance or emigration, by the act of May 14, 1853, do busi- ness without special license; nor, -without such license, in de- fault of treaty sanctions, can foreign houses establish perma- nent business agencies in Prussia. In Austria, no foreigner can act as advocate, broker, or no- tary; nor can he, without license, exercise a public trade. In other respects reciprocity is the test.^° Bavaria, by the trade law of 1868, establishes restrictions similar to those of Prussia. By the law of January 30, 1869, the permanent residence of aliens, under the age of thirty- eight, as unnaturalized foreigners, is prohibited. In Saxony, to adopt Lord Chief Justice Oockburn's sum- mary,^ ^ "every foreigner who desires to become possessed of landed property in town or country, with personal residence, must first be naturalized; but naturalization is not required (1) for such as hold landed property in Saxony on which they are not domiciled, and which is under foreign management; (2) for foreigners who acquire landed property in Saxony with habitual residence, but who usually reside abroad, so long as they continue abroad; (3) when a wholesale business or manu- facture is established in the country by a foreigner residing abroad. In the two latter cases there is a condition that the obligations of citizenship which attach to a property or under- taking shall be fulfilled by a proper native representative." In Wiirtemberg ah alien is entitled to the same civil rights as a subject, "if a similar liberty be granted to Wiirtemberg subjects by the country of the alien."^^ In Russia, since 1860, aliens may hold landed as well as other property and engage in trade. ^* In Norway and Sweden, the doctrine of reciprocity is main- tained; aliens being entitled to the same civil righte in those countries as are granted to subjects of Norway and Sweden in the countries to which such aliens belong. ^ * The right to exclude or banish aliens was assumed by the United States in the alien and sedition acts,^' and by England 20 Code, p. 136; Jour, du droit int. 23 Rep. of Eng. Roy. Com. of 1868, privg, 1880, p. 329. Appendix, p. 128; Cockburn, Nation- al Cockburn, Nationality, p. 167. ality, p. 171. 2 2Appendix to Report of Eng. Roy. 2 4 Cockburn, Nationality, p. 172. Com. on Naturalization, p. 136. See, 2 5 See U. S. Rev. Stat. § 4067, U. S. as to treaty between United States Comp. Stat. 1901, p. 2762. and Wiirtemberg, post, § 644. 70 PRELIMINARY PRINCIPLES. [Chap. I. at the time of the Fenian insurrections in Ireland, as well as at many prior periods.^® By the states of the continent of Europe this power is regarded as one of police regulation in- herent in the very nature of sovereignty.^' Subject to this qualification, and to those already stated, aliens, according to a settled principle of present international law, have the same capacity for rights as subjects.^* 2 6 McCarthy's Own Times (1880), chap. 53. -^ See Cockburn, Nationality, Lon- don, 1S69, p. 99; U. S. Diplomatic Correspondence, 1868, pt. i. 2 8 This is one of those general max- ims which jurists of all schools unite in accepting. It was announced in the Middle Ages as one of the neces- sary consequences of the doctrine of the unity of all nations under Pope and Emperor, which was then as- sumed {see Baldus in L. Si non spe- eiali 9, num. ii. C. de test.; Barthol. de Saliceto in L. Cunetos C. de S. Trin. num. 8) ; and though this ideal unity has long since been abandoned, the maxim that both as to civil and penal law the alien visitor is to have the same rights as the subject has been maintained even by the jurists of countries where the practical dis- criminations between subject and alien are most numerous. Tlius, for instance, we find this maxim sup- ported alike by Bl. Com. 372 ; 1 Burge, Colonial & Foreign Laws, p. 669; Stephen, i. p. 453; Bluntschli, VBl- ker. §§ 360-381; Mittermaier, D. Privatr. 6 Aufl. § 109; Feuerbach, Tliemis, p. 325; Kostlin, § 23; and Mevius, in Jus. Lub. Proleg. qu. 4, § 37. Only in France has the maxim failed in support. Droits naturels, it is true, French jurists concede to belong to aliens visiting France, but not droits dvils, which belong exclu- sively to French subjects. Mass6, ii. p. 22. But, as Bar (p. 65) well says, this distinction is absurd. The rights secured to aliens by treaty, for instance, cannot be called droits nat- urels. Tliey are the creations of posi- tive artificial law, often securing privileges which no one could view as natural rights. Yet, while this is the case, no French jurist disputes that aliens in France are entitled to the rights secured to them by such treaties. But however untenable is the the- ory just stated ( see Savigny, Syst. ii. p. 154, and Gand, No. 135), the French Code has made it the basis of much legislation as to aliens. By art. 13 {post, § 77), only such strangers as have acquired a domieil witli the sovereign's permission can enjoy droits civils; though what droits civils are is not defined. Mail- her de Chassat, as cited by Bar (p. 66 ) , rejects the distinction, view- ing only such rights as are strictly political as the exclusive preroga- tives of Frenchmen. To foreigners he would concede all the civil rights of the subject, with the exception of such as it is necessary to modify in consequence of the foreigner's pecu- liar facility in the escape of process. So, also, Demangeat (note to Foelix, i. p. 87) adopts Gand's statement: "Pour nous I'gtranger a la jouissance de tons les droits civils qui appar- tiennent au Frangais 3- I'exception de ceux, qui lui sont positivement de- nigs." The French courts, however, have felt themselves bound to carry out the distinctions of the Code, and have gone so far as to hold that a foreigner, not being entitled to droits ciinls, could not be adopted by a French subject; a decision, as Bar (p. 67) justly remarks, not very con- sistent with the liberality which per- mits foreigners to organize large fac- tories in France, placing under their control and influence great multi- tudes of Frenchmen. So, accordini to Masse (ii. p. 32), no foreigner can be an attesting witness to a French instrument, — a disqualification which can injure only Frenchmen interested in the maintenance of such contracts 18] PRELIMINARY PRINCIPLES. 71 18. Objective as well as subjective jurisdiction over crime. — The old law, in regarding crime as an incident of the person, treated the place where the alleged offender was at the time of the commission of the crime as the place by whose authorities the crime was cognizable. Several conditions, however, have recently interposed to make the adoption of this as an absolute rule impracticable. 1. Men no longer act on each other with- in arm's length. Cannon are constructed which can send balls from 9 to 10 miles, so that on the subjective theory (i. e., that of the locality of the perpetrator of the crime), instead of the objective (that of locality of the crime itself), freebooters might plant themselves on the other side of the boundary be- tween the United States and Mexico ; ^ and might with impun- ity desolate our country 9 miles deep. On the subjective theory, we could not ask for them extradition, since we had no jurisdiction of the crime, nor could we even punish them or wills as foreigners may have inad- vertently attested. Post, § 588. A^ittel introduces an eccentric ex- ception to the general rule of the equality of foreigners with subjects as to the capacity for rights. He de- clares (ii. § 88) that the title to all waifs, and things without rightful owner, belongs to the inhabitant of the soil; and that, therefore, no for- eigner has a right to hunt or fish, even where hunting and fishing are free, and that, unlike an inhabitant of the country, a foreigner has no title to treasure-trove. But the very idea of a waif or thing without o^vne^ e.Kcludes this common proprietary ownership which Vattel here assumes. There are, however, many instances in which certain rights of piscary or vcnory (see Bl. Com. book 2, chap. 27; Hollinshed, Descrip. of England, ii. chap. 19) were in England reserved by custom to particular villages in common, and in this ease an .ilien, by force of this custom, was excluded. But this was not the case of owner- less things. There were o^vners, and tliese the villagers in common. Retortion is adduced as another limitation of that equality between subjects and aliens of vrhich the text speaks. Retortion is the retaliation on a foreigner of such disabilities as are inflicted by the foreigner's sover- eign on the subjects of the retaliat- ing state. It is essential, however, to the equity of retortion, that the dis- abilities retaliated should have been imposed by the foreign sovereign on aliens as aliens. If these disabilities are imposed alike on subject and alien, then other states have no right to complain. Retortion, as Is shown by Hefl'ter (Viilkerr. p. 199; and see Lawrence's Wheaton, p. 505 ) , is only justifiable when its object is to re- move unfair discriminations against our own citizens; nor can it properly be employed in order to coerce other states to the adoption of our juris- prudence. And it is clear that retor- tion is a high governmental preroga- tive, to be applied by the executive and legislature, and not by the judi- ciary. i'"The United States," says Mr. Evarts, in a letter dated August 13, 1878, to Mr. Foster, American minis- ter at Mexico (Foreign Relations U. S. for 1878. p. 575), "have not sought the unpleasant duty forced on them of pursuing oflfenders who, under or- dinary usages of municipal and inter- national law, ought to be pursued and arrested in Mexico. Whenever Mexico will assume and effectively exercise that responsibility, thf^ United States will be very glad to be relieved from it." 72 PRELIMINARY PRINCIPLES. [Chap. I, should they subsequently visit our land. Nor is this all. De- structive agencies can be sent by mail or by express thousands- of miles; and conspiracies, by means not merely of the mail, but by the telegraph, can be so operated as to bring to bear at a particular center forces organized in countries widely apart. 2. The new phase assumed in more recent times of offenses against government adds additional force to the objective the- ory. Forgeries of government securities could be consum- mated with comparative immunity if the counterfeiter could escape punishment by conducting his operations in a foreign land. The great increase of foreign travel, and the conven- iences of European life, have led many citizens of the United States to take up their residence in Europe, and special stat- utes have been passed authorizing them to perform certain offi- cial acts before consuls abroad; but these acts might be impugned, and gross wrongs perpetrated, if persons of this class were not justiciable, when returning to their own land,, for forgeries or false oaths consummated before such consuls. The same observation applies to false affidavits made before foreign consuls as to goods to be sent to the United States. 3. Another objection to the subjective theory may be drawn from the extension of mercantile adventure on the sea and in barba- rous lands. Eor a long while the high seas were considered as. beyond the jurisdiction of any English common-law court. Buccaneers of all classes were permitted to range the ocean un- molested, so far as any show of penal jurisdiction was con- cerned ; and as late as the days of Queen Elizabeth, privateers brought unchallenged into English port spoils which they had wrung in times of peace from foreign ships. The attempts made to punish on land offenses committed on shipboard were but slight. The admiralty, it is true, claimed authority; but the high admiral administered, according to forms which were at once odious, capricious, and inadequate, only a quasi court- martial jurisdiction belonging to him as head of the fleet. The appeals to this jurisdiction, however, were rare. The usual remedy for unsuccessful revolt was summary punish- ment on shipboard ; and as to this the officers exercised despotic sway. When revolt was successful, all that was -necessary was for the culprits to take refuge in a foreign port, and there tri- umphantly to defy pursuit. Nor was it any better in settle- ments made in barbarous or desert lands. The flag, it used to be thought, would punish for itself. Wrongs inflicted on other § 18] PRELIMINARY PRINCIPLES. 73; Englishmen, the head of the expedition, if not the wronged party, "would avenge; for wrongs inflicted on the savage there- was no avenger. The consequences were disastrous. Men left England to plunder on the high seas or in the Indies, and came back to enjoy their plunder in conspicuous but undis- turbed repose. If only the place where the offender stood at the time of the offense has jurisdiction, then of offenses of this- class there is no court of any country that has jurisdiction. The difficulty, however, is met by the adoption of the objective- theory, — the theory that the country in which the crime takes effect has jurisdiction to punish the offender. A crime, there- fore, that is committed on a United States ship on the high seas, the ship being part of the dominion of the United States,, is cognizable in a United States court. And as all civilized nations have a common right to the high seas, piracy on the high seas is cognizable in the courts of all civilized nations.^ 4. The subjective theory rests on a petitio prlncipii. "This place," such is the assumption, "has jurisdiction because the defendant was in it at the time of the commission of the crime." It makes, therefore, jurisdiction dependent upon the guilt of a party whose guilt is not proved. ^ 2 It may be said that the principle be, not where the offender was at the advocated in the text militates with time of the offense, but where the the provision in the Constitution of crime itself was committed, — i. e., the United States that a, criminal consummated. See fully, Wharton, trial shall be "in the state or district Crim. Law, 8th ed. §§ 271 et seq. wherein the crime shall have been I have discussed the -topic in the committed." If so^ all prosecutions text at large in an article in I Crim. in Federal courts for offenses on the L. Mag. Nov., 1880, pp. 689 et seq. high seas, and for counterfeiting in foreign countries, militate against ^ ^°^ crimmal Jurisdiction gener- this section. But the true meaning ally, see post, §§ 810 et seq. of the section is that the trial must CHAPTEE IL DOMICIL. I. Depinition. 20. Domicil determines personal capacity and liability 21. Domicil is a residence acquired as a final abode. 21a. Same; residence and intention to remain not essential to continuance of domicil once acquired. 21b. Distinction between residence and domicil. 22. By Savigny it is a, place voluntarily selected as a center of business. 23. By Vattel it is a residence adopted with the intention of always staying. II. HiSTOEICAL DEVE'LOPMEJSTT. a. Roman law. 24. By old Roman law, membership of urban community was by origo or domicilium. 25. Under origo was included birth, adoption, manumis- sion, and enfranchisement. 26. By subsequent laws citizenship was generally conferred. 27. Domicilium was the result of choice. 28. In such case animus manendi must be shown. 29. Domicils might be plural, and there might be persons without domicil. b. Modern law. 30. The Roman origo no longer exists. 31. Domicil no longer involves subjection to an urban com- munity. 32. Domicil determines applicatory territorial jurispru- dence. 33. Impracticability of other tests of personal law. 34. Nationality cannot be taken as a substitute. III. Particular relations. a. Domicil of birth. 35. Legitimate children have same domicil with father. 36. And so, as to nationality. 37. Illegitimate children take the mother's domicil. 38. Legitimated children take the father's domicil. 39. Foundlings are domiciled in place where found. 40. Nationality distinguishable from domicil. b. Of infants. 74 DOMICIL. 75 41. Infant's domicil changes with that of father, and can- not be changed by mother, after father's death, un- less reasonably and in good faith. 41a. Domicil of child when father and mother have separat- ed or been divorced. 42. Guardian cannot change ward's domicil except by leave of court. 42a. Domicil of child after death of parents ; power of guard- ian to change. C. Of wife. 43. Wife's domicil is that of her husband. 44. Compulsory domicil of husband does not extend to wife. 45. Wife's domicil changes with her husband's. 46. Separations effected by law sever domicil. 46a. Same; continuance of unity of marriage relation as cri- terion. d. Of servants. 47. Servant's domicil depends upon permanence of service. e. Of students. 48. Student's domicil is his home. f. Of corporations. 48 J. Corporation's domicil is its center of business in the place of its creation. g. Of ambassadors and consuls. 49. Domicil of diplomatic officers is their home country. h. Of public officers. 50. Soldier's domicil is his home. 51. Removal to place of permanent office may constitute domicil. i. Of lunatics. 52. Lunatic's domicil to be fixed by court. 53. Father may change domicil of insane child. 53a. When person becomes insane after attaining majority, j. Of prisoners and exiles. 54. Imprisonment and exile do not involve change of domi- cil. 54a. Same. IV. Change op domioh,. 55. Old domicil presumed to continue until new is assumed. 55a. Continuance of old domicil until new one acquired; pre- sumption of continuance. 55i. Burden on party asserting residence is not domicil. 56. Change must be in intention and fact. 56a. Prima facie and subordinate character of rules based upon special conditions or motives. 57. Permanent residence and settled business duties may constitute change. 76 DOMICIL. [Chap. II. 58. A new domicil may be immediately acquired. 59. Original domicil does not revive on abandonment of elective. 60. Such revival inconsistent with American policy. 61. Intention to be inductively proved. 61a. Question of law or fact. 61i. Recitals in documents admissible. 62. Declarations admissible to prove intent. 63. Exercise of political rights at u, particular place not conclusive proof of domicil. 64. Naturalization in another country strong proof of domi- cil in such country. 65. Payment of personal taxes is cumulative proof. 66. Domicil not dependent upon time. V. Conflict of eesidences. 67. Home preferred to place of business. 68. Otherwise as to men without families. 69. Permanent preferred to occasional residence. 69J. And so, to place for restoration of health. 70. Commercial domicil may be obtained in foreign civilized! land. 71. Otherwise as to barbarous lands. 72. Only one domicil for status and succession. 73. Otherwise as to matters political, commercial, and mat- rimonial. 74. One domicil only for poll and succession taxes. VI. Political consequences. 75. Domicil does not include political rights. 76. Asylum as well as residence required. 77. Distinctive French rule. 77J. Domicil not internationally aflfected by local statutes. VII. Want of domicil. 78. When other conditions fail, residence may be the test.. VIII. Taxation. 79. Taxation by Roman law generally through municipali- ties. 80. Personal taxes governed by personal law; real taxes by lex rei sitas. 80a. Limitation of taxing power as affected by situs of prop- erty, generally. 80b. Property in transit. 80c. Situs of debts and credits; "business situs." 80d. When legal title vested in trustee. 80e. Corporate shares. 80i. Succession taxes governed by the lex domicilii. 80f. Principle governing exaction of succession taxes, gen- erally. 80g. Same; as to real property. § 20] DEFINITION. 77 IX. Jurisdiction (foeum) attached to domicil. 81. Defendant's domieil in Roman law may fix forum. 82. So, in modern Roman law. I. Definition. 20. Domicil determines personal capacity and liability. — As- suming, in conformity with the conclusions which have been just stated, that domicil, not nationality, is the arbiter of per- sonal law, the importance of determining in what domicil con- sists becomes manifest. By the law of domicil, capacity, if not absolutely and ubiquitously determined, is primarily de- fined. By the law of domicil state taxation is adjusted. By the last domicil of a decedent is the succession of his personal estate shaped. By matrimonial domicil is the condition of the matrimonial estate prescribed. Domicil is the international standard by which jurisdiction in divorce suits is adjudged. The domicil of debtors, of factors, of contractors of all kiiids, may become an important ingredient in the engagements they undertake. As preliminary, therefore, to a more minute disr cussion of the points to which the law of domicil is applicable, let us inquire is. wUat domicil consists. 21. Domicil is a residence acquired as a final abode. — ^Domicil is a residence acquired as a final abode. To constitute it there must be (1) residence, actual or inchoate; (2) the nonexist- ence of any intention to make a domicil elsewhere. ^ 1 Sir R. Phillimore (iv. p. 43), proof is now understood to be "pre- after showing the inadequacy of prior sumptive," i. e., inferential or cir- definitions, proceeds as follows : "Per- eumstantial, it is hard to see in what haps the American judges have been "positive," in this definition, differs the most successful in their attempts, from "presumptive." And in any and from a combination of their dicta view the terms are redundant as here upon different occasions, we may ar- used. rive at a tolerably accurate definition Mr. Dicey, in his work on Domicil, in designating it 'a residence at a p. 42, says that "the domicil of any particular place, accompanied with person is, in general, the place or positive or presumptive proof of an country which is in fact his perma- intention to remain there for an nent home; but is in some cases the unlimited time.' " Domicil, p. 13, place or country which, whether it be H XV. To this he cites Ouier v. in fact his home or not, is determined O'Daniel, 1 Binn. 349, note, giving as to be his home by a rule of law." For definition "a residence at a particu- the statement that "domicil means lar place, accompanied with positive permanent' home," he cites Lord or presumptive proof of continuing Cranworth, Whicker v. Hume 28 L. it an unlimited time." See also J. Ch. N. S. 396, 400, 7 H. L. Gas. 124, Laneuville v. Anderson, 17 Jur. 511, 4 Jur. N. S. 933, 6 Week. Rep. 813; 22 Eng. L. & Eq. Rep. 642, 9 Moore, Atty. G-en. v. Rowe, 31 L. J. Exch N P. C. 0. 32.5, 2 Spinks, Eccl. Rep. 41; S. 314, 320, 1 Hurlst. & 0. 31, 8 jur. Greene v. Windham, 13 Me. 225; Put- N. S. 823, 6 L. T. N. S. 438, 10 Week. nam, v. Johnson, 10 Mass. 488; Daniel Rep. 718. I prefer the term "final'' V. Sullivan, 46 Ga. 277. But as all to "permanent." I may abandon my 78 DOMICIL. [Chap. II. 21a. Same; residence and intention to remain not essential to continuance of domicil once acquired. — The rule of the last sec- tion^ — at least, if the word "inchoate" is not regarded as dis- pensing with the necessity of actual presence — is practically undisputed as applied to the requisites of a change of domicil ; hut a domicil once acquired, whether a domicil of origin or a home in my present domicil, and may expect to be absent for years; yet if 1 intend to return and resume my home in this domicil, it continues my domicil. Compare article in London Law Mag. for 1873. "It would be a dangerous doctrine to hold that mere residence, apart from the consideration of circum- stances, constitutes a change of domi- cil, A question which no one could settle would immediately arise, — namely, what length of residence should produce such consequence. It is evident that time alone cannot be tlie only criterion. There are many cases in which a very short residence would constitute domicil, as in the case of an emigrant, who, having wound up all his affairs in the coun- try of his origin, departs with his wife and family to a foreign land and settles there. In a case like that, a residence for a very brief period would woi'k a change of domicil. "Take a contrary case, where a man, for business, or pleasure, or mere love of change, is long resident abroad, occasionally returning to the country of his origin, and maintain- ing all his natural connections with that country; the time of residence would not to the same extent, or in the same degree, be proofs of a change of domicil." Hodgson v. De Beaiichesne, 12 Moore, P. C. C. 285, 7 Week. Rep. 397 {Per Curiam). It is impossible to get at the true idea of domicil unless we take into consideration the fact that it is the family relation which it is the domi- nant policy of the state to preserve. Hence it is that private international law envelops a man in the jurispru- dence to which his home is subject. The jurisprudence in which he places this home is that in which he himself is placed. He may be absent for a series of years in a foreign land, yet by the law of his home is he gov- erned, and not by the law of his for- eign residence. He is taxed by his home law. His relations as to the three great decisive epochs of life — birth, marriage, and death — are de- termincid by his home law. The home of his family determines the law reg- ulating his personal status, though he may be born when his parents are far distant from that home. His home determines the legal duties and privileges of his marriage, though he may be married in a foreign land. His home gives the law by which his property is to be distributed on his death, no matter how remote from home may be the place in which he dies. It would seem as if the law of nations, in its tenderness for human- ity, had summoned, as man's attend- ant in the most critical junctures of his life, the genius of home, and had given to that genius supreme judicial control. What the lex domicilii, or the law of home, decrees at these junctures, is the law that is final. The reason of this is plain. It is the family that is to be preserved, for the sake both of the man himself and of the state. The man will be a va- grant, the state will be dissolved, un- less the family be preserved; and this preservation of the family is the first duty of the law. And the application is obvious. The sanction which civil- ized nations have agreed to impose, we, as a nation peculiarly dependent on family purity and integrity for our well-being, must hold sacred. In treating judicially of the law of dom- icil, we must in no case forget that, by reason as well as by authority, the law of domicil is the law of home. An expansion of the same thought § 21a] DEFINITION. 79 domieil of choice, may continue without either of these requi- sites. This is obvious from the principle subsequently dis- cussed, that a domieil once acquired continues until the acqui- sition of a new domieil by the concurrence of these requisites. It is apparent from the latter principle that the old domieil may continue, although there is no longer a residence there, and even though there is aji intention to make a domieil else- where, if that intention has not been put into effect by the con- currence of residence in a new locality, and the intention of remaining there permanently, or for an indefinite time. 21b. Distinction between residence and domieil. — The defini- tion of domieil in a previous section, and the definition some- times substituted therefor, — namely, that domieil is residence at a particular place with no present intention of removing,^ — imply that the intention to remain is the characteristic that dis- tinguishes domieil from residence; but as the term "residence" itself implies some idea of permanency, as distinguished from mere temporary locality of existence, it is obvious that the character of the intention to remain, rather than its existence or nonexistence, is the distinguishing feature. Probably no more accurate abstract statement of the distinction can be found than that embodied in the following quotation from a Virginia is found in the celebrated Roman defi- where a statute requires that a per- nitions : "Earn domum iinicuique son, in order to be entitled to sue for nostrum debere existimari ubi quis- a divorce, should be a, resident of a, que sedes et tabulas haberet sua- state, this is interpreted to mean rumque rerum constitutionem fecis- domieil, — e. g., residence as in a final set." L. 239, § 2, de v. s. "Et in home; since the legislature could not eodem loco singnlos habere domieil- have meant to base such jurisdiction ium non ambigitur, ubi quis larem on a flying visit, when the party's es- rerumque ac fortunarum summam tablished home is elsewhere. See constituit, unde rursus non sit disces- Hinds v. Hinds, 1 Iowa, 36; State v. surus, si nihil avocet, unde quum^ pro- Minniolc, 15 Iowa, 123. Post, § 223. fectus est, peregrinare videtur, quo si -A-S is well said by Mr. Lawrence, rediit, peregrinari jam destitit." L. Com. sur Wheat, iii. 98, the recogni- 7, c. de in oolis 10, 39. This is illus- tio° of »■ possible change of abode is trated post, § 67. "°t inconsistent with the idea of Residence may be treated as con- domieil. vertible with domieil when required by the terms of a statute. Thus, ^Lindsay v. Murphy, 76 Va. 428 ■80 DOMICIL. [Chap. II. -case: "To constitute a domicil two things must concur: First, residence; secondly, the intention to remain there. . . . To reside in a place is to abide, to sojourn, to dwell there per- manently, or for a length of time. It is to have a permanent abode for the time being, as contradistinguished from a mere temporary locality of existence."^ The distinction is further illustrated by the concrete application made of it in the same -case. The court assumed that a railroad contractor retained his domicil in Washington while engaged in the performance of a contract for the construction of a road in Virginia, it ap- pearing that he had no intention of remaining in the latter state after the completion of the contract; but nevertheless held that he was a resident of Virginia, for the purposes of its attach- ment laws, during the period he was engaged in the perform- ance of the contract, it appearing that he had rented his house in Washington, and removed his family to a place on the route of the road, and kept house there. The distinction between residence and domicil, however, is not always preserved by legislatures and courts. The term "residence" is frequently used in legislative enactments in the sense of domicil, or at least in a sense that closely approximates the idea of domicil. This is notably true of local statutes mak- ing the residence of plaintiff within the state a condition of the jurisdiction of a suit for divorce. Such statutes are generally -construed to require residence in the sense of domicil, or at least residence animo manendi. Domicil, in respect of its acquisition, is a more onerous con- dition than residence, but in respect of its retention may be less -onerous, since, as already shown, a domicil once acquired may -continue, although no longer accompanied by residence or in- ^hong V. Ryan, 30 Gratt. 718. See Htout v. Leonard, 37 N. J. L. 492; also, for other statements of the dis- State ex rel. Harmon v. Grizisard, 89 tinction between residence and dom- N. C. 115. dcil, Krone v. Cooper, 43 Ark. 547; % 21b] DEFINITION. 81 tention to remain. Thus, a person removing from one state to another can more easily satisfy the requirement of residence than that of domicil made by a statute of the latter state, sup- posing the term "residence" to be used in its strict sense, and as contradistinguished from domicil; but a person who had previously been an inhabitant of the latter state may be able to satisfy the requirement of domicil, after he has become unable to satisfy the requirement of residence.* 22. By Savigny it is a place voluntarily selected as a center of business. — Savigny's definition declares domicil to be that place which an individual has voluntarily selected as a permanent residence, and as the center of his legal relations and his busi- ness; such residence excluding neither transient absences nor future change, the right to make which is from the nature of things reserved.-' This definition, however, is open to two serious objections: (1) It does not apply to domicil by birth; (2) it sinks the home in the business center, whereas the pres- ent rule is to sink the business center in the home. N'o matter where a man's business is centered, still, as we shall soon see more fully, it is the home, and not the business site, that de- termines his personal relations. 3 The point made in the text is guished from his legal residence, he illustrated by the case of Tipton v. may have an actual residence in an- Tipton, 87 Ky. 243, 8 S. W. 440, other state or country. He may abide which held that the provision of the in the latter without surrendering Code, that plaintiff to obtain a di- his legal residence in the former, pro- vorce must allege and prove, inter viding he so intends. His legal resi- alia. residence in the state for one dence, for the purposes above indi- year next before the commencement cated, may be merely ideal, but his of the action, required an actual resi- actual residence must be substantive, dence, and not a mere legal residence He may not actually abide at his (which the court treated as equiva- legal residence at all; but his actual lent to domicil) within the state, residence must be his abiding place.'' The court, using the term "legal res- idence" in the sense of domicil, said : i This last expression may be "His legal residence consists of fact viewed as corresponding to the "float- j • ? X- u ii. 4. '"g intention to return at some fu- and intention; both must concur; ^^% period," which Judge Story re- and, when his legal residence is once gards as consistent with a domicil by fixed, it requires both fact and inten- choice. See post, §§ 23, 46. tion to change it. As contradistin- VoL. I. CoNix. OF Laws — 6. 82 DOMICIL. [Chap. II. 23. By Vattel it is a residence adopted with the intention of always staying. — The definition of Vattel is "a fixed residence in any place, with an intention of always staying there.'" Judge Story, in commenting on this, justly remarks:^ "This is not an accurate statement. It would be more correct to say that that place is properly the domicil of a person in which his habitation is fixed, without any present intention of removing therefrom."* Another objection to "Vattel's definition is that he makes "an intention of always staying^' a condition of dom- icil; whereas the intention may be to make the place selected a home from which many and long excursions may be taken. This will constitute domicil if the intention be to make the place a final home. II. HiSTOEICAL DEVELOPMENT. a. Roman law. 24. By old Roman law, membership of urban community was by "origo" or "domicilium." — In the view of the earlier Eoman jurists, as we learn from Savigny, whose masterly treatise Vi'ill be frequently appealed to in the present discussion,^ all Italy, 1 Law of Nations, book 1, chap. 19, habitation without any present in- § 218. tention of removing therefrom. . . . 2 Confl. L. § 43. "A mere intention to remove 3 The same eminent commentator permanently, without an actual re- afterwards states that a domicil may moval, works no change of domicil ; be obtained by removal, with an in- nor does a mere removal from the tention of remaining for an indefinite state without an intention to reside time, notwithstanding the party else«-here. But when a person sells "may entertain a floating intention to all his land, gives up all his business return at some future period." § 46, in the state in which he had lived, citing (Sears v. Boston, 1 Met. 250 ; takes his movable property with him, Thorndike v. Boston, 1 Met. 242. See and establishes his home in another also the comments on this expression state, such acts prima facie prove a of Judge Story, in Mr. Guthrie's change of domicil. Vague and uncer- learned note, in his translation of Sa- tain evidence cannot remove the legal vigny, p. 62. presumption thus created. Story, In Hindman's Appeal, 85 Pa. 466, Confl. L. § 46; Wilbraham v. Ludlow, Mercur, J., said: "Vattel defined 99 Mass. 587; Harris v. Firth, 4 domicil to be a fixed residence, with Cranch, C. C. 710, Fed. Cas. No. 6,- an intention of always staying there. 120." This definition is too limited to ap- That intended occasional absences ply to the migratory habits of the do not interfere with the adoption of people of this country. So narrow a a particular place as a domicil, see construction would deprive a large Anderson v. Anderson, 42 Vt. 330, 1 proportion of our people of any dom- Am. Kep. .334; Wilbraham v. Ludlow, icil. The better definition is that 99 Mass. 587. __ place in which a person has fixed his i Op. cit. viii. § 351. § 24], HISTORICAL DEVELOPMENT. 83 outside of the city of Eome, consisted of an aggregation of ur- ban communities, to which were generally assigned the titles of municipia or coloniae, each of which had its own special magistrates, jurisdiction, and municipal legislature. Every inhabitant of Italy belonged either to Rome or to one or more of those urban communities. In contemplation- of law, if not in practical completeness, this system, at the time when the great jurists wrote, was so far extended over the whole empire, that each subject of the emperor was assigned to one or the other of these localities. According to the jurists, membership in these urban communities was acquired in two distinct ways : (a) by citizenship (origo) ; and (6) by domicil (domicilium). 25. Under origo was included birth, adoption, manumission, and enfranchisement. — (a) Origo — Under this title, citizen- ship was said to accrue through birth, adoption, manumission, or enfranchisement.* Birth. — This, as the most common method of acquiring cit- izenship, is frequently {origo, nativitas) employed to describe this form of citizenship in general. It was constituted by birth, in a legal marriage, when the father was himself a citi- zen.^ Illegitimate children acquired citizenship in the native place of the mother.^ Adoption. — The adopted child took, in addition to his own civic right (Bilrger-recht) , that conferred on him by his adopt- ing parent; and this double citizenship descended to his chil- dren.* By emancipation or release, however, of the adopted child, this civic effect of adoption was destroyed. Manumission. — The manumitted slave, who, as a slave, had previously no civic rights, acquired such, as an inheritable qaality, in his patron's native town.^ Enfranchisement. — (AUection, or election, — AUectio.) This came when citizenship was conferred on an individual by the gift of the municipality. The civic status constituted by either of these four processes could not be surrendered by the citizen's individual act with- out the consent of the municipalities. It will be seen, by an iL. 1, pr. ad mun. (50, 1) : Mu- 3 L. 1, § 2; L. 9, ad mun. (50, 1). nicipem aut nativitas facit, aut man- < L. 1, § 2; L. 9, ad mun. (50, 1). umissio, aut adoptio; L. 7, C. de in- 5 b. 6, § 3; L. 7; L. 22 pr. ; L. 37, colis (10, 39) ; Gives quidem origo, § 1, ad mun. (50, 1) ; L. 2, C. de mu- manumissis, allectio, vel adoptio, in- nic. (10, 38) ; Savigny, Vermisclite colas vero, domicilium facit. Schriften, iii. 245. 2 L. 1, § 2; L. 6, § 1, ad mun. (50, 1) : L. 3, C. de munic. (10, 38). 84 DOMICIL. [Chap. II. examination of the processes themselves, that citizenship by birth, by adoption, and by enfranchisement, were cumulative, and might each unite in the same person; and that such was the ease with the manumitted slave, who might, by manumis- sion, adoption, or enfranchisement, be brought into several communities. ' One citizen might, therefore, have civic rights, and be subject to civic burdens, in a series of such communi- ties. And such, we learn from the jurists, was often practi- cally the case." 26. By subsequent laws, citizenship was generally conferred. — A marked extension of civic rights took place first by the Lex Julia, which imparted to all Italy the rights of citizen- ship ; and afterwards by a decree of Caracalla, which conferred the same privileges on the provinces as a mass. A double mu- nicipal subjection was thereby frequently conferred.^ Yet it by no means follows that all free inhabitants of the Roman Empire were citizens of Rome, in the sense of cives Romani. Tor even after the decree of Caracalla there were numbers of persons who entered the lower class of freedmen, sometimes through imperfect manumission, and sometimes through emi- gration, who were not immediately invested with citizenship. It was, therefore, possible for persons to be free inhabitants of the empire without being citizens; though such cases were too rare and too obscure to materially affect the jurisprudence of the times. ^ 27. Domicllium was the result of choice. — (6) DomicHium. — This was the second method by which an individual could be attached to a municipal community. Domicilium (in Eng- lish, Domicil; in German, Wohnsitz) is defined by Savigny, as has been seen, to be that place which an individual has vol- untarily selected as a permanent residence, and as the center of his legal relations and of his business.-^ "Permanent resi- 6 L. 6, § 3 ; L. 7 ; L. 22 pr. ; L. 27 speaks generally, — each speaking for pr.; L. 37, § 1, ad mun. (50, I) ; L. 3, the law of his day." § 8, de mimic. (50, 4) ; L. 2, C. de 2 Savigny, viii. §§ 351, 352. munic. (10, 38). i Bar, in his learned work on In- 1 Cicero de legibus, ii. 2. "Omni- ternational Law, — a work which will bus muuicipibus duas esse censeo pa- be constantly referred to in the fol- trias, unam naturae, alteram civita- lowing pages, — accepts Savigny's defi- tis, . . . habuit alteram loci pa- nition; showing (p. 77), however, triam, alteram juris." L. 33, ad mun. that there are several cases of dorai- (50, 1 ) . Modestinus : "Roma com- cil that it does not comprehend. He munis nostra patria est." "Cicero," mentions, among these, married says Savigny, "speaks only of citizens women who follow their husbands; from Italy (mumdpes) ; Modestin children who take their parents' § 27] HISTORICAL DEVELOPMENT. 85 dence," however, excludes neither transient absences nor the possibility of. a future change; all that is excluded in this re- spect is the idea of present transientness. There must be the intention to select the spot as a permanent abode. Domicilium, as ■well as origo, founded the citizens' subjec- tion to a specific municipality. It assumed, therefore, a fixed territorial limit, and embraced, not merely the inhabitants of the city proper, but those of its outlying dependencies.^ 28. In such case animus manendi must be shown. — As an il- lustration of the strictness with which the requisite of inten- tional permanency was maintained by the ancient Koman law may be mentioned the fact that the residence of a student at an educational institution was at first held to confer no domicil, no matter for how long a time such residence continued; and the only relaxation that was granted to this was by a decree of Hadrian, that domicil might be thus acquired when the resi- dence reached ten years. And even in this case the reason seems to have been that, from so long a stay, an intention to remain might be presumed.^ The animus manendi was to be proved as a free, determinate, sincere act. It could not be es- tablished by formalities alone : "Domicilium re et facto trans- fertur, non nuda contestatione : sicut in his exigitur, qui negant se posse ad munera, ut incolas, vocari."^ So strenuous was the old Roman law in insisting on this freedom, that it treated as void conditions in wills requiring a change of domi- cil.^ But it was otherwise with general public statutes. By these, domicil could be arbitrarily established. Thus, a sol- dier was domiciled at his place of service ; * and an exile at the place of his banishment. ° The holding of real estate in a particular municipality did not by itself confer domicil there- in, nor was it necessary to domicil when otherwise constituted. ^ 29. Domicils might be plural, and there might be persons with- out domicil. — It was possible for a Roman citizen to have sev- eral domicils, when his residence was divided among several domicil; manumitted slaves, exiles, 2 L. 20, ad. mvm. (50, 1). and officers; in which two last cases, 3L. 31, ad mun. (50, 1) ; I^ 71, § domicil, being compelled by govern- 2, de cond. (35, 1 ) . ment orders, can scarcely be regarded « L. 23, § 1, ad mun. (50, 1). as accepted by choice. See also Liv. 5 L. 22, § 3, ad mun. (50, 1>. XXXV. 7; Gaj. i. § 22. 6 L. 17, § 13; L. 22, § 7, ad mun. 2 Savigny, viii. 353. (50, 1) ; L. 4, C. de incolis (10, 39). 1 L. 5, § 5, de injur. (47, 10) ; L. 23, C. de incolis (10, 39) ; Lauterbach de domicilio, § 27. See post, § 48. 86 DOMICIL. [Chap. II. homes, in each of which he conducted business or maintained legal and social relations.^ So, it was also possible, though ■unusual, for persons to be without a domicil, in the restricted sense of the term. This could happen in the following cases : — a. When a domicil is surrendered, and another sought, but not yet determined on. 6. AVhen the business of a traveling agent is adopted, with- out any settled home. c. In the case of vagrants or tramps.^ b. Modem law. 30. The Roman origo no longer exists. — In the law as it now prevails, not merely so much of the old Roman law as relates to origo has become obsolete, but that which relates to domi- cilium has been placed on a deep and permanent foundation, and endowed with almost universal range. It is true that there are some exceptions to this rule. In several cantons of Switzerland, for instance, birth in a particular community, and consequent legal subjection to the same, follows the citizen through all changes of domicil; and by this law of nativity (Heimath-recht), he continues, according to the Swiss law, to be bound, wherever he may wander. By this, and not by the law of subsequent domicil, he is governed, in the matters of marriage, guardianship, succession, and paternal power.-' In Italy still remain faint traces of the old Roman municipali- ties ; and in New England traces still fainter are to be observed in the original constitution of the towns, which the Puritan settlers, bringing with them no small knowledge of civil and caiion law, sketched after the model of the Roman urban com- munities. But those traces have vanished, or are rapidly van- ishing; and so far as concerns the question as to what territo- rial laws attach to a person, which is at the basis of the present treatise, the doctrine of subjection through birth to a munici- pality no longer exists. We may cor.sider, therefore, all that relates, in the Roman law, to origo, as canceled from our mod- ern jurisprudence.^ 1 L. 5; L. 6, § 2; L. 27, § 2, ad mim. Schwdzerische Staatsrecht betref- <50, 1) ; C. 2 pr. de sepult. in vi. (3, fende Actenstilcke, ii. 34. See Rein- 12). liold Schmid (1863), in loco. 2 Land-Streichern ; Savigny, Rom. 2 Lauterbach, de domicilio, §§ 13, Recht. viii. § 354. 14, etc. ; Savigny, viii. § 358. 1 Offizielle Sammlung der das « 31] HISTORICAL DEVELOPMENT. 87 31. Domicil no longer involves subjection to an nrban com- munity. — But how is it with domicilium? Now, in applying to our own times the Roman law as to domicil, the following qualifications are to be observed: — a. Domicil is to be detached from the idea of subjection to an urban community, with the peculiar jurisdiction recognized by the Romans. h. The jurisdiction of the d'jmicil (forum domicilii) not only remains to us, but occupies a far more exclusive and com- manding position than with the Romans. With them origo also attached jurisdiction. With us, domicil confers the dis- tinctive forum to which every man is primarily subject. c. But the law which adheres to the domicil has with us a very different compass and extent than it had at Rome. At Rome it was exactly and necessarily coincident with the limits „ „ this effect. Bar, § 31, note 12. herself thereby) ; Ryall v. Kennedy, 8 Phil. iv. 74; 2 Kent, Com. p. 224, 8 Jones & S. 347 (in absence of § 30, note; Story, Confl. L. § 506; fraud); School Directors v. James, 2 Fating,^ J Wightman, 3 Meriv 67, ^^^.^^ ^ g ggg g^ j^^ ^ 17 Revised Rep. 20; Holyoke v. Has- ^ , . ' , , o, .„ kins, 5 Pick. 20, 16 Am. Dec. 372; Woodward v. Wcodioard, 87 Tenn. School Directors v. James, 2 Watts & 644, 657, 11 S. W. 892. S. 56S, 37 Am. Dec. 525; Carlisle v. The rule was applied in De Jarnett Tuttle, 30 Ala. 613. ^ Barper, 45 Mo. App. 415, notwith- The following cases also hold that standing that the father had intrust- the child's domicil follows the moth- ed the custody of the child to anoth- er's after the death of the father, er person, the mother having been ad- and, in the absence of fraud, at least, .i"i,;„ csi a^ on i „ xi. i & F. 488; Dolphin v. RoUm, 7 H. L. ^^ ^^'° ^*- ^^' ^^' however, says that Cas. 390, 3 Macq. H. L. Gas. 563, 29 * s™gle woman having a residence L. J. Prob. N. S. 11, 5 Jur. N. S. and domicil does not lose the same by 1271, 7 Week. Rep. 674; Hick v. Hick, marriage only; but retains the same 5 Bush 670; Ma^mre v. Maguire, 7 ^^^-y ^^e otherwise abandons it. It Dana, 181. See Yelverton v. Yelver- '^ •."■ ton, 1 Swabey & T. 574, 29 L. J. Prob. appeared in this case, however, that N. S. 34, 6 .Jur. N. S. 24, 1 L. T. N. S. the husband, after the marriage, 194, 8 Week. Rep. 134. Post, §§ 222, moved to the county in which the Bui s^e post, § 46a. """" ^^' previously domiciled. apost, § 46. '^^Spaulding v. Steel, 129 Mich. 10 Christies Succession, 20 La. 237, 88 N. W. 627. 104 DOMICIL. [CuAP. II. When, however, the husband is confined in a penitentiary, on conviction for crime, his actual domicil ceases to be construc- tively his wife's;^ and the same rule extends to cases where the husband is transported, or under restraint for lunacy.* 45. Wife's domicil changes with her husband's.— Should the husband, after marriage, emigrate to a country other than that of the matrimonial domicil, it has been questioned whether such domicil is lost to the wife. By Foelix the affirma- tive is maintained; by Demangeat, following other French authors, the negative.^ Should she emigrate with hirn, or agree to follow him, there can be no question that she acquires his domicil. There is also no question that, if she refuse to follow him, this is a desertion on her part, which may be the basis of proceedings instituted by him against her for di- vorce.^ How far the wife's nationality is merged in her hus- band's has been already considered.* 46. Separations effected by law sever domicil. — Separations effected by law sever the joint domicil, and leave each party at liberty to elect a domicil at pleasure. This is the case with divorces a mensa et thoro in France,^ though it is an open question whether such divorces have this effect in England." 1 McPherson v. Housel, 13 N. J. Mr. Westlake (1880, § 241, p. 273) Eq. 35. inclines to hold that in England, a 2 Phil. iv. p. 63. wife judicially separated a mensa et 1 Foelix, i. p. 93. See post, % 189. thoro from her husband maj' acquire 2 The husband has a right to select an independent domicil. It is so in his domicil, and it is the duty of the the United States. Burher v. Bar- wife to go with him ; and if she re- ber, 21 How. 582, 16 L. ed. 226. That fuses, he is not bound to support her the Princess Bibesco had the right to at the place of her separate abode, acquire a new nationality after a ju- Babhitt v. Babbitt, 69 111. 277. The dicial separation from her husband fact that the husband is domiciled in was denied by the French courts, but Wisconsin does not, in the law of aifirmed by those of Belgium. This that state, enable the wife to sue case is discussed post, 5 209. there, if she never has resided there. It was ruled by the Venetian court Butcher \. Butcher, 39 Wis. 651. of appeals, in 1876, that "Vne fenime 3 Ante, § 11. marine pent avoir un autre domicile, 1 Phil. iv. 62; post, §§ 225, 226; et, par suite, une autre nationalitg Arret du 23 Nov. 1843; Dolloz, Ann. que son mari. II en est ainsi lorsque 1849, ii. 9; Pothier, Introd. aux Cou- les gpoux, sujets autrichiens, habi- tumes, p. 4. But see discussion, post, taient le pays vfinitien, que la § 209. femme a 6t6 abandonnfie par son mari 2 Bolphim, v. Robins, 7 H. L. Cas. avant I'annexion du pays a I'ltalie et 396, 3 Macq. H. L. Cas. 563, 29 L. J. qu'elle a continue a y rfisider, tandis Prob. N. S. II. 5 Jur. N. S. 1271, 7 que son mari s'C'tait 6tabli dans une Week. Rep. 674; Le Stieur v. Le autre province autriehienne. Le mari Sueur, L. R. 1 Prob. Div. 139, L. R. est reste autrichien, mais le femme 2 Prob. Div. 79, 36 L. T. N. S. 276, est devenue italienne." Jour, du 25 Week. Rep. 102. droit int. privfi, 1879, p. 298. From § 46] PARTICULAR RELATIONS. li)5 Final separations by divorce undoubtedly leave the wife at liberty to take a new doraicil. But the tendency of authority is strong to the effect that mere voluntary separations, no mat- ter how solemn, do not confer on the wife the right to form an independent domicil of her own. ^ By marriage, her maid- en domicil was lost in her husband's ; and as long as the mar- riage continues, his domicil, as a general rule, is hers.* It is, however, to be observed that the rule is now conceded on all sides not to apply to cases "when the wife," to use the language of an authoritative judgment in Massachusetts, ** "claims to act, and by law, to a certain extent and in certain cases, is allowed to act, adversely to her husband." But iia this question belongs peculiarly to the law of divorce, it is remanded to that head.® 46a. Same; continuance of unity of marriage relation as cri- terion. — The modern American doctrine, in harmony with the extension of the rights of married women generally, appears to be that the wife's domicil adheres to the husband's only so long as the marriage relation remains undisturbed. ^ The mere fact that the wife, as a matter of convenience, resides in a state or country other than the domicil of the husband does not disturb the unity of the man-iage relation in this sense, nor enable the this ruling, however, the editor dis- Greene v. Greene, 11 Pick. 411 ; Hard- sents in an elaborate note. inq v. Alden, 9 Me. 140, 23 Am. Dec. 549; Bishop, Marr. & Div. § 728; In the United States a. divorce a Fraser, Confl. L. p. 58. mensa et thoro permits the wife to J flarteau v.Harteau, 14 Pick. 181, \ , ... _ , 25 Am. Dec. 372. acquire a separate domicil. Barber ^ p^^^^ gg ^^2, 224, 225, 230 V. Barber, 21 How. 582, 16 L. ed. 220; Hunt V. Hunt, 72 N. Y. 217, 28 Am. jrpjjjg j^ ^j,^ position taken in Mc- Kep. 129. Clellan v. Carroll (Tenn. Ch. App.) 3 Ante, § 43; post, §§ 225, 226. '^^ ^- W; 185, after a review of the But see post, § 46a. authorities; and is approved in How- *Be Daly, I Jur. N. S. 525, 25 land v. Granger, 22 R. I. 1, 45 Atl. Beav. 456, 27 L. J. Ch. N. S. 751, 6 740. !„ i,oth these cases, however. Week. Rep. 533 ; Chichester v. Done- . i, . 1 ii x xi, -. - . , gal, 1 Addams Eccl. Rep. 5, 19; Dol- '* ^'^^ ^^'"i ^'^^^ the unity of the mar- phin V. Itohins, 3 Macq. H. L. Caa. "age relation had not been disturbed, 563, 7 H. L. Cas. 390, 29 L. J. Prob. and, therefore, that the wife did not N. S. II, 5 Jur. N. S. 1271, 7 Week, acquire a separate domicil, though Rep. 074; Warrender v. Warrender, ., „ , , , , j -t -j- 2 Clark & F. 523; Barber v. Barber, *^^ h^^sband and wife were residing 21 How. 582, 16 L. ed. 226. See '" different states. 106 DOMICIL. [Chap. U. wife to acquire a separate domicil, if they have not assumed adverse relations toward each other nor separated as man and wife, and neither has abandoned or deserted the other. ^ "When, however, the unity of the marriage relation is disturbed by a definite, though voluntary, separation as man and wife, the wife's domicil no longer adheres to the husband's, and she may acquire a new and separate domicil, not only for the purposes of divorce, but for all purposes dependent upon domicil; at least, if she was justified by her husband's misconduct in leav- ing him. ^ The right of the wife to acquire a separate domicil is often stated with the qualification that the separation must have been due to the husband's fault,* but there seems to be a 2 See cases cited in note 1, supra. ilbid. So long as the relations between l^ husband and wife are not adverse, her domicil continues to be his, and changes with his throughout their married life. Cooper v. Beers, 143 111. 25, 33 N. E. 61. Whenever it is necessary or proper for a wife to acquire a domicil sepa- rate from that of her husband, she may do so. Shute v. Sargent, 67 N. H. 305, 36 Atl. 282. In this case it was held that the misconduct of the husband justified the wife in acquir- ing a separate domicil, so that she was no longer subject to a statute of the husband's domicil which required a husband's assent to his wife's will. A married woman may, by and with the consent of her husband from whom she has separated, ac- quire a separate domicil for the pur- poses of the admission of her will to probate. Re Plorance, 54 Hun, 328, r N. Y. Supp. 578. A wife who has separated from her husband may, at least in the absence of evidence that she was at fault, ac- quire a separate domicil for the pur- poses of the jurisdiction of a Federal court over an action by her against a third person, upon the ground of di- verse citizenship. Watertown v. Greaves, 56 L. K. A. 865, 50 0. C. A. 172, 112 Fed. 183. See also post, §§ 224, 227a, as to separate domicil of wife for purpose of divorce. But it was held in Re Wiokes, 128 Cal. 270, 49 L. R. A. 138, 60 Pac. 867. that a married woman could not ac- quire a separate domicil for the pur- poses of probate jurisdiction, by plac- ing her husband in a home for incur- ables, with his expenses for life and burial expenses paid. The decision upon these facts might, perhaps, have been put upon the ground that there was not a disturbance of the unity of the marriage relation; but the court seems to assume that the dis- turbance of the unity of the marriage relation does not, of itself, entitle the wife to acquire a separate dom- icil except for the purposes of di- vorce. iAiiderson v. Watt, 138 U. S. 694, § 46a,] PARTICULAR RELATIONS. 107 toward 4m position that the separation itself, when it amoxmtB to a diaturbaacc of the unity of the marriage relation, sevBrs the tmity of the domicil, without reference to the ques- tion which party was at fault.® That seems the only practical position, at least when the question of the wife's domicil arises between the wife and a third person, the husband not being a party. If, for example, the jurisdiction of a Federal court, invoked upon the ground of diverse citizenship, over an action by the wife against a third person depends upon her acquisition of a separate domicil, it would be exceedingly inconvenient and unsatisfactory to try the question of the comparative fault of the husband and wife respecting the separation. The question whether the wife's freedom from fault is a necessary condition of her acquisition of a separate domicil for the purposes of divorce is discussed in subsequent sections.* d. Of servants. 47. Servant's domicil depends upon permanence of service. — The analogies of the old Roman law, as established in cases of freedmen, would give, not merely to farm servants, work- ing for wages, but to home servants and apprentices, the domi- cil of their master or employer.^ The domestic servant, ac- cording to the old European idea, abandons his own domicil without any intention of returning to it, and accepts in place of it his master's. John Voet discourses, with copious wis- dom, on the loyal permanency of such an arrangement, not conceiving it possible that a servant could enter on so serious an engagement except for a final settlement.^ But at present the presumption of permanency is but slight Is the servant a mere wanderer? Has it been his habit to pass lightly, not merely from service to service, but from place to place? If so, the place of final voluntary settlement may be regarded as the domicil.^ 34 L. ed. 1078, 1082, 11 Sup. Ct. Rep. ^Post, §§ 227, 227a. 449. See also post, § 227a. 5 See Watertown v. Greaves, 56 L. ^ Savigny, viii. § 353. R. A. 865, 50 C. C. A. 172, 112 Fed. I ^^'J toreUnlr^p: v. DwMson 183; post, § 227a, note 2. ']\i-p. 71 Pa. 371. 108 DOMICIL. [Chap. II. But there is another class, comprising those who have some selected home, where their savings are deposited, and to which 'they hope to finally return. They may enter into service in various places, and with various masters, and may return to this "home" very rarely; but the fact that it is here that their savings are kept, and here that they may ultimately expect to settle, makes it their domicil. A third class may be noticed, as comprising servants who live with a series of masters, traveling with those masters from spot to spot, as the exigencies of their service require. Here no domicil can be acquired with the master; and so, in the case of Nicholas Sauterau, who acted as steward (regisseur) to a series of masters, executing their orders in different places, it was decided by five advocates, whose opinion is given by Deni- sart. * "He lived," they said, "by his masters' wages, was sub- ject to their wills, and was under the necessity of following them whithersoever they went" His actual domicil, there- fore, was declared to be in Burgundy, the place of his birth. Fourthly comes the settled house servant, who devotes him- self to the service of a particular family, expecting and ex- pected to live and die with them. His domicil of origin is lost in their actual domicil, which becomes his. The Code Civil declares that this shall be the case with all servants of full age who reside permanently in their master's house.'' The Prussian law extends the rule to house servants and day laborers who remain in a particular estate {auf einem hes- timmten Landgute bleihend arheiten den Tageslohnern) ; and to apprentices to a settled master (Bei einem bestimmten Handwerksmeister arheitenden Gesellev). A minor apprentice retains his master's domicil.® e. Of students. 48. Student's domicil is his home. — The Koman law, as has been already seen,^ viewed the student as retaining his domi- cil of origin until such a period as would sufiice to enable him to complete his studies. His residence at school or at the uni- versity was considered special and transitory. It was not a place where he was supposed to establish his permanent abode. The element of indefinite stay, essential to constitute domicil, * Collect, de Decisions, Domicile, § « Maddux v. State, 32 Ind. 111. n, cited by Phil. iv. 95. « Art. 109. 1 Ante, § 28. § 48] PARTICULAR RELATIONS. 109 did not, in his case, exist. Ten years was regarded as the maximum of such special stay. If he remained beyond this period, he was presumed to make his permanent abode at the place of study, and could then, if the other tests continued, acquire there a domicil. "Nee ipsi qui studiorum causa aliquo loco morantur domicilium ibi habere creduntur, nisi decern annis transactis eo loco sedes sibi constituerint, secundum epis- tolam Divi Adriani nee pater qui propter filium studentem fre- quentius ad eum commeat."" This same principle has been applied in Massachusetts, to college students.* Should the contrary view be held, the estate of a student dying at a for- eign university would be thrown into a foreign channel of distribution, and great inconvenience, as well as gross injus- tice, be wrought.* Of course, domicil and the right to Vote are not to be con- founded. In the United States, in particular, the tendency is to facilitate suffrage, by permitting its exercise at merely tran- sient residences. In the case of students, this has been ef- fected sometimes by statute, sometimes by judicial decision.® f. Of corporations. 48V2. Corporation's domicil is its center of business in the place of its creation. — A corporation is deemed to have its local residence (or domicil, if that term can be used vnth respect to a body purely artificial) in the place where its business is centered, and within the jurisdiction by which it is created.' If we are to be governed in this respect by the rule applicable to living persons, a corporation can have but one domicil, and such has been the view expressed by Lord Cranworth and Lord Brougham.^ On the other hand. Lord St. Leonards, in the 2 C. X. t. 39, § 2. See ante, § 27. neither confers, nor prevents the ac- s Granhy v. Amherst, 7 Mass. 1. quisition of, a residence for the pur- < See also Wallace's Case, Robert- j i- o j. j. -nr t ^^ son. Personal Succession, p. 201 ; Phil. P°^° °^ ^°*'"g- ^ee note to Wolcott iv. 90; Westlake, Private Interna- v. Holcomh, 23 L. R. A. 215. tional Law. art. 51 ; The Benedict, Spinks, 314.' ' Calcutta Jute Mills Co. v. Nichol- ^•Putnam' v. Johnson. 10 Mass. *o«' L. R. 1 Exch. Div. 428, 45 L. J. 492; Fry's Election Case, 71 Pa. 302, l^^ch. N. S. 821, 35 L. T. N. S. 275, 25 10 Am. Rep 698 Week. R«p. 71; Adams v. Great WeMern R. Co. 6 Hurlst. & N. 404, 30 The general rule with respect to L. J. Exch. N. S. 124, 3 L. T. N. S. residence of students as affecting the ^^\' ^ Week Rep. 254. . , . . , , ° , i Garron Iron Co. v. Maclaren, 5 nght to vote seems to be that attend- h. L. Cas. 416, 24 L. J. Exch. N. S. anee at school or college, of itself, 620, 3 Week. Rep. 597 ; same case, un- no DOMICIL. [Chap. n. same case, said that a corporation "may, for the purposes of jurisdiction, be deemed to have two domicils." But the office of a mere selling agent is no domicil, when such agent iis in no way concerned in the direction of the affairs of the com- pany.* Nor is the place where its goods are prepared for the market* But a permanent general agerury^ establiahed by a foreign insurance company in New York, under whiek nidi insurance company conducts its organization in the sune m»»- ner as a domestic corporation, will be regarded as creating for the company an independent domicil in IsTew York, wili all the obligations attached thereto.^ g. Of ambassadors and consuls. 49. Domicil of diplomatic officers is their home country. — The house of an ambassador, or minister extraordinary, is regard- ed as part of the territory which he represents.-' No matter how long he may stay, therefore, in the country to which he is accredited, his domicil is unchanged.^ But the fact that a foreigner, who is domiciled abroad, accepts the post, in the country of his domicil, of attache to the embassy of his native land, does not destroy his elective domicil.* When consuls also are sent from the state of their domicil to represent such country in a foreign land, their continuous residence in such der name of Maclaren v. Stainton, 16 determined in ordinary cases, such as Beav. 279. cities and towns, schools, hospitals, 3 Ibid. churches, etc. In the ease of rail- * Lindley, Partn. 4th Eng. ed. roads and similar corporations, where 1481-1485. the business is carried on, and agen- 5 Marline v. International L. Ins. cies instituted, in a series of states, Co. 53 N. Y. 339, 13 Am. Rep. 529. there, by the modern Roman law, the See New York L. Ins. Go. v. Best, 23 courts will select the central office as Ohio St. 105. the true point of domicil. A corpo- A foreign corporation, it has been ration's domicil is not necessarily the frequently held in ,the United States, same as that of the persons eom- is entitled to do business extraterri- posing it. Calcutta Jute Mills Go. v. torially only as a matter of comity. Nicholson, L. R. 1 Exch. Div. 428, 45 See post, § 105. As is well said by L. J. Exch. N. S. 821, 35 L. T. N. S. Savigny (Op. cit. viii. 354), the rules 275, 25 Week. Rep. 71. adapted to the domicil of persons i Ante, § 16. cannot be applied to corporations, or 2 Alt's Europaisehes Gesandschaft's persons who are the mere artificial Recht (1870) ; Phil. iv. 119; Pertreis creatures of the law. For this rea- v. Tondcar, 1 Hagg. Consist. Eep. son, the law, in creating a corpora- 139. tion, often assigns to it its domicil. 3 Atty. Gen. v. Kent, 1 Hurlst. & C. But in default of such appointment, 12, 31 L. J. Exch. N. S. 391, 6 L. T. the place of existence is the necessary N. .S. 864, 10 Week. Rep. 722; Beath domicil, at which such corporation is v. Samson, 14 Beav. 441. to be taxed and sued. This is easily § 49] 1> ARTICULAR RELATIONS. Ill land does not involve a domicil.* But if one already domi- ciled accepts the office of consular agent of another country, this does not destroy such domicil.® Engaging in trade, by a consul, devests him of his official prerogatives in this respect, and places his domicil at the spot where he resides and his business is conducted.^ The question of diplomatic immunity from arrest has been already considered.'^ h. Of public officers. 50. Soldier's domicil is his home. — By the Koman law, a sol- dier had a domicil at the place of his service.^ It is other- wise, however, by the English common law, so far as concerns change of domicil produced by entering into a new field of ser- vice in the common nationality. Thus, in a recent case in Eng- land, it was ruled that a domiciled Irishman, by enlisting in a regiment the headquarters of which are in England, does not thereby acquire an English domicil.^ But this rule does not necessarily obtain when there is a change of nationality. '^By entering the permanent military service of any government, a domicil in the territory of that government is acquired, and is retained, notwithstanding a cantonment at a foreign station; for such cantonment is subject throughout to the contingency 4 Wheat V. Smith, 50 Ark. 266, 7 S. does not, by entering and remaining W. 161 ; Wooldridge v. Wilkins, 3 in the military service of the Crown, How. (Miss.) 360. abandon the domicil which he had when he entered into the service ap- Wdny V. Udny L. R. 1 H. L. Sc. jj^g ^^ ^^ acquired domicil, as well App. Cas. 441; Sharpe v. Crispin, L. '^ ■■It ■ • ,, ^ r: 1 Prob. & Div. 611. 38 L. J. Prob. ^s to a domieil of origm. Paxton v. N. S. 17, 20 L. T. N. S. 41, 17 Week. Maereight, L. R. 30 Ch. Div. 165, 55 Rep. 368; Niioyet v. Niioyet, L. R. 4 L. J. Ch. N. S. 28, 53 L. T. N. S. 146, Prob. Div. 1, 48 L. J. Prob. N. S. 1, o, Week Ren 838 39 L. T. N. S. 486, 27 Week. Rep. 203. ^'^^^f- ^^P; »'^»- . iThe Indian Chief, 3 C. Rob. 29; One does not acquire or lose a dom- Maltass v. Maltass, 1 Rob. Ecel. Rep. ioil by entering the military or naval 79; Phil. iv. 125; Arnold v. United service of the United States, and be- /»«. Go. 1 Johns. Cas. 363. j^g stationed in the line of his duty •! A.nte, § 16. ° , .t, j., , . ... IL. 23, § 1, ad mun. (50, 1). ^* ^ P'^<=^ «>*^^^ ^'^^^ ^'^ existmg 2 Yelverton v. Yelverton, 1 Swabey domicil. Mead v. Carrol, 6 D. C. &, T. 574, 29 L. J. Prob. N". S. 34, 6 338; Brewer v. Unnaeus, 36 Me. 428; •Jur. N. S. 24 1 L T. N. S. 194, 8 TibUtts v. Townsend, 15 Abb. Pr. Ueek. Rep. 134. See Dalhousie v. „_, „,.„. „ , , „ , , MeBouall, 7 Clark & F. 817; Re ^^^' WtZZtams v. Saunders, 5 Coldw. Steer, 28 L. J. Exeh. N. S. 25, 3 60; Knowlton v. Knowlton, 155 III. Hurlst. & N. 394. 158, 39 N. E. 595. The rule that a British suojeet 112 DOMICIL. [Chap. II. of abrupt termination, and the only lasting attachment is to the employing country."^ Of course, as has just been noticed,, ■when the country of such allegiance contains several subor- dinate jurisdictions, that which is primarily adopted is not devested by detachment to other jurisdictions of the same state. An officer in such case, whether naval 'or military, changes his residence under superior command; and unless there be made out a clear case of the election and establishment of a domicil at one of these subsequent stations, the domicil held when the service was entered into will be presumed to continue.* The same rule applies to officers in the naval service.' A soldier may abandon his domicil in the same way and to the same effect as may other persons.^ 51. Eemoval to place of permanent office may constitute dom- icil. — Acceptance of a permanent office, whose duties require constant local attendance, accompanied by a change of family residence to such place, constitutes a change of domicil, unless it be shown that the intention of the party was to make the move only tentatively.^ If the latter alternative be true, or if there be evidence that a home was retained in the domicil of origin, a new domicil will not be established in the place of the official duties.^ On the other hand, where permanent duties were required, and the evidence shows that the intention was to accept the place of office as such a final residence, then sWestlake, Private International 45 N. W. 899 (wife of naval officer); Law, 1857, art. 44; Phil. iv. p. 111. Ames v. Duryea, 61 N. Y. 609. il'hipps Goods, 2 Curt. Eccl. Rep. .308; White v. Repton, 3 Curt. Eccl. i Merlin, Rep. Dom. § 117; Smith's Rep. 818; Yelverton v. Yelverton, 1 Goods, 2 Rob. Eccl. Rep. 332; Wood Swabey & T. 574, 29 L. J. Prob. N. S. v. Fitzgerald, 3 Or. 568. Compare 34, 6 Jur. N. S. 24, 1 L. T. N. S. 194, judgment of Lord Jeffrey, in Arnott 8 Week. Rep. 134; Brown v. Smith, v Groom, 9 Dunlop, B. & M. 142. 15 Beav. 444, 448, 21 L. J. Ch. N. S. 2ln 1856, R., whose domicil of ori- 356; Atty. Gen. v. Napier, 6 Exch. gin was in England, was appointed 217, 20 L. J. Exch. N. S. 173, 15 Jur. Chief Justice of Ceylon, during the 253. Tlie cases on this subject are pleasure of the Crown; and he resid- discussed fully and ably in Phil. iv. ed with his family there, in the exer- p. Ill, ff. See also 1 Burge, Colonial cise of his official duties, until his & Foreign Laws, 417 ; Guthrie's death in 1860. He left a library and Savigny, note D, p. 59. other effects in England, and he in- 5Phil. iv. 118. vested large sums of money on mort- gages in Ceylon. It was held that, in "Ames V. Duryea, 6 Lans. 155, Af- the absence of any intention to ac- firmed in 61 N. Y. 609; People em rel. T^ire a domicil in Ceylon, R. retained ,, , , „ ,, oo n 1 loo jf his domicil of origin. Atty. Gen. v. Budd V. Holden, 28 Cal. 123; Mooar j^^^^^^ ^ jj^^^j^^ ^'^ ^ 31^«3j l. J. V. Harvey, 128 Mass. 219; Remey v. gxch. N. S. 314. 8 Jur. N. S. 823, 6 Hoard of Equalization, 80 Iowa, 470, L. T. N. S. 438, 'lO Week. Rep. 718. § 51] i PAKTICULAR KELATIONS. 113 a domieil in such place will be acquired. Thus, the policy of the East India Company being that its officers should perma- nently attach themselves to the soil to which they are sent, and specific conditions to this effect being inserted in the com- pany's commissions, the English courts have in several cases given effect to these provisions, by deciding that Indian officers accepting such commissions, and entering on their duties in India, have an Indian domieil, even though they should die in England, if it should appear that they were liable to be re- called to India, and unless the establishing of a new domieil in England be clearly made out.^ Ecclesiastics who, under the French law, were compelled to reside within their dioceses or cures, were held to be domiciled at such residences; nor could this domieil be devested by ab- sence.* But no such intendment can be made in England or America from the occupation of an ecclesiastical cure. In England, residence is not required. In the United States, as in the case of clergymen officiating in New York, the domieil may be, for motives of economy, in another state from that of the official residence. It is clear that attendance on the legislative body of a nation, no matter how continuous, or oc- cupancy of an official station of any kind, either at the pleas- ure of the appointing power or for a term of years, confers no new domieil, without the clear intention and arrangement of the officer himself.® 3Bruee v. Bruce, 6 Bro. P. C. 566, and that he claimed to be an inhabit- 2 Bos. & P. 230, note; Munroe v. ant of N. — is sufficient to warrant a Douglas, 5 Madd. 379; Craigie v. jury in finding that he was an inhabit- Lemn, 3 Curt. Eccl. Rep. 435, 7 Jur. ant of that town, although he worked .519; Forhes v. Forbes, Kay, 364, 2 and boarded in the town of W. and Eq. Rep. 178, 23 L. J. Ch. N. S. 724, was also a police officer of that town. 18 Jur. 642, 2 Week. Rep. 253. As to Com. v. Kelleher, 115 Mass. 103. the anomalous character of "Anglo- Indian" domieil, see Dicey, Domieil, The statement of the text is also '■ ^MirUnf r/p" deTuris^" Domicile, -PP-^^ ^^ ^-«- - «'«'«. 17 Ma. iii. 6; Denisart, Domicile, iv. c. il. 389; Yonkey v. State, 27 Ind. 236; § e. Carpenter v. Carpenter, 30 Kan. 712, sSomerville v. Somerville, 5 Ves. 46 Am. Rep. 108, 2 Pac. 122; Walden Jr. 750. ,,,.,, , 4.J. V. Canfield, 2 Rob. (La.) 466: Ee?- It has been held in Massachusetts . ' ,. ■>'*■' ^"") -^•^' that the fact that a police officer of «™« ">'• Sabm, 50 Mimi. 320, 17 L. R. the town of N., sometimes, while on A, 225, 36 Am. St. Rep. 645, 52 N. duty, slept in the police station there ; w. 642; State ex rel. Hannon y. Giz- that he had a room in N. where he ^„^^ gg j^ ^ sometimes slept, and also another . ' room there at the house of his S^'^^o,, Z Or. 569; Woodworth v. 81. brother where he kept his clothes; Banl, M. & M. R. Co. 5 McCrary, 574, Vol. I. CoNFL. of Laws — 8. 114 DOMICIL. [Chap. 11. i. Of lunatics. 52. Lunatie's domicil to be fixed by court. — ^Whether a domi- oil acquired when sane can be devested by a guardian of the ward after the latter has become insane may be doubted. It has been denied in Maine, ^ but affirmed in Vermont and Massachusetts.^ The course, however, in order to work a change of domicil, is for the guardian to obtain an order of the proper court approving of it. Unless this be done, it should require strong proof of the expediency and bona fides of the change to subsequently sustain it.^ It is true that by the French law the domicil of the tuteur determines that of the lunatic;* and Sir R. Phillimore thinks that the same rule exists in England.^ But Mr. Westlake justly remarks in re- ply:' "The latter is indeed the modern French rule, because the uniformity of law in France has deprived the domicil of its effect on the distribution of property on death ; but the old rule of that country, when its local customs varied as the laws of the component portions of the British Empire do now, just- ly forbade the succession of a lunatic to be affected by any re- moval which might have taken place during the lunacy, and therefore without his will." This reasoning applies equally to the United States. '^ And the better view is that a person under guardianship for lunacy is entitled to the same rights as to domicil as is an infant.* 18 Fed. 282, 284; Tenable v. Pauld- improper removal. State ex rel. ing, 19 Minn. 488, Gil. 422. Raymond v. Lawrence, 86 Minn. 310, But the acquisition of a domicil at 58 L. E. A. 931, 90 N. W. 769. the place where the duties of the of- fice are discharged may be shown by j^/^^^gf ^P'"""" "'■ ^'^'^'''S. ^ ^^«*- circumstances. Ames v. Duryea, 61 ^fcode Civil, art. 108; Merlin, R6p. N. Y. 609, Affirming 6 Lans. 155. Dom. § v. No. iv. 6IV. 91. iPittsfieM V. Detroit, 53 Me. 442. eprivate International Law, ed. i Anderson v. Anderson, 42 Vt. 350, is57, art. 52. 10 Am. Eep. 334; Holyokev. Haskins, 7See OMte, § 42. 5 Pidi. 20, 16 Am. Dec. 372. See SThat the domicil of a lunatic, be- Cutis v. Haskims, 9 Mass. 543; Upton coming such after reaching full age, V. tiorthhridge, 15 Mass. 237. is changed by a change of the resi- dence of his guardian, is denied by A guardian of the person of an in- Westlake, relying on Lord Penzance's competent has the right to remove expressions in Sharpe v. Crispin, L. tho Intter from one state to another E- 1 ^^o^- I^''^- ^18, 38 L. J. Prob. the latter from one state to anotner, ^^ ^ ^^ ^^ ^ ^ ^ ^ ^^^ ^^ ^^^ temporarily or permanently; but the jjgp ggg. Westlake (1880), 239. right is always subject to the power ])icey holds to the contrary. Domicil, of a court of chancery to restrain an p. 132. § 53] PAETICtTLAK RELATIONS. 115 53. Father may change domicil of insane child. — ^Where an in- fant is of unsound mind, and remains continuously so, the in- capacity of minority continues, so as to confer on the father the right of choice in the matter of the domicil of the son ; and the father's change of domicil works a change in the son's domicil. ^ 53a. When person becomes insane after attaining majority, — The domicil of one who, after attaining majority, becomes mentally incompetent to change his or her domicil remains where it was established at the time such incompetency super- vened, unless it is changed by husband or guardian. ^ The test, however, of the power of an adult to change his own domicil is his capacity to do the acts and form the intention requisite to such a change with understanding and reason, and not his gen- eral condition as sane or insane.^ The mere appointment of a guardian for an adult, upon the ground that he is non compos mentis, does not necessarily prevent the latter from changing his domicil, municipal or national. If he still has sufficient mental capacity, according to the test above suggested, to elect a new domicil, he may make the change, at least if he encoun- ters no opposition from the guardian. ^ j. Of prisoners and exiles. 54. Imprisonment and exile do not involve change of domicil. — By the Roman law, a perpetual exile transferred his domi- cil to the place to which he was banished.-^ It was otherwise ^Sharpe v. Crispin, L. E. 1 Prob. 51 Am. Eep. 17; Ensor v. Graff, 43 & Div. 611, 38 L. J. Prob. N. S. 17, 20 Md 291 «■ '^- f 1^1^' l^ ^'"'n ^?- ^^Ici 'Concord v. Itumney, 45 N. H. 423. See ante, § 41 ; Payne v. Dunham, 29 "' 111. 125; Strong v. Farmington, 74 ^Talhot v. Chamberlam, 149 Mass. Me. 46. 57, 3 L. R. A. 254, 20 N. E. 305; Mowry v. Latham, 17 R. I. 480, 23 Wrqnhart v. Buttei-field, L. R. 37 ^^ ^g c'wfyer's Appeal, 48 Conn. Ch. Div. 357, 382, 57 L. T. N. S. 780, jgg 36 Week. Rep. 376; Freeport v. Stephenson County, 41 111. 495, 500; ^-^^ g, § 3, ad mun. (50, 1). Harral v. Harral, 39 N. J. Eq. 279, 116 DOMICIL. [Chap. n. when the banishment was temporary, in which case he re- tained his former domicil.^ There can be little doubt that such is the present law as to transported convicts.* A prisoner, who is carried to his prison and detained there for a term of years against his will, acquires no domicil in his prison.* He is presumed, during his imprisonment, to look constantly forward to his return to his home.® But it is other- wise with an imprisonment for life. Following the analogy of a lunatic, as to whom there is al- ways some prospect of recovery, and who does not lose his domicil, as has been seen, when removed to an asylum, the prospect of returning home may be the test as to prisoners.® The same test is applicable to exiles and refugees.'' If they nourish the hope of returning, their domicil remains at their homes. ^ BouUenois gives a striking illustration in the case of the fugitives who accompanied James II. to France, and whom the French jurists treated as retaining their English domicil.* But if the refugee continues to dwell in the place of his re- treat when his disabilities are removed, making there his per- manent abode, he acquires in such place a domicil.^" And 2L. 27, § 3; Phil. iv. 128. Bonneval, 1 Curt. Eeel. Kep. 856; sMerlin, Rgp. de Jur. Dom. iv. ; Ennis v. Smith, 14 How. 400, 424, 14 Phil. iv. 130; Westlake Private -^ ^j 4^3, 483; JennUon v. Hapgood, International Law, art. 53; Dicey, ,._.,' . __ , „^ " ' Domicil, p. 129, citing Vdny v. Udny, 1^ Pick. 77; Ayer v. Weeks, 65 N. H. L. R. 1 H. L. Sc. App. Cas. 458. 248, 6 L. R. A. 716, 23 Am. St. Rep. 37, 18 Atl. 1108; Cohb v. Rice, 130 '■Burton v. Fisher, Milward, 183; jj^^^ 231; Chitty v. Chiity, 118 N. Young v. Pollak, 85 Ala. 439, 5 So. q q^^^ 32 l r. a. 394, 24 S. E. 517; 279; Grant v. Dalliber, 11 Conn. 237; -pjrfcife v. Bromii, 1 Wall. Jr. 217, 265, Barton v. Barton, 74 Ga. 761 ; Top- ^.^^ p^g j^^, 17^533, sAam V. LeM;is*on, 74 Me. 237, 43 Am. g^^ j^^if ^ Shenavdoah Nai. Rep. 584; People v. Cady, 143 N. Y. g^^j.^ g^ j^,^^^ 133^ 50 n. W. 561, 100, 25 L. R. A. 399, 37 N. B. 673; ^.j^ that the absence of a person Baltimore v. Chester, 53 Vt. 315, 38 f^^^ j,is wife as a fugitive from Am. Rep. 677. justice for one year, without any BDenisart, Domicile, 3. See Phil. iv. P™°^ °* ^ P^'^P"^^ ''° ^'^ P^"^*^ *° ^^■ 128; Bempde v. Johnstone, 3 Ves. Jr. turn, overcame the presumption of 193; Grunt v. Dalliber, 11 Conn. 234; residence with the wife for the pur- Danville v. Putney, 6 Vt. 512; Wood- p„ge of substituted service of process. stock V. Hartland, 21 Vt. 563. ^ '^ ^Ante, § 52. STraitg de la Realitfi et Personal 6 7 See post, § 56. deg Statuts, t. i. title ii. c. 3. ^iPost, §§ 55, 65; De Bonneval v. 'Duchess of Orleans's Goods, 1 flg Bonneval, 1 Curt. Eccl. Rep. 856. Swabey & T. 253; De Bonneval v. De § 64] PARTICULAR RELATIONS. 117 such is the case where he takes up a permanent abode in the place of his refuge, ^ ^ or settles there definitely after his res- toration has become possible.'^ 54a. Same. — There is no distinctive, substantive rule appli- cable to the domicil of a prisoner, exile, refugee, or absconder, as such. The general principle, which requires concurrence of residence and intention in order to effect a change of domicil, is applicable to a person sustaining any one of such characters ; and his character in this respect is only important in so far as it serves to illustrate the intention with which he has taken up his residence in another jurisdiction. Since the residence of such person away from his former domicil is compulsory, the usual presumption that the residence of a person is his domicil does not apply. The presumption is the other way.* If the fact accords with the presumption, and there is a present inten- tion to return to the old domicil, that domicil is retained;'* and ^^Stanley v. Bernes, 3 Hagg. Eccl. French woman, notwithstanding the Rep. 438; Heath v. .Samson, 14 Beav. fact that by the French law he would 441 liColUer y. Riva^, 2 Curt. Eccl. ^^ immune from punishment after Rep. 858. the lapse of twenty years, and that as a matter of fact he returned to iWUte y. Burnley, 20 How. 235, irrance and became domiciled there, 15 L. ed. 886; Hardy v. De Leon, 5 both in an English and French Tex. 211. ^ sense, a, few years after the expira- Whitty V. Chitty, 118 N. C. 647, tion of that period. There were 32 L. R. A. 394, 24 S. E. 517. many cireomstances tending to show In Loustalan v. Loustalan, 69 L. that at the time of his marriage he J. Prob. N. S. 75 [1900] P. 211, 82 intended to make his permanent L. T. N. S. 808, 48 Week. Rep. 500, home in England, and that at that the majority of the court of appeal time he had no fixed intention of re- were of the opinion, under all the cir- turning to France. Lindley, M. R., cumstances of the case, that a however, was of the opinion that the Frenchman who left France to avoid fact that he left France as a fugitive a criminal prosecution had aban- and could safely return there at the doned his French domicil and had ac- expiration of twenty years— especial- quired an English domicil (both in ly in view of the fact that he did the French and English sense of dom- eventually return — prevented any ieil) at the time of his marriage, in inference of his abandonment of an London, four year later, to a native intention to return, notwithstanding 118 DOMICIL. [Cha^. n. even if a person leaves the original domicil under such cir- cumstances, with the intention of never returning thereto, he still retains the old domicil, unless he acquires a new domicil by taking up a new residence without any present intention of abandoning the same,^ since, as elsewhere shown, a domicil once established is not lost until another is acquired. IV. CHAliTGE OF DOMICIL. 55. Old domicil presumed to continue until new is assumed. — "With regard to the domicil of birth," said Lord Cairns, "the personal status indicated by that term clings and adheres to the subject of it until an actual change is made by which the personal status of another domicil is acquired."^ The same rule may be applied, generally, to domicil by election or operation of law.^ Mere absence can never, by itself, devest domicil, no matter how long such absence may continue. The absentee, whether he wander from, place to place for pleasure or on business, may continue this absence for years; but until a new domicil is acquired, the old remains;* and this is, from the nature of things, the case with seafaring men, and with persons whose habits are necessarily roving.* In such case the burden of proof is on the party who impugns the estab- lished domicil.® "The animus to abandon one domicil for that (whether he knew it or not) he Cas. 854, 7 Jur. N. S. 1017, 4 L. T. N. had lost his French domicil in the S. 374; Desmare v. United States, 93 „ I. J J. -iu t J- U. S. 605. 23 L. ed. 959; Littlefield v. French sense; and notwithstanding Brooks, 50 Me. 475; Gilman y. Gil- that his wife was engaged m business man, 52 Me. 165, 83 Am. Dec. 502; in London, and that they described Monson v. Fairfield, 55 Me. 117; themselves as domiciled in London. A.Ungton v. Sorth Bridgewater, 23 , , „ xi7-,„7 „ «K XT XT o,(o e Pick. 170; Golton v. Longmeadow, 12 ^Ayer v. Weeks, 65 N. H. 248, 6 ^jj^^ ggg. ^j^^^. ^ ^^.„_ ^'^ L. R. A. 716, AZ Am. St. Rep. 37, 18 Ai:n. 246; Sanderson v. Ralston, 20 Atl. 1108; Oo66 v. Rice, 130 Mass. La. Ann. 312. 231. See Domicil, vol. 17, Century Digest, § 1 ; and see also next section. Well y. Kennedy, L. R. 1 H. L. Sc. ^^"'"^ ^- ^''^''^ £, ^°^- ,f , ^- f^' App. Cas. 307. See also Shaw y. Mte, 6 Bro. P. C. 566; ffaiZe* y. Bas- Shaw, 98 Mass. 158. Ante, § 40. ««**. 100 ^iass. 167. See tiost, I 55a, note 1. ^Crookenden y. Fuller, 1 Swabey & ^Church y. Roioell, 49 Me. 367; T. 442, 29 L. J. Prob. N. S. 1, 5 Jur. TAitlefield y. Brooks, 50 Me. 475; N. S. 1222, 1 L. T. N. S. 70, 8 Week. Wilson V. Terry, 11 Allen, 206; Mills Rep. 49; Douglas y. Douglas, L. R. 12 V. Alexander, 21 Tex. 154. Eq. 645, 41 L. J. Ch. N. S. 74, 25 L. 3Aikman v. Ailcman, 3 Maoq. H. L. T. N. S. 530, 20 Week. Rep. 55. I 55] CHANGE OP DOMICIL. 119 another," said Lord Curriehill, in a Scotch case,^ "imports , an intention not only to relinquish those peculiar rights, privi- leges, and immunities which the ■ law and constitution of the domicil confers,- — in the domestic relations, in purchases and sales, and other business transactions, in political or munici- pal status, and in the daily affairs of common life, — ^but also the laws by which succession to property is regulated after death. The abandonment or change of a domicil is therefore a proceeding of a very serious nature, and an intention to make such a change requires to be proved by very satisfactory evidence." Eminently is this the case when the change is to a foreign land from the domicil of origin.'^ But if the inten- tion to change the domicil is proved, it is immaterial whether the party was conscious of the consequences of the change. ^ 55a. Continuance of old domicil until new one acquired; pre- sumption of continuance. — The rule stated in the last section, that a domicil once acquired continues until a new one is ac- quired, is not merely a rule of evidence, based upon the pre- sumed intention of the person not to abandon the former domi- cil, but is a rule of substantive law, and survives proof of an ac- tual abandonment of the former residence with no intention of returning, or with a positive intention not to return, in the ab- sence of proof of the requisites essential to the acquisition of a new domicil. "^ The rule is a necessary corollary of the well-es- Wonaldson v. McGlure, 20 D. 307, ditioned on the knowledge of the cited in Guthrie's Savigny, p. 61. consequences is to say that there can 'See remarks of Lord Cranworth, be no change of domicil, since there in Whicker v. Hume, 7 H. L. Cas. 124, is no one who can tell to what conse- 28 L. J. Ch. N. S. 396, 4 Jur. N. S. quenees a change of domicil may 933, 6 Week. Rep. 813; and cases cit- lead. See post, § 61. ed by Mr. Guthrie in his translation of Savigny, p. 61 ; and also ante, § 40. i This clearly appears from the de- 8Xt is true that in Moorhouse v. cision in Ayer v. Weeks, 65 N. H. Lord, 10 HL Cas., 272 1 /<^v Re^ 343 g ^ -^ ^ ^^g 23 Am. St. Rep. ports, 555, 32 L. J. Ch. N. S. 295, 9 ' ' ,,,,,, '^ Jur. N. S. 677, 8 L. T. N. S. 212, 11 37, 18 Atl. 1108, which held that a Week. Rep. 6'37, Lords Cranworth person had not lost his former dem- and Kingsdown threw out intimations icil, notwithstanding that he had left to the contrary; but this limitation the same with the intention never to can only be_ applied in cases in which ^.^^^^^ ^^ .^ ^^^ appearing that the change is made for the purpose of , _ , . , , f ., , " , effecting some specific legal purpose. ^^ ^^""^ acquired «. doraieil elsewhere. To say that change of domicil is eon- So, it was held m Borland v. Bos- 120 DOMICIL. [Chap. 1L tablished principles that no person can be without a domieil, and that to constitute a new elective domieil there must be a concurrence of residence, or presence at least, in the new local- ity, and an intention to remain there permanently or for an in- definite time. This rule is not to be confused with the other rule established by the cases, that a domieil once acquired is presumed to continue until it is shown to have been changed." ton, 132 Mass. 89, 42 Am. Rep. 424, that a person retained his domieil in Massachusetts, notwithstanding that he had left that state and was residing with his family in Europe, and had fixed upon a place of resi- dence in another state, but had not put his intention in that respect into effect by actually taking up his resi- dence in the latter state. This is also clearly the sense in which the rule is declared in the fol- lowing cases: First Nat. Bank v. [Salcorn, 35 Conn. 351 ; Cooper v. Heers, 143 111. 25, 33 N. E. 61 ; Botna Valley S^tate Bank v. Silver City Bank, SI Iowa, 479, 54 N. W. 472; Tuttle V. Wood, 115 Iowa, 507, 88 N. W. 1056; Ballard v. Puleston (La.) 36 So. 951 ; Oilman v. Gilman, 52 Me. 165, 83 Am. Dec. 502; Jennison v. Bapgood, 10 Pick. 77; Ballet v. Bas- fiett, 100 Mass. 167; Pickering v. Cambridge, 144 Mass. 244, 10 N. E. 827; Firth v. Firth, 50 N. J. Eq. 137, 24 Atl. 916; Dupuy v. Wurtz, 53 N. Y. 556; Pilnik v. Numizinski, Rap. Jud. Quebec, 16, C. S. 231. But see contra, Re Dumas, 32 La. Ann. 679; Hicks v. Skinner, 72 N. C. 1. A fortiori, a domieil is not aban- doned by mere absence therefrom for a temporary purpose, and with a. fixed intention of returning. Mead V. Carrol, 6 D. C. 338; Murphy v. Hunt, 75 Ala. 458; Gorham v. Shep- herd, 6 Mackey, 590; Tullos v. Lane, 45 La. Ann. 333, 12 So. 508; Lindsay V. Murphy, 70 Va. 428. So, after a, change of domieil has been effected, the new domieil is not lost by a re- turn to the previous domieil for a temporary purpose. Kemna \ . BrooJchaus, 10 Biss. 128, 5 Fed. 702: Riggs v. Andrews, 8 Ala. 628; First Nat. Bank v. Balcom, 35 Conn. 351. Hinnis V. Smith, 14 How. 400, 14 L. ed. 472; Anderson v. "Watt, 138 U. S. 694, 34 L. ed. 1078, 11 Sup. Ct. Rep. 449; Mitchell v. United States, 21 Wall. 350, 22 L. ed. 584; Eiaele v. Oddie, 128 Fed. 941 ; People v. Moir, 207 111. ISO, 69 N. E. 905; Caldwell V. Pollah, 91 Ala. 353, 8 So. 546: Clovgh V. Kyne, 40 111. App. 234: Astley V. Capron, 89 Ind. 167; Hy- man v. Schlenker, 44 La. Ann. 108. 10 So. 623; Steers's Successiov. 47 La. Ann. 1551, 18 So. 503; QrecnfieU V. Camden, 74 Me. 56; Cadtcalader v. Hmoell, 18 N. J. L. 138; Ferguson a. Wright, 113 N. C. 537, IS S. E. 691; Cam,phell v. Gampbtll, 90 Hun, 233, 35 N. y. Supp, 280, 003; Price v. Price, 156 Pa. 617, 27 Atl. 291; Starke v. Scott, 78 Va. 180; Bnnm V. Butler, 87 Va. 621, 13 S. E. 71. See also Bomicil, Century Digest, §§ 36, 37. The presumption of the continu- ance of an existing domieil is S 66a] CHANGE OF DOMICIL. 121 The latter is a rule of evidence merely, and is addressed to the question whether there has been a change of domicil, or the equivalent question, whether a new domicil has been acquired; whereas, the former rule, as already shown, presupposes that no new domicil has been acquired.* 551/2. Burden on party asserting residence is not domiciL — Where a party is shown to have been in a particular place at a particular moment, and this is all that is known of him, the burden is on those who dispute the fact that such place is his domicil.* This is eminently the case with the place of death. ^ And it has been held in England that when a person dies abroad, the burden of proof is on the party seeking to prove that his domicil was English.^ The place where a person lives is presumed to be his domicil until the facts establish the contrary;* and this presumption overcomes the presumption of the continuance of a previous domicil, if opposed thereto.^ The former presumption is, of stronger in ease of the domicil of ^President of United States v. oriffin than of a domicil of choice. Drummond, 33 L. J. Ch. N. S. 501, 33 117- 4tt n -70 T T n -R Koav. 449, 4 New Reports, 7, 10 Jur. Wvmns V. Atty. Gen. 73 L. J. Q. B. j^ g .33^ j^ ^^ ^ jj -^g 3^^^ '^^ ^,^^j^ N. S. C13. Rep. 701 ; Anderson v. Laneuville, 9 3 Both rules are stated in the fol- Moore, P. C. C. 325, 2 Spinks, Eccl. & lowing quotation from Simmons's Aam. Rep. 41. Succession, 109 La. 1095, 34 So. 101: ,^„^ g^,^ ^ Winans, 85 L. T. N. "The party who seeks to avail him- g_ g^g^ g- j p gjg. ^^^,^;^ ^ ^^.^^^^ self of a change of domicil bears the ^^ ^^^, j^g^ ^^S, 14 L. ed 472, 482- burden of proving it. So long as any ^4„^g^jo„ ^, yy^ff^ 138 jj s_ gg^^ ^^g reasonable doubt remains, the pre- 3^ l. ed. 1078, 1082, 11 Sup. Ct. Rep. sumption is that it has not been ^^j,. ^^^^(^^6* v. Bradstreet, 7 changed. The domicil of origin con- lackey, 229; Tracy v. Tracy, 62 N. tinues until another is acquired, j j^^ g^^^ ^g ^^.j 533. ^„.^^j^„ ^, ammo et facto. Eairston, 27 Miss. 704, 61 Am. Dee. 530 iffiiier V. O'Daniel, 1 Binn. 349, note, approved in Dicey on Domicil, »■»««« v. Smith, 14 How. 400, 423, p. 117. See Bruce v. Bruce, 2 Bos. & 14 L. ed. 472, 482; Steers's Succes- P. 229, note, 6 Bro. P. C. 566; Hind- sion, 47 La. Ann. 1551, 18 So. 503- w4TjUs l\'''ilXl^n- ^^-^-'^-^ - ^-'^*-*> ^ Mackey, field V. Cainden. 74 Me. 56. ^29. nUd.; King v. United States, 27 Ct. CI. 529. 122 DOMICIL. [Chap. n. course, overcome ■when it appears that the residence at a par- ticular place is for a temporary purpose.® 56. Change must be in intention and fact. — Change of resi- dence alone, however long and continued, does not effect a change of domicil. There must be an intention to change the domicil as well as residence. -"^ InTo matter how long a resi- dence in a particular place may be it does not confer domicil, xm.less there be an intention to remain in such place per- menently^ [or for an indefinite period]. Thus, a Scotch domicil has been held to be retained in the face of an eight years' residence in London, there being no inten- tion to change the Scotch domicil.^ An absence of an ^Rogers v. Amado, Newberry, Adm. Sav. Bank, 110 La. 659, 34 So. 725; 400, Fed. Cas. No. 12,005; Allgood v. Hairston v. Hairston, 27 Miss. 704, Williams, 92 Ala. 551, 8 So. 722. 61 Am. Dec. 530; State ex ret. Barney V. Dayton, Ti Mo. 678; Ball v. Sehoe- iMoorhouse v. Lord, 10 H. L. Gas. „^,„ ,„„ ,,„ „„, oi a xkt m 272, 1 New Reports, 555, 32 L. J. Ch. «<'''''=^' ^^S Mo. 661, 31 S. W. 97; N. S. 295, 9 Jur. N. S. 677, 8 L. T. N. 'SJote ex rel. Vale v. School District, S. 41, 11 Week. Rep. 637; Jopp v. 55 Nob. 317, 75 N. W. 855; State v. Wood, 4 De G. J. & S. 616, 5 New Palmer, 65 N. H. 9, 17 Atl. 977; Reports, 422. 34 L. J. Ch. N. S. 212, „^ , ^^ fT„^^„7 qq la t wr. wo UJur. N. S. 212, 12 L. T. N. S. 41^ ^"""^ ^- ^'"^'^''^' ^^ ^- '^- ^l" ^^' 13 Week. Rep. 481; Parsons v. Ban- 51 -*-™- R^p. 17; Dupuy v. Wurta, 53 gor, 61 Me. 457 ; Stockton v. Staples, N. Y. 556 ; De Meli v. De Meli, 120 66 Me. 197; Ensor v. Oraff, 43 Md. n. Y. 485, 17 Am. St. Rep. 652, 24 N. 291; Wilkins v. Marshall, 80 111. 74; _ „,,„ ,, ^« * ™ /-.„ „ d„„** „ ', . . ij ^1. n acza E. 996; Eaves Costume Co. v. Pratt, Harkms v. Arnold, 46 Ga. 656. ' „ „ „ „. „ 2 Misc. 420, 22 N. Y. Supp. 74. See ^Bell y. Kennedy, L. R. 1 H. L. Sc. ^'^'^' ^- '^^''"3°' ^- ^- ^ ^- ^: ^°-J^ App. Cas. 307; Walker v. Walker, 1 ^^rb. 472, for . case in which this Mo. App. 404; Chicago & N. w. B. ^^« Pushed to its farthest limits. Co. V. Ohle, 117 U. S. 123, 29 L. ed. ^ P^^<=*"=^1. .^PPl'«^t">" "^ ^^' o.-,-, /. c ru. r, ann ,r ■ doctriiie requiring concurrence ot 837, 6 Sup. Ct. Rep. 632 ; Morris v. . , ^ . , , . , . . ^•7 ion TT c! oi= oo T J «: T^T -c oi4 moving thcrcfrom. 1 Bouvier Law den, 182 Mass. 511, 65 N. E. 817; pi.^ \^g.^ ^^^^^ ^^^^ ^ g 43_ llarral v. Barral, 39 N. J. Eq. 279, 51 Two things must concur to constitute Am. Rep. 17; White v. Tennant, 31 domicil, — first, residence; secondly, W. Va. 790, 13 Am. St. Rep. 896, 8 S. ^'^^. intention of making the place of Ti, ,na I, „, ,„„ „,. residence the home of the party. %. 596; Frame v. Thormann, 102 Wis. ^here must be both fact and intent. 653, 79 N. W. 39. Story, Confl. L. § 44. So, though the residence be taken for a temporary ^Lyall v. Baton, 25 L. J. Ch. N. S. purpose, intention may change its 746. eliaraeter to a domicil ; but prima '.Ante, i 21. That the intention facie the place of residence is the 124 DOMICIL. [Chap. II. The intention must have reference to the present; and an intention to make one's residence at a certain place at some time in the future is not sufficient to effect a change of domi- cil, though accompanied by actual presence at that place.' An intention to establish a domicil in the locality is not suffi- cient if conditional upon a future event, e. g., success in a pro- fessional or business venture.^" No particular mode of residence is essential, and the requi- domicil until other facts establish ities of the new site, is not sufficient, the contrary. Even a recent estab- without an actual change of resi- lishment was held to constitute a dence. To sustain this is cited the domicil where the intention of German Code, Allg. Gerichtsordn. § making it a. personal residence was 16, and the rule of the Roman law, proved upon the party. Phillimore, Domieilium re et facto transfertur, Domicil, § 215. This rule applies, non nuda contestatione. L. 20, Dig. not only in our interstate habitation, ad munic. 50, 1. The recent French but also where a citizen removes to a adjudications take the same line; foreign country; as, where a citizen and it has been held that a double of Pennsylvania removed to Cuba, declaration made to the mayor of the settled there and engaged in trade, it former residence and to the mayor of was held that the presumption in the new residence is insufficient to favor of the domicil of origin no change domicil unless followed by an longer existed, and that the burden actual change of habitation. Jour of disproving the domicil of choice du droit int. priv6, 1875, p. 3S6. lay upon him who denied it. Hood's Estate, 21 Pa. 108. A fortiori would Intention may be afterwards graft- this presumption arise in favor of the ed upon the temporary residence in domicil of choice, in the case of a ^^der to fix domicil. Steers's Buc- citiT^en removing from one state to ■,»,-. another, for he is a citizen of the cession, 47 La. Ann. 1551, 18 So. 503. United States, and the whole land is But a temporary residence is not con- his common country." Gor(ion, J., in verted into domicil by the mere lapse ^Zc''! f P^!?'' ^5 Pa. 201. of time, unless an intention to re- ihat the time when a party de- . i, ^ . cides to make his domicil in a par- ™^'" permanently, or for an in- ticular place is to be determined by definite time, and the nonexistence of induction from all the facts, and not a present intention to remove, may exclusively from his own subsequent be inferred. Easterly v. Goodimn, recollection, see Bell v. Kennedy, L. ~. „ „_„ ., , _ no^ r, • R. 1 H. L. Sc. App. Cas. 307. ^^ ^°''"- ^'^' ^^ ^™- "'=<=• ^37; fa'« Domicil does not attach on an in- v. CroMford, 91 Ga. 30, 16 S. E. 106. tention to remain only in case of ^State Sav. Asso. v. Howard, 31 finding employment. Boss v. Ross, Fed. 433; People v. Moir, 207 111. 180, 103 Mass. 575. „. „ „ nr^e j ..7 -^ on In Martmi v. SoMiewinsU, Sup. ^'^ ^- ^- 905; Astley y. Capron, 89 Com. Court of Germany, 1874 (Jour. I".in Vicr 42, 7 Jur. 1023; .Forbes v. Forles, intended, so far as it yas w thin her Kay, 341, 2 Eq. Sep. 178, 23 L. J. Ch. power, to retain her domicil in JNew S 69 J] CONFLICT OF KESIDENCES. 14? ily to a foreign country for a permanent residence, or, being without a family, he may seek such country for his final abode ; and if so, it is hard to see how he can be prevented from ac- quiring a new domicil in such country by the fact that he was influenced in the movement by considerations of health.^ But this reasoning cannot be extended to cases where the invalid's York, and to subject her estate to the lose his domieil in Illinois by going laws of that jurisdiction. to Colorado in quest of health for his A similar decision was made in wife, and remaining there for about Cruger v. Phelps, 21 Misc. 252, 47 N. two years, with the intentioDj which Y. Supp. 61. So, in Fidelity Trust & he ultimately carried out, of return- Safety Vault Co. v. Preston, 96 Ky. ing to Illinois upon the restoration 277, 28 S. W. 658, it was held that of the wife's health, notwithstanding the testatrix retained her domicil in that he sold all his property in llli- the country, though, at the time of nois, and, upon reaching Colorado, her death, she was in an infirmary bought a library suitable for the de- in a city seeking restoration to mands of the practice of law in that health, and notwithstanding that she state, and engaged in the practice of desired that the city should be re- his profession there, it appearing garded as her residence for the pur- from his testimony that he was com- poses of the probate of her will, she pelled to do so to provide means to being desirous to avoid a contest over support himself and wife while living her will in the county in which the there. court subsequently found that she 2 gee Hoskins v. Matthews, 8 De was domiciled. G. M. & G. 28. So, in Mayo v. Equitable Life It was held in Begemam, v. Fox, 31 Assur. Soc. 71 Miss. 590, 15 So. 791, Barb. 475, that a person had acquired where a young unmarried man, who a domieil in Florida, though it ap- in search of health and a suitable peared that ill health was the reason field of labor left his parental home for his leaving New York, his pre- in Virginia, located for about a, year vious domicil, and going to Florida, in Tennessee, and thence came to There were many circumstances in Mississippi, under a contract of em- this case, however, that showed that ployment for a year, after the expira- he had determined to adjust himself tion of which he removed to another to the conditions of, and establish place in Tennessee, whence, after four his domicil in, the latter state, months, he returned to his home in So, in Firth v. Firth, 50 N. J. Bq. Virginia and died there a, few days 137, 24 Atl. 916, it was held that a afterward, — the court- said that it person had lost his domieil in New was doubtful if his domicil of origin Jersey, he having been absent from was ever renounced, and that, in any the state for more than six yeais, event, he abandoned the domicil of notwithstanding that he left the state choice, and reacquired the domicil of to seek a more congenial climate, and cigin. testifies that he always considered It was held in People v. Connell, himself a resident of the state. 28 111. App. 285, that a man did not 148 DOMICIL. [Chap. n. family remains, in part, in the old home, and that home is tept up. In view of the principle stated in a previous section, that a domicil once acquired is not lost until a new one is acquired by the concurrence of residence and intention to remain per- manently or for an indefinite time in the new locality, no diffi- culty is encountered in determining the domicil of one who has left his former domicil on account of ill health, unless he fixes upon some residence or settled place of habitation in another state or country. So long as he is traveling from one place to another in search of health, and does not fijc upon any settled place of abode, he retains the old domicil irrespective of his motives in leaving it or of his intention to return to it.^ The difficulty arises when a person, on account of illness, leaves the former domicil, and settles in another state or country under such circumstances as would otherwise fix his domicil there. As already pointed out, the fact that he left his former domicil and took up a residence in another place for the benefit of his health is not conclusive against a change of domicil, though it to some extent affects the signifi- cance of circumstances which would otherwise indicate an in- tention to change his domicil. The criterion in this, as in other cases, is found in the question whether he intended to make his new residence his permanent home. In a recent case decided by the House of Lords, the Lord Chancellor professed his inability to come to any satisfactory conclusion upon this question, from the circumstances of the case, and expressly based his decision against a change of domicil upon the rule which thrcfws the burden upon the party asserting a change.'" s Thus, in Still v. Woodville, 38 els, without having acquired any per- Miss. 046, it was held that an invalid manent abode at any place, did not who left his former domicil for the before his death lose his former dom- purpose of traveling, so as to regain icil, although he had no expectation his health or prolong his life, and of returning to it. shortly afterwards died on his trav- ^Winans v. Atty. Gen. 73 L. J. Q- § 70] CONFLICT OF RESIDENCES. 149 70. Commercial domicil may be obtained in foreign civilized land. — A person who goes to a foreign civilized country to en- gage permanently in trade, and becomes a Merchant in such country, acquires there, for commercial purposes, a domicil, though his family may remain behind, and he may return to pay them occasional visits.'' It should be observed, however, to adopt the language of Sir E. Phillimore,^ that the cases "which contain the enunciation of this doctrine were, indeed, cases recurring in time of war, and at a time when it was often a matter of great difficulty to discover the trader in the en- emy's commerce, who sought to disguise himself under the garb of a neutral, or to retain his native character. They were cases of commercial domicil; and, in the first place, it must be recollected that there may be transactions so radically na- tional as to impress the national character, independently of the local residence of the parties. But, as has been already ob- served, further CAddence of the animus manendi will generally be required to fix a testamentary domicil in time of peace."* But in any view, trade or mercantile domicil, in time of war, is so different from personal domicil, that the distinctions ap- plicable to the one are not applicable to the other. A man may so immerse his business in that of a belligerent country as to be infected, so far as concerns the goods he there places, with the belligerency of the eoujitry, without, so far as eon- B. N. S. 613, Eeversing 85 L. T. N. S. bearing upon the question, and the 508, 65 J. P. 819. A majority of the Lord Chancellor said that he could members of the House of Lords who not bring himself to a conclusion heard the case held that the burden whether the decedent intended to of proving that a native of the United change his domicil of origin or not. States had changed his domicil of and expressly rested his decision origin was not overcome by proof upon the fact that the burden was that he originally came to England upon the party asserting a change of on account of his health and lived domicil. there for twenty-seven years, always describing himself as an American ^/^^f Indiwn Chief, 3 0. Rob. 28; ... ° . J J. -ii, J^he Matchless, 1 Hagg. Adm. 103: citizen, purchased property in the y^^ Rendshurg, 4 C. Rob. 139; The United States in the hope of finally President, 5 C. Rob. 279; The Diana, making his home there, but was pre- 5 C. Rob. 168; The Venus, 8 Cranch, vented from doing so because the 279, 3 L. ed. 562. , . , , . , ,., , J „ 2 IV. p. 169, post, § 73. state of his health rendered a voya^ 3 gj^ ^ Phillimore cites to this across the Atlantic impracticable, jast point, 1 Wheaton, International There were many other circumstances Law, p. 159. 150 DOMICIL. [Chap. [I. cerns his status in other respects, subjecting himself t(, its laws. * 71. Otherwise as to barbarous lands. — It should also be ob- served that what has been said with regard to commercial resi- dence in civilized foreign lands does not apply to such resi- * See Hodgson v. De Beauchesne, 12 Moore, P. C. U. 313, 7 Week. Rep. 397; Westlake (1880), § 262, Report of Commission on British Claims; U. S. Foreign Relations 1873-4, vol. i. part 3. Mr. Dicey on Domioil (Op. cit. p. 343) notices the following diflfer- enees between civil and commercial domieil : "The fundamental distinc- tion between a civil domieil and a commercial domieil is this: A civil domieil is such a permanent residence in a, country as makes that country a person's home, and renders it, therefore, reasonable that his civil rights should in many instances be determined by the laws thereof. A commercial domieil, on the other hand, is such a. residence in a country for the purpose of trading there as makes a person's trade or business contribute to or form part of the re- sources of such country, and renders it, therefore, reasonable that his hos- tile, friendly, or neutral character should be determined by reference to the character of such country. When a person's civil domieil is in question, the matter to be determined is whether he has or has not so settled in a given country as to have made it his home. When a person's commer- cial domieil is in question, the mat- ter to be determined is whether he is or is not residing in a given country with the intention of continuing to trade there. From this fundamental diftinction arise the following differ- ences : — "(i. ) As to Residence. — Residence in a country is in general prima facie evidence of a person having there his civil domieil, but it is only prima facie evidence, the effect of which may be quite got rid of by proof that a person has never lived in the coun- try with the intention of making it liis permanent home ; but residence is far more than prima facie evidence of a person's commercial domieil. In time of war a man is taken to be domiciled for commercial purposes in the country where he in fact resides, and, if he is to escape the effect of such presumption, he must prove af- firmatively that he has the intention of not continuing to reside in such country. A long period further of residence, which, as regards civil rights, is merely evidence of domieil, might, it would seem, be absolutely conclusive in determining national character in time of war. 1 Duer, pp. .500, 501 ; The Harmony, 2 C. Rob. 322. "(II.) As to Intention. — The in- tention or animus, whicn, in combina- tion with residence, constitutes a civil domieil, is different from the in- tention or animus which, together with residence, makes up a commer- cial domieil. "The intention which goes to make up the existence of a civil domieil is the present intention of residing per- manently, or for an indefinite period, in a given country. The intention which goes to make up the existence of ;v commercial domieil is the inten- tion to continue residing and trad- ing in a given country, for the pres- ent. The former is an intention to be settled in a country and make it one's home; the latter is an inten- tion to continue residing and trading there. Hence, on the one hand, a person does not acquire a civil dom- ieil by residence in a country for a definite purpose or period, and can- not by residence in one country, e. g., France, get rid of a domieil in an- other, e. g., England, if he retains the purpose of ultimately returning to England as his home; while, on the other hand, the intention 'which the law attributes to a person residing in a hostile country is not disproved by evidence that he contemplated a return to his own country at some « 71] CONFLICT OF RESIDENCES. 151 dence in lands which are heathen or uncivilized.^ "Wherever," said Lord Stowell,^ "a mere factory is founded in the eastern parts of the world, European persons trading under the shelter and protection of those establishments are conceived to take their national character from that association under which they live and carry on their commerce. It is a rule of the law of nations, applying peculiarly to those countries, and is differ- ent from what prevails ordinarily in Europe and the western parts of the world, in which men take their present national character from the general character of the country in which they are resident; and this distinction arises from the nature and habit of the countries. In the western parts of the world, alien merchants mix in the society of the natives; access and intermixture are permitted; and they become incorporated to almost the full extent. But in the East, from the oldest times, an immiscible character has been kept up ; foreigners are not admitted into the general body and mass of the society of the nation; they continue strangers and sojourners, as all their fathers were; . . . not acquiring any national character under the general sovereignty of the country, and not trading under any recognized authority of their own original country, they have been held to derive their present character from that of the association, or factory, under whose - protection they live."^ And it is now settled law in England, as well as in the United States, that a civilized mercantile or missionary community, settled in a barbarous land, retains its own nation- ality.* In civilized states, it should be remembered, domicil is incidental to territory; in uncivilized states, domicil is in- cidental to race. In England, such domicil must be English; in jSTew York, it must be that of ISTew York. But there is no territorial domicil in China as such. In Shanghai, there may future period. If the period of his effected, no regard will be had to an return is wholly uncertain — if it re- intention of which the execution is mains in doubt at what time, if at so long deferred.' 1 Duer, pp. 500, all, he will be able to accomplish the 501." ■design — ^the design, however seriously i See this question discussed, ante, entertained, will not avail to refute S 15. the legal presumption. A residence 2 The Indian Chief, 3 C. Rob. 28. for an indefinite period is, in the See ante, § 15. judgment of law, not transitory, but 3 See Maltass v. Maltass, 1 Rob. permanent. Even when the party Eccl. Rep. 73; and particularly Phil. has a fixed intention to return to his iv. 199. own country at a certain period, yet, i Advocate General v. Ranee Sur- if a long interval of time — an inter- nomoye Dossee, 9 Moore, Ind. App. val not of months, but of years— is to 391. 2 Moore, P. C. C. N. S. 22. «lapse before his removal is to be 1S2 DOMICIL. [Chap. II. te domicil with the American race, or with the English race, or with the Chinese race; and these domicils may coexist on the same soil. So, in India, there may be an Anglo-Indian domicil and an Indian domicil.^ And in the United States, the defective civilization of the aboriginal Indian tribes takes them out of the category of communities where domicil is co- extensive with territory. Wherever a tribe may wander, its domiciliary law is the same. It is unpermeated by the civi- lized territorial law of the state where its residence may be per- mitted. On the other hand, the territorial law is in nowise permeated by it. 72. Only one domicil for status and succession. — According to Savigny, a person may municipally have distinct domicils in places in which his residence is equally established, using each as a center of his busiiiess and legal relations, and, when needed, actually dwelling in each.-^ Undoubtedly this was the case, by the Roman law, so far as the abstract question of sub- jection was concerned, and so far as related to municipal bur- dens and local jurisdiction. It was otherwise, however, as this great author subsequently shows, when the question arose as to what jurisdiction should impress upon the individual his peculiar legal type. A., B., and C, for instance, have con- flicting laws in reference to succession. Titus has a domicil in A., B., and C. By the laws of which is his legal status to be determined ? According to the Roman law, domicilium yielded prece- dence, in this respect, to origo (municipal citizenship; Biirger- recM) ; and when there were several titles of the latter class, the earliest prevailed.^ According to the analogies of the modern law, when there are conflicting domicils, that which was first acquired is that, in the opinion of Savigny, which should prevail.^ sWestlake (1880), § 249, speaking in England or Ireland, except so far of the tendency of the English courts as to exempt the person's succession to impute an Anglo-Indian domicil, from the home duty." And he even in eases where there was an in- points out peculiar reasons why a tention to return after a fortune is Scotch domicil should be held to made, says: "It must be admitted merge in an Anglo-Indian domicil. that there are strong reasons of con- Ante, § 34. venience in favor of the Anglo-Indian i Eiim. Eecht, viii. § 354. domicil in such cases. Since the 2 Savigny, viii. §§ 356, 357. Anglo-Indian law is nearly the same 3 md. § 359; Meier, de Conflictu as that of England or Ireland, the de- Legum, p. 16. The same pont is tak- cision in its favor makes little or no en in Oilman v. Oilman, 52 Me. 165, difference if the domicil of origin was 83 Am. Dec. 502. § 72] CONFLICT OF RESIDENCES. 153 In a well-known judgment by Chief Justice Shaw/ that learned judge said: "The supposition that a man can have two domicils would lead to the absurdest consequences. If he had two domicils within the limits of distant sovereign states, in ease of war, what would be an act of imperative duty to one would make him a traitor to the other." The difficulty in the whole of the able argument of which this is part is that it not only blends domieil with allegiance, but overlooks the fact that domieil, in the view of those who hold that it may be cumulative, is capable of several degrees. In order to deter- mine status, and eminently for the purposes of succession, it is agreed on all sides that a man can have but one domieil.® When he dies, the courts must decide between his several resi- dences, and select one, and one alone, as that which gives to his estate its type.® He can, for this purpose, have but one domieil, just as, in the argument of Chief Justice Shaw, he can have but one allegiance. 73. Otherwise as to matters political, commercial, and matri- monial. — Conflicts less ieasy of settlement may arise in eases where political or commercial domieil are in litigation.-' ITo one who studies the reports of commissions appointed to de- termine upon the domieil (or allegiance, as the case may be) 4 AUngton v. North Bridgewater, well settled in England and other 23 Pick. 170. countries that a man may have two 6 Vdny y.Vdny, L. R. 1 H. L. Se. ^^^^^^^^^ ^^ ^^^^ purposes, although App. Gas. 441. , , v+f ■ ^ '^'^ he can have but one for succession to A man can have but one domieil personal property (citing Somermlle for the same purpose at one time. v. Somerville, 5 Ves. Jr. 750, 5 Re- Allgood V. Williams, 92 Ala. 551, 8 vised Rep. 155). When domieil is So. 722; First Nat. Banh v. Balcom, properly distinguished from resi- 35 Conn. 351 ; Olson's Will, 63 Iowa, dence, it may probably be correctly 145, 18 N. W. 854 ; Oilman v. Gilman, said that no person can have more 52 Me. 165, 83 Am. Dec. 502; Ahing- than one domieil for any or all pur- ton v. North Bridgewater, 23 Pick, poses. See Dicey, Confl. L. pp. 96, 97. 170; Ballet v. Bassett, 100 Mass. 167; Ayer v. Weeks, 65 N. H. 248, 6 6 Jjdny v. Udny, L. R. 1 H. L. Sc. L. R. A. 716, 23 Am. St. Rep. 37, 18 ^pp. Cas. 441 Approved in Hind- A ii T. no cl ^ T J n>7 XT T mam's Appeal, 85 Pa. 466. Atl. IIOS; Stout V. Leonard, 37 N. J. , x^is was asserted as to political L. 495; Long v. Ryan, 30 Gratt. 718; domieil by Pollock, C. B., to be the White V. Tennant, 31 W. Va. 790, 13 case with Scotch peers who have es- Am. St. Rep. 896, 8 S. E. 598; Ball v. tates and residences in both Scotland YT 77 n^ XTT /.«/> and England. Re Capdevielle, 33 L, Hall, 25 Wis. 600. j g^^j^^ jj g gjg g ^„rigt 4 c. 985, It was said in Greene v. Greene, 11 lo Jur. N. 8. 1155, 12 Week. Rep. Pick. 409, 415, however, that it is 1110. a 54 DOMICIL. [Chap. II. •of persons claiming to have suffered from spoliation, when resident temporarily in a state involved in war, can avoid see- ing how many cases there are in which two domicils (or, it may be, two nationalities) appear established, and in which the preponderance of proof for one or the other domicil is ex- tremely slight.^ The same observation may be made in ref- erence to matrimonial domicil.'' Lord Stowell held more than ■once that a commercial domicil, under the prize law, could be acquired in a foreign land, when the original political domicil remained unchanged.* And we have been told by the judi- cial committee of the Privy Council that there is "a wide dif- ference in applying the law of domicil to contracts and to wills." ^ Sir E. Phillimore well says:® "It might, perliaps, have been more correct to have limited the use of the term 'domicil' to that which was the principal domicil, and to have designated simply as residences the other kinds of domicil; but a contrary practice has prevailed, and the neglect to dis- tinguish between the different subjects to which the law of ■domicil is applicable has been the chief source of the errors which have occasionally prevailed on this subject."'' Even ■Chancellor Kent* held that while there "is a political, a civil, and a forensic domicil, a man can have but one domicil for the purpose of succession."^ Yet the difficulties encountered in this line of cases can be solved without resorting to so forced an hypothesis as that of double domicil. A defendant is sued imder a law which authorizes process to be served on a party at his domicil ; and when service is proved at his place of busi- ness, this is held to be regular, the presumption of bona fides and of business regularity here coming in. Or a woman de- 2 See E«port of Commission to ad- s Groker v. Hertford, 4 Moore, P. just British Claims arising from C. C. 339. See also Thornditoe v. Bos- "TJnited States Civil War; U. S. For- ton, 1 Met. 242; Cfreene v. Greene, 11 eign Relations, 1873-4, vol. t part 3. Pick. 410; Putnam v. Johnson, 10 Ante, §§ 40, 70. Mass. 488; Somerville v. Somerville, 3 Matrimonial domicil, also, may 5 Ves. Jr. 750, 5 Revised Rep. 155. • continue as to the matrimonial estate e IV. 48. after the parties have changed their ^ g^g ^g Gapdevielle, 33 L. J. Exch. personal domicil. Post, §§ 189 e* j^ g 306^ 2 Hurlst. & C. 985, 10 Jur. ..scq. As to divorce domicil see Yel- j^ g j^gg^ jg ^^^^j^ ^ ^UO rerton y. Yelverton 1 Swabey & T. , ^ect. 37, § 4, note. o^t?", V '^T. ^XT°« ^of ■« V f"pi!- ' See als; Maltass v. Maltass, 1 .S 24, 1 L. T. N. S. 194, 8 Week. Rep. ^^^ ^^^^ ^^^ ^g. Robertson, Per- See, as to location of matrimonial «°"^1 ^rT'°'''A9fLl'"''-T\ \ , . '., „ * e inn Advocate General, 12 ularK ^ i<. 1, a domicil generally, post, § 190. ^ ^ „ ' iThe Ann, 1 Dodson, 223 ; Phil. iv. Jur. -i^ .51; Wheaton, International Law, 159. § 73] CONFLICT OF RESIDENCES. ]5!5 serted by her husband sues in the place of her independent residence, and this residence is held to be her domicil, the ■case being otherwise in equilibrium, on the ground that when a wrong is done, the burden of avoidance, if redress be sought, is on the wrongdoer. And in cases of alleged double political domicil, or nationality, it must be recollected that this duplic- ity is in most cases artfully got up by the parties themselves, who seek in this way to keep in with both sides, or at least to have a claim for protection and indemnity from the party that may ultimately win. 74. One domicil only for poll and succession taxes. — Taxation presents many complicated questions whose discussion is out of the range of the present volume. For poll taxes it is plain that there can be but one domicil; and in such cases domicil, not nationality, is to determine.^ The same rule applies to legacy diities, and taxes on collateral inheritances.^ The ques- tion of jurisdiction in taxation is hereafter considered.^ VI. Political coivsequences. 75. Domicil does not include political rights. — The right to acquire a domicil in an adopted country may be regarded as one of the most valuable additions to modem international law.-' The consequence of the acquisition of such a domicil is the loss by the abandoned country of all title to tax per- sonally, or to exact either civil or military obedience. But this change of relations cannot be effected, as Bar justly ar- :gues," by the emigrant's single will. He must be accepted as a resident by the country in which he settles. He must ac- quire not merely a domicil (Wohnsitz), but be granted an asy- lum (Wohnrecht), in such country. When these two qualities meet in his person, the parent country ceases, on a just and liberal view of international law, to have on him any claim. But such a domicil, though associated with an asylum, by no means involves the enjoyment of political rights. The Prussian statute of December 31, 1842, is emphatic to this 1 State ex rcl. Beckett v. Borden- to be converted, see Atty. Gen. v. Na- ioxon, 32 N. J. L. 192. pier, 6 Exch. 620, 20 L. J. Exch. N. S. 2 Thomson v. Advocate General, 12 173, 15 Jur. 253. €lark & F. 1, 9 Jur. 217. That leg- s I'ost, § 81. acy duty is not due upon legacy or i See particularly Pozl, in Blunt- annuity charged on foreign land, or schli's Staats Worterbuch, i. p. 5S0. •on the proceeds of such land directed 2 § 30. 156 DOMICIL. [Chap. n. effect in declaring that in that country the acquisition of dom- icil does not involve the acquisition of the character of a Prus- sian subject. Such is also the almost universal practice among civilized nations. An asylum is granted to emigrants, and domicil permitted, before they are so far naturalized as to be entitled to vote or to exercise any political franchise.* We have already seen that voting in a particular place is not conclusive proof of the adoption of such place as a dom- icil.* Domicil, as has also been seen, is not convertible with na- tionality. There may be domicil without nationality, and na- tionality without domicil.' At the same time the adoption of a foreign domicil, with an entire surrender of interest in the nation of origin, may constitute an abandonment of alle- giance to such nation.* 76. Aslyum as well as residence required. — By the recogni- tion of the principle thus stated, that it is necessary for an emigrant in a foreign land to acquire an asylum as well as a residence, in order to attach to him the laws of such land, the apparent difficulties arising from settlements in barbarous countries are removed. There may be permanent residence in such countries (e. g., China), but no asylum may be granted by them; and sometimes such asylimi is expressly refused. Consequently, as has been seen, commercial settlers in such countries do not become subjects, — do not receive, for the pur- poses of succession, the type of the local law, and are not liable to personal taxation.^ 77. Distinctive French rule. — The French Code, on its face, establishes for foreigners domiciled in France principles dif- ferent from those which it imposes on Frenchmen domiciled abroad. By art. 3, § 3, "Les lois concemant I'etat et la ca- pacite des personnes regissent les Frangais meme residant en pays etranger." Art. 13 provides that "L'etranger, qui aura ete admis, par I'autorisation de I'Empereur, a etablir son domi- cile en France, y jouira tous les droits civils tant qu'il contin- uera d'y resider." But the Frenchmen residing abroad, accord- ing to art. 17, are those only, as Bar well states/ who nourish an expectation of return to their native land, and who are, con- sequently, not actually domiciled abroad. On the other hand, 3 See Ante, §§ 7, 8, 40. Relations for 1873-4, vol. i. pt. ii. pp. 4 Ante, § 63. 1186 e* seq. 6 Ante, §§ 8, 34, 64. i Ante, |§ 15, 71. 6 See discussion in U. S. Foreign i § 30. § 77] POLITICAL CONSEQUENCES. 157 foreigners residing in France require official permission to enable them to obtain a French domicil; in other words, they must have had not merely domicil but asylum. By the law of December 3, 1849, this asylum is only provisional, and can at any time be terminated by an order from the Foreign Office directing an ejection from France.^ And this limita- tion, it has been argued in ISTew York, prevents a testamentary domicil from being acquired in France without authorization.* But this, as will be presently seen, is not correct* 771/2. Domicil not Internationally affected by local statutes.— Domicil, being a question of international law, is not to be determined by the statutes of any particular state. Thus, an Englishman, who by the law of nations is domiciled in France, is held in England to be so domiciled, though he has not com- plied with the French conditions of domicil.^ It is also clear that a statute of Massachusetts, which provides that persons resident in particular towns in the state on a particular day are to be regarded as there domiciled, does not affect citizens of other states residing in particular towns on the days speci- fied. 2 Gand 144 145- sonal property. A similar decision 3 Dupuy V. Wurtz, 53 N. Y. 556. was made in Harral v. Earral, 39 N. See contra, Hamilton v. Dalla^, L. E. j_ j, 279, 51 Am. Rep. 17, with re- 1 Oh Div 257, 45 L. J. Ch. N. S. 15, /■ . I ■ ■■, ■ -I - ,1. 33L T N S 495,24Week.Kep.264, ^P^^* to domicl m France for the cited post, § 77i. purpose of subjectmg personal prop- 4 See ante, § 34, as to the small erty to the community law of that number of persons availing them- country. A contrary opinion with selves of the French provision to this f + +j^ ^y + f +1^ nrovision effect; and see ante, § 41, note, where i-eterenee to the ettect ot the provision the French law is more fully noticed, was expressed m Dupuy v. Wur-te, 53 1 Hamilton v. Dallas, L. R. 1 Ch. N. Y. 556, but a decision upon the Div. 257, 45 L. J. Ch. N. S. 15, 33 L. point was not necessary. T. N. S 4.95, 24 Week. Rep. 264; ^,j^^ ^^^^.^^ ^^.^ ^^^^^.^ .^ ^^^ ante, § 41. mer v. Freeman, 10 Moore, P. CO. 308, The case cited involved the effect of 365, even upon the assumption that article 13 of the Code of Napoleon, article 13 prohibited the exercise of providing that a foreigner who has any civil rights to one who is domi- been permitted by the government to ciled in, but has received no authoriza- «stablish his domicil in France shall tion from the government of, France, •enjoy in that country all civil rights — held that the will of » person who so long as he resides therein. The had a, de facto domicil in France, but •case was decided upon the ground had never received an authorization that the provision did not, by its from the government, was ineffectual terms, require authorization from the so far as personal property was con- government as a condition of domicil cerned, because not executed in the for the purposes of succession to per- manner required by the law of France. 158 DOMICIL. [Chap. IL VII. Want of domicil. 78. When other conditions fail, residence may be the test. — A person may be without domicil, according to Savigny, in the following instances: — a. When a prior domicil has been abandoned, and a new one is sought, but not yet determined on as a residence. b. When the business of life is traveling (e. g., commercial agencies), there being no home as a central point of return. c. In the case of vagrants, or tramps, who wander from land to land, without any definite purpose or settled means of sup- port.-' But when there is no present or recent domicil, which has been voluntarily adopted, the courts will attach to the party the domicil acquired by him at birth. ^ When this cannot be ascertained, or should it appear to have been deliberately aban- doned, then the only course, in case of a person dying whose succession it is desirable to fix, is to assume residence to be domicil.^ In all ordinary cases, however, the original domicil is presumed to be retained until a new one has been actually acquired.* But when the old domicil has been finally aban- doned, without any proof of the adoption of a new one, resi- dence is the only test.^ The last conclusion presupposes that a domicil once ac- quired may be lost before the acquisition of a new domicil by the concurrence of residence and intention to remain per- manently or for an indefinite time in a new locality; but, as elsewhere shown,® the weight of authority is against that prop- osition. The intention essential to the acquisition of a new domicil may, under some circumstances, be inferred from the residence at the new locality ; but residence itself without such 1 R5m. Recht, viii. 354. North Yarmouth v. West Gardiner, 2 Ihid.; Voet, v. 1, § 92; Meier, de 58 Me. 207, 4 Am. Rep. 279. That no Confl. Legum, p. 14, Approved in man can be without a domicil, see Hicks V. Skinner, 72 N. C. 1. Udny v. Vdny, L. R. 1 H. L. Sc. App. 3 See Bruce v. Bruce, 6 Bro. P. C. Cas. 457, by Lord Westbmry, p. 447, 566, 2 Bos. & P. 230, note. by Lord Hatherley, p. 453, by Lord 4 Story, Confl. L. § 47 ; Jennison v. Chelmsford, cited in Dicey on Domi- Hapgood, 10 Pick. 77 ; Moore v. Wil- oil, p. 59. kins', 10 N. H. 452. Ante, § 55J. « Ante, ,§§ 55, 55a. s Hicks V. Skimier, 72 N. C. 1. See § 78] WANT OF DOMICIL. 159« intention does not suffice to establish a new domicil. Upon the other hand, the old domicil, whether a domicil of origin or of choice, is retained, notwithstanding that the residence in the new locality is accompanied by an intention never to return to the old domicil, if not also accompanied by an in- tention to remain permanently or for an indefinite time at the new residence. This rule, however, only applies when the rights or obligations involved depend upon domicil, as distin- quished from residence, and has no application to rights or obligations that depend upon residence, as distinguished from domicil. It is a well-established principle that every person has a domicil somewhere.^ VIII. Taxation. 79. Taxation by Roman law generally through, nmnicipalities.. Under the term munera, in this connection, the Roman ju- rists comprehended the burdens which were imposed on an in- dividual as a member of an urban community.-^ Sometimes the munera were classified as puhlica and privata, the latter of which do not fall under the present head. It did not follow that these burdens were imposed for the benefit of the munici- pality alone. On the contrary, it was the habit of the empire,, as is the case with many modern governments, to use the mu- nicipalities as agents for the collection of its own taxes and dues; and hence, many of the most oppressive burdens laid by the municipalities were for the benefit of the imperial treas- ury.^ All members of a municipality, whether attached to it by citizenship (BiirgerrecM ; origo), or by domicil, were alike responsible to it for these burdens. Hence it was that when a person, whether by citizenship or domicil, became a 'Re Craignish [1892] L. R. 3 Ch. Bank v. Baleom, 35 Conn. 351; Oil- Div. 180, 67 L. T. N. S. 689; McMul- man v. Oilman, 52 Me. 165, 83 Am. len V. Wadsworth, L. E. 14 App. Cas. Dec. 502. 631, 59 L. J. P. C. N. S. 7, 61 L. T. N. .,„,„.„,„„ ,,„ ,„. ^ « .07 rr J « \e r, T> r< ^ ^- 239, § 3, de V. S. 50, 16 ; L.. b. 487 ; Holmes v. Oregon & G. R. Co. jg^ g gg^ ^^ ^^^^_ ^50^ 4^ ^ ' 6 Sawy. 262, 5 Fed. 527; Merrill v. 2 Savigny, Rom. K. viii. § 355. Morrissett, 76 Ala. 433; First Nat. 160 DOMICIL. [Chap. II. member of several municipalities, his burdens were propor- tionally increased. There are indications, however, that lead us to infer that, while local and municipal taxes were assessed on him in each municipality of which he was thus a member, his general taxes for the empire were assessed singly, and in a specific jurisdiction.* To mitigate these hardships, and also to protect particular meritorious classes and interests, spe- cial exemptions from taxation were granted under the terms vacatio, excusatio, or immunitas.* 80. Personal taxes governed by personal law; real taxes by lex rei sitae. — As we have already seen, the modern law, both in Europe and the United States, recognizes the liability of a domiciled alien to taxation by the state in which he is dom- iciled.-' Whether a state can tax its subjects, not denational- ized, but domiciled in another land, depends upon the question already abundantly discussed, as to whether nationality or domicil is the standard of personal law.^ But even if domicil be the standard, a nation, it is argued by Bluntschli, may ex- ceptionally call for specific taxes (e. g., poor rates) from its citizens domiciled abroad. The country of domicil, however, is not in such cases bound to enforce the claims of the country of nationality.* But in any view, persons are bound to pay poll and personal taxes according to their personal law, as determined by the jurisprudence to which they are distinctive- ly subject* On the other hand, a transient resident, not dom- iciled (or, in states making nationality the test, not natural- ized), is not liable for ordinary governmental or municipal taxes. He may be compelled, however, to pay taxes imposed on special temporary residence, as is the case in some of the German states; and there can lae no question that he is liable equally with domiciled subjects for government fees, and for excise and tariff imposts. Of course, any property he may hold in such country, whether real or personal, is liable for the local property tax.^ As a general rule, we may hold that a personal tax cannot be assessed against one not a domiciled citizen. ® 3 L. 22, § 2; L. 29, ad mun. (50, 1) ; 153, 9 Jur. 217; State ex rel. Beckett L. fl, § 5; L. 18, § 22, adraun. (50, 4) ; v. Bordentm/m, 32 N. J. L. 192; L. 1 C. de munic. (10, 38) ; L. 4, § 6, Bluntschli, Volkerrecht, § 376. C. de incolis (10, 39) ; L. 239, | 2, de 2 Ante, §§ 7, 8. V. S. (50, 16). 2 Bhmtsclili, Op. oit. § 376. 4 L 5; 'l. 6; Cod. x. 144-64. * AMte, § 74. iA»i ^o within a state, his personal property, ^- ^^' ^°'««*' ^^S U. S. 193, 201, 43 in contemplation of law, accompanies L. ed. 665, 668, 19 Sup. Ct. E«p. 379. him, and he may be required to pay A state's power of taxation in re- taxes upon it wherever it is situate." gpect of property is limited to such I thmk this holds good only as to . -ii.- -j. ■ . ,. .. debts, not as to chlttels. Blood v. ^^ '^ ^'^'^"'^ '^ jurisdiction. New Sayre, 17 Vt. 609; Blackstone Mfg. York, L. E. & W. R. Co. v. Pennsyl- Co. V. Blackstone, 13 Gray, 488; Peo- vania, 153 U. S. 628, 38 L. ed. 846, pie ex ret. Hoyt v. Tax & A. Gomrs. 23 14 Sup. Ct. Eep. 952. T!!. Y. 22i; State, Potter, Prosecutor, ,cy, r . -rr,- ■ V. Ross, 23 N. J. L. 517; Garrier v. ^*- ■^''"** ""■ ^^''■ns Ferry Oe. Gordon, 21 Ohio St. 605; Wells, Rep. ^ Wall. 423, 20 L. ed. 192. on Taxation, p. 18. That for taxa- 164 DOMICIL. [Chap. n. personal property, though it would not suffice for the determina- tion of the questions arising with respect to the situs of intangi- ble personal property which has no visible situation or locality. As a matter of fact, however, it is not uncommon, if, indeed, it is not the rule, for the legislature of a state or country to apply both principles. Frequently both are incorporated in a single legislative act, to the end that property which might escape taxation under one principle may be subjected thereto under the other. For example, it is said in an opinion in a New York case:* "When the design of the legislature is to tax the transfer of everything that it has power to tax, there is no in- consistency in taxing in one form if another is not available. Indeed, perfect consistency is not always practicable in a scheme of taxation that is intended to let nothing escape that can be owned or transferred. Thus, the legislature intended, as I think, to repeal the maxim, Mobilia sequuntur personam so far as it was an obstacle, and leave it unchanged so far as it was an aid, to the imposition of a transfer tax upon all property in any respect subject to the laws of this state." This was said with reference to an act imposing a tax upon the transfer of property, whicb is not, strictly speaking, a tax upon the prop- erty itself; but is equally true of many acts which impose a strict property tax.* As suggested in the foregoing quotation, the adoption and application of both principles in the same 3Re Whiting, 150 N. Y. 27, 34 L. shall be subject to taxation." It is R. A. 2.32, 234, 55 Am. St. Rep. 640, obvious that the legislature, in this 44 N. E. 715. statute, adopts the maxim, Mohilia 4 For example, the Indiana act of sequuntur personam, in order to June 21, 1852, § 3, provided as fol- reach property of residents which is lows : "All real property within this in another state, and adopts the state, and all personal property actual location of the property as owned by persons residing within the criterion of its situs for the pur- this state, whether it is in or out of poses of taxation in order to reach this state, and all personal property the property of nonresidents which is within this state owned by persons within the state, not residing within this state, . . . § 80a] TAXATION. 165 jurisdiction do not necessarily involve any violation of the rules of constitutional law. The provisions frequently found in the state Constitutions prohibiting double taxation do not apply to double taxation resulting from the imposition of a tax by each of two or more states. ° Tangible personal property may, there- fore, as a matter of constitutional power, be subjected to taxa- tion either in the state in which the owner is domiciled, with- out reference to its actual situation,® or in the state where it is found (assuming that it is not transiently there), without re- gard to the domicil of the owner. ^ The prevailing tendency is to subject such property to taxation at its actual situs, though the owner is domiciled in another jurisdiction ; but the tendency to relieve it under such circumstances from taxation at the domicil ^Griggsby Constr. Co. v. Freeman, ley v. Newton, 67 N. H. 80, 35 L. R. 108 La. 435, 58 L. E. A. 439, 32 So. A. 756, 36 Atl. 610. 399. ^Sa/vings & Loan Soc. v. Multno- Wiere property is otherwise legal- mah County, 169 U. S. 421, 42 L. ed. ly taxable, it will not be exempt from 803, 18 Sup. Ot. Eep. 392; Bristol v. such taxation, in the absence of a Washington County, 177 U. S. 133, statute to that eflfeet, because it has 145, 44 L. ed. 701, 707, 20 Sup. Ct. been returned for assessment and Rep. 5S5. taxation for the same year in an- So, it was said in State ex rel. other state. Kelley v. Rhoades, 7 Mechanics Comrs. 126 Mich. 22, 86 Am. St. Rep. 524, 85 N. W. 307 (see note to this case in 60 L. R. A. 321, upon the general subject of constitutional equality in relation to corporate tax- ation). But see People ex rel. Trowbridge V. Tax & A. Comrs. 4 Hun, 595, Af- firmed in 62 N. Y. 630; and People ex rel. Pacific Mail 8. S. Co. v. Tax Comrs. 5 Hun, 200, Affirmed in 64 N. Y. 541, holding that stock owned by a resident in a foreign corporation is not taxable under a statute covering property "within this state." And the fact that the assessors have been taxed in the state where the corporation is domiciled does not exempt them from taxation at the domicil of the owner of the shares. Seward v. Rising Sun, 79 Ind. 351; Worth V. Ashe County, 90 N. C. 409; Dyer v. Osborne, 11 R. I. 321, 23 Am. Rep. 460. In some states the statutes ex- pressly exempt resident stockholders when the shares have been taxed at the domicil of the corporation. See Foster V. Stevens, 63 Vt. 175, 13 L. R. A. 166, 22 Atl. 78; Lockwood v. Weston, 61 Conn. 211, 23 Atl. 9. Stock in a foreign corporation, tak- en in consideration of a grant of the riglit to use patents which constitute the original capital of a domes- tic corporation, is not employed with- in the state so as to be taxable under New York act of 1880, chap. 542. People ex rel. Edison Electric Light Go. V. Campbell, 138 N. Y. 543, 20 L. R. A. 453, 34 N. E. 370. See also notes, 2 L. R. A. 798, 800, 58 L. R. A. 51.3, 578 et seq. ^Stanford v. San Frandsoo, 131 Gal. 34, 63 Pac. 145. But see Be Whiting, 150 N. Y. 27, 34 L. R. A. 232, 55 Am. St. Rep. 640, 44 Atl. 715; Re En-Hon, 113 N. Y. 174, sub nom. People V. Sherwood, 3 L. R. A. 464, 21 N. E. 87. iState V. Travelers Ins. Co. 70 Conn. 590, 66 Am. St. Rep. 138, 40 Atl. 465. So, in Wright v. Louisville £ W. R. Co. 195 U. S. 219, 49 L. ed. 182 DOMICIL [Chap. II. 8OV2. Succession taxes governed by the lex domicilii. — Under the English statutes legacy duty is charged on all the movables, wherever situated, of a person dying domiciled in the United Kingdom,^ but not on movables, though situated in the United Kingdom, of a person elsewhere domiciled.^ Succession duty is also charged on all the personal property, no matter where situated, of a person dying domiciled in the United King- dom.* Where a person dies domiciled out of the United King- dom, a successor is liable to succession duty when he claims under English trusts or settlements,* but not otherwise.® It is difficult to understand these rulings on any other ground than that which gives to a state, in the exercise of its sover- eignty, the right to tax all property which either belongs to a domiciled resident, or which cannot be realized without the action of the courts of the state imposing the tax.® — , 25 Sup. Ct. Rep. 16, it is held s Wallace v. Atty. Gen. L. R. 1 Oh. that shares of stock in an Alabama i'J^,^- /• ^^i- ^- S- 124, 11 Jur. N. S. ., , , . ,, ,., 1, „ n^,.r. 937, 13 L. T. N. S. 480, 14 Week. Rep. railroad corporation, held by a Geor- jjg g^^ ^^^^j ^ j^^^^^^ ^ -^ jg j,^ gia corporation, are taxable as the j^ 42 l. J. Ch. N. S. 195, 27 L. T. N. property of the latter under the man- S. 530, 21 Week. Rep. 34. date of the Georgia Constitution that ^ ^«e Wallop 1 De G. J. & S. 656, . „ , .. ,"„ , .- 5 New Reports, 679, 33 L. J. Ch. N. "all taxation shall be uniform upon g ggj^ jq ^^^ j^ g' ^^8, 10 L. T. N. the same class of subjects, and ad g. 174, 12 Week. Rep. 587; Be Cigala, valorem on all property subject to be L. R. 7 Ch. D. 351, 47 L. J. Ch. N. S. taxed within the territorial limits of 1«6, 38 L T. N S. 439 26 Week Rep. ,,..,.,,, , 257; Lyall v. Lyall, L. R. 15 Eq. 1, the authority levying the tax, and ^g l. J. Ch. N. S. 195, 27 L. T. N. S. shall be levied and collected under 530, 2I Week. Rep. 34. See Re Love- general laws," which is carried out lace, 28 L. J. Ch. 489, 4 De G. & J. in Georgia Laws 1898, No. 150, §§ 1, 340, 5 Jur. N. S. 694, 7 Week. Rep ,, . . . „ i, i 575; Afty. Gen. v. Campbell, L. R. 5 2, authorizing a tax on all the tax- -^ ^ 5^4, 41 L. J. Ch. N. S. 611, 21 able property of the state, and § 16 Week. Rep. 34. which requires taxpayers to return 5 Wallace v. Atty. Gen. L. R. 1 CSi. tViP Tiiirnhpr f>f =iliflrp„„i^ rrv,„„ ^.^ ■ -i. s ^i. trusts mentioned by the^will. But ^^ "^f."" ^^''^' ^^^ "majority of the the character of the ownership is no <=ourt m Re Smft, 137 N. Y. 77, 18 longer that of a legacy. The charac- L. R. A. 709, 32 N. E. 1096, took the ter of the ownership is under the position that the tax imposed by the trusts directed to be created by the -vr..^ vn,.t o/.f ^f ico'r „i,„ mo will. There is, therefore, a settle- Nej. lork act of 1887, chap. 713, was ment made of the property which is ^ t^x on the right of succession un- brought into this country and invest- der a will or devolution in case of in- ed here in such mode of investment testacy, and not a tax upon property as gives to the property while it re- ij.i,„ v j. i j, j., r , , mains here the character of English ^It^o^gh the language of the statute property in respect of locality. That was "all property which shall pass settlement so made, undoubtedly be- . . . shall be and is subject to a i N. S. 703, 18 Week. Rep. 686. Re Stokes, 62 L. T. N. S. 176, 38 Week. Rep. 535. 204 DOMICIL. [Chap. II. it became finally settled as the uniform rule for the whole im- perial domain. 82. So, in modem Roman law. — In the modern Eoman law, the principle that domicil fixes jurisdiction (forum) as well as legal status is inapplicable to cases where persons have no domicil at all. Where the defendant has several domicils, the plaintiff, as in the ancient law, has an election to sue in ei- ther. Where he has no present domicil, nor has at any time previously established a domicil, then he is to be viewed as having the domicil of the place in which he was born. The discussion of this topic, in relation to modern practice, is reserved for a future head. -^ 1 Post, §§ 396, 704 et seq. parish of his domicil. State ex reL In Louisiana a party cannot be Nelson v. Fournet, 30 La. Ann. 1103. compelled to appear and answer to a As to Georgia, see Daniel v. Sullivan, suit brought against him in any 46 Ga. 277. other court than that including the CHAPTER III. PERSONAL CAPACITY. Genebal principles as to persons. 84. Ubiquity of personal status much controverted. 85. Old solution based on distinguishing personal from real statutes; personal statutes being ubiquitous, real be- ing local. 86. Distinction is by itself insufficient. 87. Nationality not the necessary criterion. 88. Ubiquity of status not required by increase of travel. 89. In some states domicil is convertible with nationality, 90. Ubiquity is by old jurists the attribute of personal law. 91. Their difference as to what personal capacity consists in 92. Domicil the statutory test in German states. 93. Prench Code ambiguous; rule in Holland, Belgium, and Baden. 94. By Savigny domiciliary capacity for rights and business is ubiquitous unless inconsistent with civilization. 95. Story advocates domiciliary status unless inconsistent with domestic policy. 96. Westlake excludes foreign status in cases having an English seat. 97. Phillimore inclines to a larger recognition. 98. Bar's distinction between capacity for rights and that for business. 99. By Bluntschli and Schmid ubiquity is refused to artifi- cial incapacities. 100. By Ware, restrictions of freedom held not extraterrito- rial. 101. Better solution is that statutes artificially restricting capacity are not ubiquitous. 102. This distinction recognized by older jurists. 103. This view conducive to fair dealing. 104. And also to equalization of civil rights. 104J. French and Italian reservations of "public order and good morals" lead to same conclusions. 104|. In matters of national policy distinctive local law main- tained. 205 206 PERSONAL CAPACITY. [Chap. III. TI. Corporations. 105. Corporation has no necessary extraterritorial status. 1051. But in ordinary business is protected. 105a. Capacity of corporation. 105|. Liability of stockholders to creditors of foreign corpora- tion determined by law of corporate site. 105b. Enforcement of liability of stockholder or officer outside the state of incorporation. 105f. When property is left to foreign corporation, the judex situs will not undertake to direct the trust. 105|. Subject to local municipal law. III. Partictilab relations. a. Slavery and serfdom. 106. Slavery not extraterritorially recognized. b. Civil death. 107. Nor civil death; nor disabilities attached to ecclesiastics. 107i. Nor judicial declaration of death. c. Attainder arid infamy. 108. Nor attainder and infamy. d. Distinctions of creed or caste. 109. Nor distinctions of creed or caste. 8. Incapacity as to negotiaile paper. 110. Artificial limitations on negotiable paper do not follow the person. 111. Lex fori may in such cases prevail, but not to enforce foreign restriction. f. Infancy. 112. Guardianship of infants determined primarily by their personal law. 113. The term of minority is a matter of distinctive national policy. 114. Foreign statutes not permitted to override such policy. 115. Injustice worked by importation of foreign artificial in- capacity. 115a. Capacity of infant to contract. 116. Foreign parents or guardians not permitted to exercise powers not granted to home parent or guardian. 117. Foreign guardian not permitted to act except when au- thorized by home court, g Marriage. 118. Married woman incompetent to contract by her personal law may make a valid contract in a state imposing no such disability. 118a. Choice between lex domicilii and lex lo(yi contractus as test of married woman's capacity to make personal contracts. 118b. Remedy for enforcement of married woman's contract governed by lex fori. § 84] GENERAL PRINCIPLES AS TO PERSONS. '207 118e. Choice between lex loci contractus and lex situs as test of married woman's capacity to contract with refer- ence to property. 119. Conclusion of § 118 denied by advocates of ubiquity of personal law. 120. Personal marital power not ubiquitous. 121. (Omitted.) h. Lunatics and spendthrifts. 122. Lunacy and spendthrift decrees not extraterritorially binding. i. Cwil rights. 123. Civil rights generally conceded to foreigners, j. Legitimacy. 124. Status of. k. Foreign sovereigns. 124 J. Foreign sovereigns exempt from suit. IV. Acts done in exekcise of peesonal capacity. 125. Acts done in country of personal law valid everywhere. I. General principles as to persons. 84. Ubiquity of personal status much controverted. — Status is "the legal position of a party in or with regard to the rest of a community."-^ The status of a person domiciled in a coun- try is, so far as concerns that country, determined by its laws. But when he travels abroad, and resides temporarily in a for- eign land, without acquiring a domieil in such land, does the status impressed on him by the laws of his actual domieil con- tinue ? If he is a minor in his domieil, is he a minor, by force of such law, in a foreign land in which he may be resident, al- though, by the law of such land, persons of his age have ar- rived at majority ? If, in his domieil, he has no capacity what- ever for legal rights, does this incapacity, by force of this law, adhere to him in foreign lands in which no such restrictions exist? In other words, do statutes which determine personal status have extraterritorial force? Upon no question in inter- national law do the jurists of the continent of Europe, on the one side, come in more constant conflict with the courts of England and of the United States, on the other side; upon no question in international law have, even among jurists schooled in the Roman law, greater variations of opinion been ex- 1 Brett, J.. Niloyet v. Niboyet, L. S. 1, 39 L. T. N. S. 486, 27 Week. Rep. R. 4 Prob. Div. 11, 48 L. J. Prob. N. 203. -208 PERSONAL CAPACITY. [Chap. III. pressed.^ It is proposed in this chapter to consider some of the more prominent solutions of this problem, and then, in view of the conflicting character of these solutions, to inquire if there is any common principle on which they can be recon- ciled. 85. Old solution based on distinguishing personal from real statutes; personal statutes being ubiquitous, real being local. — It should be at the outset observed that statutes, in this sense, in- clude, not simply legislative enactments, but general principles of jurisprudence, as developed in the opinions of jurists and the decisions of courts. The historical antecedents of this fa- mous distinction have been already traced. It acquired defi- niteness and authoritativeness towards the end of the sixteenth -century. ^ Personal statutes, to adopt Savigny's definition, are laws which, in the main, have as subject the person and its at- tributes, although incidentally they touch matters of prop- erty. Real statutes are laws which, in the main, relate to things immovable, though incidentally such laws touch the person. Mixed statutes are by some authors defined to be laws which relate mainly neither to persons nor things, but are confined to transactions;^ while by other authors they are defined to be laws which embrace persons and things jointly. This distinction is applied to the adjudication of the ques- tion before us as follows: — The personal statutes of a domicil attach themselves to each person therein domiciled; and, wherever he goes, these laws adhere to him, and are to be applied to him by every foreign tribunal, until such domicil is lost by him, and a new one acquired, which new one then applies itself to him by the :same process. Real statutes apply themselves to all immovable things ex- 8 Mancini, distinguished not only rent in his Droit civil int. ii. 521 et as an author on private international seg. lav/, but as a member of the Italian The topic is also discussed in a pa- Parliament, published in the Jour, du per read by Mr. Westlake before the droit int. privS for 1874, p. 221, a val- Social Science Association at Edin- uable article on the importance of es- burgh, 1880. See criticism in the tablishing by treaty a uniform sys- Southern Law Keview for January, tem for the settling of international 1881: 6 Southern Law Rev. 694. et conflicts of laws, civil as well as ser/. criminal. See 6 Southern Law Rev. i Argentrseus, Num. 5, 6; J. Voet, ■694. Whether a personal incapacity §§ 2-4. • can be waived is discussed by Lau- ^So, J. Voet, § 4. 3 85] GENERAL PRINCIPLES AS TO PERSONS. 20lt isting in the jurisdiction in which these laws have force; and these laws are to be treated by foreign judges, in all other ju- risdictions, as governing such immovables. Mixed statutes adhere to all transactions occurring in the lurisdiction in which such laws have force; and are to be re- garded as governing such transactions by foreign judges.^ 86. Distinction is by itself insufficient. — There can be no ques- tion that the distinction between personal and real statutes was founded on the necessity of the case. Men are migratory, yet, divided as they are into nations and communities, they must each be impressed by the law to which they are subject with certain characteristics which they carry with them wher- ever they go. It would be absurd, as well as unjust, to say •of a traveler who is here to-day and gone to-morrow: "We will overhaul all his past life and that of his ancestors ; we will not regard him as legitimate unless legitimate according to our laws, or married unless married according to the form we pre- scribe." To a certain extent, therefore, we must regard laws •determining personal status as ubiquitous; and this quality of ubiquity we must also concede to laws affecting such prop- erty as is naturally attached to the owner's person. On the other hand, we cannot, from the nature of things, regard prop- erty whose situation is necessarily in one state as in any way .subject to the laws of another state. The distinction, there- fore, between statutes real and statutes personal is satisfactory as far as it goes, but it does not go far enough. For to say that personal laws are those which go with the person into foreign jurisdictions, where he may be temporarily residing, settles nothing, because we then need to know what are the laws which assign this personal quality, and what is the per- manency of the personal quality assigned; and for this pur- 3 The French court of cassation A remarkable ruling was made by adopts the old distinction between the same court, in 1872, when deter- statutes real and personal. "Le stat- mining the status of certain Israelite ut est personnel lorsqu'il r6gle, di- inhabitants of Algeria who did not reotement et principalement, la capa- claim, under the statute of July 14, citO ou I'incapacite des personnes 1865, the quality of French citizens, pour contracter : it est rfiel, lorsqu'il a These Israelites, it was held, were to principalement pour objet la prohibi- be considered "comme soumis jl la loi tion de disposer d'une esp6ce partic- frangaise quant aux statuts rgels, et uli6re de Mens et leur conservation." a la loi mosaique pour les statuts Brocher, Droit int. privg (1878) p. persoimels." Dalloz, 72, )_ 313; 180. To the same effect is cited Dem- Fiore, Op. cit. App. p. 631. olombe, i. Nos. 75 et seq.; Dalloz, v. Xoi, Nos. 386 et seq. Vol. I. CoNFL. of Laws — 14. 210 PERSONAL CAPACITY. [Chap. III. pose further definitions are required. So, also, mixed stat- utes, if liberally construed, would absorb the other two, and the doctrine, so far as concerned statutes mixed and stat- utes real, would contain two contradictory opposites. At the same time, it is important here to record this distinction, not merely as a part of the history of the law, but as explanatory of many propositions of the old writers that would otherwise be obscure.^ 87. Nationality not the necessary criterion. — Two conflicting theories, as we have already seen, present themselves to us in solving the question as to what is the personal law by which we are individually bound. These theories are, nationality and domicil. In one sense, undoubtedly, we must hold to both. In a great number of cases a man's nationality is that of his domicil, and in such cases the law of his nationality must nec- essarily be his personal law. Political status, also, is necessa- rily conditioned and limited by nationality. On the other hand, to recapitulate, there are serious objections to taking nation- ality as ubiquitously determining civil status. These objec- tions are as follows: — 1. JSTationality as a test is impracticable in all federative empires, in which (as with Great Britain, Germany, and the United States) there is one nationality with a plurality of com- ponent states, each with its distinctive jurisprudence. To say that a person whose status is in litigation is a subject of Great Britain, or of Germany, or of the United States, would set- tle nothing, for neither Great Britain, nor Germany, nor the 1 As authors which give this dia- press that its operation is confined to tinetion a sort of customary force, the country of its origin, they simply see Thibaut, Pandeeten, § 38; Kier- declare it to be a real statute." ulflr, pp. 75-82. For a discussion of Confl. L. § 16. More properly, per- the law as to statutes real and per- sonal laws are those which attach to sonal, see an article by Laurent, in the subject, wherever he may be. Revue de droit international (1869), Real laws are those which attach to vol. i. p. 244. Judge Story says, things, and are limited by the juris- speaking of the Roman jurists : "By dictions in which these things exist, the personality of laws, foreign ju- Judge Story, in a note to the above rists generally mean all laws which passage, says : "Mr. Livermore, in his concern the condition, state, and ca- Dissertations, used the words 'per- pacity of persons; hy the reality of sonality' and 'reality;' Mr. Henry, in laws, all laws which concern proper- his work, the words 'personalty' and ty or things; qime ad rem spectant. 'realty.' I have preferred the form- Whenever they wish to express that er, as least likely to lead to mistakes, the operation of a law is universal, as 'personalty' in our law is confined they compendiously announce that it to personal estate, and 'realty' to real is a personal statute; and whenever, estate." on the other hand, they wish to ex- § 87J GENERAL PRINCIPLES AS TO PERSONS. 211 United States, has a system of status ubiquitous with alle- giance. ■' 2. Nationality, as we have seen, involves many complex questions (e. g., in federative states, and in cases of double allegiance) which are apt to arise in the very issues in which personal capacity is litigated.^ 3. Domicil, and not nationality, had until recently the al- most unbroken assent of international jurists, and is now the only criterion which it is possible for jurists of all countries to adopt. It will be easy for Italy and Belgium to give up nationality for domicil; it vsdll be impossible for Great Brit- ain, Germany, and the United States, without introducing a centralization of jurisprudence inconsistent with liberty and good government, to give up domicil for nationality. 4. Domicil can be changed far less arbitrarily and ca- priciously than nationality.^ 88. Ubiquity of status not required by increase of travel. — It may be said that the increased facilities of modern travel make it still more important that personal status should be ubiquitous. It is easier now to travel round the world than it was in the Middle Ages to go from London to Alexandria. There are more passengers now on a single ocean steamer tJian in the Middle Ages would cross the British Channel in a wliole year for purposes of trade. It took Charles V. twice as long to transport troops from Flanders to Germany as it took the English government, in 1878, to transport troops from India to Europe. In old times a journey from one state to another was a great event. The habits and dress of nations were so different that a traveler had to make careful preparation to 1 See ante, §§ 7, 8^ 34. adoption of statutes prescribing that 2 See ante, §§ 10, lOJ, 11, 34. movable succession shall be governed 3 See full discussion, ante, §§ 7, 8, by the law of the state of which the 34. decedent is a citizen, "except so far That a committee of the Institute as it may still he necessary to refer of International Law, at its session to domicil in consequence of the eoex- at Oxford, in 1880, should have deter- istence of different civil laws in one mined in favor of nationality as a state," an exception which, in feder- eriterion is undoubtedly a fact to be ative countries, is as large as the gravely considered. There was, how- rule. He also proposes that domicil ever, no representation from the for succession should not be acquired United States on this committee; and until after a residence of one year, ac- Mr. Westlake, in a paper subsequent- eompanied by the deposit of ii writ- ly published (October, 1880), consid- ten declaration of desire for such ers the change at present impraetica- domicil. That a nationality cannot ble, so far as Great Britain is eon- be adopted as the criterion of porson- cemed. He proposes to lessen the al capacity is conceded by Mr. Wet^t- eotiflict, in cases of succession, by the lake. See 6 Southern Law R."v. 097. 212 PERSONAL CAPACITY. [Chap. III. adapt himself to the country he expected to visit, and even when he was not betrayed by his dress and manner, he was betrayed by his tongue. Not only, in the insulation of those times, did each nation have its language, but each neighborhood had its dialect, so that a stranger could at once be detected. Then, again, strangers dropped in but occasionally, and when they came they excited curiosity; whereas now, in the United States, whole communities are made up of strangers having too much to do to be surprised at each other. The consequence is that many of the notes which in old time marked foreigners are not now discernible. In many cases we have no means of determining whether a particular person is of foreign birth, or, if he be of foreign birth, whether he has been naturalized. And the masses of population which emigration throws upon us would require us, if we recognize foreign status, to admit it, not as a rare and insignificant exception, but as a principle dominating the land. So far, therefore, from the increase of travel prompting to a more general recognition of personal law, it prompts to a nonrecognition of that law unless coincident with the law of the state. Gliding as men now do without sign from land to land, coming in dense masses so as to often form communities by themselves, — to concede to them the personal status of their home, and particularly to concede to them the personal status of their nationality, would not merely destroy business confidence by making it difficult for us to know whom to trust, but would establish, in numerous sections, a foreign uncongenial jurisprudence. 89. In some states domicil is convertible with nationality. — In states, however, with a homogenous jurisprudence, we must remember that domicil is convertible with nationality, and that in such states allegiance to a common sovereign brings with it uniformity of personal capacity. In such cases domi- ciliary law may be regarded as impressed, not by the law of nations, but by the law of the particular state. And in this re- spect the theory of nationality brings us back to the old view that "domicil" is the creature, not of tribe, but of territory.' 1 As exponents of this view, see ity, see Eichhorn, § 35 ; Schaffner, § Mascardus, In his Conclusiones ad 33; Heffter, § 38. The last-named generalem statutorum interpretatio- eminent jurist, however, concedes to nem. Cone. 6, No. 14, Frank. 1609; a foreign sovereign the right to estab- also Baldus Ubaldus, in his Com- lish an absolute and unvarying stat- ment. in Codicem, L. i. C. de S. T. us for all residents, the law of per- Nos. 58, 78. sonal domicil only obtaining in do- As Germans inclining to national- fault of such enactment. See also § 90] GENERAL PRINCIPLES AS TO PERSONS. 213 90. Ubiquity is by old jurists the attribute of personal law. — Yet, whatever might be regarded as the source of personal law, whether traceable to tribe, or territory, or allegiance, to personal law, as establishing more or less absolutely personal status, extraterritoriality was by the old jurists everywhere as- signed. "If I admit a foreigner on my shores," so a sovereign is supposed to necessarily argue, "I receive him as he comes, with the status of his domicil inwrought." "Statuta in per- sonas directa quaeque certam iis qualitatem affigunt, transeunt cum personis extra territorium statuentium, ut persona ubique sit uniformis ejusque unus status."^ 91. Their difference as to what personal capacity consists in. — But however harmonious were these jurists in assigning ubiquity to personal law, they were far from harmonizing in their ideas of what constitutes the personal capacity which is to be thus ubiquitous. By some it is held that where a statute of domicil confers, abridges, or destroys capacity, whether this capacity be generally for the possession of rights, or spe- cially for the exercise of business, then such statute attaches to the subject wherever he may go, and is to be regarded as con- clusive by all foreign courts.^ Argentrseus,^ feeling that however comprehensive such a classification might be, in practice it is often inconvenient, if not impossible (e. g., when a foreign noble claims prerogatives for which the domestic law gives no machinery), maintained that while general character is to be determined by domicil, capacity to deal specially with property is to be determined by the lex rei sitae. In this he has been followed by others of more recent date;^ though, as Bar* justly remarks, there is no general rule as to status which may not, on being reduced to practice, be turned into a rule as to property. Burgundus^ struck out a new modification, declaring that, in all matters of contract, the lex domicilii was to prevail; in Mittermaier, § 31 ; Merlin, R6p. Tes- judges when treating of domicil. See tament, Lect. 1, § 5, art. i. ; Roden- also Christianaeus, vol. ii. Dec. 3, No. burg, i. 3, §§ 4-6; Bouhier, chap. 24, 3. Nos. 1, 9; Boullenois, i. p. 48; Hu- i Boullenois, i. p. 26; Merlin, R6p. ber, de Conflict. Lib. i. title 3; Sa- Test. Leet. i. § 5; Rodenburg, i. 3, vigny, viii. p. 134; Waehter, ii. p. §§ 4-6, ii. 1; Bouhier, chapter 24, 172. Nos. 1-19; Mevius, in Jus. Lub. pro- 1 Stockmanns, Decisiones Braban- leg. qu. 4, § 25. tinse, 1665, Dec. 125, No. 8. This 2 Nos. 16-18. view has been frequently expressed 3 See Boullenois, i. p. 48. under the general doctrine of the in- * § 43. delibility of nationality, by English b I. § 3, ii. § 5. 214 PERSONAL CAPACITY. [Chap. III. all matters of sale the lex rei sites; and this distinction is spoken of not disapprovingly by Judge Story.® Yet, though there may be many cases of contracts without sales, it is hard to conceive of a sale without a contract. Paul Voet accepted this, so far as concerns the sale of immovables ; '^ but, as that learned jurist, with so many of his day, considered that "mo- hilia sequuntur personam/' he held that sales of movables were to be subjected to the law of the owner's domicil. It is unnec- essary to pause here to exhibit at large the absurdity of this position in cases where there are two or more owners with different domicils, or where the question at issue is who the owner really is. In addition to the difficulty thus exhibited of bringing into practical operation this maxim of the subjection of status to domicil, the authority, in this respect, of the jurists thus quoted, is much weakened by the fact that the reasoning adopt- ed by these learned writers is tinged with the notion of the unity of Europe under the Germanic emperor. The world, they held, is a unit. It was proper that the status impressed on a man by his personal law should be imputed to him every- where. It was forgotten that the very object for which this ubiquity of status was claimed showed that the hypothesis on which it was claimed was untrue. To neutralize inequalities arising from the world being divided into independent sov- ereignties, it was claimed that the world was not divided into independent sovereignties. The fact was denied as a means of counteracting the fact. 92. Domicil the statutory test in German states. — The princi- ple that domicil determines status has been incorporated, with more or less distinctness, in several European codes. The Prussian Code expressly applies this rule to strangers who transact business in Prussia, with some modifications, how- ever, in favor of Prussian subjects.^ A foreigner's contract made in Prussia is good, if either his personal law, or the Prussian, gives him capacity.^ Austria,^ the Canton of 6 Confl. L. § 431. lod contractus and the leae domicilii 7 Cap. 2, § 4, No. 6. clash as to capacity, adopts the law 1 Einleitung des allgem. Preuss. most favorable to the validity of the Xiandr. §§ 23, 34, 35; Preuss. 6e- transaction in question. The same richts. Ord. i. title i. §§ 5, 6. See rule is adopted in Austria. West- Savigny, viii. p. 141; Phil. iv. p. 248; lake (1880), p. 29. Bar, § 45, note 8. 2 lUd. The Prussian Code, in cases where 3 G. B. §§ 4, 34; Bar, § 45, note 8; there is a double domicil, or the lex Piittlingen, § 47 : Phil. iv. 247 ; Sa- § 92] GENERAL PRINCIPLES AS TO PERSONS. 215 Berne,* Canton Freiburg,® enact specifically that business ca- pacity (Handlungsfdhigkeit), both as to subjects abroad and strangers in the home country, is to be determined according to the lex domicilii.^ Yet, while this is the case, neither Aus- tria nor Prussia, as we will sec, recognizes as operative with- in its borders prerogatives of foreigners which interfere with its own policy or interests. 93. Frencli Code ambiguous; rule in Holland, Belgium, and Baden. — The Code Civil of France is open to more doubt. On the one side it contains the famous provision, redolent of the arrogance of the First JSTapoleon: "Les lois concernant I'etat et la capacite des personnes regissent les Frangais meme resi- dant en pays etr anger." If by this it is meant simply to de- clare that a Frenchman, in all matters to be adjudicated by French courts, is to be gauged, as to his status, by French law, the proposition can easily be maintained. But if it be meant to assert, as Napoleon I. construed it during the maintenance of the French continental system, that France requires foreign countries to apply to Frenchmen traveling in such countries, not the law of the situs, but the law of France, the demand was incompatible with international independence, and explicable only on the hypothesis that the French emperor, as the succes- sor of the emperors of Rome, exercised universal imperial sway. On the other side, the Code Civil includes no provision that the status of foreigners resident in France is to be de- termined by the law of their domicil. This omission, how- ever, has been supplied by a series of decisions which declare that as Frenchmen carry the laws of their domicil abroad, so foreigners, in matters not conflicting with French policy or interest, bring the law of their domicil to France.^ Hol- land^ and Russia^ claim for subjects, when abroad, the home vigny, p. 145; Bavaria Codex, Max- origin or of nationality, which may im. civ. i. 2, § 17. or may not be that of domicil. He i Gesetzb. art. 4. thus speaks (Op. cit. § 27) : "La loi 5 Gesetzb. arts. 1 and 3. personelle de chaque individu, la loi 6 See Bar, § 45, note 8. dont il est sujet, quant i sa personne 1 Fcelix, p. 64. Fiore, while show- et eelle de la nation dont il est mem- ing that by the Belgian and Italian bre .... la loi de cette na- law nationality is the test, concedes tion est sa loi personelle depuis le that the French Code leaves tbe premier moment de son existence question, as between domicil and na- physique." Demangeat, however, in tionality, open, by studiously em- his notes to Fcelix, expressly limits ploying equivocal terms. Fiore, Op. the doctrine to domicil. ■cit. § 51. 2 Nied. Gesetz. arts. 3, 9. Foelix inclines to accept the law of 3 Code, art. 6. 216 PERSONAL CAPACITY. [Chap. HI. status ; but, notwithstanding this, provide that foreigners, when resident in their respective domains, shall be governed by the law of the situs.* Belgium, and the cantons of Geneva and Vaud, adopt the French Code.^ Baden adopts the Trench Code, with the proviso that the rule shall not affect contracts, — a proviso which deprives the rule of all practical business operation. 94. By Savigny domiciliary capacity for rights and business- is ubiquitous unless inconsistent with civilization. — The most philosophic and consistent vindication of the supremacy of domicil in determining status is to be found in Savigny.-' He rests the universal applicability of the law of domicil, in this respect, on the assumption that the several conditions which determine capacity for rights and business {Rechts und Hartd- lungsfahigheii) can only be satisfied by an application of that local law to which the person, by his domicil, is subject. He rejects with emphasis the qualification of Wachter^ (after- wards enforced with energy by Bar)* that while the general capacity of a foreigner, so far as such capacity is common to the forum of litigation, is to be determined by the law of his domicil, the practical working of this capacity is to be deter- mined by the law of the place where the thing is done. But he admits of certain large exceptions, which, if liberally con- strued, may leave but little to the rule beyond a name. He declares that institutions which are unrecognized by modern civilized nations, taking them as a whole, have no extraterri- torial force. He instances, it is true, chiefly religious restric- tions and immoral privileges; though if we take the general position that nothing which is not received by the entire com- munity of nations has extraterritorial force, we do little more than declare that no law obtains within a country except that which that country itself ordains. 95. Story advocates domiciliary status unless inconsistent with domestic policy. — Judge Story, in his elaborate chapter on this topic, quotes with his usual copious learning from the older jurists, striving to reconcile the general opinion expressed by them as to the impress given by domicil to personal character, with the decisions of the English and American courts. The discussion is not a little embarrassed by his treating under the same head, and as governed by the same principles, family i Bar, § 45, note 8. 2 Op. ii. p. 172. B Phil. iv. p. 24a 8 See post, § 98. y Op. cit. p. 64. § 95] GENERAL PRINCIPLES AS TO PERSONS. 217 status and personal status, which, as will hereafter be seen, are subject to different considerations. So far as concerns the particular question of personal status, he labors under the disadvantage of writing without information of the views of Wachter, Savigny, and Foelix, by whom so much has been done to reduce the modern doctrine to a systematic shape. Strik- ing from the discussion, however, the portions that relate to marriage and legitimacy, which are reserved for future con- sideration, and regarding simply the conclusions that he reaches as to the capacity to enjoy and exercise legal rights, we find that the opinions expressed by him are not widely different from those so ably maintained by Savigny. He de- clares his personal preference for the law of domicil, as de- fining such capacity. He holds, at the same time, that the disabilities of slavery, of religious proscription, and of social caste, have no extraterritorial force. -^ He asserts that domes- tic policy, when positive, overrides, in all cases, foreign enact- ments.^ He admits that the tendency of American and Eng- lish authorities, so far as concerns contracts, is to make the lex loci contractus supreme,* and he even subordinates to this the law of infancy.* And even this is qualified by the gen- eral statement: "The truth seems to be that there are, prop- erly speaking, no universal rules by which nations are, or ought to be, morally or politically bound to each other on this subject. Each nation may well adopt for itself such modifica- tions of the general doctrine as it deems most convenient and most in harmony with its own institutions, and interests, and policy." 96. Westlake excludes foreign status in cases having an Eng- lish seat. — Mr. Westlake (Private International Laws) tells us (1858), art. 402, that, "while the English law remains as it is, it must, on principle, be taken as excluding, in the case of transactions having their seat here, not only a foreign age of majority, but also all foreign determination of status or ca- pacity, whether made by law or by judicial act, since no dif- ference can be established between the cases; nor does any exist on the continent." He also states that "the validity of a contract made out of England, with regard to the personal capacity of the contractor, will be referred in our courts to the lex loci contractus." And in a paper read by him in Oa- 1 Confl. L. §§ 94r-96. 8 Ihid. § 102. 2 lUd. § 70. *lhid. § 73. •218 PERSONAL CAPACITY. [Chap. III. tober, 1880, he declares that to attempt to determine status by nationality would be futile, since "there is a notorious want ■of agreement as to the cases to which a rule founded on either should be applied." 97. Phillimore inclines to a larger recognition. — The inclina- tion of Sir R. Phillimore is towards the universal application • of the law of domicil, but he admits that between England and America on the one side, and the continent of Europe on the other, there is a conflict which is still unadjusted. "The state 'of jurisprudence presented by the practice of the English and American tribunals upon the question of the personal status ■of foreigners," he says,^ "will be found very unsatisfactory, whether it be considered with reference to comity, as being at variance with the law of the rest of the Christian world, or with reference to its own domestic jurisprudence, being marked by painful and clumsy inconsistencies." 98. Bar's distinction between capacity for rights and that for business. — We have already noticed a distinction taken by Wachter between capacity for rights (Rechtsfdhigheit) and V business capacity (Handlungsfdhigkeit). This distinction has been more recently (1862) developed and enforced with much power by Bar. He shows that the apparent universality of the .lex domicilii, as expressed by the earlier jurists, is only illu- sory; and that those of them who treat the subject practically introduce so many qualifications as to withdraw from the rule any arbitrary and absolute authority. He calls attention to the fact that a maxim, based on the subordination of all Christ- endom to the emperor, is not necessarily a part of the policy ■ of independent states. He points out that personal capacity, as the term is generally used, contains two very distinct ele- ments: Eirst a capacity for rights (Rechtsfdhigheit), and sec- ■ ondly, a capacity for business (Handlungsfdhigkeit), which are subject to very different considerations. Laws extinguish- ing capacity for rights — such as slavery — notoriously affect the status, and yet, with equal notoriety, have no extraterri- torial force. With regard to capacity for business there is a subordinate distinction. Special incapacities (e. g., those pro- hibiting nobles from trade) have no extraterritorial force. But it is otherwise with general incapacities, based on conditions -of tutelage. It must be admitted, argues this learned and :acu.te author,^ that the simple application of the lex loci actus I Op. cit. p. 250. 1 Op. cit. § 48, p. 160. § 98] GENERAL PRINCIPLES AS TO PERSONS. 219 is practically preferable to that of the lex domicilii, when the question relates, not to business capacity in its general sense, but to what are called the special business capacities. The application of the law of domicil to the latter would impose an intolerable burden. It would require that the inhabitants of every land, when entering into a contract, should observe the formalities required by the domicil of any foreigners who may be parties, — formalities which may not only be extraor- dinary, but, to those unused to them, absurd. It would re- quire the maintenance of special rules for special classes of foreigners, — classes of which at home there is no conception, because at home they do not exist. It is otherwise with busi- ness capacity, in the sense in which the term is here used. The law on this topic, because it rests on natural properties of the persons concerned, exists in one or another form in ev- ery land. A person of this class, when traveling in a foreign land, notifies, by his very condition, the inhabitants of such foreign land that at home he labors under disabilities. In ad- dition to this, persons of this class, from the very fact that they have no power over their estate, have no means to carry on permanent business abroad. A prudent man of business will not be readily induced to engage with them in important un- dertakings. And he who gives credit to unknown persons de- serves no greater legal protection, in those cases where his money is lost through the want of capacity of the parties whom he trusts, than in those cases where it is lost through their insolvency. By Bar, therefore, the incapacities of mi- nority and coverture are regarded as determined by the law of domicil. But this, as vdll hereafter be seen, is with many qualifications; and he holds that when a person is of full age by the lex loci actus, a bona fide transaction with him will be :sustained. ^ 2 § 45, p. 156. On the other liand, Mr. Dicey, on Fiore (Op. cit. § 48) argues with Domicil (Op. cit. p. 166), when much force against the separation of speaking of the rule propounded by status from its incidents. How, he him that the application of a foreign asks, can it be said that a man's status be discretionary on the courts -status is determined by his personal (see post, § 104§), says: "This law, when all that he does, in the ex- principle comes very near to the ercise of this status, is determined opinion of some jurists that a dis- hy the place where the act is done? tiiiction ought to be made between When the law, as he insists, declares the existence of a status — for exam- a person to be a minor, then he is to pie, infancy — and the legal results or be clothed with the incapacities of a eflTects of it; and that while the ex- Tninor; he cannot be in theory a mi- istenee of the status ought to be de mor and yet practically of full age. termined wholly by the law of a per- 220 PERSONAL CAPACITY. [Chap. III. 99. By Bluntschli and Schmid ubiquity is refused to artificial incapacities. — Bluntschli, in his work on international law, — a work as distinguished from the spirit of constitutional lib- erty with which it is instinct, as for its vigor of style, — states forcibly the liberal view of this vexed topic. He admits that a local legislature may determine to what extent, for the guid- ance of its own tribunals, its private laws are to affect its subjects living abroad. But he asserts that, as a rule, civil legislation is effective only as to the subject territory. In other words, the territorial principle is that which must con- trol. The personal principle, on the other hand (the lex dom- icilii of the older jurists), has its particular sphere in the family relations, such as the conditions of marriage, or guard- ianship, and of successions.^ To extend it further would be to make private international law simply a chain of recip- rocal despotic proscriptions. And such, also, is the general drift of the argument of Reinhold Schmid, professor of law at Berne, in a learned publication on the local sovereignty of law. ^ 100. By Ware, restrictions of freedom held not extraterrito- rial. — In a celebrated judgment, by the late Judge Ware, the nonextraterritoriality of statutes restricting freedom is de- fended with much felicity.* "No nation, it is believed," so he wrote, "ever gave it" (the maxim of the ubiquity of domicil- iary status) "effect in its practical jurisprudence, in its whole extent. Among these personal statutes for which this ubiquity is claimed are those which formerly, over the whole of Europe, and still over a large part of it, divide the people into different castes; as, nobles and plebians, clergy and laity. The favored classes were entitled to many personal privileges and im-, munities, particularly beneficial and honorable to themselves. It cannot be supposed that those immunities would be allowed in a country which admitted of no such distinctions in its son's domicil, the extent to which ef- certain to feel in practice, of either feet should be given in other coun- referring questions of status wholly tries to the results of such status, e. to the lex domicilii, or on the other g., to the infant's incapacity to con- hand entirely refusing recognition to tract, depends upon other laws, as, personal conditions imposed by the for example, the lex loci contractus, law of a person's domicil." See, on or the law of the place where the this topic, post, § 330. contract is made. As a speculative i Moderne Volkerrecht, § 379. view, this opinion is obviously open 2 Op. cit. June, 1863, pp. 30-34. to criticism; but it represents in a i Polydore v. Prince, 1 Ware, 413, theoretical form the difBculty which Fed. Cas. No. 11,257. See 6 South- the law courts of any country are ern Law Rev. 694. § 100] GENBEAL PRINCIPLES AS TO PERSONS. 221 domestic polity. ... In like manner the disqualification and incapacities by which persons may be affected by the mu- nicipal institutions of their own country will not be recognized against them in countries by whose laws no such disqualifica- tions are acknowledged." It was consequently held that a person who, by the laws of Guadaloupe, could not bring suit on account of servitude, labored under no such incapacity in Boston. 101. Better solution is that statutes artificially restricting ca- pacity are not ubiquitous. — Taking into consideration the lim- itations which have been assigned to the ubiquity of personal law, even by the most uncompromising advocates of that ubiquity, and applying these limitations to the United States, a country whose distinctive policy requires the encouraging of early marriages, and the utilization of immigrants by re- lieving them from any artificial disabilities to which they may be subject at home, we are led to refuse extraterritorial operation to foreign laws so far as they impose on persons marrying or doing business within our territory restrictions which we deem artificial and impolitic. In other words, we regard all persons of full age, taking full age in the sense in which our own laws, based on national policy, define it, as en- titled, when forming part of our community, to equal civil rights; and we will not refuse to the foreigner, who visits our shores, the civil rights in this respect which we award to our ovm citizens.^ On the other hand, we may regard as ubiquitous foreign statutes which limit capacity for protective purposes. Hence, we may properly recognize as authoritative on our own shores the decrees of a foreign state pronouncing a person domiciled in such state to be insane, and we also resort to the lex domicilii for the purpose of determining the testamentary capacity of a foreigner dying on our soil.^ 1 As to minority, see post, §§ 113, country from which, they emanate. 115a. Brocher, Droit int. priv6, pp. 90-1. 2 So far as concerns social Incapac- Mr. Schouler on Domestic Eela- ities, we must distinguish between tions, p. 526, lays down the following such as are derived from natural rules: First, that the actual domi- causes, or causes admitted by com- cil will be preferred to the domicil mon right {le droit commim), and of birth. Secondly, that the law of those which rest on considerations situation of real property must pre- which are special, and more or less vail over that of domicil. Thirdly, contrary to principles generally ac- that the law of the place where a cepted. The first, as a rule, should contract is made must prevail over be recognized by foreign states. The that of domicil. To the last points effects of the latter, on the other he cites, among other cases, Huey's hand, seem properly limited to the Appeal, 1 Grant, Gas. 51; Hiestand 222 PERSONAL CAPACITY. [Chap. III. 108. This distinction, recognized by older jurists. — Grlimpses of this distinction are to be found in the classification, hy some of the older jurists, of statutes as Privil.egia odiosa and Privilegia favorabilia. V. Kims, 8 Blaekf. 345, 46 Am. Dee. 481. In Milliken v. Pratt, 125 Mass. 374, 28 Am. Rep. 241, the conclusion reached by the court was that a mar- ried woman, who had "always resid- ed" in Massachusetts, and who was there domiciled, and who by the Mas- sachusetts law was incapable of mak- ing the contract in litigation, would nevertheless be held in Massachu- setts to be capable of making such a contract, if the place of its perform- ance was to be Maine, and if by the Maine law she could make the con- tract. In the opinion of Chief Jus- tice Gray is given the following ex- position of the law, which fully sus- tains the results reached in the text : "It has been often stated by com- mentators that the law of the domi- cil, regulating the capacity of a per- son, accompanies and governs the person everywhere. But this state- ment, in modern times at least, is subject to many qualifications; and the opinions of foreign jurists upon the subject, the principal of which are collected in the treatises of Mr. Justice Story and of Dr. Francis Wharton on the Conflict of Laws, are too varying and contradictory to con- trol the general current of the Eng- lish and American authorities in fa- vor of holding that a contract, which by the law of the place is recognized as lawfully made by a capable per- son, is valid everywhere, although the person would not, under the law of his domieil, be deemed capable of making it. "Two cases in the time of Lord Hardwicke have been sometimes sup- posed to sustain the opposite view. The iirst is Ex parte Lewis, 1 Ves. Sr. 298, decided in the court of chan- cer}' in 1749, in which a petition un- der the statute of 4 George 2, chap. 10, that a lunatic heir of a mortga- gee might be directed to convey to the mortgagor, was granted by Lord Hardwicke, on the ground of 'there having been a proceeding before a proper jurisdiction, the senate of Hamburg, where he resided, upon which he was found non compos, and a curator or guardian appointed for him and his affairs, which proceed- ing the court was obliged to take no- tice of.' But the foreign adjudica- tion was thus taken notice of as competent evidence of the lunacy only; and that the authority of the foreign guardian was not recognized as extending to England is evident from the fact that the conveyance prayed for and ordered was from the lunatic himself. The other is Morri- son's Case, in the House of Lords, in 1750, for a long time principally known in England and America by the imperfect and conflicting state- ments of counsel a/rguendo in Sill v. Worsiinck, 1 H. Bl. 677, 682; but in which, as the Scotch books of reports show, the decision really was that a committee, appointed in England, of a lunatic residing there, could not sue in Scotland upon a debt due him, but that, upon obtaining a power of attorney from the lunatic, they might maintain a suit in Scotland in his name; and Lord Hardwicke said that the law would be the same in England — evidently meaning, as ap- pears by his own statement after- wards, that the same rule would pre- vail in England in the case of a for- eigner who had been declared a lu- natic, and as siich put imder guard- ianship in the country of his domi- eil. Morrison's Diet. Dec. 4595; 1 Craigie & S. 454, 459 ; Thome v. Wat- kins, 2 Ves. Sr. 35, 37. Both those cases, therefore, rightly understood, are in exact accordance with the lat- er decisions, by which it is now set- tled in Great Britain and in the United States, that the appointment of a guardian of an infant or lunatic in one state or country gives him no authority and has no effect in an- other, except so far as it may influ- ence the discretion of the courts of the § 102] GENERAL PRINCIPLES AS TO PERSONS. 223.-. Privilegia odiosa are those which deprive certain classes,, or castes, of rights, in order to build up other classes, or castes. Privilegia favorabilia are those which, in order to protect fronn damage persons supposed to be incapable of business, restrain' latter in the exercise of their own in- sense, — that, if good where made, the- dependent iurisdiction, to appoint the contract will be held good here, and same person guardian, or to decree conversely.' Weatlake, Private Inter- the custody of the ward to him. Ex national Law, arts. 401, 402, 404. parte Watkins, 2 Ves. Sr. 470; Re "In a recent case Lord Romilly, M. Iloustoun, 1 Russ. Ch. 312; John- R., held that a l^aoy bequeathed by stone V. Beattie, 10 Clark & F. 42, 7 one domiciled in England to a boy Jur. 1023; Stuart v. Bute, 9 H. L. domiciled with his father in Ham- Cas. 440, 4 Macq. H. L. Gas. 1 ; A'm- burg, by the law of which boys do not flcnt V. Vetzera, L. R. 2 Eq. 704, 35 become of age until twenty-two, and L. J. Exch. N. S. 777, 12 Jur. N. S. the father is entitled a,s guardian to 781, 15 L. T. N. S. 33, 14 Week. Rep. receive a legacy bequeathed to an in- 060 ; Woodioorth v. Spring, 4 Allen, fant, might be paia to the boy at hi&- 321 ; Story, Confl. L. § 490. coming of age by the law of England, ■"Lord Eldon, when chief justice of although still a minor by the law of the common pleas, and Chief Justice his domicil, and in the meanwhile Kent and his associates in the su- must be dealt with as an infant's- preme court of New York, held that legacy. Re Hellman, U. R. 2 Eq. 363,- tlie question whether an infant was 14 Week. Rep. 682. liable to an action in the courts of "The supreme court of Louisiana,, his domicil, upon a contract made by in two cases which have long been^ him in a foreign country, depended considered leading authorities, strong- upon the question whether, by the ly asserts the doctrine that a person law of that country, such a contract was bound by a contract which he- bound an infant. Male v. Roberts, 3 was capable by the law of the place, Esp. 163, 6 Revised Rep. 823; though not by the law of his own Thompson v. Ketchum, 8 Johns. 189, domicil, of making; as, for instance, 5 Am. Dec. 332. in the case of a. contract made by a "Mr. Westlake, who wrote in 1858, person over twenty-one and under- after citing the decision of Lord El- twenty-five years of age, in a state don, well observed: 'That there is whose laws authorized contracts to- not more authority on the subject be made at twenty-one, whereas by may be referred to its not having the laws of his domicil he was in- been questioned;' and summed up capable of contracting under twenty- the law of England thvis: 'While five. Baldwin v. Gray, 4 Mart. N. the English law remains as it is, it S. 192, 193, 16 Am. Dee. 169; Saul v. must, on principle, be taken as ex- His Creditors, 5 Mart. N. S. 569, 597, eluding, in the ease of transactions 16 Am. Dec. 212. The same doctrine- having their seat here, not only a was recognized as well settled in foreign age of majority, but also all Andreir^ v. His Creditors, 11 La., foreign determination of status or 464, 476. capacity, whether made by law or by "In other cases of less note in that judicial act, since no difference can state, the question of personal capae- be established between the cases, nor ity was indeed spoken of as governed' does any exist on the continent.' by the law of the domicil. Le Bre- 'The validity of a contract made out ton v. Nouchet, 3 Mart. (La.) 60, 70, of England, with regard to the per- 5 Am. Dee. 736; Barrera v. Alpuente,. sonal capacity of the contractor, will 6 Mart. N. S. 69, 70, 17 Am. Dec. 179; be referred in our courts to the lex Gamier v. Poydras, 13 La. 177., 182. Iqi^.. contractus; that is, not to its But in none of them was the state- particular provisions on the capacity ment necessary to the decision. In- of its domiciled subjects, but in this Le Breton v. tlouehet, the point ad- 224 PERSONAL CAPACITY. [Chap. HI. them, either temporarily or permanently, from the exercise of certain business functions. Of course this latter form of restraint may be instituted in various ways. It may be by the judicial appointment of a tutor or guardian, after due exam- judged was that where a man and between persons prohibited to inter- woman, domiciled in Louisiana (by marry by the law of their domieil. the law of which the wife retains her 6 Mass. 377-379, 4 Am. Dec. 147. separate property), were married, The validity of such marriages (ex- with the intention of returning to cept in case of polygamy, or of mar- Louisiana, in tne Mississippi terri- riages incestuous according to the tory (where the rule of the common general opinion of Christendom) has law prevailed, by which the wife's been repeatedly affirmed in this com- property became Jier husband's), the monwealth. Medway v. Needham, law of Louisiana, in which the 16 Mass. 157, 8 Am. Dec. 131 ; Sutton parties intended to continue to re- v. Warren, 10 Met. 451 ; Com. v. side, governed their rights in the Lane, 113 Mass. 458, 18 Am. Rep. -wife's property; and the further ex- 509. pression of an opinion that the rule "The recent decision in Sotto- would be the same if the parties in- mayor v. De Barros, L. R. 3 Prob. tended to remain in the Mississippi Div. 1, 47 L. J. Prob. N. S. 23, 37 L. territory was purely obiter dictum, T. N. S. 41.5, 26 Week. Rep. 455, by and can hardly be reconciled with which Ijords Justices James, Baggal- •later decisions of the same court, lay, and Cotton, without referring to ijiale V. Davis, 4 Mart. (La.) 645; any of the cases that we have cited, flaul V. His Creditors, 5 Mart. N. S. and reversing the judgment of Sir 569, 16 Am. Dec. 212. See also Read Robert Phillimore, in L. R. 2 Prob. V. Earle, 12 Gray, 423. In Barrera Div. 81, held that a marriage in Eng- V. Alpuente, the case was discussed land between first cousins, Portu- in the opinion upon the hypothesis guese subjects, resident in England, that the capacity to receive a legacy who by the law of Portugal were in- was governed by the law of the domi- capable of intermarrying except by •cil ; but the same result would have a papal dispensation, was therefore followed from holding that it was null and void in England, is utterly governed by the law of the place opposed to our law; and, consequent- where the right accrued and was ly, the dictum of Lord Justice Cot- sought to be enforced. In Gamier v. ton : 'It is a well recognized princi- Poydras, the decision turned on the pie of law that the question of per- validity of a power of attorney ex- sonal capacity to enter into any con- <>cuted"and a judicial authorization tract is to be decided by the law of given in France, where the husband domieil,' is entitled to little weight and wife had always resided. here. "In Greemicood v. Curtis, Chief "It is true that there are reasons Justice Parsons said: 'By the com- of public policy for upholding the mon law, upon principles of national validity of marriages, that are not comity, a contract made in a foreign applicable to ordinary contracts; place," and to be there executed, if but a greater disregard of the lem valid by the laws of that place, may domidlii can hardly be suggested be a legitimate ground of action in than in the recognition of the valid- the courts of this state; although ity of a marriage contracted in an- such contract may not be valid by other state, which is not authorized •OUT laws, or even may be prohibited by the law of the domieil, and which to our citizens;' and that the chief permanently affects the relations and justice considered this rule as ex- the rights of two citizens and of tending to questions of capacity is others to be born, ■evident from his subsequent illustra- "Mr. Justice Story, in his Commen- tion of a marriage contracted abroad taries on the Conflict of Laws, after 102] GENERAL PRINCIPLES AS TO PERSONS. 225 ination by a proper court. It may be by the very fact of mar- riage, which, to preserve a woman's estate from her husband's depredations, as well as to secure her attention to the family sphere, deprives her of the right to alienate her property, ex- elaborate consideration of the au- thorities, arrives at the conclusion that 'in regard to questions of mi- nority and majority, competency or incompetency to marry, inca- pacities incident to coverture, guar- dianship, emancipation, and other personal qualities and disabili- ties, the law of the domicil of birth, or the law of any other ac- quired and fixed domicil, is not gen- erally to govern, but the lex loci con- tractus aut actus, — the law of place where the contract is made or the act done;' or, as he elsewhere sums it up: 'Although foreign jurists generally hold that the law of the domicil ought to govern in regard to the capacity of persons to con- tract, yet the common law holds a different doctrine, namely, that the lea) loci contractus is to govern.' Story, Confl. L. §§ 103, 241. So Chancellor Kent, although in some passages of the text of his Commen- taries he seems to incline to the doc- trine of the civilians, yet in the notes afterward added unequivocally eon- curs in the conclusion of Mr. Justice Story. 2 Kent, Com. 233, note, 458, 439 and note. "In Pearl v. Hanshorough, 9 Humph. 426, the rule was carried so far as to hold that where a married woman domiciled with her husband in the state of Mississippi, by the law of which a, purchase by a mar- ried woman was valid and the prop- erty purchased went to her separate use, bought personal property in Tennessee, by the law of which mar- ried women were incapable of con- tracting, the contract of purchase was void and could not be enforced in Tennessee. Some authorities, on the other hand, would uphold a con- tract made by a pa^rty capable by the law of his domicil, though incapable by the law of the place of the con- tract. Re Hellmann, L. R. 2 Eq. 363, 14 Week. Rep. 682, and Saul v. His Creditors, 5 Mart. N. S. 569, 16 Am. Vol. I. CoNPL. of Laws — 15. Dec. 212. But that alternative is not here presented. In Tlill v. Pine River Bank, 45 N. H. 300, the con- tract was made in the state of the woman's domicil, so that the ques- tion before us did not arise, and was not considered. "The principal reasons on which continental jurists have maintained that personal laws of the domicil af- fecting the status and capacity of all inhabitants of a particular class bind them wherever they may go appear to have been that each state has the rightful power of regulating the status and condition of its subjects, and, being best acquainted with the circumstances of climate, race, char- acter, manners, and customs, can best judge at what age young persons may begin to act for themselves, and whether and how far married women may act independently of their hus- bands; that laws limitiHg the ca- pacity of infants or of married wom- en are intended for their protection, and cannot therefore be dispensed with by their agreement; that all civilized states recogniee the in- capacity of infants and married women; and that a person, dealing with either, ordinarily has notice, by the apparent age or sex, that the per- son is likely to be of a class whom the laws protect, and is thus put upon inquiry how far, by the law of the domicil of the person, the pro- tection extends. "On the other hand, it is only by the comity of other states that laws can operate beyond the limit of the state that makes them. In the great majority of eases, especially in this country, where it is so common to travel, or to transact business through agents, or to correspond by letter, from one state to another, it is more just, as well as more con- venient, to have regard to the law of the place of the contract, as a uni- form rule operating on all contracts of the same kind, and which the con- 226 PERSONAL CAPACITY. [Chap. III. cept with certain peculiar solemnities, and relieves her from responsibility for debts incurred. Or it may be, as in the case of infants, by a law of nature, patent, up to a certain age, to all men. Then the modes by which the restraint is ap- plied are various. The Roman law, where property has been wrung from a person thus protected, gives the In integrum restitutio.^ The English common law avoids all contracts made by such persons, except for necessaries. But however such restraints may be instituted, or by whatever process they may be enforced, their principle is common to all civilized traeting parties may be presumed to that state to yield to the law of an- have in contemplation when maJcing other state in which she might their contracts, than to require them undertake to contract, at their peril to know the domicil of "But it is not true at the present those with whom they " deal, and to day that all civilized states recognize ascertain the law of that domicil, the absolute incapacity of married however remote, which in many cases women to make contracts. The ten- could not be done without such de- dency of modern legislation is to lay as would greatly cripple the enlarge their capacity in this respect, power of contracting abroad at all. and in many states they have nearly "As the law of another state can or quite the same powers as if un- neither operate nor be executed in married. In Massachusetts, even at this state by its own force, but only the time of the making of the con- by the comity of this state, its opera- tract in question, a married woman tion and enforcement here may be re- was vested by statute with a very stricted by positive prohibition of extensive power to carry on business statute. A state may always by ex- by herself, and to bind herself by press enactment protect itself from contracts with regard to her own being obliged to enforce in its courts property, business, and earnings; contracts made abroad by its citizens, and before the beginning of the pres- which are not authorized by its o'wn ent action, the power had been ex- laws. Under the French Code, for tended so as to include the making instance, which enacts that the laws of all kinds of contracts, with any regulating the status and capacity of person but her husband, as if she persons shall bind French subjects, were unmarried. There is therefore even when living in a foreign coun- no reason of public policy which try, a French court cannot enforce a should pre\ent the maintenance of contract made by a Frenchman this action." abroad, which he is incapable of The position in the text is criti- making by the law of France. See eised as unphilosophical in the Lon- Westlake, Private International Law, don Law Majjazine for August, 1879, arts. 399, 400. and in 21 Alb. L. J. 407; and it is "It is possible also that in a state asked why, if artificial restraints on where the common law prevailed in capacity are not extraterritorial, the full force, by which a married worn- restraints of infancy and of cover- an WHS deemed incapable of binding ture should be ubiquitous. The an- herself by any contract whatever, it swer is that the restraints of infancy might be inferred that such an utter are natural, not artificial; and the incapacity, lasting throughout the restraints of coverture, so far as joint lives of husband and wife, must they are artificial and without be considered as so fixed by the set- notice, are not extraterritorial. See tied policy of the state, for the pro- MilUhen v. Pratt, 125 Mass. 374, 28 tection of its own citizens, that it Am. Rep. 241. could not be held by the courts of iSavigny, Syst. vii. p. 100. § 102] GENERAL PRINCIPLES AS TO PERSONS. 227 lands. Their object is, not to extinguish capacity, tut to nur- ture and protect it. The persons to -whom they relate are not a class politically and socially depressed, but a class whom the state regards as the subjects of its tenderest care, and whom, in the case of minors or married women, it would so cherish that they, in their turn, may be the guardians and ar- tificers of its own future greatness and strength. No state regardful of its future interests would leave youhg children without parental or tutelary restraint, and expose married women, when under their husbands' control, to responsibili- ties by which the wife's private estate would be imperiled, and her capacity for domestic usefulness impaired. Hence, protective laws of this order may be considered as adhering to the person of the subject, in whatever lands he niay travel. When needed for his protection, his home tutelage will be rec- ognized abroad. A learned German author^ has approached this same line, in the distinction he vindicates between natural and positive incapacities, the first of which he holds to have extraterritorial force, the second not. He fails, however, to define "natural" and "positive." Bartolus, in his remarkable commentary, already cited, thus speaks: "A statutum which prohibits an individual from doing certain things follows him into a foreign state, when it is favorabile (i. e., made for the advantage of the individual) ; but not when it is odiosumj for instance, a statutum that a daughter shall not inherit does not extend to property in a foreign state." ^ And the same dis- tinction is thrown out by Judge Ware in the very able opinion already cited.* "Besides these personal laws determining the state and condition of individuals, which are founded on nat- ural relations and qualities, and such as are universally rec- ognized among civilized communities, as those of parent and child, those resulting from marriage, from intellectual imbe- cility, and the like, they [sovereigns] may, and in point of fact do, establish distinctions which are not founded in nature, but relate only to the peculiarities of their own social organi- zation, to their own municipal laws, and to the artificial forms of society which are established among themselves. . . . But it is by no means so clear that those personal distinctions which are not founded in nature, and are the result of mere iiGiinther, Weiske's Reehts-Lex. iv. Fed. Cas. No. 11,257. Mr. Field 726. (International Code, § 542) speaks spiiil. iv. p. 235. of this as "the American rule." iPolydore v. Prince, 1 Ware, 413, 228 PERSONAL CAPACITY. [Chap. III. civil institutions, can be allowed to accompany them [per- sons], and give them personal immunities, or affect them with personal incapacities, in other countries in which they may be temporarily resident, or transiently passing, whose laws acknowledge no such distinctions." 103. This view conducive to fair dealing. — Another reason for the distinction, in this respect, between these two kinds of disability, is to be found in the position, already mentioned as having been incidentally taken by Bar,^ that those subject to disabilities of the first class bear on their persons nothing which, is necessarily notice of such disabilities, while those subject to disabilities of the second class, from the very con- stitution of things, give such notice. A noble, for instance, is by the law of his domicil prohibited from entering into trade; but, when traveling in the United States, becomes engaged in a commercial adventure. Or a farmer, by the law of his dom- icil, is prohibited from- negotiating conomercial paper, and, when traveling in the United States, draws a bill of exchange. Or a person who, by the law of his domicil, is under religious disability, or is civiliter mortuus, when traveling in the Unit- ed States, buys stock on credit. In such cases there is no no- tice of disability necessarily given to the creditor; nor is there anything to put the creditor on his guard to search for any foreign disabling law. It is otherwise, however, with children, lunatics, and married women, when their condition gives no- tice of disability. And with this is to be considered the ad- ditional fact, noticed by Bar, that the dependent condition of those subject to the last-mentioned disabilities deprives them of that command of property which in itself is an im- plication of responsibility. It is otherwise with those travel- ing sui juris, with an unrestrained control of their means. 104. And also to equalization of civil rights. — A third reason for this distinction is to be found in the principle, already dis- cussed, of the parity, in international law, of the foreign vis- itor with the domiciled citizen. A country which does not im- pose caste restrictions on its own subjects will not impose such restrictions on visitors from other lands. To stretch interna- tional law further would be to engraft on free countries the paralyzing restrictions of despotisms. It would be, in addi- tion, a heavy check on the progress of constitutional liberty. Nor would the complexity of such a system be less oppressive iSee ante, § 98. § 104] GENERAL PRINCIPLES AS TO PERSONS. 229 than its absolutism. Business and domestic relations would be fettered by a comity of reciprocal absolutisms and barbar- isms, which would be all the more onerous from the fact that in many cases we would know nothing of them until they were sprung upon us by the discovery that persons with whom we were innocently dealing, forming large sections of the com- munity, were irresponsible by force of laws we had no means of ascertaining. Each country would be obliged to maintain as many castes within its borders as there are castes in the aggregate of all other civilized lands. Each of these castes would have its distinct code of personal responsibility, and these codes would be often unintelligible and always oppres- sive. Under such a system, national independence, national freedom, and national prosperity would be imperiled.-' From these and other difficulties involved in the doctrine of the uni- versality of the law of domicil, the escape is natural by means of the position here advanced, — that statutes which destroy ca- pacity have no extraterritorial force, while those which protect capacity are entitled to reciprocal international support.^ 10414. French and Italian reservations cf "public order and good morals" lead to same conclusions. — It may be also main- tained that the reservations in the French and Italian Codes bring the rule prescribed by them in accord with that here ad- vocated. Even according to Laurent, the sturdiest of all re- cent advocates of the exclusive authority of the law of nation- ality, "Les lois relatives aux droits de la societe regoivent leur application, quelle- que soit la nationalite des parties interesees, iSee ante, § 8. dissenting from the main positions 2The present law of England prae- of my critic. Undoubtedly the tically allows the distinction stated personal laws of the barbarians in- in the text. See Caldwell v. Vanvlis- eluded penal as well as civil statutes. 9 Hare, 425, 16 Jur. 115, 21 All I desire to maintain is that in L. J. Ch. N. S. 97; Fenton v. Living- rejecting territoriality the two sys- stone, 3 Macq. H. L. Cas. 497, 5 Jur. tems have a common ground of N. S. 1183, 7 Week. Rep. 671. agreement; that the maintenance of The position in the text is the sub- the supremacy of territorial law is ject of an extended adverse criticism an essential of modern culture; and by Laurent, an eminent Belgian that to maintain the universal su- jurist, in the second volume of his premacy of personal statutes, in pro Droit civil international, published tanto vacating territorial supremacy, in Brussels in 1880. He declares (p. is hostile to this culture, and is an 163) that I have confounded the adoption in this respect of the polity "personality" of the barbarian laws of barbarism as distinguished from with the personal statutes; and in the polity of civilization. I am glad the first volume of the same work to have in this position the support he has given much space to the ex- of so valuable a work as Schmid's position of tl ^ difference between the Herrschaft der Gesetze nach ij^ren two institutions. I am far from raumlichen Granzen. 230 PERSONAL CAPACITY. [Chap. III. quelle que soit la nature des biens et quel que soit le lieu du contrat."^ By the French Code, the distinctive law of France is to govern French courts in all cases involving I'ordre public et les bonnes moeurs. The Italian Code makes the same ex- ceptions. It is not strange that Laurent, after declaring that the Italian rule is in advance of all others in liberality, and contrasts favorably vsfith that accepted in the United States, should say that the limitation just stated is "tres-vague." The exception, in fact, puts the jurisprudence of France and Italy on the same basis as that of the United States, whose narrow- ness is deplored by our eminent Belgian and Italian critics. We say we will not recognize the restrictions imposed by for- eign states on business capacity and marriage when such re- strictions are hostile to our system. We say that when a Ger- man of twenty-four years comes to our shores and contracts a debt we will hold him bound for the debt, and when he sells goods, we will hold him entitled to sue for the goods, notwith- standing that by his national law he will not be capax negotii for a year or two. We say that when a Frenchman of twenty- four years solemnizes, when among us, a marriage lawful by our laws, we will not hold his marriage illicit and his children illegitimate, because by the French law he could not marry vnthout first convening, at the place of the intended marriage, a family council. We base our conclusions in this respect on "public order and good morals." What can be more essential to public order than that responsibility should be made coex- tensive with activity? What more essential to good morals than the maintenance of family ties? If foreign restrictions on capacity are ubiquitous, members of that large section of our population whose naturalization has not yet been perfected would be in many cases incapable of making valid contracts, while their marriages within our territory in such period would be void, and the offspring of such marriages illegiti- mate. ^ iLaurent, I>roit civil int. priv6, full age, cannot set up his minority 1880, ii. p. 347. i" the latt«r country. And it is 2That "public order" and "good further held that a member of a. morals" are construed by French and foreign royal family, prohibited from Italian courts as convertible with making such paper at home, will be "national policy" we have already bound in France by paper which he seen. Another illustration may be there makes. Fiore, Op. cit. § Ui. found in the fact that it has been It has also been held in France that ruled in France that a person who, a person who assumes in a, foreign at home a minor, makes a promis- country the name of a French sory note in a country where he is of family, even with the sanction or § 104§] GENERAL PRINCIPLES AS TO PERSONS. 231 104%. In matters of national policy distinctive local law maintained. — The exception which the French and Italian such foreign country, is not entitled be briefly sketclied as follows: to assume such name in France, the Juridical order con&ists in the uni- reason given being that "la Iggis- son of private and individual liberty lation sur les noms interesse I'ordre with the social powei'; of the law of public et touche a. I'organization the state with the prerogatives of sociale: la volontg privSe ne peut the individual. The state, therefore, modiiier la designation d'une cannot without injustice invade the famille." For other illustrations, field of inoffensive liberty {liberie see post, § 113. inoffensive) . We have also a rtding of a Milan- The exercise of this "inoffensive ese court in 1866, to the effect that liberty" by the various persons con- when the local law assigns certain stituting a nation results in a, mani- capacities to a foreigner, his personal testation of certain constant and law is to yield to such local law. spontaneous qualities, customs, and This ruling Fiore, firm' as is his a4- manners. It is this which consti- herence to the test of nationality, tutes the specific character which records (Op. cit. App. p. 632) with- distinguishes one nation from an- out dissent. But if we admit this other. exception, what is there of national Just as the individuals living in a capacity that would survive trans- state are not subjected to an unjust portation to a foreign state? Our limitation of their rights by the statutes, for instance, fix majority recognition of the rights of other at twenty-one. If we adopt the individuals living in the same state, Milanese rule, would not every so the rights of the same individuals foreigner over twenty-one become of are not impaired by the recognition full age when he steps on our shores t of analogous rights of individual In a series of propositions pre- members of other states. These sented by Mancini and Asser to the rights belong to men as men, and not International Institute in 1874 to men as members of a particular (Jour, de droit int. 1874, p. 583), we political society. We cannot claim find the following: Status (I'etat), these rights of ourselves, without personal capacity, family relations, conceding them to members of other and the rights and obligations de- nationalities. We cannot claim a pendent thereon, are to be determined liberty as to national characteristics in conformity with national law. for ourselves, without conceding the Subsidiary to this are to be regard- same liberty as to national char- ed the laws of domicil, when dif- acteristics to other states. National ferent civil legislations coexist in the climate and capacity, soil for culti- same state, or when the question re- vation, national traditions as to lates to persons without any nation- manner, have much to do with the ality, or with double nationality, precocity of moral and physical de- But the personal laws of a foreigner velopment, with family organization, are not to be recognized in a territory and with the mode of business. We when in opposition to its public cannot overlook these essential dif- right and public order. ferences without injustice. As to the above it is to be noticed : It is, therefore, argues Mancini, (1) That the exception, in states not a mere comity, but an act of where status is a matter of public justice, that a foreigner visiting our order, renders nugatory the rule; shores should be permitted to retain (2) that in countries such as the his personal status and his juridical United States, where there is a capacity of origin, — sa capacity juri- federation of states under one dique d'origine. Thus a person corn- nationality, domicil is not a sub- ing from a cold climate, where the sidiary, but the principal standard, moral and physical development is The solution given by Mancini may slow, is, under a system produced by 232 PERSONAL CAPACITY. [Chap. III. Codes establisli is one, in fact, of universal recognition.* "It is the prerogative," so has the rule been well stated in Missis- sippi, "of the sovereignty of every country to define the condi- tions of its members, not merely its resident inhabitants, but others temporarily there, as to capacity and incapacity. But capacity or incapacity, as to acts done in a foreign country, where the person may be temporarily, will be recognized as valid or not in the forum of his domicil, as they may infringe or not its interests, laws, and policies."^ The only question, then, is, What statutes regulating capacity are to be regarded as these conditions, held to be longer in these matters the individual may reaching his majority than the conform or not, as he thinks best, to native of a warm climate. We are the national law; and he may in- bound, he argues, to hold that a per- corporate provisions in his contracts son leaving the north and going modifying the national law, provided south is devested of the physical and that in doing so he does not invade moral properties which produce the public policy of the state. Hence, earlier maturity in the south. A while an individual when away from person, he holds, is entitled to claim, his country is entitled to obtain in on account of his nationality, from foreign states a recognition of his a foreign state, the protection of his private international rights, the sov- status internationally, to the same ereign of each state is entitled to extent that he is entitled to munici- interdict all infraction of public pal protection among his fellow- rights and of public order. And citizens of the same state. every state is to be regarded as hav- A distinction, however, is taken by ing power to protect its public policy Mancini between what he calls neces- against all foreign laws. As thus sary and voluntary laws. Necessary invading public order Mancini law is that which governs the per- instances slavery and polygamy. In sonal state, order, and relations of other words, "le droit civil priv6" is the family. These conditions can- personal and national, and accom- not be voluntarily altered. Personal panies a person wherever he goes; and family relations constitute an while "le droit public" is territorial, ensemble of attributes which do not and applies to all persons inhabiting beJong to every human being, but to the soil, whether subjects or aliens, individuals as belonging to a specific The legislator, it is concluded, does nationality. When we attribute to homage to the principle of nation- a particular person a nationality ality when he recognizes the validity either Italian, or French, or German, on his soil of the laws which govern we envelop such person with the per- the person, the family, and succes- sonal and family rights of the sion, so far as they do not touch the nationality to which he thus belongs, political constitution of the state. A man can change his nationality. But he does homage, also, to territo- but he cannot, while belonging to a riality when he makes the territorial nationality, change its conditions, law supreme in matters of public As laws which are thus necessary, order and good morals. Here, again, and cling to a person wherever he we find, after a general statement of goes, Mancini includes those touch- the universality of nationality, an ing the order of succession of de- exception which subordinates nation- cedents' estates. ality to territorial policy. On the other hand, it 39 argued iSee ante, § 8; post, §§ 112, 113, that laws concerning the enjoylnent 490. of goods and the formation of con- iBanlc of Louisiana v. WilUams, tracts may be called voluntary. In 46 Miss. 621, 12 Am. Rep. 319. 1041 GENERAL PRINCIPLES AS TO PERSONS. 233 the products of national policy? This question, which has teen already incidentally noticed, will be further discussed when we consider statutory incapacities in the concrete.^ sin De Brimont v. Pennimcm, 10 Blatchf. 436, Fed. Gas. No. 3,715, the exception was applied under the fol- lowing facts : The French Code pro- vides that a father-in-law and mother-in-law must make an allow- ance to a son-in-law who is in need, so long as a child of the marriage is living. A son-in-law, a domiciled French citizen, obtained a decree in the French courts for an allowance against his father-in-law and mother- in-law, who were domiciled Ameri- can citizens; all the parties residing in France. The son-in-law subse- quently brought an action of debt on the decree in the courts of the Unit- ed States, to recover the amoimt of the decreed payment which had not been paid. It was held that the suit could not be maintained. The laws of France, upon which such decree was made, it was argued, are local in their nature and operation, their object being to regulate the domestic relations of those who reside there, and to protect the public against pauperism. Hence, they were held to have no extraterritorial effect. They were likened to orders of filiation, and orders made, under local statutes, to guard against pauperism, and in the nature of local police regulations. See post, § 168. That foreign laws conflicting with home policy are invalid, see The Antelope, 10 Wheat. 66, 6 L. ed. 268; Scoville V. Canfield, 14 Johns. 338, 7 Am. Dee. 467; Woodward v. Roane, 23 Ark. 523. Mr. Dicey on Domicil (p. 166), after referring (1) to the view that personal status is ubiquitous, and (2) to the view that it is to have no extraterritorial force, gives the fol- lowing: — "Third View. — The existence at any rate of a status imposed by the law of a person's domicil ought in general to be recognized in other countries, though the courts of such countries may exercise their dis- cretion in giving operation to the re- sults or effects of such status. "This is the principle (if so it can be called) which is meant to be stat- ed in the rule under consideration, and which, it is conceived, most nearly corresponds with the actual practice of our courts. It consti- tutes a kind of practical compromise between the first and the second view, and enables the courts to recognize the existence of a status acquired under the law of a person's domicil, while avoiding the practical difficulties which arise from subject- ing legal transactions to rules of law which may be unknown in the coun- try where the transaction takes place." The objection to the above state- ment is' that it leaves the application of foreign status to the discretion of thp courts. But a court enforces a rule of law which is a matter of na- tional policy, not as a matter of dis- cretion, but of duty. Ante, § 1. Laurent, i., 546, objects to what he calls the "Anglo-American" rule of excepting from the operation of per- sonal law, whatever conflicts with home policy, that it is destructive of any consistent system of private international law. The objection, we have just seen, is equally applicable to the Italian Code, of which Laurent is so zealous an advocate. But on principle the objection cannot be sus- tained. So far from concession of local option to component jurisdic- tions on certain reserved topics being inconsistent with a comprehensive and wise system, there can be no comprehensive and wise system that does not admit such local option. The government of the United States, covering as it does so large a terri- tory, joining such various local tra- ditions and interests, could not be carried on unless by the reservation of all matters not distinctively Federal to state legislation. The British Crown could not govern its American and Australian dependen- 234 PERSONAL CAPACITY. [Chap. III. II. OoEPOEATIOTfS. 105. Corporation has no necessary extraterritorial status. — That a corporation has its domicil in the state establishing it we have already seen.^ It now remains to be stated that out of that state it has no necessary legal existence. The reason- ing which leads to this conclusion is based, as is the case gen- erally in respect to status, on state policy.^ ISTow, it is within the range of a constitutional domestic policy for a state to say: "A foreign corporation I will not admit unless under specific restrictions;" for the restrictions to be placed on corporations are eminently matters of local policy. By some states the po- sition is taken that no charters should be granted except for a business which individuals cannot conduct without a charter. By others, individual liability of stockholders is maintained. By others, capital is restricted. By others, certain pledges of good conduct are required, in the shape of deposits with the state. ISTow, it would be unreasonable to maintain that re- strictions of these kinds, essential, as they may be well believed to be, to the health of the body politic, can be defied and swept away by foreign corporations to whom a foreign state may cies except by leaving all local mat- say that quarantines and boards of ters to the local legislatures; and if health shall be provided for some in India a local legislature is dia- sections, but not for others. They pensed with, it is because the Indian give municipal governments the population is of a lower grade of power to legislate on municipal mat- civilization than the populations of ters. In many states they give to Canada and Australia. Even when certain municipalities the power to we take such compact territori-^ as determine whether or no spirituous our particular American states, we liquors shall be sold within their find that exceptions of this class, al- limits. Now it certainly will not lowed in general legislation, increase be maintained that legislation giving in proportion as civilization becomes to subordinate jurisdictions autono- more complex. It is easy enough to my on a specific range of topics is say to a people perfectly homogene- not both more comprehensive, more ous, with the same religion, the same scientific, and morb liberal, than degree of cultivation, the same legislation which does not recognize ethical standards, the same tastes, such autonomy. And so, a system "You shall be all governed by the of private international law which same personal law." But it is ab- recognizes the autonomy of states in surd to say this to a population com- matters belonging to their dis- prising local interests, each requir- tinctive policy is both more compre- ing a distinctive legislation. Our hensive, more scientific, and more state laws give innumerable illustra- liberal than a system of private tions of exceptions of this class, international law which does not They say that road laws shall not reco,gnize such autonomy. See ante, apply to cities, and that laws pre- §§ 7, 8. scribing the lighting of city streets iSee Yorh, 119 U. Rep. 958. See also note to Kindel S. 110, 30 L. ed. 342, 7 Sup. Ct. Rep. v. Beck & P. Lithographmg Co. 24 108; Pembina Consol. Silver Min. & L. R. A. 311. Mill. Co. V. Pennsylvania, 125 XJ. S. ispemhina Consol. Silver Min. £ 181, 31 L. ed. 650, 2 Inters. Com. Mill. Co. v. Pennsylvania, 125 U. S. Rep. 24, 8 Sup. Ct. Rep. 737. See 181, 189, 31 L. ed. 650, 654, 2 Inters, note 14 L. R. A. 585. Com. Rep. 24, 8 Sup. Ct. Rep. 737. iilbid. § 105a] CORPORATIONS. 243 foreign corporations to make contracts and do business within its borders, and its courts will enforce the rights and obligations arising therefrom when not contrary to its known policy, or in- jurious to its interests.-'* A foreign corporation which is per- mitted to make contracts and do business within the state is, of course, subject, like a natural person, to the laws of that state (e. g., usury laws, laws relating to gambling transactions, and the like) that have to do with contracts or transactions of the kind which it makes or conducts, as distinguished from laws that relate primarily to corporations.''^ The limitations im- posed by local statutes upon domestic corporations, however, do not necessarily apply to foreign corporations,-'* though, if such i*Bo»fc of Augusta v. Bwrle, 13 Pet. 519, 589, 10 L. ed. 274, 308; Buke V. Taylor, 37 Fla. 64, 31 L. R. A. 484, 53 Am. St. Rep. 232, 19 So. 172. The court, in American d Foreign (Jhrislian Union v. Yount, 101 U. S. 352, 25 L. ed. 888, conceded the general principle that the right to hold land, and the mode of acquiring title to land, depend altogether upon the local law of the territorial sov- ereign; but said that, in harmony with the general law of comity ob- taining among the states composing the Union, the presumption should be indulged that a corporation of one state, not forbidden by the law of its being, may exercise in any other state the general powers conferred by its o-wn charter, including the acqui- sition of real estate, unless it is pro- hibited from so doing either in the direct enactments of the latter state, or by its puolic policy, to be de- duced from the general course ot legislation, or from the settled adjudications of its liighest courts. It was accordingly held in this case that the conveyance of real property sn Illinois to a corporation of New York was valid. isThe point of the text is il- lustrated by cases that apply the local law relating to insurance con- tracts to contracts made by foreign corporations (see post, § 467b) ; and ^y the cases that apply the local usury laws to contracts made by foreign corporations (see post, §§ olOp, 511a). 1 BMultif orm insurance business may be carried on by a foreign cor- poration in a state where a domestic corporation is not authorized to do so, if there is no positive prohibition by statute. People ex rel. Stevens v. Fidelity & G. Go. 153 111. 25, 26 L. R. A. 295, 38 N. E. 752. It was said in Toomey v. Supreme Lodge K. of P. 74 Mo. App. 507, however, that the principle of comity does not permit a. foreign corporation to exercise powers within the state which a do- mestic corporation of the same kind is not permitted to exercise under the Constitution and policy of the state. 244 PERSONAL CAPACITY. [Ckap. III. limitations embody a settled public policy, the local courts will refuse to recognize or enforce contracts of foreign corporations in violation tbereof.-^'' Penalties imposed by local statutes upon foreign corporations, their officers or agents, for violation of the conditions of the right to do business or make contracts within the state will not be enforced outside the state in which they were enacted; but, if the statute renders void a contract made in the state by a for- eign corporation which has not complied with the conditions of doing business therein, the contract will doubtless be held void wherever the question may arise. If, however, the statute does not render the contract void, but merely declares that no action shall be brought thereon, that declaration has no extraterritorial effect, and an action may be maintained thereon in another state. ^ ® 105%. Liability of stockholders to creditors of foreign cor- poration determined by law of corporate site. — The liability of a stockholder to the creditors of a foreign corporation is deter- mined by the law of the place of the existence of the corpora- tion, supposing that the action of the corporation, in admitting stockholders in the state of the stockholders' domicil, was not prohibited by the latter state. ^ When the members of a cor- 17A corporation created in another Oo. 178 Pa. 367, 34 L. R. A. 577, 35 state for the sole purpose of buying Att. 992. and selling land has no power to t-^Allegheny v. Allen, 69 N. J. L. purchase and hold the title to laud 270, 55 Atl. 724. in Illinois, as it is against the gener- al policy of the Illinois legislation on iSeymour v. Sturgess, 26 N. Y. the subieet of domestic corporations, 134; Merrich r Van Santvoord, 34 , ,-,,•,, . ,.. N. Y. 208. See Pay son \. Withers, 5 and would tend to create perpetui- Bj^g 269, Fed. Gas. No. 10,864; Healy ties. Carroll v. East St. Louis, 67 v. Root, 11 Pick. 389; Smith v. Mu- 111. 568, 16 Am. Rep. 632. tual L. Ins. Co. 14 Allen, 336; [Flash A =(-of„+o «f o c+o+» ;„ wi,;„i, o V. Conn, 109 U. S. 371, 27 L. ed. 966, A statute 01 a state m which a „ ~ '„, _, „„„ ' ^, » .„' ., , . . , 3 Sup. Ct. Rep. 263; G-lenn v. Lig- railroad company is organized can gg^^ 135 u. S. 533, 34 L. ed. 262, 10 give it no authority to lease a rail- Sup. Ct. Rep. 867; Bell v. Fanvell, road held by it in another state con- 176 111. 489, 42 L. R. A. 804, 68 Am. , i XT. T i! it. 1 4.4. St. Rep. 194, 52 N. E. 346; Penobscot trary to the policy of the latter ^..^^^ ^^^^^ ^^^,^ ^ ^.^^^^^ ^.„^„„ state. Van Steuben v. Central B. Consol. Min. Co. 42 Minn. 327, 6 L. § 105f] CORPORATIONS. 245 poration are not individually liable in the place of its crea- tion, they are not liable in the place where it does business.^ On such principles the limited liability of stockholders and officers to creditors of a foreign corporation will be deter- mined.* Extraterritorial laws, however, cannot sustain suits for a penalty.* And it has been held in Massachusetts that suits of this class will not be sustained when the effect would be to impose on the Massachusetts stockholder liabilities greater than those imposed in the state of the site of the corporation. ^ 105b. Enforcement of liability of stockholder or officer outside the state of incorporation. — "Whether the courts of one state will enforce the liability of a stockholder or officer of a corporation created in another state depends entirely upon the comity of the former. It is obvious that the principle^ which precludes the extraterritorial enforcement of a penal law does not apply to the liability of a stockholder upon his unpaid subscription, or even to the statutory liability which continues after the payment of the subscription in full, and which is in the nature of a guar- anty or indemnity to creditors against the failure of the corpo- ration to pay its obligations, when that liability is not dependent upon any violation or omission of duty upon the part of the corporation, its officers or stockholders.^ Some of the earlier R. A. 676, 18 Am. St. Rep. 510, 44 lou, 11 Mees. & W. 877, 13 L. J. Exch. N. W. 198; Leuoke v. Tredway, 45 N. S. 168. Mo. App. 507; Molson's Bank v. ^Ihid.; Saclcett's Bariour Bank v. Boardman, 47 Hun, 135 ; Ball v. An- Blahe, 3 Rich. Eq. 225. See Thomp- derson, 196 Pa. 86, 79 Am. St. Rep. son, Liability of Stockholders, § 85. 693, 46 Atl. 3G6. This is also as- iEalsey v. McLean, 12 Allen, 438, sumed by the cases cited post, § go Am. Dec. 157; Bird v. Bayden, 1 105b.]. Robt. 383; Derrickson v. Smith, 27 N. J. L. 166; Fi/rst Nat. Bwnk v. The liability of stockholders upon Price, 33 Md. 487; Lawler v. Burt, 7 calls by the corporation itself is also, Ohio St. 341 ; Cable v. McGune, 26 of course, to be determined by the ^"-Jl^' "''^ ^"'- ^«°- ?}*' ?™*«^§ ^- ' 1 . , , t'Enckson v. Nesmxth, 15 Gray, law of the state under which the 221, 4 Allen, 233. But see Thomp- corporation was created. Mandel v. son. Liability of Stockholders, § 8S ; Swan, Land & Cattle Co. 154 111. 177, Badley v. Russell, 40 N. H. 109. 27 L. R. A. 313, 45 Am. St. Rep. 124, 40 K E. 462. '^"« ''"*^' S *^- ^Whitman v. 'National Bank, 176 iQeneral Steam Nav. Co. v. Ouil- U. S. 560, 44 L. ed. 587, 20 Sup. Ct. 246 PERSONAL CAPACITY. [Chap. III. cases distinguish between a liability of the latter kind and a liability which is dependent upon a violation or dereliction of duty, holding that the former is contractual, and the latter penal. ^ The prevailing doctrine, however, as formulated by the United States Supreme Court, repudiates this distinction, and holds that the latter, as well as the former, liability is con- tractual, and not penal in the sense of the general principle above mentioned.* This doctrine rests upon the broad ground that only those laws are penal that impose punishment for an offense against the state. In other words, the test is whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual.^ A few cases, while impliedly conceding that the liability is not penal, refuse to enforce it upon the ground that it is statu- tory, and not contractual, and that there is no similar statutory liability at the forum,® thus applying, by analogy, the principle Rep. 477; Dennis v. Superior Court, Gushing v. Perot, 34 L. R. A. 737, 91 Gal. 548, 27 Pae. 1031; Ferguson 752. V. Sherman, 116 Cal. 169, 37 L. R. A. ^Huntington v. Attrill, 146 U. S. 622, 47 Pae. 1023; Houell v. Mangles- 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. dorf, 33 Kan. 194, 5 Pae. 759; Bag- 224; Davis v. Mills, 99 Fed. 39. The ley V. Tyler, 43 Mo. App. 195; Guer- doctrine was applied in the first case ney v. Moore, 131 Mo. 650, 32 S. W. to a statute making the officers of a 1132; Loicry v. Inman, 46 N. Y. corporation who sign and record a 119; Marshall t. Sherman, 148 N. Y. fnlia certificate of the amount of its 9, 34 L. R. A. 757, 51 Am. St. Rep. capital stock liable for all its debts. 654, 42 N. E. 419 ; Aultman's Appeal, The doctrine, of course, applies 98 Pa. 505; NhnicJc v. Mingo Iron equally to the liability of stook- Works Go. 25 W. Va. 184; Western holders, though such liability may Xat. Bank v. Laurence, 117 Mich, be dependent upon some violation or 669, 76 N. W. 105 ; Bell v. Parwell, omission of duty by the corporation, 176 111. 489, 42 L. R. A. 804, 68 Am. its officers or stockholders. See St. Rep. 194, 52 N. E. 346; Mandel Flash v. Gonn, 109 U. S. 371, 27 L. V. Swan Land & Gattle Go. 154 111. ed. 966, 3 Sup. Ct. Rep. 263 ; Guyhen- 177, 27 L. R. A. 313, 45 Am. St. Rep. dall v. Miles, 10 Fed. 342; Kimball 124, 40 N. E. 462. See also note to v. Davis, 52 Mo. App. 194. Gushing v. Perot, 34 L. R. A. 737, slJuntington v. Attrill, 146 U. S. 750, 751, 752. 657, 36 L. ed. 1123, 13 Sup. Ct. Rep. 224. 3See Sayles v. Brown, 40 Fed. 8, iGrippen v. Laighton, 69 jST. H. and other oases cited in note to 540, 46 L. R. A. 467, 76 Am. St. Rep. § 105b] CORPORATIONS. 247 that is frequently applied to causes of action for death arising under statutes of another jurisdiction.'' Assuming, however, that the liability is contractual, and not penal, there are two other principles that may, singly or in com- bination, interfere with the extraterritorial enforcement of the liability; namely (1) that a court will not borrow a remedy from another jurisdiction, but must look to the law of the forum to provide the remedy;* (2) that when a statute creates a right and prescribes a special remedy, that remedy is exclusive, and no other can be applied.* Even when the statute creating the liability does not prescribe a special remedy, and the second principle is therefore inoperative, the first principle may pre- vent the extraterritorial enforcement of the liability because the law of the forum provides no adequate remedy, or no remedy that is suited to the character and extent of the liability. If, by the terms of the statute creating the liability, each stock- holder is primarily and severally liable up to a certain amount, measured by the amount of the stock held by him, so that com- plete justice may be done in an action at law against him with- 192, 44 Atl. 538; Hancock Nat. Bank to enforce the liability of a stock- V. Farnum, 20 R. I. 466, 40 Atl. 34. holder of a foreign corporation if no 'See post, § 480a. special remedy is provided by the Sjp'trsf Nat. Bank v. Oustin law of the state in which the corpo- Minerva Consol. Min. Go. 42 Minn, ration was created, and the liability 327, 6 L. R. A. 676, 18 Am. St. Rep. under the foreign law is such that 510, 44 N. W. 198; Leucke v. Tred- substantial justice can be done in an usiy, 45 Mo. App. 507; Marshall v. action at law, although the remedy Shermam., 148 N. Y. 9, 34 L. R. A. provided by the law of the forum in 757, 51 Am. St. Rep. 654, 42 N. E. respect of the liability of stock- 419. See also note to Gushing v. holders in domestic corporations is Perot, 34 L. R. A. 737, 741. a suit in eqxiity. Aldrich v. Anchor It does not follow, however, that Goal & Development Go. 24 Or. 32, a court can only apply the remedy 41 Am. St. Rep. 831, 32 Pac. 756. provided by the law of the forum for ^Fourth Nat. Bank v. Francklyn, the enforcement of the liability of 120 XJ. S. 747, 30 L, ed. 825, 7 Sup. stockholders of domestic corpora- Ct. Rep. 757; Russall v. Pacific R. tions. Upon the other hand, the Go. 113 Cal. 258, 34 L. R. A. 747, 45 court may entertain an action at law Pac. 323; Tuttle v. National Bank, B43 PERSONAL CAPACITY. [Chap. III. out joining tlie corporation or other stockholders or creditors, the court of another jurisdiction will ordinarily entertain such an action, when no special remedy has been prescribed by the statute creating the liability.^" 161 111. 497, 34 L. R. A. 750, 44 N. E. 984; Lowry v. Inman, 46 N. Y. 119; Barnes v. Wheaton, 80 Hun, e, 29 N. Y. Supp. 830; Niinich v. Mingo Iron Works Go. 25 W. Va. 184; May v. Black, 77 Wis. 101, 45 N. W. 949. lOLanigan v. North, 69 Ark. 62, C3 S. W. 62; Latimer v. Citizens State Bank, 102 Iowa, 1C2, 71 N. W. 225; Howarth v. Lombard, 175 Mass. 570, 49 L. R. A. 301, 56 N. E. 888; First Nat. Bank v. Gustin Minerva Consol. Min. Co. 42 Minn. 327, 6 L. R. A. 676, 18 Am. St. Rep. 510, 44 N. W. 198; Eowarth v. Angle, 162 N. Y. 179, 47 L. R. A. 725, 56 N. E. 489; Aldrich V. Anchor Coal & Development Go. 24 Or. 32, 41 Am. St. Rep. 831, 32 Pac. 756. The question has frequently arisen with respect to the liahility created by the Kansas statute, which the courts of that state have held to be of the nature described in the text. The following cases have held that such liability may be enforced in an- other state in which the stockholder is served with process: Whitman v. National Bank, 176 U. S. 559, 44 L. ed. 587, 20 Sup. Ct. Rep. 477 ; Rhodes V. United States Nat. Bank, 34 L. R. A. 742, 13 C. C. A. 612, 24 U. S. App. 607, 60 Fed. 512; Fidelity Ins. Trust 1 -ri-i ^cT. ooo With other cases, Emery v. Hill, I 258, d4 L. R. A. 747, 45 Pae. 323; j^^^^ ^ jjg^ 25 Revised Rep. il; Finney v. Guy, 106 Wis. 256, 49 L. Atty. Gen. v. Sturge, 19 Beav. 594, H. A. 486, 82 N. W. 595, Affirmed in 23 L. J. Ch. N. S. 495; Wew v. Bon- 189 U. S. 335, 47 L. ed. 839, 23 Sup. ^-. ^^^^J^' ^^'X^'tB^el'. Ct. Rep. 558. isee also cases cited -^^^ ^jgj g^^ ^^^^^ g ggj^ .supra, notes 8 and 9. 2IHd. § 1054] CORPORATIONS. 251 lOSy^. Subject to local municipal law. — A foreign corpora- tion doing business in any shape within state limits is subject to the municipal and other laws of the state. Thus, a foreign railroad company is bound to fence its lands conformably to state law, or to suffer the penalties imposed for neglecting to do so.^ And a foreign corporation, as to mode of service, is sub- jected to the lex fori.^ III. Paeticulae eelatioits. a. Slavery and serfdom. 106. Slavery not extraterritorially recognized. — All authori- ties unite in holding that a slave, on touching a land where slav- ery is not recognized, becomes free.^ It has been largely dis- cussed, however, whether a slave who thus has acquired freedom lapses again into slavery on returning to the land where he was formerly enslaved. It is certainly clear that when a slave has acquired a domicil in a free state, an attempt by his former sov- ereign to reduce him again to slavery, should he return to such sovereign's territory, would be a violation of international law. ^ iPurdy V. Neio York d N. H. R. 2 Bar, § 47 ; Story, Gonfl. L. § 96. Co. 61 N. Y. 353. Bhintschli (Das Moderne Volker- ^Baltimore & 0. R. Co. v. Harris, recht, Nordlingen, 1868, § 360) sus- 12 Wall. 65, 20 L. ed. 354; Ex parte tains the position of the text. After Schollenberger, 96 U. S. 369, 24 L. ed. declaring that internationally there 853; Brownell v. Troy & B. R. Co. 55 can be no property of man in man, "Vt. 2l8;8turges v. Yanderiilt, 73 N. and that every man is by nature a Y. 384; post, § 747. being capable of right, and endowed iGrotius de J. B. ii. chap. 22, § 11; with rights, he proceeds to say that Puffendorf, de Jure Nat. iii. chap. 2, this maxim of natural law, which §§ 1, 2; vi. chap. 3, § 2; J. Voet, was recognized by the Roman jurists, Comment, in Dig. 1, 5, § 3; Wachter, has been for centuries misunderstood ii. p. 172; Savigny, pp. 37, 46; Schjeff- and misstated by the great mass of ner, p. 45; Story, Confl. L. § 96; nations against their better cou- Somerset v. Stmvart, Loflft, 1 ; Har- science. In earlier days, in order to grave St. Tr. 340, 20 How. St. Tr. 1; justify slavery, the old practice of Forhes v. Cochrane, 2 Barn. & C. 448, nations, the jus gentium, was invoked. •3 Dowl. & R. 679.. 2 L. J. K. B. 67, Slowly and gradually has European 26 Revised Rep. 402; The Amedie, 1 civilization discarded that shameful Dodson, 84 note, 1 Acton, 240; The misuse of the power of the ruling Slave Grace, 2 Hagg. Adm. 94; But- over the serving classes which was ler V. Hopper, 1 Wash. C. C. 499, Fed. called property, and was placed on a ■Cas. No. 2,241 ; Polydore v. Prince, level with property in beasts of serv- I Ware, 413, Fed. Cas. No. 11,257; ice; and slowly and gradually have Com. v. Aves, 18 Pick. 198; Butler v. the natural rights of the person been Delaplaine, 7 Serg. & R. 378; Com. recognized. After this system was ex rel. Lewis v. EoUoway, 6 Binn. abandoned in Italy, in England, and ■213. in France it still lingered in some 252 PERSONAL CAPACITY. [Chap. III. On the other hand, the doctrine seems to be that when a person who is under apprenticeship, or other temporary obligations of service, in his domicil, and, after leaving such domicil, and so- journing in a free country, without acquiring a domicil in such latter country voluntarily returns to such original dom- icil, then such disabilities or servitude revive.^ b. Civil death. 107. Nor civil death, nor disabilities attached to ecclesiastics. — ^An almost equal unanimity, even among those who maintain the universality of the personal law, exists as to the position that civil death will not be regarded as of extraterritorial ac- ceptance.-^ It has also been questioned whether an ecclesiastic who has made a vow of poverty, which vow the law of his dom- icil regards as binding and operative, is capable of inheritance in a foreign land. Eminent German jurists hold that when this vow is voluntary the incapacity is extraterritorial.^ But while the courts of his domicil might enjoin him from accept- ing such inheritance, his incapacity in this respect would not be recognized in countries where this form of civil death is not sanctioned. * German states; and was only re- Wachter, ii. p. 184; Bl. Com. book 1, cently abandoned in Russia. Thus, p. 132; iii. 101; iv. 54, 319; Story, slowly grew up as a European prin- Confl. L. § 92. "Si alicui interdic- ciple the rule that slavery cannot ex- turn est arte vel negotiatione senten- ist in Europe, but that personal free- tia non valebit extra territorium dom is a right of man. When the princi'pis." P. Voet, de Stat. iv. 3, United States of America took ground § 19. Civil death (la mort civil), against slavery, and forced the insur- says Broeher (Droit int. priv6, 103), gent states within their national raises a feeling of repulsion, whether bounds to concede personal freedom the incapacity is presented singly or and civil rights to the black race, as a consequent of another punish- this same principle pervaded Amer- ment. It is a barbarism condemned ica, and now has reached a general by justice, by reason, and by moral- recognition in the juridical conscious- ity. The states which have abolished ness of the Christian world. The it cannot be held to accept it from sovereignty of states cannot now be the hands of a foreign legislature, invoked to invalidate the higher and 2 Savigny, p. 161, note a; Bar, more general rights of humanity, for § 48. states are human organisms, and are 3 It is maintained by Savigny, how- bound to respect what is recognized ever, that a monk who is restrained as a universal right of man. by the law of his domicil from inher- ^The Slcme Grace, 2 Hagg. Adm. iting property carries this disability 94; Hunter v. Fulcher, 1 Leigh, 172; into Prussia, although no local law to Baynes v. Forno, 8 La. Ann. 35; that effect there obtains. He treats Story, Confl. L. § 96. As to revival this restriction, though somewhat in- of allegiance, see ante, § 6. consistently, as adhering to the per- 1 Mittermaier, i. § 30, note 13; son, the reason given being that it S 107i] PARTICULAE RELATIONS. 253 1071/2. Nor judicial declaration of death. — 'Bj the jurispru- dence of several European states, the courts, after due proof that a person has been unheard of for a designated period, are authorized to enter a judicial declaration of death. Fiore, aftpr noticing the conflicting peculiarities of local legislations in this relation, argues that to avoid the contradictions that would arise from the application of the lex rei sitce, the proper course is to apply the personal law of the person supposed to be dead. Every sovereign, he insists, has the right to protect the interests of his subjects and their families, even in respect to the goods they possess in a foreign land, in all cases when such action would not encroach on the rights of the territorial sovereign.^ But in case of a person judicially declared to be dead turning out to be alive, no foreign decree of death should be regarded as operative. And in any view, such decree is only entitled to the force attached to letters of administration in our own courts, which may be collaterally impeached.^ c. Attainder and infamy. 108. Nor attainder and infamy. — Here we enter on a subject of greater difficulty. It was natural for the older jurists, shackled as they were by the fiction of the union of Christen- dom under the Eoman imperial crown, to hold that the disa- relates to the ordinary capacity to land so far as concerns property in act, and rests on the free choice of such foreign state, is argued by Mr. the individual, — als zur gew-ohnlichen Dicey (Domieil, p. 16ij, citing San- Handlungsfdhigkeit gehorend, cmch tos v. lllidge, 8 C. B. N. S. 861, 29 auf dew, freien Willen der Person L. J. C. P. N. S. 348, 6 Jur. N. S. beruhend. Savigny, Kom. Recht, viii. 1348, 3 L. T. N. S. 154, 8 Week. Rep. § 365, note a. He cites to the same 705. effect, Hert. § 13 ; Bornemann Prexiss. A Jesuit, of French nationality, ac- Recht. h. 1, p. 53, note 1. Such a cording to the nationality theory, is view, however, would not hold good incapable, under the French legisla- in England or in the United States, tion of 1880, of exercising the office and in Prussia it may be more prop- of a teacher. Would it be pretended erly ascribed, not to the general prin- that this limitation is to adhere to ciples Savigny mentions, which might him wherever he goes ? Incapacity apply to all other foreign restrictions attached to entrance into certain re- on acquisition, but to the peculiar ligious orders is generally recognized policy of reciprocal recognition which in Europe. Savigny, viii. § 365 ; Bar, the Prussian monarchy has sought to § 48; Fcelix, 1. p. 198; Brocher, enforce on the great religious com- p. 353. Would anyone pretend that munions which occupy its territory, such incapacity would be recognized That a foreign law prescribing as limiting such persons when travel- that the property of a person becom- ing in the United States? ing a monk should devolve on his 1 Fiore, Op. cit. § 77 ; post, § 133. heirs, would be recognized in Eng- 2 Wharton, Ev. § 1278. 254 PERSONAL CAPACITY. [Chap. III. bilities produced in one land by conviction of an infamous crime would be enforced in all other lands. -^ Even by writers of the present day, when this fiction is exploded, the doctrine of the international recognition of infamy is accepted.* But,. so far as England is concerned, while her shores have been the refuge of multitudes of persons who have been attainted and consigned to infamy by their respective sovereigns, there is no case recorded where such disabilities have been enforced by English courts.^ As to the United States, Judge Story prop- erly remarks* that "an American court would deem them (such incapacities) purely local, and incapable of being en- forced here. Even the conviction of a crime in a foreign country, which makes the party infamous there, and incapable of being a witness in their courts, has been held not to produce a like effect here. The capacity or incapacity of any persons to do acts in their own country would undoubtedly, under such circumstances, be judged by their own laws; but not their ca- pacity or incapacity to do the like acts in any foreign territory where different laws prevail." And, as a general rule, it is fully settled that penal laws have no extraterritorial effect.® The question of the effect of a foreign conviction upon the admissibility of a witness will be discussed under its appropri- ate head.® 1 Burgundus, iii. 12 ; Bouhier, chap, disability when he places himself un- 24, No. 134; Boullenois, ii. p. 19. der another sovereignty. Waehter, zMittermaier, § 30; Thol, Einlei- vol. ii. p. 172; Bar, § 51. Contra, tung, § 78; Bar, § 49. SchaflFner, § 35. And the reason is s See Westlake, Private Interna- ( 1 ) that these are penal laws, which tional Law, 1857, art. 403 : "By at- foreign countries are not called upon tainder also for treason or other to execiite; and (2) that in point of felony, the blood of the person at- fact the disabilities so incurred are tainted is so corrupted as to be ren- merely special and temporary, being dered no longer inheritable." Bl. the subjects of constant relief by ex- Com. book 2, chap. 15, *251. The ecutive clemency, and hence rather idea is local. And so, in Shakes- suspend than destroy capacity. See, peare : — as affirming the principle in the text, Ogden v. Folliott, 3 T. E. 733; Fol- "Was not thy father, Richard, Earl of liott v. Ogdm, 1 H. Bl. 135, 3 T. R. Cambridge, , . ^. _, 726, 4 Bro. P. C. Ill, 2 Revised Rep. day^r *^^™*'"' *" ''"'^ '^** ^'°^^ 736; Wolff v. Oxholm, 6 Maule & S. And by his treason stand'st not thou 92, 18 Revised Rep. 313; Lynch v. attainted, Paraguay, L. R. 2 Prob. & Div. 268, Corrupt^ed anA exempt from ancient 4Q j^ j -p^.^^ -^ g_ gj^ 25 L. T. N. S. ^^V^rt I. Hen. VI. act vi. sc. 4. 164, 19 Week. Rep. 982; Com. f. Green, 17 Mass. 540. Of a similar character is the civil * Confi. L. § 92. death of the French and Russian sSee ante, § 4. Codes. Sec ante, § 107. A person « See fully Wliarton, Grim. Ev to whom such disability has attached § 363, note. at his domieil is relieved from this See also post, § 769. S 109] PARTICULAR RELATIONS. 25& d. Distinctions of creed or caste. 109. Nor distinctions of creed or caste. — So far as concerns England and the United States, this question does not admit of discussion. No foreign distinctions, arising from either creed or caste, are viewed, in either of these countries, as hav- ing any extraterritorial force. ^ On the continent of Europe the same rule is now universally applied to incapacities on ac- count of creed. ^ So far as concerns the privileges of nobility, however, very minute distinctions are made by the older ju- rists. It is enough now to say that, in a country which recog- nizes the nobility as a distinct caste, the privileges of this caste will be at least tacitly assigned to foreign nobles.* e. Incapacity as to negotiable paper. 110. Artificial limitations on negotiable paper do not follow the person. — The right to make negotiable paper has been sub- ject, in Germany, to various limitations. In some states it has been viewed as a prerogative, to be limited to certain fa- vored classes,^ in the same way as in England and the United States the issue of bank notes is limited to certain chartered 1 Story, Confl. L. §§ 91-93; ante, vast majority of the population, were §§ 98-103. prohibited from making such eon- 2 Bar, § 50; Savigny, pp. 36, 160. tracts. It is true that by the As to disabilities attached to ecclesi- Wechselordnung of February 1, 1849 astica, see ante, § 107. (Preussische Gesetzsainmlung 1849, 3 Thol, § 78; J. Voet, 1, 5, § 3: p. 51), these prohibitions were re- "A I'egard des etrangers de race leur moved by a general legislative act. noblesse est un droit de sang qui les Traces of them, however, based on suit pwrtout." Duplessis, ii. p. 456 ; the principle that the making of com- Boullenois, i. p. 67; Bouhier, chap, mercial paper is too powerful an en- 24, No. 134. The subdistinction be- gine to place in any but intelligent tween the "Erbadel" (nobles by and experienced hands, still linger in birth) and the "Brief adel" (nobles the jurisprudence of other lands; and by creation), momentous as it is in the question, therefore, may still German social life, is now generally emerge, how far a person who by the agreed to be out of the range of judi- law of his domieil is thus restricted, cial cognizance. is capable of binding himself in those 1 According to the Prussian law, countries where such restrictions do for instance, which was in force down not exist; and how far, on the other to 1849, the right to enter into such hand, a person, who by his domieil contracts was confined to (o) Ritter- is free in this respect, is restricted gut lesitzer (owners of manorial es- in countries where these limitations tates) ; (6) Domiinenpachter (lessees are in force. An article on the ca- of demesne lands) ; (c) licensed mer- pacity of women in Germany to bind chants or traders; and (d) those hav- themselves by commercial paper will ing granted to them by their personal be found in the Revue de droit int. judge the special right to make such for 1879, p. 147. paper. All others, embracing the *56 PERSONAL CAPACITY. [Chap. III. institutions. In other states, whole classes, such as farmers, nobles, and traders below a certain limit, are prohibited from the exercise of this function. Were this to be regarded, as it is sometimes claimed to be, as a protective measure, it might be subject, on the principle above stated, to the law of domicil, and the restriction might follow the person. But it can hardly be regarded as protective. In the first place, it bears on its face the mark of the old mediseval system of guilds, which are confessedly institutions of local policy, and have no extraterri- torial effect. In the second place, the parties thus restricted are left at liberty to embarrass their estates by business expedi- ents equally hazardous; and they cannot be considered, there- fore, in any sense, as the wards of the local law. And thirdly, no persons are to be considered as, by the law of nations, sub- ject to tutelage, except those who bear on their face notice suffi- cient to put persons dealing with them on inquiry, which is not the case with the persons in question. Hence, these restrictions do not bind domiciled subjects of such laws out of their home territory. In this conclusion, though not in this course of rea- soning, coincide the great body of modern European jurists.^ Savigny, on the other hand, lends his great name to the oppo- site view. He declares that, by the common law of Europe, the capacity of the maker of such paper is to be determined by the place of his domicil, no matter what may be the territory in which he may contract. He urges that though difficulties may spring up from this view, these difficulties are more ap- parent than real, for the reason that law is only meant for the provident ; that no provident business man buys or indorses pa- per without first acquainting himself with the responsibility of the leading names attached to it; and that it is better for business in general that such caution should be required and stimulated by the law. But, as will be in a moment seen, this view is in practice abandoned. Not merely are these restric- tions no longer recognized by the great commercial powers of Christendom, but they would be held, where they are still re- tained by minor states, as of no extraterritorial force.* 111. Lex fori may in such cases prevail, but not to enforce for- eign restriction. — A distinction is made by the same high au- thority between a positive prohibition by a particular country 2 Masse, No. 64; Pardessus, No. treatise on Das Wechselreeht, in 1483; Oppenheimer, p. 404; Bar, § 55, Holtzendorff's Encyclopadie, Leipzic, p. 182. 1870. 8 See Dr. Endemann's excellent S 111] PARTICtJLAB, RELATIONS. 257 of all forms of commercial paper, aod a limitation by a partic- ular country of the right to execute such paper to particular persons, as was formerly the case in Prussia. In the first country, — that in which all commercial paper whatsoever is prohibited, — it is maintained that no action whatever against anyone lies on such paper, because this is a matter of proce- dure in which the law of the forum controls. This is not be- cause the liability of the party is extinguished, but because, in that particular locality, it cannot be enforced. I > the second case, however, — that in which the law restricts the right to ■draw bills to certain parties, — persons who, in their own dom- icil are entitled to draw bills, may be sued on such bills in the country where the restriction exists, for in such cases, as has been seen, the law of the domicil obtains.^ But, as has been stated, these questions have been put to rest, so far as concerns •G-ermany, by the Allgemeine Deutsche Wechselordnung (Gen- eral Law of Negotiable Paper), now in force in all of the Ger- man states. This closes, in fact, the claims of such restric- tions even to any international recognition. "It would be in- ix)lerable," very justly speaks Bar,^ "if a person residing in a land where no such restrictions are known were permitted to escape liability on bills drawn by him by appealing to restric- tions of this class in his domicil." Such would unquestion- ably be the view of English or American courts, should they be called upon to adjudicate this point* f. Infancy. 112. Guardianship of infants determined primarily by their personal law. — On the principles already stated, an infant, as an infant, is entitled to the protection, in a foreign land, of his domiciliary law. Two reasons combine to require this. In the first place, as a child, he is the ward of Christendom. 'On his face he shows this and makes this claim. In the second place, he is a traveler. If he be with his guardians, it is a gross Infraction of natural law to deal with him without their privity and consent. If separated from them, the proper ofiice of hu- manity is to return him to their care, or, at all events, to obtain for him the protection of the proper local court His age is I Savigny, viii. p. 149. future head, §§ 447-452. See also ?■ § 55, p. 183. Goldschmidt, Handbuch des IlandeJ- 3 The general law as to commercial rechts, Erlangen, 1864, p. 454. paper will be considered under a Vol. I. CoNPL. op Laws — 17. 258 PERSONAL CAPACITY. [Chap. III. notice to all parties that the country of his domicil will only- hold him or his estate responsible so far as its own laws per- mit ; and as he is to return to that country, to its laws the ques- tion of his responsibility is to be remanded. Hence it is that many eminent jurists have agreed, though for various reasons, in holding that the status of infants is to be determined by the law of their domicil.^ Indeed, in respect to infancy by nat- ural law, the question does not admit of doubt, though it is dif- ferent, as we will presently see, when infancy approaches that period as to which particular countries, following climate or tradition, have attached various bounds. But so far as con- cerns persons incapable of self-government, whatever may be the cause, our courts, in appointing a local guardian, will have regard to the action of the judex domicilii.^ 113. The term of minority is a matter of distinctive national policy. — We must, however, remember that minority and in- fancy are by no means convertible, and that the period at which a state fixes the majority of its subjects is determined largely by national policy. An over-populated state, where it is not desirable to increase the number of persons in business life, for whose distinctive industries long apprenticeships are desirable, whose climate and traditions do not stimulate early development, naturally fixes majority at a more advanced pe- riod of life than a state whose soil and industries call for large additions of young, active, and adventurous laborers, and whose climate and traditions lead to the assumption of respon- sibility at an early age.-' Hence, we can well understand how a state of the first class should say : "Twenty-five years is the period of majority that our national policy requires; you can- iMolinseus, in L. i. c. de S. (i. [1], § 26) ; t-wenty-five in Wiirt- Trin.; Huber, § 12; Rodenburg, ii. 1, emberg (stat. of May 21, 1828), in §§ 1, 2; Bouhier, chap. 25, No. 1; Hanover (stat. of April 14, 1815, § Boullenois. i. pi). 53, 54; Merlin, R6p. 24), in Denmark (1, 3, title 17), in Majority, § 5; Wheaton, i. p. Ill; Spain {Sala, liv. title 8), in Portu- Thfil, §§ 81, 87; Schaffner, pp. 47, 48; gal, Mexico, and Norway (Fiore, Op. Savigny, pp. 134, 135; Fcelix, i. No. cit. § 173). 33, Massg, ii. p. 84; Story, Confl. L. In the United States, majority, for g 45, civil purposes, is determined by state 2 See post, § 259. law. For men the period fixed by all 1 Twenty-one years is the period the states is twenty-one years, and in of majority in France (art. 488), in most states the same limit applies to Italy (art. 323), in Bavaria (statute women. In some states, however, of October 26, 1813), in Russia (art. the period for women is reduced to 100) ■ twenty-two in Hesse (statute eighteen years. 8 Ops. Atty. Gen. of September 13, 1831) ; twenty-three 65; Lawrence Com. sur -Wheat, in. in Holland (art. 385) ; twenty- four 195. in Austria (art. 21), and Prussia § 113] PARTICULAE RELATIONS. 259 not subvert this policy by coming to us either singly or in crowds and undertaking duties and exercising privileges vfe do not hold you competent to undertake and exercise." And a state of the second class, fixing majority at tv^enty-one, may, on the same reasoning, properly say : "If you come here to do business, you must do so subject to the responsibilities -which our distinctive policy assigns to persons of your age."^ The conclusion is that laws establishing the term of majority are laws of national policy which each state imposes on its resi- dents, no matter what may be their allegiance or their domicil. It is true that the enthusiastic advocates of the ubiquity of na- tional status insist that one who is either a major or a minor by his domicil must be regarded as a major or minor throughout the civilized world. ^ Yet, as we have seen, these are the spec- ulative views of theorists, not the practical conclusions of she courts.* In Erance, for instance, where we have been told by writers of high standing that foreign minority is to be re- garded as ubiquitous,® it is now settled that the courts will not recognize the incapacity of foreign minority in cases where the French party negotiating with the foreigner was without fault in the transaction, and was led by the latter's conduct to believe him of full age.^ And it was expressly ruled by the Court of Cassation, in 1861, that a foreign minor cannot set up his minority in defense to a claim contracted with him in good faith by a party in Prance who believed him to be of full age, he having reached the French term of majority.'' It has been further ruled that, though a foreign minor may set up his minority as a defense to a suit brought against him on bills ac- cepted by him in France, in cases in which the party suing was in a position to take notice of such minority, it is otherwise as to persons who had no such opportunity, — e. g., his remote in- dorsees on negotiable paper.® It is true that these rulings have been severely censured by the exponents of the theory of the ubiquity of national status,® but they exhibit what is un- questionably settled French law. And this law, as we have seen, is more consistent with high civilization, with business 2 See ante, § 101. p. 502; Fiore, Droit int. priv6, trad. 3 See Piore, Op. cit. § 173; ante, Pradier-Fodfirg, Nos. 167 ei seg. See § 101 ; 6 Southern Law Rev. 694. also ante, § 104J. 4 See ante, § 104i. ^ Fiore, Op. cit. p. 661. 5 See Du Chassat, Traitg des Stat- sSee decisions to this effect in uts, No. 237; Valette sur ProudhoE, Jour, du droit int. privg, 1879, p. 488. Etat des personnes, i. p. 85. ^ See Laurent, Droit civil int. ii. 6 Jour, du droit int. priv6, 1878, 535. 260^ PERSONAL CAPACITY. [Chap. III. security, and with settled liberty, than is that of the ubiquity of national disabilities. ^ ° 114. Foreign statutes not permitted to override such policy. — Here it is that we encounter a decision of the supreme court of Louisiana, which has met with a degree of celebrity allotted to few other American adjudications. "The writers on this sub- ject," said the court, "agree that the laws or statutes which reg- ulate minority and majority, and those which fix the state and condition of man, are personal statutes, and follow and govern him in every country. ISTow, supposing the case of our law fixing the age of majority at twenty-five, and the country in which a man was bom and lived previous to his coming here placing it at twenty-one; no objection could, perhaps, be made to the rule just stated, and it may be, and, we believe, would be, true, that a contract made here at any time between the two periods already mentioned would bind him. But reverse the facts of this case, and suppose, as is the truth, that our law placed the age of majority at twenty-one; that twenty-five was the period at which a man ceased to be a miiior in the country where he resided; and that at the age of twenty-four he came into this state, and entered into contracts, — ^would it be permit- ted that he should in our courts, and to the demand of one of our citizens, plead, as a protection against his engagements, the laws of a foreign country, of which the people of Louisiana had no knowledge? . . . Most assuredly, we would not."^ To this opinion Mr. Livermore takes grave exception,^ in which he is followed by Judge Story,* who declares that "the difficulty is in seeing how a court, without any such positive [enabling] legislation, could arrive at both conclusions," which he holds "to stand upon mere arbitrary legislation, and posi- tive law, and not upon principle." Sir R. Phillimore is still more sweeping in his denunciation.* The case he calls "cel- ebrated and leading," but the conclusion he pronounces to be "monstrous." On the other hand, this same principle, — namely, that when there are two conflicting domicils as to ca- pacity, that will be selected which most favors a contract en- tered into by the person whose capacity is disputed, — has been incorporated into the Prussian Code,® and, on an analogous 10 See ante, §§ 7, 8, 101, 104 et seq. 2 Dissert. § 17. iSaul V. His Creditors, 5 Mart. N. 3 Confl. L. § 76. . S. 596, 16 Am. Dee. 212. The same < IV. p. 252. point was made in Baldwin v. Gray, = A. L. R. § 35. See Savigny •1 Mart. N. S. 192, 16 Am. Dec. 169. p. 145; post, § 429. § 114] PARTICULAR RELATIONS. 261 question, has teen lately sustained in England." Bar''^ gives to this conclusion his entire approval. Independently of the ground just stated, that the courts v^ill sustain that construc- tion vsfhich most favors capacity, he insists that foreigners, in such cases of conflict, when competent at the place of transac- tion, are to be regarded by all courts, except those of their dom- icil and of countries with similar codes, as competent to do the particular act. For, as he argues, it is not to be supposed that a government would exercise a greater tenderness over foreign- ers than over its own subjects; and if it presumes its subjects to be capable of being relieved from the incapacities of minor- ity at a particular age, it will not undertake to intrude this shelter upon foreigners after such a period. At the same time, following the line of the supreme court of Louisiana, he main- tains that a foreign major does not lose his majority on visiting a country in which by the local law he is still a minor. "In- deed," as he remarks, "this would not be possible without ap- pointing a special guardian for such adult;" and he adds that the position is one universally denounced. In other words, he who is capable of business in his domicil is capable of it every- where. And such is the drift of the argument of Reinhoid Schmid, the learned professor of law at Berne, in his recent interesting tract on this topic* "So far as concerns foreign- ers," he declares, "whose business capacity comes into question before our courts, on the one side, there is no reason to give them a wider protection than their home laws secure; and, on the other side, it would be repugnant to equity if, by extending to them their foreign protection, they should be more favored than our own citizens. This leads us to the conclusions: (a) That a foreigner who is capable of business at his domicil must be recognized as so capable by our laws, even though, if domi- ciled among us, he would be incapable; and (h) foreigners who are incapable by their own laws must be treated by us as capable, when our laws so regard them." The first position, he goes on to say, is generally recognized in all cases where ca- pacity is dependent on age. The second, he admits, is contest- ed, but he proceeds to ask whether, if the limitations of busi- ness capacity are to be viewed as a favor to the persons soguard- 6 An English legacy to an infant Hellmann, L. R. 2 Eq. ,S63, 14 Week. domiciled abroad may be paid when Rep. 682. the infant comes of age, either by ' § 45, p. 156, note 5. the law of England, or the law of s Die Herrschaft der Gesetze, etc.. domicil, whichever occurs first. Be p. 43, Jena, 1863. 262 PERSONAL CAPACITY [Chap. HI. ed, it is to be presumed that our law should have a tenderer re- gard for foreigners, in this respect, than for ourselves. And he points , out the disturbance to trade, and the medley which would thus be introduced into jurisprudence, if this sentimen- tal enthusiasm for nationality be yielded to.^ And whatever may be the strength of the position that the law most favoring local business capacity will be preferred, there can be no ques- tion that neither in England nor in the United States will home statutes, based, as that of minority is, on national policy, be subordinated to foreign statutes based on an antagonistic policy. -^^ Hence, we have several emphatic rulings to the ef- fect that when the law says that twenty-one years shall be the period of majority in a particular state, all men of twenty-one resident in such state shall be regarded as no longer minors. '- ^ On the other hand, a state which fixes upon a specific age as es- 9 The distinction in the text is fur- ther extended by Bar, in a review of the first edition of this work. No state, he argues, can impose the dis- abilities of minority upon a person who is not subject to such disabilities by the laws of his home. It is other- wise, however, when by the laws of a place where a business transaction is performed a, party is of full age, though a minor at his home. It is true, adds this able commentator, that there may be a conflict in such cases, since the judex domicilii would probably hold that the person in question, if incapable of business at home, was incapable abroad, while the judex loci actus would decide the other way. But this very conflict would subserve material justice. The plaintiff would probably select the state in which the defendant had property by which the claim might be satisfied. If this be the state of the litigated transaction, the defend- ant, who placed it there, could not complain. If, however, the defend- ant is sued at his own home, a person pursuing him in such home, having trusted him on account of property possessed by him in such home, is open to criticism if he did not, at the time of the transaction, inquire as to the personal relations of the person tiiiis trusted. i«See ante, §§ 101 et seq., 113; 6 Southern Law Eev. (Jan. 188i) 696. 11 In Male v. Rolerts, 3 Esp. 163, 6 Revised Rep. 823, it was held by Lord Eldon that the capacity of an infant to contract for certain debts must be determined by the lex looi contractus. Mr. Dicey (Domicil, p. 178) lays down the following rule : "D., a man of twenty-two, is domiciled in a coun- try where majority is fixed at twen- ty-five. He cannot, it would seem, on the ground of infancy, escape liabil- ity in England for a debt contracted in England." As sustaining this position may be further cited Thompson v. Ketchum, 8 Johns. 189, 5 Am. Dec. 332; Bank of Louisia/na v. Williams, 46 Miss. 624, 12 Am. Rep. 319. A foreigner doing business in a country where he is a major may be- come a bankrupt in such country, his personal property there situate pass- ing to his assignee, though he is a minor by the law of his domicil. Stephens v. M'Farland, 8 Ir. Eq. Hep. 444. Mr. Foote (Private International Jur. p. 261 ) , while afiirming that a foreigner, a minor by the law of his domicil, doing business in England, where he is of full age, will be re- garded in England as capax negofii, supposes the case of "two English- S 1 14] PARTICULAR RELATIONS. 263 sential to business capacity will not permit this limitation to be annulled by exceptional foreign legislation by which a partic- ular individual under such age has such capacity specially and arbitrarily assigned to him/^ 115. Injustice worked by importation of foreign artificial in- capacity. — To treat a foreigner of twenty-one, when in the United States, as a minor, because he is a minor in his own land, would not only be a fraud on all who deal with him in ignorance of the incapacity, but would inflict a cruel disability on himself. He would be incapable of drawing a valid bill, or of negotiating a letter of credit, or of entering into the sim- plest transaction in the way of trade. His very attempting to do so would be a fraud for which he could be criminally pun- ished. Certainly statutes of infancy were never meant to bring such consequences as these. When they conflict, the proper standard is tiiat presented by the distinctive policy of the state in which the litigated contract had its seat. ^ And, in all cases, such statutes should cease to bind internationally when they cease to be protective.^ men transiently present in a country this. Smith v. McGutchen, 38 Mo. whose law regarded them as infants, 41,'5; Story, Confli. L. §§ 539, 18, 103. . . . and there entering into a con- Our own statutes ( 1 Wagner Stat, tract in ignorance or in contempt of p. 672, § 1, and p. 681, § 48) provide the provisions of the lex loci." In when infants shall attain their ma- such case, he says, it is "difficult to jority, and they must be our guide, think that it (a plea of infancy) and not the laws that emanate from would be allowed to prevail." a foreign jurisdiction." 12 To this effect is the ruling of i See ante, § 113. the supreme court of Missouri, in the 2 The following is from 3 Parsons case of State use of Gilbreath v. on Contracts, 5th ed. p. 575: "If Bunce, 65 Mo. 349. In this case a a woman, at the age of nineteen, probate court of Arkansas, acting whose domicil was in Massachusetts, under the authority of a statute of having gone into Vermont (where that state, ordered that the disability women are so far of age at eighteen of nonage of G. be removed, "so far that they may bind themselves at as to authorize him to demand, sue that age for things not necessary), for, and receive all moneys belonging there bought non-necessaries, and to him in the state of Missouri, in gave her note for the price, and while the hands of his curator or any other she was there the note was put in person, and to execute releases there- suit against her, we do not think she for in the same manner as if he was could interpose the law of Massachu- of full age." In a suit brought by setts in her defense. And if a woman G., in Missouri, against his curator, of that age, whose domicil was in Sherwood, Ch. J., giving the opinion Vermont, came into Massachusetts, of the court, said : — and there bought non-necessaries, and "The legislature of Arkansas did was sued for the price, we think she not possess the power to pass a law could interpose the defense of in- to override ajid control our laws; no fancy." Certainly, if the Massachu- more could it authorize the proljate setts woman of nineteen is permitted court of Washington county to do by the law of her domicil to do busi- 264 PERSONAL CAPACITY. [Chap. III. 115a. Capacity of infant to contract. — It is apparent from the preceding sections that if, by the law of the place where the con- tract was made, the contracting party had attained majority and was capable of contracting, he cannot avoid the effect of his con- tract, at least if the action is not brought at his domicil, upon the ground that, by the law of his domicil, he had not attained majority, and was therefore not capable of contracting. ^ It is possible that a court sitting at the domicil might hold that the enforcement of such a contract, though valid by the lex loci con- tractv£, would be contrary to the public policy of the forum. This principle, as subsequently shown, ^ has been applied to married women's contracts. There is, however, much less force in such argument as applied to infants' contracts, since, ordi- narily at least, such contracts are voidable only, and not void.^ While it is thus settled that the disability of minority fixed neas in Vermont without a guardian, acquisition of rights ; it does not sup- and if there is nothing in her appear- pose them to be renounced. A pre- ance or otherwise to notify the Ver- existing majority will be maintained mont vendors that she is irresponsi- in the new country, ble, it would be a hard measure, and According to Fiore, the extent and would be at variance with the views duration of paternal power depends expressed in the text, to declare that on the national law of the family her Massachusetts infancy is a de- (Fiore, Op. cit. § 156) ; and this view fenae to her Vermont obligations, is shared by other jurists of the same But, on the other hand, to sustain the school, and is sanctioned by the plea of infancy, in the second case, French, Italian, and Belgian Codes, would be no particular kindness to This, however, even supposing per- the Vermont woman under discus- sonal law to be the criterion, does sion. In the first place, it would ex- not hold in those states in which pose her to a criminal charge of false domicil determines personal law. pretenses in Massachusetts, for as- Ante, §§ 7, 8. suming a local status she did not possess. In the second place, she i See notes to §§ 114, 115, ante. would bp^ still open to a suit for the g^^^^ ^ Binglwm, 49 Conn. 278, is same debt in Vermont, where it is , j, ^^ _ " , , clear her infancy could not be ^ ^^<^^ ^^'^^' ^"^ ^^e also cases pleaded. cited infra, note 4. A thoughtful contemporaneous 2 See post, § 118a. Swis^ writer (Brocher, Droit int. ^^^ q^^^^ ^_ Bmgham, 49 Conn, prive, p. 93) solves the question by _„ ,, , ,. , :, the test of the party's intention. It ^^8, supra, the rule was applied and is not probable a party who is of full the contract upheld, though the court age would remit himself back to in- was sitting at the domicil, according fancy We think that in cases of ^o the law of which the contract doubt the ancient rule should be . ■, . , maintained. That rule sustains the would have been voidable. § 115a] PAKTICULAR RELATIONS. 26&- by the domicil does not follow the infant when he goes into- another state and contracts there, it is not so clear, upon the authorities, that his status as a major, acquired at the domicil, does not follow him, though there are some cases which state the rule that the defense of infancy is to be determined by the- lex loci contractus, in terms broad enough to cover a case where the infant had attained his majority by the lex domicilii, but not by the lex loci contractus.* And there are a few cases- 1 Contracts entered into in other states, so far as validity and ca- pacity of the contracting parties are concerned, are to be tested by the lew rei celehrati contractus. An- drews V. His Creditors, 11 IJa. 464 {obiter). Disability to contract arising from coverture, infancy, or other causes is to be determined by reference to the law of the place vi^here the con- tract is made, rather than to the law of the domicil. Phoenix Mut. L. Ins. Co. V. Simons, 52 Mo. App. 357. Tlie defense of infancy is to be sus- tained, or denied, according to the rule of the place of the contract or performance. Graham v. First Nat. Bank, 84 N. Y. 393, 38 Am. Rep. 528 {obiter). In Uuey's Appeal, 1 Grant, Cas. 31, the court said: "The general rule of the jus gentium is that in re- gard to questions of minority or ma- jority . . and other personal qualities and disabilities, the law of the place where the contract is made, or the act done, furnishes the rule of decision ... In questions of minority and majority this principle is peculiarly appropriate where the place of the contract is also the place of the domicil." In this case the place of the contract and the place of the domicil were the same, the con- fiiet being between the law of that place and the law of the place where- the property was situated. It is clear, however, that the court was. of the opinion that, as between the leas loci contractus and the lex domi- cilii, if the two are opposed, the- former governs. In Philpott V. Missouri P. R. Co. 85 Mo. 164, an action by parents to- recover, under the Missouri statute,- for the negligent killing of their son in Missouri, the court held that the- question whether the son had at- tained majority was to be determined by the law of Missouri, rather than by the law of Texas, whers the- parents and the son were domiciled at the time of the accident. The- eourt said: "As to acts done and rights acquired here, the laws of this- state, and not those of Texas, must determine whether the son was or was not a minor." In this case the law of Texas on the subject did not appear. A resident of another state, by whose laws she is of full age, though under twenty-one, is not entitled to- receive her distributive share in the- estate of a person domiciled in Pennsylvania, until she is of full age, according to the law of the lat- ter state. Rutherford's Estate, I Chester Co. Rep. 149. 266 PERSONAL CAPACITY. [Chap. III. which have refused to recognize a party's status as a major as fixed by the lex domicilii.^ The point, however, can scarcely be regarded as settled. 6In O'Dell V. Rogers, 44 Wis. 136, contracts by a person who had at- tained her majority according to the law of Minnesota, where she was ^iomiciled, were held invalid because she had not attained her majority according to the law of Wisconsin, where they were executed. The ■court took the view that the con- tracts related to real property, and that the law of Wisconsin governed because it was the lex rei sitce; but it seems to have been assumed that the law of Wisconsin, as the lex loci contractus, would have governed even if the contracts had related to personal property. In State use of Gilhreath v. Bunce, '65 Mo. 349, it was held that a person who, by the law of Missouri, was a minor, could not maintain an action in that state in his own name, not- withstanding that, by a decree of a -court of Arkansas where he was domiciled, rendered pursuant to a statute of that state, he was re- lieved from the disability of non- age for the purposes of such suit. In Barris v. Berry, 82 Ky. 137, it ■was held, in accordance with the law •of Missouri, that a female oyer •eighteen was entitled to the control •of a judgment recovered in that state for her benefit, notwithstand- ing that she was not of age by the law of Kentucky, her domicil. The court said that the status of all persons who seek the aid of courts of law or equity in Missouri must con- form to the law of that state. It is not clear whether this was the view •of the Kentucky court as to what ought to be the rule, or its view as to what the law of Missouri actually was in view of the Missouri case previously cited. In Barrera v. Alpuente, 6 Mart. N. S. 69, 17 Am. Dee. 179, it was held thai a person who was twenty-one, and who, by the law of Missouri, hod attained his majority, might main- tain an action in that state in his own name, notwithstanding that he was domiciled in Spain, where minority does not cease before twenty-five; but this decision is upon the ground that the person was born in Louisiana, and that the law of the domicil of origin governs the state and condition of a minor into whatever country he goes. The im- plication of this case is, therefore, that, if the person had been born in Spain, he could not have brought the action in his own name. Woodioard v. Woodward, 87 Tenn. 644, 11 S. W. 892, held that a minor domiciled in Louisiana, who had been emancipated in that state, was entitled to receive, from her guardi- an appointed in Tennessee, a fund which was being administered in the latter state, notwithstanding she had not attained her majority according to the law of Tennessee. The court, by a somewhat singular process of reasoning, carefully distinguishes between a capacity to take and a ca- pacity to contract, and then ap- parently infers the capacity to take from the capacity to contract. It said that the receipt for the money, accompanied with a discharge given by the minor, would constitute a con- § 115a] PAKTICULAE, RELATIONS. 267 As between the lex loci contractus ot lex domicilii, on one side, and the lex rei sitce, on the other, the former govern as to the capacity of the infant to contract with reference to per- sonal property;® and the latter with respect to real property.^ The question as between the lex loci contractus and lex loci solutionis will be discussed in a subsequent section.® 116. Foreign parents or guardians not permitted to exercise powers not granted to home parent or guardian. — Eemembering once more that infancy is to be distinguished from minority in this, that the first is a natural incapacity, patent to all men, while the second is an artificial incapacity, fixed arbitrarily by each state in accordance with its particular policy, we must also hold that, while each state will recognize the natural guard- ianship of foreign parent over infan? child, and, to a certain extent, of foreign guardian over infant ward, it will not invest svich foreign parent or guardian with powers which the home tract, and that there were any num- made and payable in Tennessee, not- ber of cases (which, however, are withstanding that the disability of not cited) holding that a person who nonage had been removed from de- is of full age by the law of his fendant by a decree of a court of domicil will be held bound by any Alabama, where he previously resid- contraet made by him in another ed, since even under the Alabama state, where he would not otherwise statute the decree was effectual only be of age under the laws of such in those counties in which a certified other state. copy was filed for record. The doctrine of the last case is ap- fKohne's Estate, 1 Pars. Sel. Eq. plied in Memphis Trust Co. v. Bles- Cas. 399; Huey's Appeal, 1 Grant, sing, 103 Tenn. 237, 58 S. W. 115, to Cas. 51. In both of these cases the real, as well as personal, property, domicil and place of contract were and as to a special fund in the hands the same, the personal property in- of a guardian. volved being in another state. In iJe jffeZJmann, L. E. 2 Eq. 363, 14 ''Cochran v. Benton, 126 Ind. 58, Week. Rep. 682, it is held that an 25 N. E. 870; Sell v. Miller, 11 Ohio English legacy to an infant domiciled St. 331 ; O'Dell v. Rogers, 44 Wis. abroad may be paid when the infant 136. In the first case the question comes of age by the law of England, was as to the capacity of a married or of the domicil, whichever first woman, but the court said that the happens. principle that the lean rei sitce gov- No conflict of laws was involved erns applies also to questions of in Willcinson v. Buster, 124 Ala. 574. infancy, majority, and legal ca- 28 So. 940, holding that a plea of paeity generally, infancy was available against a, note * See post, § 427.i. 268 PERSONAL CAPACITY. [Chap. III. law does not grant to home parents or guardians.^ "If a Roman father," argues Judge Ware on this point,^ "or a father from any country which had adopted the Roman law of paternal power, were traveling in this country with a minor child, we shall acknowledge the relation of parent and child, but we should admit, I presume, as a general rule, the exercise of the paternal power no further than as it is authorized by our own law."^ The same view is taken by eminent German au- thorities, and also by the Civil Senat at Celle, in a case decided on September 21, 1846,* who maintain, generally, that even where the fact of infancy is determined by the law of domicil, the way in which it may be taken advantage of is to be pre- scribed by the lex loci actus.^ This Savigny stoutly assails, but on grounds principally derived from the homogeneousness of the institutions of countries subject to the modern Roman law.® But when the question relates to systems so distinct as those of the English common law and the modern Roman law, the attempt to interchange remedies must be abandoned. No English court, for instance, could lend to infancy the remedy of In integrum restitutio, by which spoliations of an infant's property are, by the Roman law, so effectively redressed. Yet, on the other hand, when the institutions are analogous, the for- eign practice may be applied. Thus, a foreign father's domi- cil, as will be shown,'' determines the interest he is to have in his child's property in domestic funds.® This distinction is also recognized by Bar.® iPost, §§ 253, 259. permitted here to tra.nsgress the This is conceded in France, where power which the law of this country it is held that the question of pater- allows? If not, then the law of this nal power depends upon the nation- country regulates the authority of ality of the parties only so far as is the parent of a foreign child living consistent with French public order, in England by the laws of England, Jour, du droit int. priv6, 1874, p. 32. and not by the law of the country to ^Polydore v. Prince, 1 Ware, 413, which the child belongs." Johnstone Fed. Gas. No. 11,257. v. Beattie, 10 Clark & F. 114, 7 Jur. ^Johnstone v. Beattie, 10 Clark & 1023. See post, § 253. F. 42, 114, 7 Jur. 1023; post, § 253. * Bar, § 43, note 11, a; Wachter, See cases cited by Gray, Ch. J., in ii. pp. 163, 175; Mittermaier, Dent. Milliken v. Pratt, 125 Mass. 374, 28 R. § 301. See post, § 253. Am. Rep. 241, ante, § 101. "The 5 § 362. authority so recognized" (that of a t'°"' Mr. Lawrence (Com. sur Wheaton, 1804. iii. 270) defines marriage as "I'union voluntaire et pour la vie d'un homme aveo line femme." § 127] GENERAL PRINCIPLES. 305 scribed by the state. These limitations have been frequently held to be matters of national policy, which a state will not per- mit, if it adopts them, to be set at naught by a foreign sover- eigiL On the other hand, it is equally a matter of national policy in the United States to encourage matrimony. Early marriages we have found greatly conducive, not only to national growth, but to national morals. They are peculiarly suitable to the conditions of a country such as ours, which needs that young, active, and adventurous element which in the old world is often looked on with such distrust. The multiplication of new homes, centrifugal as this multiplication may be, we hold to be an advantage with territories to occupy so vast and diver- sified as are those belonging to us. Illegitimate children, with their heritage of desolation, of destitution, of desperation, are found in comparatively rare numbers in states in which early marriages are encouraged, while they abound in other states in proportion as restrictions on marriage are imposed; so that to give sanction to statutes restricting marriage is to stimulate illegitimate births. "* Early households we hold to be promotive of early and earnest work ; and many a life which might other- wise be spent in frivolity or revolt or despair has been turned, so we may argue, to useful and honorable labor by this incen- tive.® Nor should it be forgotten, when the question of pater- nal authority and filial obedience comes up, that education is likely to be more provident and thorough when the father sees his' children grow to maturity, while he is able to guide them, than when, as in the case of marriages long delayed, he is likely to die during their infancy. Parental consent is undoubtedly < The proportion of illegitimate limits, are exempted from execution, children to legitimate in those parts A widow has special reservations in of Germany in which the impedi- cases of her husband's estate being ments to matrimony are the greatest insolvent. is estimated at from' 1 to 5 to 1 to 7. That the policy of a country such In Massachusetts, in 1876, it is regis- as ours, with an abundant supply of tered at 15 to 1,()00. fertile land, is to encourage early 6 Ante, % 7. marriage, is maintained by Dr. The distinctive policy of this coun- Franklin and Mr. Jefferson. See 6 try as to marriage exhibits itself, not Southern Law Rev. 696. only in its nonadoption of the re- Mr. Mill, following Mr. Wakefield, strictions of the old world, but in recommends that in colonial emigra- specific legislative encouragement, tion preference be given to young The statutes giving tracts of public couples, or, when these cannot be ob- land to settlers are conditioned on the tained, to families with children building of homesteads on the land nearly grown up. Political Econo- occupied. Homesteads, to certain my, book 2, chap. 13, § 4. Vol. I. CoNFL. of Laws — 20. 306 MARRIAGE. [Chap. IV. desirable when minors are to be married ; but it is held that to enforce this principle by making it an offense for an of&cer or clergyman to solemnize the marriage of minors without such consent is far wiser and more humane than to declare a mar- riage without such consent to be a nullity. These are rules brought with them by the colonists who founded the jurispru- dence and social economy of our country, and these rules have always been parts of the national policy of the United States. Assuming that in matters of national policy the laws of each country, as is conceded even by jurists of the modern schools of France and Italy, ^ are to be supreme, then two conclusions must follow: (1) When foreigners marry on our shores, fully capable, according to our laws, of marriage, but incapable ac- cording to their personal laws, we will hold their marriage not invalidated by such incapacity; (2) when our own citizens, capable of marriage by our laws, marry abroad in a foreign country where they would be incapable of marriage if subjects, we will hold that such incapacity will not prevent us from recog- nizing their marriage as valid.'' 128. Union must be for life. — A conjugal union for a limited period, with the condition that the union is to close when the term is over, will not be recognized as constituting a valid mar- riage, even though such union continue until death. ^ 128a. Same. — The cases cited in the note to the last section sustain the statement of the text as a general principle with ref- erence to marriage; but cannot be regarded as direct authority 6 Ante, §§ 104J, 1041. fications of this kind contradict the 7 See post § 165c. '^^^ nature of marriage, according to ' the Decretals. Cap. 3, 5, x. de condi- , ,. _ . ,„ « , p„„ c< tionibus oppositis, 4, 51. Such a con- 1 Letters V. Gady W Cal 533 See ^^^^^ j^ J^^^^ betiothal. Very cu- '^T^fl^-J^'^^ll', \^°^- l}%"r^-}'- rious learning on this topic is to be ed. 108; Randal's Ca^e. o N. Y. City ^^^^^ .^ g^J^,^ ^^^^^.^^ ^^ niatrimo- Ha Recorder 141; Barnett^ K^m- ^.^ ^^ ^^.^^^^^ rescindendo coinmen- niell, 35 Pa. 13; Harrod v. Harroa,, 1 , ,. t> i- lom m. -n i. i. i. Kay & J. 16, 18 Jur. 853, 2 Week, ^t'."; B^'^l "' 1841 The Protestant Rep. 612; State v. Ta-cha-na-tah, 64 .l""^^^^ declare with equal positive- N. C. 614. [See next section.] By ""^^'^ that marriage is to be a perma- the canon law, a condition that, on a !>«"* institution, which no special certain contingency, a marriage shall contract of the parties can modify, cease, is void. Walter, Kirchenr. 11 Aa an example of this is cited the Aufl. § 539; Permaneder, Kirch. § Genevese Ordinance of 1541: "Que 692. On the other hand, a marriage, on ne tienne point pour promesse de to be dependent upon a future contin- mariage le propos, qui auroit est6 <^ncy ("si pater ejus suum praesta- sous condition." Goesohen, Doctrina ret assensum"), is a nullity. Quali- de matrimonio, note 8. § 128a] GENERAL PKINCIPLES. 307 for denying to such a union the international character of mar- riage, if it is a marriage by the laws of any state or country, which, upon general principles of international law, would oth- erwise determine its character. 'None of those cases presented such a state of facts. It did appear, in the last case, that such a conjugal imion would constitute a marriage according to the ancient custom of the Indian tribe to which the parties be- longed ; but the decision denying it such effect was expressly put upon the ground that, at the time of the marriage, the parties were subject to the jurisdiction of North Carolina, and that the union was, therefore, to be tested by its law, and not by the an- cient custom of the tribe. The statement of the text as applied to international or interstate marriage has some support from an obiter statement in an English case,^ to the effect that a con- jugal union, to constitute a marriage within the rules of inter- national law, must be for life. Upon the other hand, the state courts have upheld the validity of marriages between membei*s of Indian tribes living as a separate community or people, which were valid according to the Indian custom, notwithstand- ing that that custom contemplated the dissolution of the relation at any time at the mere will of one or both of the parties. ^ In one case^ the court questioned whether, under any circumstan- iHyde v. Byde, L. E. 1 Prob. & vided that the issue of a marriage Div. 131. null ill law should be legitimate. 2 Wall V. Williamson, 8 Ala. 48; The principles announced in this case Earl V. Godley, 42 Minn. 361, 7 L. were subsequently approved in Boyer E. A. 125, 18 Am. St. Rep. 517, 44 v. Dively, 58 Mo. 510, and LaRiviere N. W. 254. In Johnson v. Johnson, v. LaRiviere, 77 Mo. 512. Morgan 30 Mo. 72, 77 Am. Dec. 598, also, it v. McOhee, 5 Humph. 13, also sus- was held that such a union would tained an Indian marriage; but its constitute a marriage de facto; but character as to permanency does not in this case it was only necessary to appear. See further upon this sub- establish a marriage de facto, and ject, note to 57 L. R. A. 155, 1.19 not necessarily a, valid marriage, et seq. since the question involved was as to ^Boche v. Washington, 19 Ind. 53, the legitimacy of the children, and 81 Am. Dee. 376. the Missouri statute expressly pro- 308 MARRIAGE. [Chap. IV, ces, snch a union could be deemed a marriage in an internation- al sense; but the decision denying it such effect was put upon the ground that it was contracted after all territorial jurisdic- tion of the tribe had ceased in the state.* 129. Must be exclusive. — Nor will recognition be given to a marriage contracted with the understanding that it is not to be exclusive, but that the man is at liberty to take subsequent wives. * 130. Indian polygamous marriages invalid. — In Missouri, in a case involving the legitimacy of the children of an Indian marriage, — the father having, when in Missouri, recog- nized such legitimacy, — the marriage was, after much hesitation, validated. There was no positive evidence, however, to show that the marriage was, in its terms, polyg- amous.-' So, we have a remark by Chief Justice Euf^, al- ready cited, ^ that "if a Turk with two wives were to come here, we would administer to them the justice due to the relations contracted by them at home." But, independently of the ques- tion as to what the "justice" here spoken of involves, this is a mere dictum, and is in conflict with the result at which the court arrived, namely, that the recognition of polygamy in North Carolina by domiciled citizens would be intolerable as a scandal and breach of public morals.^ The utmost that can be said on this point is that a Turk, when in transit, would be per- mitted to pursue his journey without interference in his do- mestic concerns. But even this may be doubted ; nor is it prob- able that, on a petition for a habeas corpus by the second or third wife of a Turk traveling in America, the petitioner would vorce, the incapacity may be removed since the exception can only be ap- on his acquiring a domicil in a coun- plied by the courts of the jurisdiction try which permits such marriages, which enacted the prohibitory law. But he holds that this rule does not ^j^jj^ ^^^ doctrine of domicil, if it apply to women, who cannot change , , , , , , , , their personal law unless by a di- ""'^i'^ *" ^^ adopted, would be applied vorce giving them this power. Wheth- by the courts of all jurisdictions, er this position is good in the United And again, under that doctrine, the States as to restricted divorces is dis- f^^t that the parties were domiciled cussed in the text. The position that . ,...., , ., ., a woman cannot change her domicil ^"^ " ^^^^^ i^B^ring the prohibitory law except after an absolute divorce is, as would be sufficient to invalidate the we will see, not accepted in the Unit- marriage, whereas, under the excep- ed States. Post, § 224. tion, that fact is only one of the cir- 1 While the exception, based on cumstances bearing on the question, the distinctive policy of the forum, and may or may not invalidate the to the general doctrine that the lean marriage, accordingly as the courts loci celebrationis governs, will, when of the jurisdiction in which the pro- applied by a court of the jurisdiction hibition was enacted adopt or reject in which the parties are domiciled, the view that the prohibition is ex- produce the same result as the appli- pressive of a distinctive policy of the cation of the doctrine that the lex forum. § 135a] INCAPACITIES. 319 the weight of authority, in the United States at least, adopts the lex loci celebrationis, rather than the lex domicilii, as the gen- eral international test of matrimonial capacity.^ Applying this test, such a marriage, valid where celebrated, is valid every- where, without reference to the law of the domicil of the par- ties, or of their intention to evade the law of their domicil in this respect^ The lex loci celehrationis, as the general inter- national test of matrimonial capacity, however, is, as subse- quently shown, subject to an exception based upon the distinct- ive policy of the forum;* and some courts, applying this ex- ception to marriages of the class under consideration, have re- fused to recognize such marriages, though valid where cele- brated. This exception is not necessarily limited to cases where the domicil was at the forum at the time of the marriage, nor necessarily dependent upon the intention of the parties to evade the prohibition of the lex fori.^ It is obvious, however, that there is greater reason for applying the exception when these conditions exist. Other courts, however, have upheld the mar- riage, even when both conditions existed, thus implying that the law of the forum prohibiting the marriage of divorced per- sons is not a part of the distinctive policy of the forum.® 2 See post, § 165a. was held invalid in Tennessee, al- 3 See ante, § 135, note 8. though it was expressly assumed * See post, § 165b. that there was no intent to evade the 5 In Pennegar v. State, 87 Tenn. laws of that state in having the mar- 244, 2 L. R. A. 703, 10 Am. St. Rep. riage celebrated in Texas. The ex- 648, 10 S. W. 305, where the decision ception was applied in this case, al- is expressly referred to the exception, though the parties to the marriage the fact that the parties went out- seem to have been domiciled in Texas side of the state of the domicil and when it was celebrated, it appearing, forum to celebrate the marriage, in however, that they immediately order to avoid the prohibition, was thereafter took up their domicil in emphasized. In this case the parties Tennessee. were domiciled at the forum at the For general discussion of exception time of the marriage. based upon distinctive policy of In State use of Newman v. Kim- forum as applied to marriage, see irough (Tenn. Ch. App.) 52 L. R. post, § 165b. A. 668, 59 S. W. 1061, the marriage « See OMte, § 135, note 1. 320 MARRIAGE. [Chap. IV. While, as above shown, the law of the domicil prohibiting marriages under such circumstances has occasionally, when the domicil was at the forum and the law was regarded as a part of the distinctive policy of the forum, been applied to mar- riages celebrated in another state or cou.ntry, it is well estab- lished that a prohibitory law of the state or country where the divorce is granted does not apply to a marriage celebrated in an- other jurisdiction,'^ vmless the question as to the validity of the subsequent marriage arises in the jurisdiction where the divorce was granted, and the prohibitory law of that jurisdiction is re- garded as a part of the distinctive policy of the forum. Assuming that the lex loci celehraiionis is the proper test, the fact that that law contains a general prohibition against mar- riage by the guilty party after a divorce does not, unless it ex- pressly extends to such cases, invalidate such a marriage if the divorce was granted in another jurisdiction. * This rule is not an exception to the principle that the lex loci celebrationis gov- ■erns, but rests upon the ground that the prohibition only at- taches when the divorce is granted within the jurisdiction, and therefore the marriage is not invalid even according to the lex loci celehraiionis if the divorce was granted in another juris- •diction. If the subsequent marriage takes place in the state where the •divorce was granted, and is invalid by the law of that state, it is invalid everywhere,® though, of course, the prohibition will not have any greater effect in other jurisdictions than in that TWilsmi V. Holt, 83 Ala. 528, 3 v. Madrid, 83 Me. 205, 12 L. R. A. Am. St. Rep. 768, 3 So. 321; Re 862, 23 Am. St. Rep. 770, 22 Atl. Wood, 137 Cal. 129, 69 Pac. 900; 114; Clark v. Gla/rh, 8 Gush. 385: ■Clark V. Cla-rk, 8 Gush. 385; RoTjerts Bullock v. Bullock, 122 Mass. 3; Stack V. Ogdensburgh & L. C. R. Co. 34 v. Stack, 6 Dem. 280; State v. Bent- Run, 324. ley, 75 Vt. 163, 53 Atl. 1068. ^Fuller V. Fuller, 40 Ala. 301 ; Her- s This, of course, would not be true nandez's Succession, 46 La. Ann. 962, if the lex domicilii were adopted as 24 L. R. A. 831, 15 So. 461 ; Phillips the general test. 8 135a] INCAPACITIES. 321 in which it ia enacted, and, if it merely forbids the marriage without invalidating it, the marriage will be recognized in other jurisdictions/" 136. By policy of canon law impediments from consanguinity were widely extended. — By the Koman law natural relationship in the direct line, ascending or descending, whether it be legiti- mate or illegitimate, is an absolute, perpetual, and universal bar to marriage.^ By the same law, lateral relationship is a bar only between brothers and sisters, and the lineal representa- tives of brothers and sisters, — e. g., the children or grandchil- dren of brothers or sisters. ^ The canon law, adopting the Leviti- cal Code,* first, in the eighth century, declared all "kinship" a bar;* but proceeded to pronounce this kinship to cease at the seventh degree. But a peculiar system of calculation is adopted in applying this principle. Brothers and sisters are of kin in the first degree ; unde and niece in the second degree ; the chil- dren of brothers and sisters (consobrini) in the second degree; the grandchildren of brothel's and sisters (sohrini) in the third degree, etc. This, however, was relaxed by Innocent III. in 1215,^ by placing the limit at the fourth degree. The dispen- satory rights, however, assumed by the Papal See, have still further enlarged the limits, so that in indirect relationships of the second degree, such as that of uncle and niece, — in secundo gradu consanguinitatis attingente primum, — dispensations may be obtained.® The restrictions which we have just noticed, however, are to be regarded, not as the inexorable rules of moral law, but as tutelary prescriptions, to be applied, modified, or withdrawn at his discretion by the Pope as the guardian of Roman Catholic Christendom. They are to be treated, there- fore, not as rules of international law, universally applicable, but as disciplinary prescriptions of the Eoman Catholic I' Thus, Crawford v. State, 73 reader will find an interesting discus- Miss. 172, 35 L. R. A. 224, 18 So. 848, sion of the question in the text in upheld a n.arriage celebrated in Ala- ^-^ 2l^i:?zt' Dubitantuxn, bama, where the divorce was granted, 2§§ 2, 3, 5, J. de nuptiis 1 10 in violation of a prohibitory statute 3 Levit. xviii. 6. of that state, upon the ground that * Concil. Eom. 721; Eichhorn, Kir- the statute merely forbade the mar- tl n„„' a ' j ■ -^ , , ... / , ., ., 6 Gap. 8, X. de consanguinitate et nage, and did not make it void. affinitate, 4 14. 1 § 10, J. de nuptiis 1, 10. The Vol. I. Coirax. of Laws — 21. 'Permaneder, Kircb. p. 734. 322 MAKRIAGE. [CHAt. IV. Church, based on policy, and claiming tie secular obedience unless adopted by the statutes of a particular state.'' 137. In this country national policy limits restrictions to those of ascent and descent, and laterally in first degree. — We have already noticed^ that it is part of the national policy of this covintry to encourage marriage, and to reject any restrictions on marriage which are arbitrary and artificial. It is not strange, therefore, that at no time in our national existence, and in no section of our country, should we have recognized re- strictions on matrimony based on lateral consanguinity beyond the first degree. Hence, it follows that, though such marriages by subjects of other states might be incestuous if solemnized in such states, these marriages, if solemnized in one of our states, we would hold valid. ^ Nor would we hold that such a marriage between two citizens of the United States, solemnized in a foreign state which treats such marriages as null, is invalid in the United States.* In England, marriage 7 This is the case in Portugal. Bishop, Marr. & Div. § 320. See Bon- Sottomayor v. De Barros, L. R. 3 hanl v. Badgley, 7 111. 622. Prob. Div. 5, 47 L. J. Prob. N. S. 23, In Maryland it is provided by the 37 L. T. N. S. 415, 26 Week. Rep. 455. act of 1777 that the marriage of an J'osi, § 160. uncle and niece, as well aa of other According to the present law of persons of the same blood, "shall be Germany, a positive bar exists in void." It is declared by the same cases of kinship in the direct line of act that persons going out of the ascent and descent; and in lateral state and there marrying contrary to kinship in the first degree. Such the act shall be liable to the same marriages are prohibited by a law penalties; and, by a subequent sec- which is declared by the jurists to be tion, the general court is authorized moral, universal, and perpetual. As to hear and determine the validity of to all other kinships, dispensations any marriage, and to declare mar- may be allowed. See Gbsehen, notes riages contrary to the act null and 107, 116. void. An act jjassed in 1860 provided 1 Ante, § 127. that all marriages of the degree of 2 This is in opposition to the rul- affinity in question, made in or out ing in Sottomayor v. De Barros, L. of the state, should be deemed valid R. 3 Prob. Div. 5, 47 L. J. Prob. N. S. from the time of their celebration. It 23, 37 L. T. N. S. 415, 26 Week. Rep. was held that a marriage celebrated 455, to be hereafter criticized. See in 1851, in the District of Columbia, post, § 160. between a man and his niece, both be- 3 Post, § 160. ing residents of Maryland, was not In the United States, as a general ipso facto invalid until invalidated rule, at common law the marriage of by the proper court; and, not having an uncle and a niece is voidable, not been so invalidated, was confirmed by void, and cannot be impugned after the act of 1860. Harrison v. State, the death of either party. Parker's 22 Md. 468, 85 Am. Dec. 658. Appeal. 44 Pa. 309; Bowers v. Bow- ers 10 Rich. Eq. 551, 73 Am. Dec. 99. ^he statement of the text is true But m several of the states statutes . ,, ,, ^ exist making such marriages void. ™ ^^^ ^^nse that such u. marriage § 137] INCAPACITIES. 323 within the prohibited degrees is null, though one of the par- ties be illegitimate. '' But illicit intercourse with a mother does not render void a subsequent marriage with the daughter.® 138. By policy of canon law restrictions based on affinity were multiplied. — It is not strange that the canon law should have extended to affinity the marital restrictions it imposed on con- sanguinity. The church, we must remember, exercised a pa- ternal care over its members. Sociology, as we now call it, as well as ethics, fell, therefore, within the jurisdiction of the church. Population, in many portions of the church's domain, was dense. It was, as it still is, the usage of the married mem- bers of a family to occupy, at least during the lifetime of a com- mon parent, the same roof. Was it desirable that persons so living should intermarry ? Would it not be better for the com- mon welfare, taking it in the long run, if not only near rela- tives from blood, but near connections by marriage, should be prohibited from intermarriage, unless when specially permitted by the head of the church? This is the stand taken by the canon law. It was, under the circumstances, a stand both wise and politic, but it was the creature of the circumstances by which it was caused ; and as in the formation of our jurispru- dence these circumstances did not exist, — as our population was sparse, leading to the early separation of homes, — this portion of the canon law was rejected by us.^ would not constitute an exception to Atn. Dee. 145; Sutton v. Warren, 10 the general principles of interna- Met. 451; Sneed v. Ewing. 5 J. J. ^. f , ^ '^ . . . Marsh. 460, 22 Am. Dec. 41. tional law, as a marriage incestuous j^ Switzerland marriage between a by the law of nature and therefore grand-uncle and grand-niece is not to be condemned without reference interdicted. Jour, du droit int. to the lex loci or lex domicilii; but Pri^e, 1876, p. 514. , .-,■■. ij I, ■ In (Jampbell v. Grampton, 18 since, ex hypothesx, it would be m- J3i5,tchf. 150, 2 Fed. 417, 22 Alb. L. J. valid according to the lex loci, it is 40.3 (Wallace, J.), it was held that at least questionable whether it could although in New York a marriage be- be held valid elsewhere. See post, ^"^Tf " "ephew and aunt may not be «» THK IRK voidable, no action can be maintained SS ibs, ib&a. ;,j 2srew York for a breach of agree- ment to solemnize such a marriage 4 Queen v. Brighton, 1 Best & S. when the parties at the time of the 447, 30 L. J. Mag. Cas. N. S. 197, 5 L. agreement were domiciled in a, state T. N. S. 56, 9 Week. Rep. 831. where such marriage is incestuous 5 Wing v. Taylor, 2 Swabey & T. and invalid, and where the parties in- 278, 30 L. J. Prob. N. S. 258, 7 Jur. tended nfter marriage to live in tlip N. S. 7.37, 4 L. T. N. S. 583. That a latter state. state will not tolerate incestuous un- 1 By the Roman law, marria<'e by ions, no matter where contracted, see a husband with his deceased wife's Greenioood v. Gurtis, 6 Mass. 358, 4 descendants in a direct line (i. e., his 324 MARRIAGE. [Chap. IV. 139. In England, statute prohibiting marriage of a man with sister-in-law a rule of local policy. — In England, the statute pro- hibiting the marriage of a man with the sister of his deceased wife has been held to be a rule of national policy, adhering to British subjects wherever they go. In 1857, a case arose be- fore Vice-Chancellor Stuart and Mr. Justice Cresswell, in which it was decided that a marriage entered into during a temporary residence in Denmark between an Englishman and his deceased wife's sister was invalid in England, though valid in Denmark. In the course of his opinion, Cresswell, J., said: "I have therefore come to the conclusion that a marriage con- tracted by the subjects of a country in which they are domi- ciled, in another country, is not to be held valid, if, by contract- ing it, the laws of their country are violated ;" an opinion which the same judge afterwards modified by saying that he meant to do no more than affirm the proposition that the court of the domicil had a right to recognize incapacities affixed by the law step-descendants), and also with his marriage of a stepfather with the deceased wife's sister, is forbidden; widow of a stepson, forbidden by the and so also, mutatis mutandis, as to Roman law, was no longer unlawful. the wife. L. 4, § 5 ; L. 10 pr. D. de So, the Council of Trent has declared gradibus et aflinibus, 38, 10. This is that the bar arising from illegitimate construed to include what is called connection is to cease at the second quasi affinitas, which forbids the degree, and that of quasi affinity at marriage of a stepfather with the sur- the first degree laterally. Trident, viving wife of a stepson. L. 15 D. de Cone. sess. 24, etc. In the Protes- ritu nuptiarum, 23, 2. So, a father tant states of the continent, the ten- was interdicted from marrying a dency, first, was to adopt the com- son's widow, and a mother, a daugh- mon Roman law, in its original ter's widower. L. 12, §§ 1, 2; L. 14, strictness, as a, matter, however, not S ultim. D. de ritu nuptiarum 23, 2. of moral, but of municipal, appoint- The canon law, when l^islating on ment. In later years, however, the this topic, placed itself boldly on the common law in this respect has been fiction that husband and wife are of much relaxed; and now, affinity, ex- one blood, and that, consequently, the cept in the direct line, is no bar; or, husband's relations are the wife's, if such, may be relieved by dispensa- and the wife's, the husband's, in tion. In Prussia, the General Code equal degree. C. 14, chap. 35, qu. 2, expressly authorizes the marriage of 3. As this principle was based on brother-in-law with sister-in-law. sexual union, it was held that where Richter, Kirchen. 4 Aufl. § 258. In this union was illegitimate the same general, we may state as the law ac- consequenees ensued. It will be rec- cepted by the continent of Europe, olleeted that such alleged intercourse that lineal relationship in all de- with a sister was one of the reasons grees, and collateral in the first de- hinted, if not proclaimed, as grounds gree, are regarded as an absolute, for nullifying the marriage of Henry universal, and perpetual bar; and all VIII. with Anne Boleyn. But this other cases of relationship, as well as position received a series of modifica- all cases of affinity, form either no "tions, until, in the time of Innocent bar at all, or a bar that can be avoid- Ill., affinity, after the first degree, ed by dispensation, became no longer a bar. Thus the § 139] INCAPACITIES. 325 of the domicil as invalidating a contract entered into in another country between parties belonging to that domicil; and that nothing be said affected the question whether the court of the place of contract ought to recognize the incapacities, established by the law of domicil. By Vice-Chancellor Stuart the decision was put on the ground that a marriage with a deceased wife's sister was contra bonos mores, and that consequently the law respecting it was not local, but was a law of the domicil, which attached itself to the person of the subject wherever he should go.'' After elaborate argument, the decision was affirmed by the House of Lords, ^ and may now be viewed as the settled law of England.^ 140. In the United States such statute would not be regarded as following British subjects to this country. — Since the statute just noticed is a product of distinctively British policy, caused by distinctively British conditions, it does not, so it may be well argued, follow British subjects when, in the United States, under an opposite policy, and widely different conditions, they solemnize marriages interdicted by the statute.-' And so, in analogous cases, it has been held in Kentucky. ^ 141. By judex domioilii, however, such restrictions may be en- forced, though the marriage be in another state where it is valid. — ^We have already noticed^ the difficulties that arise when a party incapacitated from marrying by his personal law marries in a state where such marriage is permitted. In issues of incest we have just seen that the judex domicilii will, in England, en- force the statute under such circumstances.^ The question is, 1 Brooh V. Brook, 3 Smale & G. wieJc, 2 Vt. 151, 19 Am. Dec. 703 ; 481, 27 L. J. Ch. N. S. 401, 4 Jur. N. True v. Ranney, 21 N. H. 55, 53 Am. S. 317, 6 Week. Rep. 110, 451. Dec. 164; Sutton v. Warren, 10 Met. 2 9 H. L. Cas. 193, 7 Jur. N. S. 422, 451 ; Bonham v. Badgley, 7 111. 622. 4 L. T. N. S. 93, 9 Week. Rep. 461. The laws in Prussia and France, 3 A marriage celebrated in Eng- establishing international reciprocity land, both parties being French, and in such cases, will be hereafter re- the woman being the sister-in-law of ferred to. Post, § 451. the man, will be treated as null in The marriage in Switzerland of a France, when not preceded by an au- man with his brother's widow, they thorization from the French govern- being domiciled at the time in Italy, ment. Ruffier v. Ruflier, Trib. Seine, where such marriage was illegal, was Ire Cham. 1873; Jour, du droit int. held in Kentucky, in 1868, to be val- priv6, Jan. 1875, p. 21. id, there being no adequate proof that iSee, to this effect, in Canada, such marriage was illegal in Switzer- Hodgins v. McNeil, 9 Grant. Ch. (U. land. Dannelli v. Dannelli, 4 Bush 0.) 305, 9 Upper Can. L. J. 126. 51. 2 Stevenson v. Gray, 17 B. Mon. l Ante, § 135. 193; DoMnelUv. Dannelli, i 'Bush, 51. 2 See ante, § 140. Compare Ste- See, further, Newbury v. Bruns- venson v. Gray, 17 B. Mon. 193. 326 MARRIAGE. |(:tiap.,IV. Is the prohibition a distinctive rule of state policy? If so, we may hold it to follow subjects of the state, so far as concerns the courts of that state, wherever they go. On the other hand, while the courts of the state adopting the policy would enforce it, the courts of the state where the marriage takes place, where no such policy exists, would hold the marriage valid.* 141a. Incestuous marriages. — The result of the authorities upon the subject of incestuous marriages, considered from an international point of view, seems to be as follows : Marriages which are incestuous by the common consent of Christendom, as contrary to the law of nature, will be held invalid, notwith- standing that they would be valid by the lex loci or lex domi- cilii.^ Such marriages are exceptions to any general interna- tional test of matrimonial capacity that may be adopted, wheth- er lex loci or lex domicilii. Marriages of this class, however, only include those between persons in the direct lineal line of consanguinity, and, in the collateral line, those between brother and sister.^ So far as marriages of this class are concerned, it is unnecessary to choose between the lex loci and the lex domi- cilii, as the general test of matrimonial capacity. When, how- ever, a marriage which is not incestuous by the common consent of Christendom is incestuous by the lex domicilii, but not by the lex loci, it becomes necessary, assuming the marriage not to be contrary to the public policy of the forum, to determine whether the lex loci or lex domicilii shall control. The court, in Sotto- 3 See post, §§ 180, 181. 244, 2 L. R. A. 703, 10 Am. St. Rep. 648, 10 S. W. 305 (outer). iBrook V. Broolc, 9 H. L. Cas. 193, ^SuUon v. Warren, 10 Met. 451; 7 Jur. N. S. 422, 4 L. T. N. S. 93, 9 Com. v. Lane, 113 Mass. 458, 18 Am. Week. Rep. 461; Sutton v. Warren, Rep. 509 {ohiier) ; Stevenson v. 10 Met. 451; Com. v. Lane, 113 Mass. Gray, 17 B. Mon. 193; Courtright v. 458, 18 Am. Rep. 509 [oliter) ; Ste- Courtright, 26 Ohio L. J. 309; Pen- venson v. Gray, 17 B. Mon. 193; nega/r v. State, 87 Tenn. 244, 2 L. R. Courtright v. Courtright, 26 Ohio L. A. 703, 10 Am. St. Rep. 648, 10 S. W. J. 309; Pennegar v. State, 87 Tenn. 305 {oUter). I 141a] INCAPACITIES. 327 mayor v. DeBarros/ upon the assiunption that both parties were domiciled in the same coimtry, chose the lex domicilii; and the English courts are committed to the lex domicilii. The weight of authority in America, however, favors the lex loci in such case.* SL. R. 3 Prob. Div. 1, 47 L. J. Prob. N. S. 23, 37 L. T. N. S. 415, 2 Week. Rep. 455. See post, § 163, note, 4. Be Bozzelli [1902], 1 Ch. 751, 71 L. J. Ch. N. S. 505, 86 L. T. N. S. 445, 50 Week. Rep. 447, also holds that the capacity of parties to marry, as affected by their relationship, is to be determined by the law of their domicil, subject to the exception of marriages stamped as incestuous by the general consent of Christendom. The marriage in this case, however, took place at the domicil of the par- ties, so that there was no conflict be- tween the lex domicilii and lex loci. The marriage, which was celebrated in Italy between a naturalized Ital- ian, domiciled in Italy, and her de- ceased husband's brother, an Italian domiciled in Italy, was upheld as being valid by the law of Italy, al- though it would be invalid by the law of England (lex fori). Brooh V. Brook, 9 H. L. Cas. 193, 7 Jur. N. S. 422, 4 L. T. N. S. 93, 9 Week. Rep. 461, is also probably to be regarded as authority for the adoption of the lex domicilii as the general international test of matri- monial capacity, although some of the opinions in that case seem to in- dicate that the real ground of the de- cision was that the Eng'lish statute, which forbids the marriage of a man with his deceased wife's sister, and expressly declares it to be contrary to the law of God, is a part of the distinctive policy of England, by which all marriages, at least of per- sons domiciled in England,, will be tested wherever celebrated. Chap- man V. Bradley, 4 De G. J. & S. 71, 3 New Reports, 10, 33 L. J. Ch. N. S. 139, 10 Jur. N. S. 5, 9 L. T. N. S. 495, 12 Week. Rep. 140, holding a. marriage between an uncle and a niece of his deceased wife, domiciled in England, invalid, though cele- brated in Switzerland, might, upon its facts, be explained in the same way. The decision in Sottomayor v. De Barros, however, cannot be so ex- plained, but expressly rests upon the doctrine that the lex domicilii, rather than the lex loci, determines matri- monial capacity. And so De Wilton v. Montefiore [1900] 2 Ch. 481, 83 L. T. N. S. 70, 69 L. J. Ch. N. S. 717, 48 Week. Rep. 645, held that the validity of a mar- riage, celebrated abroad, according to Jewish rites, between a niece and her maternal uncle, adherents of the Jew- ish faith, was to be determined by the law of England, they being dom- iciled in England. < Thus, in Dannelli v. Dannelli, 4 Bush, 51, a court of Kentucky ex- pressly applied the doctrine of lex loci, and upheld a marriage cele- brated in Switzerland, according to the law of which it was valid, be- tween a man and the widow of his deceased brother, who were domiciled at the time in Lombardy, then a province of Austria, where such mar- 328 MARRIAGE. [Chap. IV. But conceding that, in general, the lex loci is to control, there is an exception in case of a marriage which, though not incestu- ous by the common consent of Christendom, or by the lex loci, is contrary either to the express terms of a statute of the forum {i. e.j contrary to a statute which expressly covers marriages not celebrated at the forum, or to the distinctive policy of the forum. ^ This exception might, with equal propriety, be ap- plied as an exception to the lex domicilii, if that, rather than the lex loci, were to be adopted as the general test of matrimo- nial capacity. It follows, then, that a marriage valid by the lex loci, in order to be upheld, must pass not only the test as to incestuous marriages prescribed by the general consent of Chris- riages were forbidden, notwithstand- ing that the parties went to Switzer- land to celebrate the marriage for the purpose of evading the law of Lombardy, and immediately after the marriage returned to Lombardy and took up their residence there. So, in Stevenson v. Gray, 17 B. Mon. 193, a marriage celebrated in Tennessee, valid by the law of that state, between a man and the widow of his deceased uncle, was recognized in Kentucky, where the parties were domiciled at the time of the mar- riage, notwithstanding that they went to Tennessee to celebrate the marriage for the express purpose of evading the Kentucky law, which forbade the intermarriage of such persons. In Blaisdell v. Bickum, 139 Mass. 250, 1 N. E. 281, it was assumed, without discussion, that a marriage in New Hampshire between a man and the daughter of his mother's sis- ter, being null and void according to the New Hampshire statute, was null and void in Massachusetts. It did not appear, in this case, where the parties were domiciled. 5 This was clearly the ground of the decision in United States ex rel. Devme v. Badgers, 109 Fed. 886, where it was held that a marriage in Russia, between Russian Jews, who were uncle and niece, though lawful where celebrated, would not be recog- nized as valid in Pennsylvania, where the intermarriage of persons stand- ing in such relations was forbidden by statute. The parties in this case seem to have been domiciled in Rus- sia, so that the application of either the lex loci or lex domicilii would have upheld the marriage. At all events, the court conceded the gen- eral rule, tha.t a marriage valid where celebrated is valid everywhere ; but said that the rule was subject to at least the following exception: "If the relation, thus entered into else- where, although lawful in the foreign country, is stigmatized as incestuous by the law of Pennsylvania, no rule of comity requires a court sitting in this state to recognize the foreign marriage as valid." This exception seems to be too broadly stated here. In this form it ignores the distinc- tion, insisted upon in Penneoar v. § 141a] INCAPACITIES. 329 tendom, but also that prescribed by the distinctive public policy of the forum. ® 142. Incapacity of lunacy determinable by place of residence. — Suppose a foreign state should declare that the marriage of a lunatic is void, and should decree a particular subject of that state to be a lunatic. Would we hold that if such person, com- ing to this country, should here marry, his marriage would be void? Although the point has not been expressly decided, a negative answer may be given for the following reasons: (1) A foreign decree of lunacy is impeachable;^ (2) in any view the marriage of a lunatic is only voidable, not void.^ 143. Marriages by force everywhere voidable. — The principle that force vitiates a marriage that it compels, being universally recognized, there can be no question that a state would regard as voidable a marriage one of its subjects was coerced into mak- ing in a foreign land.^ To make out, however, a case of in- validity the force must either be physical, or accompanied with such threats of imminent and great evil as to m.ake the danger actual, real, and great. Hence, the metus reverentialis, or the awe of parents, constitutes no such hindrance.^ But where physical force is used by parents, this is an avoidance.^ It is, however, to be observed that such marriages are voidable, not void; in other words, the parties compelled may subsequently, when free will accrues, ratify them, and this either expressly or by implication. Subsequent cohabitation accepted volun- tarily is such implied ratification.* The Roman law, in its zeal to suppress abductions, declared that all marriages which followed an abduction by force, the State, 87 Tenn. 244, 2 L. R. A. 703, ception based on the distinctive pol- 10 Am. St. Rep. 048, 10 S. W. 305, icy of forum with reference to mar- and which must be observed if the riage, see post, § 165b. decisions are to be harmonized, be- tween the statute and the distinctive * Ante, § 122. ,. , , , Tj. • i I, 1. ^ See Bishop, Marr. & Div. chap. policy of a state. It is to be ob- g. Wharton & S. Med. Jur. § 3; Trie served that the application of the v. Ranney, 21 N. H. 55, 53 Am. Dec. exception in this broad form in Ste- 164; Wiser v. Loekwood, 42 Vt. 720. venson\.Gray,n B. Mon. 193, would „ ^ '^.«! Harford v. Morris, 2 Hagg. 1, 1. J iv J • ■ T-, Consist. Rep. 423. have changed the decision. lor a , cap. 14,'^IS, 28, x. de sponsalibus, further discussion of the distinc- 4, 1 ; cap. 2, x. de eo qui duxit, 4, 7. tive public policy theory, see post, ' Goeschen, doctrine de matrim. §§ 165a-16oc. ""^-S-^'J'.^^-x.. «•!!.„ 1 J. . , ^, ^ Richter, Kirchenrecht, § 252. note « For general discussion of the ex- 4_ " . » ^"^j ""'■e 330 MARRIAGE. [Chap. IV. force being directed against parents and guardians, are void, even though the party abducted should consent. The abduc- tion itself constituted a publicum impedimentum, which made the marriage null; and neither the consent of the abducted party, as has been stated, nor the subsequent ratification of parents and guardians, could give the marriage validity. This, however, is a provision of public policy, special to the states which observe the Koman law, and having no force beyond their bounds. ^ 144. But may be validated by subsequent consent. — The canon law, on the contrary, held that abduction, like other forms of force, could be cured by the subsequent consent of the party abducted; and this was one of the rules of the Council of Trent.'' So, also, speaks the English common law.^ The in- capacity wrought by force being thus local, special, and tran- sient, is governed, not by the law of the party's domicil, but by that of the court from whom redress is sought. 145. Error may invalidate. — Subject to the same distinetion.s as force may be mentioned error. The Roman law held void marriages made under mistake of person, '^ and the early canon law takes the same ground.^ The later canon law, as adopted by the Roman Catholic Church, introduces other errors (e. g.. mistakes as to legal rank) as causes for annulling marriages. ' And the present Prussian Code takes the broad ground that a marriage will be made null when consent has been given on a mistake as to identity of person, or as to what may be regarded as necessary prerequisites to matrimony.* But because, first, this defect is cured by subseqiient cohabitation, after the error is discovered, and, second, the marriage is prima facie valid until annulled, such incapacity cannot be called moral and universal, but is rather transient and local. ' It is not a law which follows the person. It is simply a local law, binding the courts to which it applies. It is, in other words, to adopt the language of the canonists, not one of the public impediments (puhlica impedimenta) which obtain over all Christendom, 5 L. rniiv. § 1, C. de raptu virgi- 2 Cap. 2, 4, x. de conjugio servo- num, 9, 13. rum. This, however, was when a 1 Trident. Concil. cap. 6, de reform, slave was married, under the false mat. impression he ^yas free. 2 Bishop, Marr. & Div. §§ 165-205, 3 Walter, Kirchenreeht, § 3U8, note 210-213. 7. 1 Sta.hl, De matrimonio ob errorem 3 ^-^i, marriage everywhere; and the Illinois note 3. In this case the parties were courts, in an action of ejectment sub- domiciled in Ohio, where the mar- sequently brought to determine the riage was celebrated, but the decision title to his real estate, will hold that ;,, o1rT^T.no=l,r «„<■ .,„„„ •«,„ j the children of the first marriage are ^ !T , ^, ^ ^ ^°""^ not entitled to take as his heirs. *"^* *"^ '^'^ '^e* governed. McDeed v. McDeed, 67 111. 545. ^Post, § 165b. In .Jeremy Taylor's Doctor Dubi- 334 MARRIAGE. [Chap. IV. loci. It must be admitted, therefore, that the position taken in the last section with reference to marriages of this class has no support from decisions directly in point * 148. Impotency a cause of nullity determinable by judex domi- cilii- — Incurable impotency, by the canon law, renders a mar- riage null; but if known before marriage to the other party, such party cannot seek after marriage for a divorce on this ground.-^ Before, however, this nullity will be proclaimed, an interval of from one to three years, in which the parties shall live together, is required,^ unless there should be indisputable evidence by experts of positive sexual incapacity.^ Compe- tency to dissolve marriages on the ground of impotency belongs exclusively, it may be well argued, to the judex domicilii.* 149. But mere barrenness does not annul. — The law of Eng- land is that incapability of procreation, when there is no inca- pacity for sexual intercourse, does not found a decree for nul- lity. '^ The Scotch law seems to make mere barrenness ade- quate for such a decree.^ But these distinctions have a merely territorial scope. The primary international question is. What does the common law, which existed at the settlement of America, and prior to the Council of Trent, provide? Now, the assumption of several eminent text writers that this com- mon law, as expressed in the canon law, made incurable bar- renness, at the time of marriage, a ground of nullity, goes too far. Undoubtedly, such marriages, in certain cases, were de- clared null by papal decree; but this was by special and ex- traordinary act. The practice was to regard such marriages as valid, until after probation, and even permanently, unless some strong domestic circumstances required the interposition of the papal prerogative. Barrenness, it was frequently said, arose from causes too manifold and various to be treated as an * See, however, post, § 150a, as to Kirchenreeht, § 697. The Roman the consent of parents. 1^^ invalidating the marriage of nastrati is to be found in L. 39, § 1, iCap. 2, 3, 4, X. de frigidis, 4, 15. J), de jure dotium, 23, 3. Pope Sex- ilhid. tus V. in 15S9, issued a bull prohibit- sCanon Law, cap. 4, 14, x. de pro- ing the marriages of persons of this bationibus, 2, 19; cap. 5, 6, 7, x. de class. frigidis, 4, 15; Resolutio, 96, ses. 24, ■'See post, §§ 210, 231. Trid. Cone; Richter, § 258; Goesehen, iZ>— e v. A — g, 1 Robt. Eecl. Rep. doctrina de matrimonio, note 6, 102a, 279; B — n v. B — n, 1 Spinks, Ecel. 106; Eichhorn, Kirchenreeht, Bd. 2, & Adm. Rep. 248; Bishop, Marr. & § 348, note 38; Walter, Kirchenreeht, Div. 325. 11 Aufl. § 305, note 23; Permaneder, 21 Fraser, Dom. Rel. 33. I 149] INCAPACITIES. 335 arbitrary bar. Incapacity for copula is such a bar, however, and wherever it exists, by the common law of Christendom, it is to be regarded as working nullity, no matter where the mar- riage was celebrated. But such incapacity must have existed at the time of marriage, and must be capable of clear and un- questionable proof.* Nor can such a plea be set up when the party complained of is accepted as a consort at an advanced age.* 150. Laws requiring consent of parents or of state, matters of national policy. — We have already observed^ that laws fixing the age of matrimonial capacity vary according to the policy of particular states, and that consequently no one state, even if we accept the most advanced conception of the ubiquity of per- sonal laws, is called upon to enforce the limitations in this re- spect of other states when they conflict with its own. The dis- tinctive policy of the United States, as we have also seen," is, while imposing penalties on clergyjnen and others officiating :it marriages of minors without parental consent, to hold such marriages valid when the parties are otherwise capable of mar- riage. . The conclusions here, also, are: (1) That if foreigiiers marry on our shores without parental consent, we will hold such marriages valid, though they would have been invalid if contracted in the place of the party's domicil;^ and (2) that we will hold valid the marriages abroad of citizens of our states capable of marrying by the law of their domicil, though no such consent is given as is required by the law of the place of celebration.* iDevanbagh v. Devanbagh, 5 Paige, element of paternal authority and of 554, 28 Am. Dee. 443. family restraint, which it was one of iBriggs v. Morgan, 2 Hagg. Con- the prime features of the Roman pol- sist. Rep. .S24 ; Brown v. Brown, 1 icy to build up ; and also that of the Hagg. Eecl. Rep. 523. encouragement of marriage, subject lAftte, § 147. to such family restraint, which was ^Anie, § 127. also a chief ingredient in this policy. 'See post, §§ 151 et seq. Under the old German law it was the iPost, §§ 165 et seq. guardian who was to give consent; According to the Roman law, the and this guardian Was not neees- power of restricting marriage, in sarily the father, but whatever ap- such cases, was limited to the person propriate person the state might ap- in whose paternal power the party in point. Plerzog, Encye. title Ehe, question was. Want of consent in citing Kraut Vormundschaft, ii. s. such a case was classed with the pri- 604. vate impediments ( privata impedi- The limitations of the French Code menta), which could be relieved by will be found post, § 184. Nor are subsequent cohabitation or consent. German restrictions less artificial or Pr. J. de nuptiis, L. 10, L. 2; D. de less repugnant to our policy. "No ritu nuptiarum xxiii. 2, 1, 5; C. de young man of any class can take a nuptiis, V. 4. Here exhibits itself the wife till his three years' military serv- 336 MARRIAGE. tCHAP. IV. 150a. Same; consent of parents. — The first of the conclusions stated in the last section would follow from the application of the lex loci; and so, by the application of that test it has been established that the failure to obtain the consent of parents or guardians, as required by the lex domicilii, does not, even at the domicil, invalidate a marriage celebrated in another coun- try where such consent is not required. ^ And this is true, even when the parties left the domicil to celebrate the marriage for the very purpose of avoiding the requirement as to consent.^ Conversely, a marriage which is invalid by the lex loci, for the want of such consent, will be held invalid elsewhere, at least if the parties were not domiciled at the forum;* and, even in such a case, it has been held that the marriage must be deemed invalid, notwithstanding that it would have been valid if cele- brated at tlie forum.* Without admitting that, in every case of a foreign marriage between persons domiciled at the forum, ice is over, and then, if he belongs to the 'upper five hundred thousand,' and is also, as is usually the case, in the armv, a caution, as it is termed, of 15,000 thalers (2,2501.) must be deposited in the government funds, so as to provide for the lady in case of his death — this being a device to save pensions." London Quarterly Rev. Oct. 1880, 530. Should a Ger- man officer who has declared his in- tention to Ije naturalized in this country, but who had not yet perfect- ed his intention, marry here without complying with these conditions, would it be seriously maintained that our courts ought to hold such mar- riage void? ^Steele v. Braddell, Milward, 1 ; Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54; Swift v. Kelly, 3 l&iapp, P. C. 257; Com. v. Graliam, 157 Mass. 73, 16 L. R. A. 578, 34 Am. St. Rep. 255, 31 N. E. 706; Court- right v. Courtright, 26 Ohio L. J. :!09; Ex parte Ghace (R. I.) 58 Atl. !)7S: Simonin v. Mallac, 2 Swabey & T. 67, 6 Jur. N. S. 561, 2 L. T. N. S. 327, 29 L. J. Prob. N. S. 97. The decision in the last case was distin- guished in Sottomayor v. De Barros, 47 L. J. Prob. N. S. 23, L. R. 3 Prob. Uiv. 1, 37 L. T. N. S. 415, 26 Week. Rep. 455, which adopted the lean dom- icilii as the test of matrimonial ca- pacity, upon the ground that the matter of consent pertains to the ceremony rather than to the capacity of the parties. 200m. V. Graham, 157 Mass. 73, 16 L. R. A. 578, 34 Am. St. Rep. 255, 31 N. E. 706; Courtright v. Courtright, 26 Ohio L. J. 309. sGmiale v. People, 177 111. 219, 52 N. K. 310; Hiram v. Pierce, 45 Me. 367, 71 Am. Dec. 555. *Middleton v. Janverin, 2 Hagg. Consist. Rep. 437; Scrimshire v. Scrimshire, 2 Hagg. Consist. Rep. 395. § 150a] INCAPACITIES. 337 the court will apply the distinctive policy of the fonun to this matter of consent, it may be conceded that, under special cir- cumstances (as when, for instance, it is a practicable impossi- bility to apply for the required consent), such a marriage may be upheld.* 151. By canon law, marriages without such consent valid. — The distinctive law of the United States, that the impediment of nonconsent of parents or guardians does not invalidate a marriage, is not the product merely of our own policy, as a country encouraging early marriages, and with whose tradi- tions and conditions an early emancipation from parental con- trol is consistent. By the canon law clandestine marriages, ai they are called, however open to censure, have been always valid. And this was the law that the settlers of this country, Eoman Catholic as well as Protestant, brought to our shores.-' 152. In France, restrictions of this class follow subjects wherever they go. — In France, as we have seen, it has been held that the provisions of the Code in respect to consent of parents or guardians, and in respect to publication, follow French citizens wherever they go; thovigh there are recent rul- ings to the effect that marriages made in a foreign country, in good faith, and without the intention to evade French law, will be sustained by French courts.-' On the other hand, there can be no question that marriages by French citizens in this coun- try, if according to our laws, would be sustained in such cases by our courts. ^ 5Ri;diny v. Smith, 2 Hagg. Consist. Ihiiits as to relationship, age, and Rep. 390. guardianship. A Frenchman, there- fore, marrying abroad, must adhere iPost, § 171. to these forms, in order to contract a iThe limitations of the Code are marriage valid in France, given post, § 184. The marriage of Jerome Bona- 2By the 170th article of the Code parte, in Baltimore, on December 24, Napoleon, "Le mariage contracts en 1803, with Miss Patterson, was cele- pays etranger entre Francais, et entre brated by a Roman Catholic priest Frangais et Strangers, sera valable, according to the local forms, Jerome s'il ait 6t6cSl4br6 dang les formes being but nineteen years of age. By Tisitfies dans le pays, pourvu qu'il ait the Code Napoleon, which had a few ete priced^ des puilica-tions prescrites months before been enacted, certain par I'art. 63, au titre des aotes de publications were required, and the l'4tat civil, et que le Francais n'ait consent of parents for minors made point contravenu aux dispositions essential ; neither of which conditions contenues au chapitre precedent." were complied with. Notice of these The last-named chapter defines the laws was given in October, 1803, prior Vol. I. CoNFL. of Laws — 22. 333 MARRIAGE. [Chap. IV. 153. In England, marriage of subjects abroad valid, though without statutory requisites. — In England the statutes as to banns and as to parental consent are held to be purely local and to the marriage, by the French miniiiter, to the parents of Miss Pat- terson. Napoleon I. shortly after- wards issued a decree annulling the marriage. The Pope refused to de- clare the marriage void. "The civil marriage could be an- nulled without much difficulty, but the religious tie existed, and it re- quired ecclesiastical authority to dis- solve that. It soon presented itself in the form of a request, which Na- poleon made on him (the Pope) to cancel Jerome's marriage with Miss Patterson. Napoleon did not hesitate to ask the Pope for this dissolution, persuaded that he could not refuse that slight service after all the con- cession he had made. The court of Rome had in reality often shown, especially in affairs of this kind, how easily she could accommodate her maxims to circumstances, and author- ize exceptions to her best established rules, when an advantage was to be obtained by doing so. In this case not so much was asked of her, for Napoleon had joined to his demand a copy of the opinion of most eminent casuists, and even of the Pope's theologian himself, proving that by the decisions of ecclesiastical law this marriage was void. But to his great surprise and irritation he met with an invincible resistance from the meek Pius VII. The pontiff wrote the emperor a letter, full of the most tender protestations of friendship. He clearly recognized that the secrecy of the marriage constituted a canoni- cal cause of nullity according to a special decree of the Council of Trent. Unhappily the closest and most minute Investigations had failed to prove that this decree was ever published in the town of Balti- more. He was s^rieved not to be able to pronounce the dissolution of the marriage. If he were to do so, 'he would render himself guilty of an abominable abase before the tribunal of God.'" 2 Lanfrey's Hist. Nap. .534, citing Pius VII. to Napoleon, June 6, 1805. Compare Lawrence's Wheaton, 182. The question of Jerome's Baltimore marriage was reopened in Paris in 1860, 1861, in the litigation as to the successions of Cardinal Fesch, and of Jerome himself. It was finally held that though the marriage was valid according to the local law, it was in- valid in France, in consequence of noncompliance with the French Code. Lawrence Com. sur Wheat, iii. 398; Thiers Consulat et Empire, viii. 28. "Si le Frangais pourait s'y soua- traire (the restrictive statute), en allant se marier en Angleterre, Tin- ea pacitfi dont la loi le frappe serait d^risoire, parce que rien ne serait plus facile que d'echapper en allant contracter mariage a I'etranger." Portalis, quoted by Laurent, Droit civil int. 536. The harshness of the rule has in some cases been modified by decisions that when there is no clandestinity about such marriages, and when they are solemnized in good faith, without the intention of evading the law, they will be sus- tained in Prance. See crises cited in Broeher, Droit int. prive, 192; Dal- loz, 18.56, cited Westlake, Private International Law, 1st ed. art. 341. Voluntary clandestinity, however [clandestinite voluntaire) , in a mar- riage by a French citizen abroad, in- validates the marriage, though if there be no clandestinity it is other- wise. Jour, du droit int. priv6, 1875, pp. 190, 273; 1878, p. 43; 1879, pp. 281, 487: Tirveillot v. Tirveillot, Trib. civ. Seine, 1878; Jour, du droit int. privS, 1878, p. 609. "D'aprfes une jurisprudence con- stante, le defaut de publication et I'absenee de consentement des as- cendants ne constituent pas une nullitg d'ordre public; la nullitS du mariage ne pent 6tre prononc6e qu'autant que les publications ont 6tg omises ou que les aetes respectueux n'ont pas 6t6 faits dans le but de faire fraude a la loi ou de dissimuler I'existenee du mariage aux parties § 153] INCAPACITIES. 33P intraterritorial ; and hence the English courts recognize as valid the marriages in Scotland, where these cheeks were set at naught, of persons domiciled in England, though the journey int6ress6es." Jour, du droit int. priv6, 1879, p. 281. The same view is expressed by Pasquale Fiore, Droit int. tr. Pradier-Fod6r6, No. 102; Jour, du droit int. priv6, 1878, p. 273. In Dussance v. Dussance, decided in Paris in 1873, the evidence was that E. H. Dussance, a, French sub- ject, was married on November 13, 1858, in Stephenstown, N. Y., by a Presbyterian minister, by a form' proved to be valid in the state of New York, to Anne Eliza Hicks, and that the parties afterwards cohabit- ed as man and wife. The marriage was held valid in France, though without the preliminaries required by the French law, there being no proof of an intention to fraudulently evade the law. To the same effect is cited Demangeat, § Fcelix, vol. ii. p. 379; Jour, du droit int. priv6, 1874, p. 243. In Laiellot v. Boursier, Trib. civ. Seine, 1877, it was held that the mar- riage of a Frenchman and a French- woman before a Brazilian priest, at Rio de Janeiro, is void when "clan- destinity" (clandestinite) is shown by the facts tliat there was no publi- cation of banns in France, that the consent of parents was not asked, and that the families of the parties were not informed that the marriage was intended. Whether there was "clan- destinity" is held to be a matter for the court. Jour, du droit int. priv6, 1878, p. 164. In the London Law Times of April 21, 1880, is reported a case in which an English marriage of the above class was annulled in France under circumstances of extreme hardship. The Swedish law is said to be the same in this respect as that of France. Jour, du droit int. privg, 1875, p. 240. In respect to the annulling of mar- riages on account of their noncon- formity with the law of the place of celebration, Fiore (Op. cit. § 93) lays down the following rules: — 1. A marriage should be annulled only when this is expressly required by the law to which the marriage is subject; in cases of doubt, the pre- sumption is always for validity. 2. Only such persons as the law specifies can proceed for a judicial declaration of nullity. 3. The law to determine such pro- cedures must be internationally competent. 4. The tribunal determining the question is not to give effect to a foreign law which contravenes princi- ples of public order which are sanc- tioned by the lex fori. On the first point he remarks that it does not follow that a marriage is invalid because it was celebrated in the face of impediments established by the local law. He distinguishes prohibitive from invalidating impedi- ments; and he holds that a marriage in a foreign land ought not to be an- nulled by the home authorities simp- ly because it is in violation of prohi- bitions of the home law. A note, however, from Pradier-Fodgrg, the French editor, dissents in this respect from the views above stated, main- taining, in conformity with rulings elsewhere cited, that when a French- man goes to another country to be married, in fraud of the French law, and marries in defiance of the French prohibitions, the French courts will pronounce the marriage invalid. Banns, as is remarked by Fiore (Op. cit. § 101), are intended ordi- narily to give local notice, and hence are only locally obligatory. Some Codes, however, impose on subjects marrying in a foreign land the duty of making publication in their own country. To this effect is the Code Napoleon, article 170; the Italian Code, article 100 ; the Austrian Code, article 4; that of Holland, article 1.'58; as well as the Codes of other states. The French and Italian Codes also prescribe the registry, by subjects marrying abroad, in the proper home office of the marriage See post, § 184. The ^-ridical conie- quenees of omissions in this respect 340 MAERIAGE. [Chap. IV. to Scotland was made for the express purpose of evading the English laws.^ It is doubted by Mr. Westlake, however, whether these decisions are not shaken, if not reversed, by the case of Brook v. Brook, already referred to. But a subsequent case makes it clear that when the incapacity is not moral but formal — e. g., want of consent of parents, — and a marriage contracted subject to it is capable of subsequent validation, such restraints have no extraterritorial effect.^ Certainly the Eng- lish courts have been emphatic in their recognition of the prin- ciple that by the old common law of England, which, in this respect, was the canon law, the marriage of minors of the age of puberty, without the consent of parents, was good.' This was the law in England when America was settled, and was consequently the law the settlers brought with them.* are to be determined, according to Court of Cassation, and a number of Fiore, by the law of the country to decrees were subsequently made, vali- which the parties belong. Whether dating similar marriages in cases an omission of the publication re- where fraud and clandestinity were quired by the French Code invalidates not proved. And this he declares to such marriage in France has been be the present (1875) rule in France, the subject of much difference of Tlie French prescriptions are given in opinion in France. That it works detail post, § 184. such invalidity was decided by the '^Gompton v. Bearcroft, 2 Hagg. Court of Cassation in 1831 and 1837. Consist. Rep. 444, note; Oalrymple y . On the other hand, other rulings of Dalrymple, 2 Hagg. Consist. Rep. 54. the Court of Cassation, and of several Post, § 183. [See also cmte, § 150a.] imperial courts, adopting the opinion ^Simonin v. Mallac, 2 Swabey & T. of Merlin, of Dalloz, and other au- 67, 6 Jur. N. S. .561, 2 L. T. N. S. thoritative jurists, take the position 327. 29 L. .J. Prob. N". S. 97. [Ante, that as nonpublieation does not in- § 1.50a, note 1.] validate a marriage in France, it ^Rex v. Eodnett, 1 T. R. 96; r'lTinot invalidate the marriages of T'rieull ii v. Hughes, 11 East, 1, 10 Re- Frenchmen abroad. The more recent vised Rep. 406. Post, § 172. conclusion of the French courts, ac- iWhitc v. Henry, 24 Me. 531; Pool cording to Fiore, is that whether or v. Pratt, 1 D. Chip. (Vt.) 252; Jones no such default of publication in- v. Tetns, 4 Litt. (Ky.) 26, 14 Am. validates, depends on the circum- Dec. 98; Governor v. Rector, 10 stances of each case. To this effect Humph. 57; Hargroves v. Thompson, are cited Uemolombe, Mariage, No. 31 Miss. 211. 225; Foelix, Des mariages contractus In the Irish case of Steele v. Brad- en pays etranger. No. 2. Pradier- dell, Milward, 1, it was held that Fodfirg, on commenting on this pas- parties, domiciled in Ireland, who, sag-e, laments the contradictory rul- under the Irish marriage act, were ings of the French courts on this incapable, being under twenty-one. of point. He says, that "dans I'affaire contracting a valid marriage in d'Elizahcth Patterson" (Madame Je- Ireland, without consent of parents, rome Bonaparte) , in 1861 the court might, without such consent, contract of Paris helu that a marriage by a a valid marriage in Scotland. This French subject abroad was invali- case was approved by Lord Campbell dated by the omission of publications; in Brook v. Brook, 9 H. L. Cas. 216, while a contrai-y view was taken, in 7 Jur. N, S. 422, 4 L. T. N. S. 93, 9 another case in the same year, by the Woek. Rep. 461, on the ground that § 154] INCAPACITIES. 341 154. Prohibitions on marriage of ecclesiastics not of extrater- ritorial force. — In some European states ecclesiastics, as a mat- ter of state policy, are precluded from marriage. There can be no question, however, that if an ecclesiastic, forbidden to marry by his personal law, should marry in this country, we would hold the marriage valid. And there could be little doubt, also, that if an ecclesiastic who by his personal law in this country is capable of marrying should marry in Europe, in a country forbidding such marriage, we would, on his re- turn, hold his marriage valid. ^ the disability was not moral, "con- weight of authority is in favor of trary to the law of God," but teehni- such validity. See a learned discus- cal. sion in the Journal du droit int. By 19 & 20 Vict. chap. 96, § 1, it privg for 1880, pp. 120 et seq., where is enacted that "no irregular mar- it is said that a decision of the Court riage contracted in Scotland by of Cassation, in 1878, held "I'engage- declaration, acknowledgment, or cere- ment dans les ordres sacrga, non mony, shall be valid, unless one of seulement eomme un empgohement the parties had at the date thereof prohibitif, mais encore comme un em- his or her usual place ^f residence pSchement diriment." It has, how- there, or had lived in Scotland for ever, been ruled that such marriages twenty-one days next preceding such cannot be attacked collaterally. And marriage." In a ease before the court jurists of high authority have con- of probate and divorce in 1878, it ap- tested the conclusion of the Court of pcared that J. D. and A. L., being Cassation that the impediment is both domiciled in England, left Lon- "diriment." The article above cited don for Scotland on the evening of in the Journal du droit int. priv6 the 30th of June, 1870, for the pur- thus concludes: — pose of contracting a clandestine "Nous croyons que, dans notre loi marriage. They arrived at Edinburgh telle qu'elle existe, I'engagement dans between five and six on the following les ordres sacrgs ne eonstitue aucune morning, July 1, and lived in Scot- esp6ce d'empC'chement au mariage, land until the 21st of July, when they pas meme un empSchement simple- contracted an irregular marriage be- ment prohibitif. V. en ce sens Va- f ore the registrar at Edinburgh about lette sur Proudhon, t. i. p. 415, et 11:30 on the morning of that day. Cours, t. i. p. 190; Demolombe, Mar- It was held by the court (Sir J. iage, t. i. nos 131 et 431 bis et les Hannen) that, according to the mode Observations de M. Labbe, Sir. 78, I, of computing time by Scotch law, 241-244. the parties had not lived the pre- "En 1877, M. Raspail a soumis ft scribed time in Scotland, and that la Chambre des deputgs une propo- tlierefore the marriage was invalid sition de loi d'aprSs laquelle 'une under the above statute. Luwford v. amende de 300 ft 1,000 francs et un Da/oies, 39 L. T. N. S. Ill, 47 L. J. emprisonnement d'un an ft six mois' Prob. N. S. 38, L. E. 4 Prob. Div. 61, devraient etre prononcfis centre tout 26 Week. Rep. 424. See Kent v. officier de I'etat civil 'qui refuserait Burgess, 11 Sim. 361, 5 Jur. 166. de c616brer un mariage, sous pr6- Post, § 109. texte que I'un des futurs serait ou iSee ante, §§ 107-9. aurait 6tg engagg dans les ordres Whether a priest can contract in saeres.' Journal officiel du 11 Italy a marriage civilly valid has fgvrier 1877, p. 1076. been held an open question under the "Plus rgcemment, M. Saint-Martin Code of the new kingdom. The a reproduit la meme pensge, en 342 MARRIAGE. [Chap. IV. 155. So, as to vows. — The same distinction applies to the efficacy of religious vows. These, according to the canon law, are twofold. One, the votum solemne, rests upon priestly or- dination, or entrance into one of the great religious societies established by the Pope. The other, the votum simplex^ is a personal vow of chastity, with which, it seems, the Church can dispense. Even where such vows are sanctioned by the civil authorities, they would be regarded, being mere matters of social policy, as no bar in other lands, and as not affecting our own citizens, subject to such vows, should they marry on a transient visit to a country where such vows are a bar.-' 156. So, as to prohibition of marriages with Jews or infidels. — In several European states limitations are imposed on mar- riages between Christians and Jews. An interesting case of this kind was decided by the supreme court of Vienna in 1878. -^ The Austrian and Hungarian laws prescribe that mar- riages between Christians and non-Christians shall be void. The Prussian law no longer retains this restriction. In the case before the court, the plaintiif, who sought a decree of nul- lity, was a Prussian and a Christian, the defendant a Hun- garian and a Jew. The marriage was celebrated at Berlin. The civic tribunal of Prague rejected the petition on the ground that the Prussian law governed the case. This was re- versed by the appellate court of Bohemia, and the action of this court iinally affirmed by the supreme court of Vienna, on the ground that the defendant, according to his personal law, could not contract a valid marriage anywhere with a Christian, termes plus g6n6ra,ux: 'il n'est admis are const-antly traveling in Europe, d'autres prohibitions au mariage que whose marriages abroad would be in- 'jcUes po'rtfies par le present Code et valid if the leao loci actus is to pre- qtii sont limitatives, ou par les lois vail, and to the still greater number militaires.' Journal officiel du 27 of Europeans and Asiatics visiting mars 1879, p. 25272; annexe no 1222, the United States without intending se ance du 10 mars 1879." domieil, whose marriages would be Mr. Westlake (1880, p. 5.5) justifies invalid if the lex domicilii is to pre- the position that foreign matrimonial vail. [The application of the lex restrictions on ecclesiastics will not loci would uphold the first of the be recognized in England, on the hypothetical marriages contemplated ground that "no principle of English by the text, but would condemn the policy can be deemed more stringent other. As to the possibility of apply- than that which would refuse to ex- ing the distinctive policy of the elude a whole class of the population forum so as to uphold a marriage in- from the possibility of marriage." valid by the lex loci, see post, § 165c.] If this is applicable to a class so i See Richter, Kircheirr. § 262. small as foreign ecclesiastics visiting Ante, §§ 107-9. England, it is a fortiori applicable to ijur. Blatt. 1878, No. 27; Jour, du the large number of Americans who droit int. privg, 1879, p. 500. ij 156] INCAPACITIES. 343 and that as he was not bound by the marriage, the marriage was invalid.^ Were such a case to come up in this country, the conclusion would be the reverse of that just stated. If a Jew from Austria should marry a Christian in one of our states, we would hold that the fact that his personal law was Austrian would not invalidate the marriage.* 157. So, of marriages between Protestants and Roman Catho- lics. — Although marriages between Koman Catholics and Pro- testants have been always discountenanced by the Koman Catholic Church, they have never, on account of this difference of religion, been held void by that Church; nor is there any state in which they are invalidated by secular legislation.^ An interesting question, however, may arise as to the Prussian law, which attaches to such marriages the condition that the children shall be all educated in the religion of the father.^ This law, however, is clearly of a police and municipal char- acter, and hence cannot be regarded as having extraterritorial force. 158. So, of marriages locally prohibited on account of inequal- ity of rank. — By the act of 12 Geo. III. chap. 11, § 1, "no de- scendant of the body of his late majesty King George II." etc. "shall be capable of contracting matrimony without the pre- vious consent" of the reigning sovereign. This has been held to render invalid, in England, marriages by the persons so pro- hibited, although such marriages were celebrated on the con- tinent, where no such impediments existed.* Analogous re- 2Tlie editor of the Jour, du droit autrieliien et incapables, en vertu de int. priv6 adds the following: — ses dispositions, de se rendre dans un "L'arret de la Cour supreme de pays Stranger, dont la loi u'admet Vienne est tout k fait conforme aux pas la cause d'incapacitfi dont elles principes gfengraux du droit inter- sont frappges, pour y agir valable- national prive. II s'agissait dans ment." resp6ee d'une question de capaeite; ^Ante, § 127; post, §§ 160 et seq. o'est done il tort que le jugement de This conclusion would follow from premiSre instance avait invoque the application of the lex loci, with- I'article 37 du Code civil autrichien.* out reference to the distinctive policy Get article dit sans doute que les of the forum. actes passgs k I'Stranger entre iWalter, Kirchenr. 11 Aufl. § 300. Strangers ou entre Strangers et ^Landr. Thl. 2, title ii. § 78. autrichiens sont rSgis par la loi du ''■Sussea; Peerage Case, 11 Clark & pays oH ils 6t6 faits. Mais il ne ^- 1^2, 8 Jur. 793. Post, § 173. s'agit dans cet article que de deter- miner quelles clauses peuvent ou non This is very clearly a case where Stre insgrfies dans les contrats passgs the marriage was condemned, not tioLfrfa1a:L"q;^:Tit'lUS — /.^ f;— ^* -^^ '^-e ^n 34. Autrement il dgpendrait des '"'^^"•i " celebrated m England, but personnes soumises au Code civil because the purpose and object of 344 MARRIAGE. [Chap. T\\ strictions exist in several German states. It is scarcely neces- sary to say that such limitations would be regarded in foreign countries — e. g., the United States — as purely political, and as having no force except in the country that imposes them. 159. So, of marriages locally prohibited on ground of distinc- tion of race. — In several of the United States statutes exist for- bidding the marriage of whites with negroes, and of whites with Indians. Of course, in the state where such a prohi- bition exists, the lex fori prevails, supposing the marriage to take place in the state, and the parties to be subject to its law. But when persons domiciled in a state where these prohibi- tions are in force are married without the domicil, in violation of such prohibitions, in a state where there is no opposing legis- lation, the parties visiting the latter state for this purpose, will the former state recognize the validity of the marriage? The first point for the court of such a state to determine, on such an issue, is whether the prohibition of such marriages is part of the distinctive policy of the state. If so, the court, acting on the reasoning already given, ^ must hold that persons domi- ciled in such state cannot evade its laws by going to another state and then returning to live in the home state in a union that state condemns. And so it has been ruled on several occa- sions." On the other hand, where in Massachusetts a law ex- isted prohibiting the marriage of whites and negroes, and where parties incapacitated for marriage by this law went to Rhode Island, where no such law existed, and were there mar- ried, the supreme court of Massachusetts held that the marriage was valid, though in fraud of the Massachusetts statute.^ The decision was put simply on the ground of the supremacy, in the act required the prohibition to A similar decision has been made be extended to marriages celebrated with reference to a marriage between out of England. In other words, the a white man and an Indian woman, net was a part of the distinctive pol- Re Wilbur, 8 Wash. 35, 40 Am. St. icy of England. 'Eep. 886, 35 Pac. 407. iAnte, §§ 104J, 104§, 127. That statutes of this class are not ^Kinney v. Com. 30 Gratt. 858, 32 unconstitutional under the 14th Am. Eep. 690; [Greenhow v. James, Amendment, see Re Hobis, I Woods, 80 Va. 636, 56 Am. Rep. 603] ; Wil- C. C. 537, Fed. Gas. No. 6,550; State Uwms V. Oates, 27 N. C. (5 Ired. L.) v. Gibson, 36 Ind. 389, 10 Am. Rep. 538; State v. Kennedy, 76 N. C. 251, 42. 22 Am. Rep. 683 ; Scott v. State, 39 iMedicay v. Needham, 16 Mass. 157, Ga. 321 ; Dupre v. Boulard, 10 La. 8 Am. Dec. 131. See, on the question Ann. 411; [Georgia v. Tutty, 7 L. R. of voidability of marriages, Steven- A. 50, 41 Fed. 753]. son v. Gray, 17 B. Mon. 193. § 159] INCAPACITIES. 34& marriage contracts, of the lex loci contractus. Another phase presents itself when the parties (one or both of whom previous- ly resided in a state forbidding the marriage) move for the purposes of permanent residence into a state where such mar- riages are lavyful, and there, after acquiring a domicil, marry,, and then return into the former state. In such cases the latter state, so it is held in North Carolina, will hold the marriage valid.* In Brook v. Brook, 9 H. L. Cas. ought to have been held void in 193, 7 Jur. N. S. 422, 4 L. T. N. S. 93, Massachusetts, though celebrated in 9 Week. Rep. 461, the lord chancellor, another province where such mar- commenting on Medway v. Needhwm, riages were lawful." said:— iSiate v. Ross, 76 N. C. 242, 22 "I cannot think that it is entitled Am. Rep. 678. But see contra, Dupre to much weight, for the learned judge v. Boulard, 10 La. Ann. 411; Min- admitted that he was overruling the vielle's Succession, 15 La. Ann. 342. doctrine of Huberus and other emi- In State v. Ross the court said: — nent jurists; he relied on decisions "We are compelled to say that this in which the forms only of celebrat- marriage, being valid in the state ing the marriage in the country of where the parties were bona fide dom- eelebration and the country of domi- iciled at the time of the contract, cil were different; and he took the must be regarded as subsisting after distinction between cases where the their immigration here. The incon- absohite prohibition of marriage is veniences which may arise from this forbidden on mere motives of policy view of the law are less than those and where the marriage is prohibited which result from a different one. as being contrary to religion on the "The children of such a marriage, ground of incest. I myself must de- if born in South Carolina, could mi- ny the distinction. If a marriage is grate here and would be considered absolutely prohibited in any country legitimate. The only evil which as being contrary to public policy could be avoided by a contrary con- and leading to social evils I think elusion is that the people of this that thedomiciledmhabitants of that gtate might be spared the bad ex- country cannot be permitted, by pass j^ ^f ^„ unnatural and immoral, ing the frontier and entering another ^^^ j^^j^j <,ohabitation. The incon- statein which this marriage IS not ^g^j^^^^^ ' prohibited, to celebrate a marriage „ , , .\^' °'"= ,'^t forbidden by their own state, and, im- "^""=™"^' ^"d are forcibly stated in mediately returning to their own 6cnm«7,»re v Scrimshvre. 2 Hagg. state, to insist on their marriage S'^^f*; ^7; t^^' ^""^/^ ^^""^y' ^onfl- being recognized as lawful." L. § 121 : And, therefore, all nations Lord Cranworth, referring to the '^^'^^ consented, or are presumed to same case, said: "I also concur en- consent, for the common benefit and tirely with my noble and learned advantage, that such marriages shall friend, that the American decision of be good or not, according to the law Medway v. Needham cannot be treat- of the country where they are cele- ed as proceeding on sound principles brated.' " of law. The state or province of That statutes to this effect are Massachusetts positively prohibited statutes of state policy which will by its laws, as contrary to public pol- be enforced irrespective of the privi- ioy, the marriage of a mulatto with leges of domieil, see Kinney v. Com. a white woman, and on one of the 30 Gratt. 858, 32 Am. Rep. 690; grounds pointed out by Mr. Justice Green v. State, 58 Ala. 190, 29 Am. Story, such a marriage certainly Rep. 739. 346 MARRIAGE. [Chap. IV, 159a. Same. — The question whether a marriage between a ne- gro and a white person, valid by the law of the state where cele- brated, should be held invalid by the courts of a state in which the parties subsequently become domiciled, seems to depend upon the question whether the prohibition of sudi marriages by the statute of the forum is such a part of the distinctive pol- icy of the forum as to require its extension to the marriage of persons who subsequently become domiciled at the forum, with- out reference to the place of the celebration, or of the domicil of the parties at the time of the marriage. It is conceivable, at least, that the courts might adopt the view that the distinctive policy of the forum requires the condemnation of such a mar- riage celebrated out of the state, if the parties, at the time of its celebration, were domiciled within the state, and yet not re- Pewrson v. Pearson, 51 Cal. 120, opinion is broad enough to cover upheld a marriage celebrated in Utan such a case. between a man and his female slave So, in Jackson v. Jaclcson, 82 Md. there domiciled, which was valid ac- 17, 34 L. R. A. 773, 33 Atl. 317, the cording to the law of Utah, although court said, obiter, and by way of il- it would have been invalid if eele- lustration, that a marriage between brated in California ( the forum ) . a white person and a negro, though The decision is upon the ground that valid where celebrated, would be in- the lex loci governed. valid in Maryland because against In State v. Bell, 7 Baxt. 9, 32 Am. the policy of the state as declared Rep. 549, however, the court took by statute. This statement was not the position that a, marriage between expressly confined to the hypothesis a white person and a negro would that the parties were domiciled in bo held invalid in Tennessee, though Maryland, but is apparently broad celebrated in another state, between enough to cover a case where the persons domiciled at the time in such parties were domiciled elsewhere at other state. The marriage in this the time of the marriage, case was celebrated in Mississippi, In Dupre v. Boulard, 10 La. Ann. according to the law of which it 411, a. marriage contracted in France would be valid; and while it does between a white person and a per- iiot clearly appear from the report sou of color was held to be invalid that the parties were domiciled in in Louisiana. It does not appear in Mississippi at the time of the mar- this case whether the parties were riage, yet it was so stated in Pen- domiciled in Louisiana or not. See negar v. State, 87 Tenn. 244, 2 L. R. further upon this subject note to 57 A. 703, 10 Am. St. Rep. 648, 10 S. L. R. A. 155, 167 et seq. W. 305, and the language of the § I59a] INCAPACITIES. 347 quire its condemnation if the parties were not then domiciled within the state, but subsequently became domiciled therein. This variation of results, dependent upon the domicil of the parties at the time of the marriage, would follow from the adop- tion of the lex domicilii as the general international and inter- state test of matrimonial capacity, without reference to the dis- tinctive policy of the forum; and some of the decisions^ that hold such marriages invalid when the parties at the time of its celebration were domiciled at the forum, apparently rest upon this ground. It is to be remembered, however, that, for the practical purposes of such a case, it is immaterial whether the decision be referred to the lex domicilii as the general test of matrimonial capacity, or to the distinctive policy of the forum as an exception to the lex loci as the general test of matrimonial capacity. The adoption of the lex domicilii as the test of mat- rimonial capacity, without reference to the distinctive policy of the forum, to accomplish the result reached in these deci- sions, is, however, objectionable, not only because it is opposed to tlie weight of authority in the United States, — which, as else- where shown, favors the lex loci as the general test of matri- monial capacity, — but also because adherence to it would re- quire the court to uphold the validity of such a marriage, if valid according to the lex domicilii, between persons not domi- ciled at the forum at the time of its celebration, though thev immediately afterward became domiciled therein, however con- trary to the distinctive policy of the state the recognition of such marriage might be. Upon the other hand, if these deci- sions are put upon the ground that, while the lex loci ordinarily determines matrimonial capacity, an exception will be made in case of a marriage which is opposed to the distinctive policy of the forum, the courts, at least in the absence of any constitu- minney v. Com, 30 Gratt. 858, 32 however, State v. Bell, 7 Baxt. 9, 32 Am. Rep. 690; Greenhow v. James, Am. Rep. 549, ante, § 159, note 1 80 Va. 636, 56 Am. Rep. 603. See, 348 MARRIAGE. [Chap. IV. tional objection, will be at liberty to extend tbat exception, when the necessity arises, to marriages between persons not domiciled at the forum at the time of the celebration. Again, the decisions which have upheld the validity of foreign mar- riages, between persons domiciled at the forum, which would have been invalid if celebrated at the forum because incestuous by the municipal law of the forum, or because one of the parties had been forbidden by that law to remarry during the lifetime of a former husband or wife, or for any other reason, are ir- reconcilable with the adoption of the lex domicilii as the test of matrimonial capacity, while they may be harmonized with the doctrine that applies the distinctive policy of the forum to the marriage, and, if it passes that test, leaves it to the opera- tion of the lex loci. As pointed out by the Tennessee supreme c^ourt,^ the Massachusetts decision^ recognizing the validity of such a marriage, though the parties were domiciled in Massa- chusetts at the time of its celebration, and celebrated it out of the state for the express purpose of evading the Massachusetts statute, may be harmonized in principle with the decisions ui the southern states, which reach a contrary result under similar circumstances, since a court of Massachusetts in view of the lo- cal conditions in that state, might properly hold that a statute forbidding the intermarriage of white persons and negroes was not a part of the distinctive policy of the state, while a court of a southern state, in view of different local conditions, might, with equal propriety, hold such a statute to be a part of its dis- tinctive policy.* iPennegar v. State, 87 Tenn. 244, * For a further discussion of the 2 L. R. A. 703, 10 Am. St. Rep. 648, distinction between the distinctive 10 S. W. 305. public policy of the forum and the ■ Medway v. Needham, 16 Mass. doctrine of letv domicilii, see post, 1.57, 8 Am. Dec. 131. §§ 165a-165c. I 160] THEORIES AS TO MATRIMONIAL CAPACITY. 349 III. Theories as to mateimonial capacity. 160. Generally. — From what has already been said, it will appear that there are three distinct theories as to the law which is to determine the question of matrimonial capacity. 161. Theory that the law of the place of solemnization de- cides. — The first is that matrimonial capacity is determined by the law of the place of solemnization; this view being main- tained by Judge Story/ and Mr. Bishop,^ and by a long series of English and American judges. This theory has the advan- tage of simplicity. The place where a marriage is solemnized is always ascertainable; and if the law of this place is every- where to prevail in determining marital capacity, we would have at least uniformity of ruling-s in all countries as to any particular question of capacity. 162. Objections to this view. — But to this view it must be objected, first, that it is admitted to be subject to exceptions which destroy its applicability to the majority of litigated cases. Thus, marriages, which by our law are incestuous, are not validated by being performed in another land, where they would be lawful;'' and so, the converse is true, that the mar- riage in England, of an American with his deceased wife's sister, would be recognized as valid in such of our states as hold such a marriage to be legal. ^ Nor, notwithstanding the observations frequently thrown out that a marriage bad by the lex loci contractus is bad everywhere, is it believed that an American court will ever hold a marriage of American citi- zens solemnized abroad to be illegal, simply because the con- sent of parents was withheld,^ or because one of the parties, though of age at home, was a minor at the place of celebra- tion.* The same conflict, as has been already seen, is likely to exist when persons domiciled in one of our states where mar- riages of persons of a particular class are forbidden, go abroad to evade the law, marry in a country where the marriage is lawful, and then return home." A second objection to this view is the risk to which it exposes the marriages, now not in- frequent, of persons traveling abroad. Some defect in the ob- iConfl. L. §§ 110, 112. See also SThere seem to be no adjudicated Ponsford y. Johnson, 2 Blatchf. 51, cases on this point. See post, § Fed. Gas. No. 11,266. 165a. 2Marr. & Div. § 390. SAnte, §§ 127, 150. See, however, lAnte, § 136. But see Stevenson ante, § 150a and post, § 165c. V. Oray, 17 B. Mon. 193, ante, § 141a, Hhid. note*. iAnte, §§ 159, 159a. 350 MARRIAGE. [Chap. IV. servance of local law, of which the parties had no thought, would, if this view obtain, invalidate the marriage, and ille- gitimatize the offspring.* But a more serious objection would be the validity which would be thus given to Chinese and In- dian polygamy. To maintain the authoritativeness . of the lex loci celebrationis in this respect would be to license polygamy wherever Chinese and Indians migrate. And to make the lex loci celebrationis supreme enables parties to acquire for themselves any kind of marital capacity they want, — all that will be needed for this purpose is to have the marriage solem- nized in a state where this kind of marital capacity is sanc- tioned by law.'^ 163. Theory of lex domicilii. — A second theory of matri- monial capacity is that it is determined by the lex domicilii. Mr. Wheaton^ says: "In general, the laws of the state, ap- plicable to the civil condition and personal capacity of its citizens, operate upon them even when resident in a foreign country. . . . The personal capacity to contract a mar- riage, as to age, consent of parties, etc., is regulated by the law of the state of which the party is a subject; but the effects of a nuptial contract upon real property {immobilia), in an- other state, are determined by the lex loci rei sitoe." Sir E. Phillimore, in his treatise on international law,^ declares that the lex domicilii, in all questions of personal capacity, is now, even in England, to be regarded as decisive. Lord Brougham, in a celebrated case,' said: "The marriage contract is em- phatically one which parties make with an iromediate view to 6Amte §§ 150, 150a. able to impose upon themselves any 'Notwithstanding these arguments, conditions they desire. The preserip- says Brocher, after stating the rea- tions of public policy as to marriage sons for the adoption, as to the con- would be in this way completely elud- ditions of marriage, of the law of the ed. If, on the other hand, the selec- place of celebration, it would be bet- tion of the place of marriage is ter to abandon this rule, in view of fortuitous, we must remember the in- the grave conflicts which its general certitudes and dangers which result application excites. It tends to a from such collisions. Strangers who collision between the states immedi- happen to be temporarily sojourning ately interested — the state where the in a city cannot be expected to know marriage is celebrated, and the state its laws. to whose laws the parties are subject. Two valuable and instructive arti- Botween these influences neutral cles on marriage by Mr. Wm. Beach states will hesitate. . . . All the Lawrence will be found in the Revue considerations in favor of applying du droit int. for 1870, pp. 53, 243. the personal status of parties extra- i International Law, Lawrence's territorially are in force here. ed. 172. ... It should be added that if 2 IV. 284, etc. the parties are free to choose the iWarrender v. Warrender, 2 Clark place of the celebration, they will be & F. 488, 9 Bligh N. R. 89. § 163] THEORIES AS TO MATRIMONIAL CAPACITY. 351 the usual place of their residence." The parties to a contract like this, he insisted, must be held to enter into it with, a ref- erence to their own domicil and its laws.* *Lord Campbell, in Brook v. Brook, own opinion that the only fair and 9 H. L. Gas. 193, 7 Jur. N. S. 422, 4 satisfactory rule to adopt on this L. T. N. S. 93, 9 Week. Rep. 461, matter of jurisdiction is to insist after eonceding that the law of dom- upon the parties in all cases referring icil did not extend to the direction of their matrimonial differences to the the ceremonial part of the marriage courts of the country in which they rite, went on to say that "the essen- are domiciled. Different communi- tiala of the contract depend upon the ties have different views and laws re- lex domicilii, the law of the country specting matrimonial obligations, and in which the parties are domiciled at a different estimate of the causes the time of the marriage, and in which should justify divorce. It is which the matrimonial residence is both just and reasonable, therefore, contemplated." To which Judge Red- that the differences of married peo- iield, in a note to Judge Story's trea- pie should be adjusted in accordance tise, adds: "HencCj if the incapacity with the laws of the community to of the parties is such that no mar- which they belong, and dealt with by riage could be solemnized between the tribunals which alone can admin- thera, or not without the consent or ister those laws. An honest adher- agency of other parties, as that of ence to this principle, moreover, will parents or guardians, and the parties preclude the scandal which arises without changing, or intending to when a man and woman are held to change, their domicil, go into some be man and wife in one country, and other country, where no such restric- strangers in another." tion or limitation exists, and there "It seems," says Lord Justice enter into the formal relation, with Brett, "that the only court which, on a view to return and dwell in the principle, ought to entertain the ques- eountry where such marriage is pro- tion of altering the relation in any hibited by positive law, it is but fair respect between parties admitted to to say that a proper self-respect be married, or the status of either of would seem to require that the at- such parties arising from their be- terapted evasion should not be al- ing married, on account of some act lowed to prevail. . . . And unless which by law is treated as a matri- this qualification is allowed, there is monial offense, is m court of the produced a state of anarchy and con- country in which they are domiciled fusion upon the subject of this funda- at the time of the institution of the mental relation of society, whereby suit. If this be a correct proposi- any state may be compelled to recog- tion, it follows that the court must nize the perfect validity and binding be a court of the country in which force of polygamous marriages." the husband is at the time domiciled. Story, Court. L. ed. 1865, § 1246. because it is incontestable that the It has also been held in England that domicil of the wife, so long as she is an alien, domiciled in England, is in- a wife, is the domicil which her bus- capable, when out of England, of con- band selects for himself, and at the tracting a marriage which would commencement of the suit she is. ex have been void if contracted by a nat- hypothesi, still a wife." Niboyet v. ural-born subject, although valid by Niboyet, L. R. 4 Prob. Div. 13, 48 L. the law of his domicil of origin and J- Prob. N. S. 6, 39 L. T. N. S. 49oi by the lex loci contractus. Mette v. 27 Week. Rep. 207. Mette, 28 L. J. Prob. N. S. 117, 1 In 1877, the question in the text Swabey & T. 416, 7 Week. Rep. 543. was elaborately considered, first by "It is," says Lord Penzance {Wil- Sir R. Phillimore (Sottomayor v De son v. Wilson, L. R. 2 Prob. & D. Barros, 36 L. T. N. S. 746), and then 442), "the strong inclination of my in 1879 by the probate and divorce 3S2 MAKRIAGE. [Chap. IV. 164. Objections. — There are, however, two serious objections to the adoption in the United States of the lex domicilii, as determining matrimonial capacity. The first is, it would make the validity of the marriages, in the United States, of natives of other countries, depend upon the question whether such per- •di vision of the Court of Appeal {Sot- ease of Simonin v. Mallac, 2 Swabey tomayor v. De Barros, L. R. 3 Prob. & T. 67, 6 Jur. N. S. 561, 2 L. T. N. S. Div. 1, 47 L. J. Prob. N. S. 23, 37 L. 327, 29 L. J. Prob. N. S. 97. The T. N. S. 415, 26 Week. Kep. 455, 41 objection to the validity of the mar- L. T. N. S. 281, 49 L. J. Prob. N. S. riage in that case, which was solem- 1, L. R. 5 Prob. Div. 94, 27 Week, nized in England, was the want of the Rep. 917 ) . The judgment of the lat- consent of parents required by the ter court ( James, Baggallay, and law of France, but not, under the cir- Cotton, L. J.), was delivered by Cot- cumstances, by that of this country, ton, Xj. J., who, in the course of his In my opinion this consent must be ■opinion, said: — considered a part of the ceremony of "As in other contracts, so in that marriage, and not a matter affecting of marriage, personal capacity must the personal capacity of the parties depend on the law of domicil, and if to contract marriage, and the deci- the laws of any country prohibit its sion in Simonin v. Mallac does not. subjects within certain degrees of I think, govern the present case. I •consanguinity from contracting mar- am of opinion that the judgment ap- viage, and stamp a marriage between pealed from must be reversed, and a the prohibited degrees as incestuous, decree made declaring the marriage this, in my opinion, imposes on the null and void." subjpcts of that country a personal The ease was then remitted to the incapacity, which continues to affect court below to ascertain the real them so long as they are domiciled facts, and the issues of fact were in the country where this law pre- tried before the president, without a vails, and renders invalid a marriage jury, on the 2.5th and 26th of June, between persons, both at the time of and the 1st of July, 1879. their marriage subjects of and dom- The president. Sir James Hannen. iciled in the country which imposes on August 5, 1879, delivered a judg- this restriction, wherever such mar- ment in which he held that the re- riage may have been solemnized." spondent's domicil was at the time He added, however: "My opinion of the marriage English, on this appeal is confined to the case Mr. Dicey, in criticizing the opin- wlien both the contracting parties are ion of Cotton, L. J. ( Dicey, Domicil •at the time of their marriage dom- Op. cit. 221 ) , says that the introdue- iciled in a country the laws of which tion of the proposed limitation is not prohibit their marriage. All persons necessitated by any decided cases, is are legally bound to take notice of illogical, and does away with the the laws of the country where they great advantage derived from basing are domiciled. No country is bound the validity of a marriage on a broad to recognize the laws of a foreign and clear ground. On the other state when they work injustice to its hand. Gray, Ch. J., in MilliJcen v. own subjects, and this principle Pratt, 125 Mass. 374, 28 Am. Rep. would prevent the judgment in the 241, rejects the test of domicil, as present ease being relied on as an given by Cotton, L. J., in toto, and authority for setting aside a mar- says the opinion in Sottomayor v. De riage between a foreigner and an Barros "is entitled to little weight English subject domiciled in Eng- here." See opinion in full, ante, land, on the ground of any personal § 101. incapacity not recognized by the law Simonin v. Mallac is reconciled by of this country. Westlake (1880), p. 56, with Sotto- "It only remains to consider the mayor v. De Barros, L. R. 3 Prob. i 164] THEORIES AS TO MATRIMONIAL CAPACITY. 353 sons had acquired a domicil in the United States; for if they had not, they would be governed by the laws of their foreign domicil, with which, especially in the case of minors, the dif- ficulties in the way of a compliance would be almost insuper- able. The mischief wrought by the adoption of such a prin- ciple would be very great. Few aliens, who marry in this country, could be sure that they were legally married; few descendants of such aliens could be sure of their legitimacy.^ Nor is that all. An Austrian Jew, if the law of domicil is the criterion, is incapable of marrying a Christian in the United States, and if he should so marry, we would be obliged to de- clare his marriage a nullity, and his children illegitimate;^ and the same rule would have to be applied to the marriages of foreign ecclesiastics. On the other hand, we would be ob- liged, if we accepted the rule of domicil without limitation, to sustain the polygamous marriages of Chinese. If the test of nationality is taken, as is urged by those who assume the ubiquity of personal law, the consequences would be still more serious. A large proportion of our population consists of foreigners who have not yet perfected their naturalization, and who, therefore, in conformity with rulings already given, have not yet become citizens of the United States. If we are to Div. 1, 47 L. J. Prob. N. S. 23, 37 view, immaterial. If the intention L. T. N. S. 415, 26 Week. Rep. 455, is to fix the domicil at the place of on the ground that in the former case marriage, it would be otherwise, on the parties by their personal law the principle that it is the husband's could "in some form or other marry domicil that is the place for the per- without the consent of parents or formance of the contract, and the law guardians." of which should prevail. VIII. § 379. As has already been seen, the In the general view that, as to the French law, in all essential matters capacity of the parties, the law of the relating to the capacity of the par- husband's domicil prevails, Wachtei ties, makes the law of domicil bind (ii. p. 185) and Schseffner (§§ 102, all French subjects, wherever they 103) coincide. By the Italian Code may reside, though the omission of of 1868, the capacity of a foreigner the requisite publications and con- to marry is to be determined by the sent only nullifies the marriage of a law of the country to which he be- Frenchman abroad when it takes longs, subject to certain limitations place dans un but de clandestinite et as to parental consent. But such afin de se soustraire aux exigences de foreigner, if desiring to marry in la loi Frangaise. Ante, § 152; post, Italy, must present at the bureau of § 184. civil afTairs a certificate from the au- According to Savigny, all questions thorities of the country to which he of capacity are to be determined by belongs, to prove that the law of such the husband's domicil, which, as the country opposes no obstacle to the true seat of the marriage, absorbs marriage. Art. 102, Code (Hue et that of the wife. VIII. § 379. He Orsier), title 1, p. 28. Post, § 186. insists that the place in which the iAnte, §§ 127, 147. marriage is solemnized is, in this ^Ante, §§ 127, 152, 156. Vol. I. CoNFL. of Laws — 23. 354 MARRIAGE, [Chap. IV. hold the ubiquity of national law in this relation, we impugn all marriages solemnized in this country by persons of this class coming from the continent of Europe. 165. Theory that marriage capacity is to be determined by na- tional policy. — A third theory, which has been already partial- ly exhibited,^ is that matrimonial capacity is a matter of dis- tinctive national policy, as to which judges are obliged to en- force the views of the state of which they are the officers. So far as concerns the United States, our national policy in this respect is to sustain matrimonial capacity in all cases of per- sons arrived at puberty, and free from the impediments of prior ties.^ This is no novelty, for it is based on the common law of Christendom, which was brought to this country by its settlers ; nor is it a mere doctrinaire scheme, since its mainte- nance is inwrought both with our national growth and our na- tional integrity and morality.^ ISTor is this rule inconsistent with the positions laid down as to status, even by its earnest advocates in France, Italy, and Belgium. By the Codes of their states the personal law of foreigners does not operate when conflicting with territorial public order and good morals. * And nothing so closely concerns public order and good morals as the conditions of the marriage tie.* lAnte, §§ 104%, 104%, 127, 147. in a foreign state is void by the legis- 2 See argument, ante, §§ 127, 137, lation of such state it should be held ^Ibid.; 6 Southern Law Rev. 696, valid elsewhere. On the contrary, I iAnte, §§ 104%, 104%. hold that a marriage void in the 5A« domicilii. If so, the inarriages in Prance of New York ^niciled citizens are gov- erned in this respect by New York law. spiore. Op. cit. App. p. 645. * Savigny, viii. § 381. Mr. Marsh, in a letter to Mr. Evarts, dated at Rome, November 1, 1875 (Poreigu Relations, 1878, p. 465), says: "I have been told, in- deed, by eminent Italian jurists, that any marriage regarded as valid by the laws of the party's country would be considered as valid here, so far ao the risks and liabilities of such party were concerned. But this is merely a professional opinion, not founded, so far as I know, on legal enactment or judicial decision, and, besides, it by no means covers the whole ground. It seems desirable that a remedy be provided for these difficulties, but whether that is possible otherwise than by treaty stipulation between the two governments, it is not for me to say." See, further, expressions to this ef- fect, post, § 179; and article by Es- person. Jour, du droit int. priv6, 1880, p. 342. The French and Italian decisions on the topic in the text, however, are conflicting. In Filippi v. Lepori, it was ruled in 1874, by the Tribunal Civil de Vi- terbe, Italy, that a marriage by a for- eigner in Italy, whether with another foreigner or with an Italian, must, so far as concerns Italy, be celebrated by the forms prescribed by the Italian law. The forms prescribed by the national law of the foreign party or parties will not be sufficient. At the same time it was held that such a marriage would be sustained, after the death of one of the parties, if made in good faith, which good faith and ignorance of the law must be substantively proved. Jour, du droit int. prive, Jan. 1875, p. 44. The ap- plication of the last qualification, however, is disputed in a note in the same journal (pp. 45, 46). Fiore (Op. cit. § 90) argues that it is the duty of every state to require that no marriage of foreigners shoild be solemnized within its borders with- out a certificate furnished by the proper authorities of the state to which the parties belong, averring that in that state there is no obstacle to the marriage. He proceeds to state that this provision has been sanc- tioned in Italy by the 103d article of the Civil Code; in France by the cir- cular of March 4, 1831 ; in Austria by a decree of chancery of September 22, 1814; in Prussia by an order of coun- § 179] MODE OF CELEBRATION. 387 within the power of any state to prescribe that it will regard as valid any marriages solemnized by its own domiciled subjects in its embassies abroad. England has done so, in respect to its own embassies; and Massachusetts has done so, in respect to the embassies of the United States abroad. ^ A statute vali- dating marriages before consuls has been adopted by Congress ; but as marriage is a municipal institution, under the control, so far as concerns domiciled citizens of the states, of the states to which they belong, this statute can only be regarded as op- erative in respect to citizens of the District of Columbia and of the territories. But supposing a statute, duly enacted, vali- dates such marriages so far as concerns the subjects of the enacting state,— the question remains to be considered whether such marriages are internationally binding. Can the fiction of extraterritoriality be pressed so far as to convert all mar- riages in an ambassador's chapel into marriages made on the soil of the state the ambassador represents? We have already seen that such extraterritoriality, even in its widest interpreta- tion, is limited to the families of ambassadors.^ It cannot, oil of April 28, 1845. And he argues able and conducive to our interests, that if every civilized state should ac- but as sanctioned by our old common eept this principle, it would avoid the law, the rule that a consensual mar- "inconvgnient pratique" of permit- riage requires for its validity the co- ting certain unions which will be an- operation of neither civil nor ecclesi- nulled in the country to which the astical authority. If this be part of parties belong; certain countries, the policy of our country, — if it be such as Bavaria and Wiirtemberg, go- part of our "public order," — it can- ing so far as to prohibit their sub- not, even on the showing of the emi- jects from marrying abroad without nent Italian and French advocates of permission of the home government, the ubiquity of nationalism, be made The rule proposed by this distin- to yield to the prohibitions of foreign guished author, however, rests on states. If nationality is to be thus two assumptions that do not hold ubiqiiitously dominant, why not the good in the United States. The first nationality of citizens of our Ameri- of these is that it is the policy of a can states in respect to matters largely populated state to check early which those states hold to involve in and improvident marriages; whereas the highest sense both public order in the United States early marriages and good morals? See ante, § 127. have in the main been peculiarly con- On the question in the text^ con- ducive to public prosperity, and mar- flicting testimony of French experts riagea improvident in the European was taken in Este v. Smyth, 18 Beav. sense are often, in our sense, the 112, 23 L. J. Ch. N. S. 705, 18 Jur. most provident. See ante, §§ 127, 300, 2 Week. Rep. 148, and the valid- 137. The second assumption is that ity of the marriage was sustained by marriage, to be valid, should, on gen- Lord Romilly. eral principles, be according to a iMass. Gen. Stat. chap. 106, § 23. form prescribed by the state. So far 2Aiite, § 16. from this being the case in the Unit- The act of Congress referred to in ed States, we have accepted, almost the text is that of June 22, 1860 (12 without dissent, not only as reason- U. S. Stat, at L. chap. 179, § 31, U. S. 388 MARRIAGE. [Chap. IV. Comp. Stat. 1901, p. 2,768), which authorizes all consuls or consular agents in foreign countries, to vali- date marriages solemnized in their presence by any "persons who would be atithorized to marry, if residing in the District of Columbia." On August 15, 1874, instructions Were issued from the state depart- ment, which, as revised and published in December, 1874, directed foreign ministers, in case of an application to have a marriage performed in the le- gation, or before a diplomatic agent, "to inform the parties making the application that it is the opinion of the department that a ceremony of marriage, performed within the pre- cincts of a legation, may, neverthe- less, be deemed to be performed in the country within which the lega- tion is situated, and, therefore, ought in all respects to comply with the re- quirements of the laws of that coun- try, in order to insure its validity. Whenever any application is made for the use of the legation for such a purpose, it will be the duty of the principal diplomatic representative to inquire whether the parties may lawfully marry according to the laws of the country in which the legation is situated; and whether the proper steps have been taken to enable the marriage ceremony to be legally per- formed according to such laws. If either of these inquiries should be an- swered in the negative, it will be his duty to inform the applicants that he cannot permit the ceremony to be performed in the legation, and to ex- plain to them that there might be grave doubts respecting its validity, even though it should be performed within the precincts of the letration." The circular, after referring to the statute, which provides for the au- thentication of marriages before American consuls, "between persons who would be authorized to marry if residing in the District of Columbia," adds: "But if the applicant may lawfully marry according to the laws of the country, and if the proper steps have been taken to enable the ceremony to be legally performed, then the diplomatic representative should inform them that if they de- sire to have the ceremony performed also under the laws of the United States, it would be necessary to have the principal consular ofifieer of the United States present, and he should give them an opportunity to have such officer present, if they desire it." The accuracy of the last statement, however, may be doubted, except so far as concerns citizens of the terri- tories and of the District of Colum- bia. It is beyond the power of the Federal government to determine the conditions of the marriage ceremony so far as concerns the citizens of the particular states. Hopkins v. Bop- kins, 3 Mass. 158. The position of the instructions, discountenancing marriages in diplo- matic residences, met with vigorous protests from the American ministers in Paris and in Rome. Mr. Hoffman, of the American legation in Paris, in a letter dated Paris, August 31, 1874 (Foreign Relations U. S. 1875, pp. 442 et seq. ) , says : — "During the seven years I have been secretary of this legation, one hundred and fifty marriages have been celebrated here, probably more than in all the other legations of the United States in Europe during the same period. The importance of the subject, and my natural desire to pro- tect my countrywomen from the sad consequences of an illegal marriage, have induced me to give to this sub- ject exceptional attention. You will, therefore, excuse me if I venture to offer some observations upon the pro- posed instruction in this matter. "I may perhaps remark, in the first place, that the legality of these mar- riages has been the object of serious consideration by the able and consci- entious men who have represented the United States in France. The vol- ume of certificates which I have be- fore me runs back to 1858. Mr. Ma- son, Mr. Faulkner, Mr. Dayton, Mr. Bigelow, Mr. Dix, and Mr. Wash- burne, after full examination of the subject, were of opinion that such marriages were perfectly legal, and acted accordingly. The subject seems naturally to divide itself into three points of view : The legality of these marriages under French law, under United States law, and under state law. § 179] MODE OF CELEBRATION. 389 "When I came here as secretary of gratify the natural wish of American legation with General Dix, 1866, be- citizens to have a contract of such in- ing impressed with the importance of terest to them solemnized under the the subject, I applied, with his as- flag of their own country, and that sent, to Mr. Moreau, the eminent the hospitality of the legation should counsel of the United States in the be extended to them for that purpose, Armand suits, for his opinion upon the department at the same time con- the subject of the legality of such sidered it only safe and prudent to marriages under French law. His advise them 'that a ceremony of mar- opinion lies before me. I translate a riage performed within the precincts portion of it : — of a legation may nevertheless be " "The undersigned, counsellor at deemed to be performed in the coun- law at the imperial court of Paris, try within which the legation is situ- having been consulted as to the va- ated, and therefore ought, in all re- lidity of a marriage contracted be- spects, to comply with the require- tween Americans before the minister ments of the laws of that country, in of the United States, and at the hotel order to insure its validity.' The of the legation, is of opinion that wisdom of this precautionary meas- sueh marriage is valid in the eyes of ure with regard to the marriage of the French law.' American citizens at the United "Mr. Moreau then proceeds to give States legation in Paris is at once his reasons for this opinion. evident from the two cases which Mr. " 'Under this head I will add that, Hoffman instances, in which mar- in two instances in which marriages riages, solemnized in each case at the between an American man and a respective embassy of one of the con- French woman, and between an Eng- tracting parties, were both subse- lishman and a French woman, cele- quently annulled by a French judicial brated at their respective embassies, tribunal. These two cases suggest a have been annulled by the French rather awkward commentary on the courts, it was upon the ground that opinion of Mr. Moreau, adduced by the woman was French; and it was Mr. Hofl."man, in support of his own implied that had she been American criticism of the views of the depart- or English, as the ease might be, the ment. Mr. Moreau's opinion is to marriage would have been held val- the effect 'that a marriage contracted id.' " between Americans before the minis- To this dispatch, Mr. Pish, Secre- ter of the United States, and at the tary of State, replies in a letter dated hotel of the legation, is valid in the November 14, 1874, addressed to Mr. eyes of French law.' Washburne, minister at Paris. From "In both of the cases in which the Mr. Fish's letter the following pas- marriages were held void by the sages are extracted: — French court the women were French, "The question, no less from the in- and it was upon this ground, as Mr. trinsic importance which attaches to Hoffman states, that the contracts were a contract of so serious a nature, held invalid, but the consequences than in view of the grave eonsequen- were no less unfortunate on that ac- ces which may result, not only to the count; rights of property acquired by parties themselves, but to their off- the husbands or wives, either in con- spring, from a misapprehension of sequence of or during coverture, were the law governing such contracts, has more or less affected by the decrees been one of no little solicitude to the annulling the marriages. There may department. It may be stated as a have been children of those mar- general rule, subject to few and rare- riages, and the consequences to them ly-occurring exceptions, that a mar- would be of a still more serious char- riage, solemnized according to the aeter. And if, in the case of a mar- laws of the country in which it is eel- riage solemnized at the legation be- ebrated, will be recognized as valid tween Americans, who might from and binding under the laws of all any cause be incompetent to enter in- other civilized or Christian nations; to such contract under the laws of hence, while it was deemed proper to France, its validity should be brought 390 MARRIAGE. [Chap. IV. in question before a French tribunal, it is to be feared that even the opin- ion of the learned counsel in ques- tion would be found insufficient to se- cure the sanction of the court to its validity. It was in view of such con- siderations as these, and admonished by the frequent recurrence of ques- tions growing out of the subject, that the department deemed it advisable to instruct the diplomatic representa- tives of the United States, when ap- plication might be made for the use of the legation for such a purpose, to satisfy themselves by inquiry wheth- er the parties might lawfully marry according to the laws of the country in which the legation is situated, and in case they were found incompetent thus to marry, to inform them that the ceremony could not be permitted to be performed in the legation. There is, moreover, a manifest im- propriety in thus using the privileges of the legation to give even an im- plied sanction to the completion of a contract which may be held by the tribunals of the country in which the legation is situated to be in contra- vention of the laws of that country." Mr. Pish goes on to say: — "Marriages of American citizens abroad, celebrated according to the requirements of the act of Congress of the 22d of June, 1860, are recog- nized as valid by the department. But while thus confining its own ac- tion within the prescribed limits of the statute, the department carefully avoids the expression of an opinion in regard to the validity or nonvalidity of the marriage of citizens celebrated abroad in any other manner than in conformity with the statute require- ments. The forms and modes which may attend the performance of that interesting ceremony, as well as the particular place in which it shall be celebr.i+cd, are properly left to the determination of the parties them- selves; while the legal consequences of the adoption or omission of the ob- servances prescribed by the act of Congress rest with the judicial tribu- nals of the country whose exclusive province it is to decide upon such questions, when, in the course of le- gal proceedings, such decision may become necessary. The aim of the department, in the instruction which it has issued, has been one of precau- tion and admonition, prescribing only what was clearly within the statu- tory enactments, cautioning against what is uncertain or doubtful, and withholding the use of the legation in cases where the possibilities of a de- cision adverse to the legality of a marriage celebrated within it seem to approach to a certainty, or, at least, are potential." Mr. Marsh, minister at Rome, in a letter dated Rome, October 12, 1874 (Foreign Relations U. S. 1875, pp. 755 et seq.), writes to Mr. Fish, to the effect that the statute of June 22, 1880, had been regarded by him as an enabling act, and that it had been acted on accordingly. To this letter Mr. Fish, on January 19, 1875, replies (Foreign Relations U. S. 1875, p. 760) in a letter, from which the following is extracted: — "You are believed to be mistaken in saying that the 48th section of the new instructions of the department expresses doubt as to whether mar- riage can be legally celebrated at all between citizens of the United States in a foreign country, unless it be sol- emnized in conformity with the laws of such country. Your mistake upon this point will, it is believed, be clear to you upon a further examination of the paragraph referred to. The de- partment has been careful not to ex- press an opinion as to the validity of any marriage under particular cir- cumstances. . . . "Marriage at legations without re- gard to the law of the country, on the ground of extraterritoriality, as it is called, is at best a, questionable pro- ceeding, which, it may be apprehend- ed, would scarcely be sanctioned by the courts of the nation where they were solemnized. The tendency of opinion is believed to be towards nar- rowing the immunities of diplomatic officers and their places of abode to those limits only which may be indis- pensable to enable them to discharge their official duties without molesta- tion or restraint. "The use of the legation for the marriage of persons, even of the na- tionality of the country to which it belongs, cannot be said to be neces- 179] MODE OF CELEBRATION. 391 aary or even convenient for diplomat- ic purposes." Mr. Marshj in a letter dated at Rome, November 1, 1877, to Mr. Ev- arta (Foreign Relations U. S. 1878, p. 466), when speaking of marriages be- fore consuls, says: "As a matter of taste, and from religious feeling, a clergyman is usually invited to per- form the ceremony when American Protestants are married before a con- sul in Italy; but the local civil au- thorities alone are authorized by Italian law to celebrate marriages, and that only when all the requisites of the Civil Code are fulfilled. Of course, the cases are rare when a con- sul can truly certify that the cere- mony was performed by a person au- thorized by the laws of Italy to cele- brate it." That the solemnization of mar- riages in diplomatic residences in France is considered as not satisfying the provisions of the French Code, so far as concerns French citizens, and that the marriage of a French citizen to an American, at a diplomatic resi- dence, will not be considered valid in France unless the provisions of the Code are independently complied with, may be inferred from a series of cases given by Mr. Lawrence, in his Etude de legislation sur le mar- iage, of which a translation is given in the first edition of this work, p. 183. Mr. Lawrence discusses the question, also, in his Com. sur Wheat, vol. iii. pp. 357 et seq., and in a letter to M. Rolin Jacquemyns, dat- ed August 15, 1874, published in the Albany Law Journal, vol. 11, pp. 28 et seq. In addition to the authori- ties cited by Mr. Lawrence, and in the first edition of this book, it may be noticed that it was judicially ruled in Paris, in 1872-3, that a marriage celebrated in Paris at the English embassy or at the American legation, according to the forms in use in those countries, between a French woman and a native of one of those coun- tries, is void, as not having been cele- brated before the officer of the civil state. Code Civil, article 165. It was declared that an ambassador's house does not enjoy the fiction of be- ing situated in the country from which the ambassador is accredited with regard to acts affecting the in- habitants of the country to which he is accredited. Tribunal of the Seine, First Chamber, 2d July, 1872, and 21st June, 1873; Jour, du droit int. priv6, 1874. By a letter of the minister of for- eign affairs, dated September 16, 1878, it is announced that marriages between a foreigner and a French cit- izen, solemnized by a diplomatic agent or a consul, are void. This is based on a decree of the Court of Cas- sation of August 19, 1819. Jour, du droit int. privg, 1879, p. 410. On the other hand, there is every reason to believe that marriages sol- emnized before an American legation, or, in fact, in any mode that would be held valid by the lea; domioilU of the parties, will be held valid in France, when neither of the parties is a French citizen. Ante, § 178. Marriages before diplomatic agents are expressly authorized by the Swiss Confederacy so far as concerns Swiss parties (Brocher, Droit int. privg, 143) ; and so as to France {Ihid. 144). M. Brocher urges the diplo- matic settlement of the question by adopting the rule that the celebration of a marriage in a foreign state by an ofiieer competent as to either of the parties should be judged valid everywhere. "The statutes 4 Geo. IV., chap. 91, and 12 & 13 Vict. chap. 68, provide modes in which (independently of the lex loci) a British subject may con- tract a valid marriage in a country not forming part of the British do- minions. Marriages valid under act of Parliament are for all purposes good in England. The result is that, where one of the parties is a, British subject, the following mar- riages celebrated abroad, though not according to the lex loci, are valid, namely: — "1. A marriage solemnized by a minister of the Church of England, in the chapel or hoxise of any British ambassador or minister residing within the country to the court of whidi he is accredited. "2. A marriage solemnized by a minister of the Church of England, in the chapel belonging to any Brit- ish factory, or in the house of any 392 MARRIAGE. [Chap. IV. therefore, cover strangers, or even guests, visiting the embassy in order to be married.^ British subject, residing at such fac- must be followed, see Be Alison, L. tory. R. 8 Ch. Div. 1, 47 L. J. Ch. N. S. 755, "3. A marriage solemnized within 38 L. T. N. S. 304, 26 Week. Rep. 450. the British lines by a chaplain or of- Otherwise the law of the place of cel- fieer, or person officiating under the ebration prevails. Ibid. orders of the commanding officer of a British army serving abroad. ^Pertreis v. Tondear, 1 Hagg. "4. A marriage solemnized by, or Consist. Rep. 136, held that a mar- in presence of, a British consul, in ac- _. „ ,„, .„, ■ i? i o ■i.x. t. J -ii. ii. ■ • i 1 o «. riage celebrated m England without eordance with the provisions of 12 & ° s " 13 Vict. chap. 68. banns or license could not be upheld "Two observations may be made as because it took place within the to marriages within subclause IV: chapel of the Bavarian ambassador, wi;SL"iil'^nl3enf orthtC -*»>- <>* ^he parties being of the loci. A marriage by a British sub- ambassador's country, or of his ject in France, with a domiciled household. French woman, if made in accordance jn j^i^y^ ^ Petit jecm, 2 Curt. Eccl. with either 4 Geo. IV., chap. 91, or 12 „ „„ _ . „ ^j. n o t> & 13 Vict. chap. 68, is valid in Eng- ^«P- 251 J ^ste v. Smyth, 18 Beav. land, whether or not it be held valid 112, 23 L. J. Ch. N. S. 705, 18 Jur. by French law. N. S. 300, 2 Week. Rep. 148; and "Secondly. It is not certain that s:ent v. Burgess, 11 Sim. 361, 5 Jur. the English courts would hold the ,„„ av tj-x t i. marriage of a foreigner in England ^^^' t^« ^^1'^'*^ »* ^■"''assy mar- valid, simply because it was valid by riages from an international point of a law of the foreigner's country, sim- view was not presented, since the ilar to 12 & 13 Vict. chap. 68. Sup- marriages in question were celebrated pose, for example, that D., an Amen- 4 .. . . , . t -m , j, can citizen, married M., an English a* ^^^ fo^-^'^ embassies of England subject, before the American consul (the forum), and were governed by in London, in accordance with the the English statute referred to in provisions of an act of Congress. It ^^^ texj. (4 q^^ jy ^^ gj^ is extremely doubtful whether Eng- rr 7j o, a t^- o»o »« lish courts would treat such a ma?- ^^ ^ ^««. 61 App. Div. 266, 70 riage as valid." Dicey, Domicil, pp. N. Y. Supp. 406, it was held that, 211, 212. even upon the assumption that a Mr Westlake (1880) pp 58 et carriage between a, woman, a citi- seq., discusses the same statutes, and - 1, tt -i. j n^ ^ , after noticing the doubts of Sir W. ^^" °^ ^^^ U""*^"! States, and a man, Scott ( Pertreis v. Tondewr, 1 Hagg. a citizen of the Argentine Republio— Consist. Rep. 136), whether extrater- celebrated in Prance, without a com- ritoriality can be predicated in such jj^^^^g .^jj.jj requirements of the eases of ambassador's chapels, states 1. ., „ , , ^ ... ,,. ,. that the question is still open to ^ivil Code as to domicil, publication, doubt when only one of the parties is consent of parents, and celebration British. He adds, however, in his before a civil officer,— was contracted table of errata p. xxvi. that "it has ^. ^ consulate, the marriage could been decided that the enactment ap- , u plies where only one of the parties to "»* oe upheld as a common-law mar- the ambassadorial marriage is Brit- riage, it being invalid both by the ish." LJoyd v. Petitjean, 2 Curt, laws of France and the laws of the l^'iS'- ?t^- ^^}.\ X , ■ . „ Argentine Republic, the domicil of That to validate a foreign marriage = "^ ' under the British statute the statute the husband. { 180] MODE OF CELEBRATION. 393 180. When prescribed forms are obligatory on subjects abroad. — We have already liad occasion to notice numerous cases in whicli states have established conditions of matrimony binding on their subjects abroad. France, as has been seen, requires her citizens to comply with all the provisions of her Code as to consent of parents and as to publication; though this rule has been relaxed in cases where forms are omitted from neces- sity, and without any intention of evading the home rule.'' Great Britain, as was seen in the last section, has provided a series of rules by which British subjects may solemnize their marriages in foreign states. In several German states the same rules are imposed as in France.^ The better view is, so far as concerns principle, that when the restrictions concern mere matters of form, a compliance with them is unnecessary, as was formerly the case in England with respect to Gretna Green marriages; but that it is otherwise when they concern matters of morals or distinctive state policy. ^ To the same effect may be cited a decision of the High Federal Council of Switzer- land, as to the validity of the marriage of a Swiss woman, in 1855, at Philadelphia, to an American citizen. The marriage, if in Switzerland, would have been invalid for want of banns and of the assent of the authorities. The marriage, however, was validated by the Council, though it does not seem to have been doubted that the woman, down to the marriage, was re- garded as a domiciled Swiss.* 180a. Marriage celebrated on high seas. — ^While, as previously shown, ^ there are some exceptions to the rule that a marriage In May v. Northcote [1900] 2 Ch. Prob. N. S. 97, 6 Jur. N. S. 561, 2 262, 69 L. J. Ch. N. S. 686, 82 L. T. L. T. N. S. 327. N. S. 656, 48 Week. Rep. 615, a mar- riage between a Frenchman and an ^See cmte, §§ 152, 175. TT. ,. ,1, J , 1 ■ J ■ ^Ante, §§ 150 et sea., 163. English woman duly solemnized m j^^^^' g»g ^gg^ 137, 139, 140, 147, France under the Consular Act 1849 153, 159, 135, 175. That the Italian (which was repealed and virtually law ag to solemnization does not bind re-enacted by the foreign marriage Italians in Turkey, see Fiore, Op. cit. act 1892) was held valid as regards P" ^Diplomatic Correspondence U. S. form m England, though declared in- 1868, p. 189. This conclusion is ap- valid as regards form by a French proved by Fiore, Op. cit. § 317, citing court. The decision was rendered i^^°Yofi'^' ^ ^^' ^°' ^'' ^^^°'^°'^^^> »• upon the authority of Bimonin v. MalUo, 2 Swabey & T. 67, 29 L. J. tAnte, §§ 175-180. 394 MARRIAGE. [Chap. IV. invalid where celebrated, because of noncompliance with the lex loci as to the mode of celebration, is invalid everywhere, there se«m to be no exceptions to the converse of that rule, i. e., that a marriage valid where celebrated is valid everywhere, so far as its validity depends upon the mode of celebration, unless, indeed, such an exception is made by an express statu- tory provision at the forum. It is true it has been held^ that a marriage, celebrated on the high seas, between persons domi- ciled in California, who resorted there for the express purpose of evading the California statute prescribing the manner in which marriages shall be contracted and solemnized, would not be recognized as valid; but these decisions were expressly put upon the ground that the marriage was celebrated at a place not subject to the exclusive jurisdiction of any state or country. 181. When foreign law is sought in fraud of home law. — It is not to be expected that a state, when it adopts a specific matri- monial policy, and in pursuance thereof imposes certain re- strictions, should permit this policy to be defeated by citizens stepping over the line between itself and a state where no such policy is established, marrying in such state, and then return- ing to their home to defy the home law by the daily exhibition of a condition that that law condemns. Hence it is that we have frequent illustrations of cases in which states have held such marriages void, as in fraud of their laws.-' On the other hand, a different state of things presents itself when a person who finds the law of his state oppressive in this relation goes to another state where a laxer policy obtains, and there ac- quires a bona fide domicil. ISTot merely from the rulings in cases of marriages after restricted divorces,^ and of marriages of persons of different races,* but from the rule adopted in respect to jurisdiction in divorce, we are entitled to hold that when a party obtains a bona fide domicil in a state in which he is entitled to marry, and there marries, his marriage will molmes V. Holmes, 1 Abb. (U.S.) lAnte, §§ 135, 138, 139. But see 625, Fed. Gas. No. 6,638; Norman v. ante, §§ 150a, 159a, 165b. Norman, 121 Cal. 620, 42 L. R. A. 3^^^*^' | [H' 343, 66 Am. St. Rep. 74, 54 Pac. 143. ' § 181] MODE OF CELEBRATION. 395 be internationally valid, although in his domicil of origin he was incapable of such marriage.* So far as concerns matters of form, the better opinion is that, even though the intention in going abroad was to evade the home law, this will not invali- date the marriage.^ 182. Difficulties attending test of fraud. — The test of domicil, as just stated, is applied with comparative ease. It is other- wise, however, as to the test of fraud. A marriage abroad, it is alleged, would be a nullity, if in fraud of the home law ; but valid, if not in fraud of such law. But how is the question whether the fraud existed to be tried ; and by what rules ? Who is to decide whether A. and B., in going abroad, were chiefly or only incidentally governed by the desire to be married by a for- eign rather than a domestic ceremony ? If we survey the cases^ for instance, of domiciled Englishmen going to France, and then, in Paris, afterwards marrying, — is it possible, in any one of such cases, to say that the going abroad with the ex- pectation of escaping the social and pecuniary burdens of English life, and with the mere undeveloped contingency of matrimony in view, is a fraud? And between such cases and what Lord Mansfield called "stolen" marriages at G-retna ■Green or at Boulogne, who is to decide when the fraud reaches such a degree as to work a nullity? What might appear to one tribunal a fraud might appear otherwise to another tri- bunal; and there would be no marriage solemnized abroad which could confidently be afiirmed to be valid, or the issue of which might not be judged at any time to be illegitimate.-' VI. Local laws of foeeign states. 183. Local prescriptions of England. — We have already had 4See amte, §§ 135, 135a, 137, 140, See contra, Durooher v. Degr4, 147, 153, 157. Rap. Jud. Quebec, 20 C. S. 436. In HJomptony.Bearoroft^ull.l>!F.^^.^ however, the lea: fori. Hi; Harford -7. Morris, 2 ^SLgg. Con- ' , ^ ^^ /o/i, sist. Rep. 429; Steele r. Braddell, which was also the Zea; domiciZii, pro- Milward, 1 ; Warrender v. Warren- vided that a marriage celebrated else- der 2 Clark & F. 488, 9 Bligh, N. R. ^here should be held valid if solem- 129; [Hardmgy.Alden, 9 Me. UO, 23 . , ,. ^. ^., , t-f. ™ Am. Dec. m-, Smith v! Smith, 52 N. "'^^"^ according to the formalities of J. L. 207, 19 Atl. 255]. The question ^^^ plaee where performed, provided is fairly put in an able note to 2 Rop- the parties did not go there with er, Husb. & W. by Jacob, p. 495, and the intention of evading the law. in Story, Confl. L. § 124, note 5. The ^ rule in France is given in other sec- iSee French rulings, ante, § 152: tions. Ante, § 152; post, § 184. post, § 184. 396 MARRIAGE. [Chap. IV. occasion to incidentally notice the restrictions on consensual marriages imposed by Lord Hardwicke's act, and by subse- quent Englisb legislation. By Lord Hardwicke's act, passed in 1754, marriages are to be celebrated in the proper parish church, after publication of banns, on pain of nullity. This statute, however, applied only to England. By subsequent statutes the right to solem.nize civil marriages before a regis- trar was granted; and the registrar is entitled to dispense with banns and other publications, on one of the parties making oath that he knows of no impediment, that he has resided in the parish at least fifteen days, and that, if a minor, he has obtained the proper consent. A person marrying after twenty- one is not required to obtain parental consent.-^ 184. local prescriptions of France. — We have had occasion to notice the severity with which the French restrictions of matrimony follow French citizens abroad.-^ It remains to no- tice these restrictions in detail. Under the Code a man cannot marry till he has attained the age of eighteen, nor can a woman till she is fifteen. Dispensation respecting age, however, in certain peculiar cases may be obtained from the government. The consent of both father and mother is required by a son un- der twenty-five years of age, and by a daughter under twenty- one. If the parents disagree as to the consent, that of the father suifices. If the father or mother is dead, or cannot give consent, the consent of one is sufficient. If both are dead, then the grandfather and grandmother take the place of the lit gcareely becomes an English on the ground that he was domiciled critic to complain of the harshness in in Scotland. In 1861 he was sued in this respect of French laws. The re- Ireland for the payment of her debts, straints of Lord Hardwicke's act and judgment was entered against were as effective in annulling infor- him on the ground that they were mal marriages, so far as concerns duly married. She then applied to English ceremonial, as are those of the proper Scotch court for a declara- the French Code. And in Great tion of marriage. The Lord Ordi- Britain we have the additional diffi- nary decided against her, but was re- culty arising from conflicting juris- versed on an appeal to the Court of prudences. Of this the Yelverton Case Sessions. But the decision of the is a striking illustration. In 1857, Court of Sessions was reversed by the Major Yelverton married in Edin- House of Lords, Lords Wensleydale, burgh, by sponsalia de prcesenti, Miss Chelmsford, and Kingsdown holding Longworth. This union was not fol- the Scotch marriage to be invalid, lowed by cohabitation. In 1858 they From this, however, the Lord Chan- were married by a Catholic priest in cellor dissented, and with him, it was Ireland, which marriage was eousum- said, Lord Brougham concurred. Tel mated. As he repudiated the mar- verton v. Yelverton, 4 Macq. H. L. riage, she applied to the Divorce Cas. 747. Court in England for restitution of ^Ante, §§ 152, 164, 174, 175. conjugal rights. This was refused 1 184] LOCAL LAWS OF FOREIGN STATES. 397 parents. If the grandfatlier and grandmother of the same line disagree, the consent of the grandfather suffices; dissent be- tween the two lines works consent. When the man has at- tained his twenty-fifth year and the woman her twenty-first, both are still bound to ask, by a formal notification, the con- sent of their parents, and until the man has attained his thir- tieth year and the woman her twenty-fifth, this formal act must be repeated twice, from one month to another, and one month after the third application it is lawful for the parties to mar- ry with or without consent. After the age of thirty it is law- ful to marry, in default of consent, a month after one formal notice has been given, which notice must be served upon the father and mother or grandfather by two notaries, or by one notary and two witnesses. In the event of the parents or an- cestors to whom these notifications should be made being ab- sent, a copy of the judgment declaring the absence must be produced, or, in default of it, an acte de notoriete drawn up, on the declaration of four witnesses, by the justice of the peace. If the registrar neglects to state in the marriage certificate that the consent of the parents has been obtained, he is liable to a fine of 300 francs and six months' imprisonment, and when the prescribed notices are not carried out, to a fine of 300 francs and one month's imprisonment. Marriages are prohib- ited between brother-in-law and sister-in-law, between uncle and niece, and between aunt and nephew. The same formalities are required for illegitimate children when affiliated. If not affiliated, marriage cannot take place before the party is twenty-one years of age without the consent of a special guardian appointed for the purpose. If neither parents nor grandparents are alive, the consent of the family council is required. Marriage is a civil ceremony in Trance, and must be cele- brated publicly before the registrar of the parish where one of the contracting parties has resided six months. If the parties have not resided six months, the banns must be published at the parish of their former residence. If the contracting par- ties, or one of them, cannot marry without the consent of an- other person, the banns must also be published in the parish where such person resides. In no case, not even that of the ex- treme illness of one of the parties, can banns be dispensed with. A marriage contracted in a foreign country between a French man and a French woman or between a French person 398 MARRIAGE. [Chap. IV. and a foreigner is valid in France, if celebrated according to the forms of the country, provided it has been preceded by the publication of banns and with the consent of parents. If the parties return to France, the certificate of marriage must be registered, within three months after returning, at the place of their abode. A marriage contracted without the consent of the parents or the consent of those persons already mentioned, if such con- sent is required, can only be impugned by those whose consent was required by law, or by one of the married persons who had not obtained the specified consent; but, after the married per- sons have lived together one year, the suit is not maintainable. All marriages contracted under the prescribed age, or under the other disabilities previously stated, may be impugned ei- ther by the married parties or by those legally interested, or by the public prosecutor; but marriages by minors cannot be set aside if they have lived together six months after they have attained full age, or if the woman be pregnant before the lapse of six months. In all cases a suit for nullity of marriage may be obtained by those who have a legal interest in the marriage, but not by collateral relations nor by children of another mar- riage, unless they have a direct interest in it. The civil marriage is obligatory, and must precede the re- ligious service, if the latter be desired; and a clergyman un- dertaking such services before the civil ceremony has been per- formed commits an indictable offense.^ 185. Local prescriptions of Germany and Austria. — Since the first edition of this work, the German law of marriage has been materially modified. The struggle between the empire and the papacy has led to the establishment, as a peremptory rule, of civil marriage. The conduct of the church, so argued Falk, when introducing the statute, made this course obligatory on the government. Civil marriage, it was urged, does not ex- clude a separate religious service; and, in support of this po- sition, it was stated that such service, in those states where civil marriage was already obligatory, took place in a very great majority of cases. The two houses concurred in the gov- ernment project of taking from the clergy the duties of regis- 2The above statement of the French tion in Le mariage civil et le divorce law is taken, with some slight modi- dans les priucipanx pays de I'Europe, fications, from letters of the French Paris, 1879. Compare ruling of correspondent of the London Times French court in Desamtffs Case as in August, 1880, verified and supple- given in the London law Times of mented by M. Glasson's recapitula- April 21^ 1880. § 185] LOCAL LAWS OF FOREIGN STATES. 399 trars, throwing the office of officially solemnizing marriages exclusively on civil officials. The law, as applying to the Prus- sian monarchy, was published on March 9, 1874. In Prussia, as well as France, the civil must precede the religious cere- mony. In 1875 a bill was introduced to extend this measure to the entire Empire; and, after vehement opposition from Eoman Catholic deputies, was adopted, and was published on February 6, 1876. In the statute as passed, the old ceremony of betrothal is shorn of its obligatory character. The age of consent is fixed for men at twenty, and for women at sixteen. When the parties are legitimate, the consent of the father is requisite, up to the age of twenty-five with men, and twenty- four with women. The mother's consent is not necessary if the father is living; and if the child is a minor, and the father dead, the consent of the guardian must be obtained in ad- dition. After majority is reached (twenty-one years), there can be an appeal from the father's refusal to the courts. Nat- ural children are subject to the same conditions as legitimate children who have lost their father. When the father and mother are dead, or are unable, from absence or otherwise, to express their wishes, a major can marry without consent, but a minor must obtain the consent of his guardian. Marriages of lineal relations, and also of brother and sister, are absolutely prohibited, but not so marriages between uncle and niece, and brother-in-law and sister-in-law. A guardian cannot marry a ward. After the dissolution or annulling of a prior marriage, a woman cannot, without special dispensation, marry for ten months. Disabilities based on disparity of rank are abrogated, but, as we have seen, army officers cannot marry without a deposit of money proportionate to probable pension. The civil marriage must be preceded by certain formalities. There must be one prior publication of banns by the official having jurisdiction, and even this publication can be dis- pensed with in cases of extreme illness. The records of the births of the parties, and of the consent of parents, must.be duly filed, though these may in proper cases be dispensed with. The consequences, it is enacted, of marriages contracted in contravention of the prohibitions of the statute, are to be de- termined by the legislatures of the particular states. By the legislation of all the German states, deficiency in age, relation- 400 MARRIAGE. [Chap. IV. ship, prior marriage, make marriages m^erely voidable. Want of parental consent works in some states a nullity. The Austrian legislation in respect to marriage has been marked by many changes. In 1868 the liberal party succeeded in carrying a statute which establishes civil marriage (Nothci- vilehe) in cases where the priest of the parish, or other proper minister, refuses to act. In 1870 a statute was passed extend- ing civil marriage to dissenters from either of the recognized churches. The prohibitions of marriages between Christians and non-Christians are modified. The rule as to parental con- sent and as to banns is similar to that of France.^ 186. Local prescriptions of Italy. — The Italian Code, as now (1880) established, permits the religious services to be had either before or after the civil rite. Whether a religious with- out a civil ceremony will establish a marriage has been doubted, and there are some recent decisions in the negative.-' Restrictions as to consent go to the voidability, not to the in- validity, of marriage." VII. Conflicts as to mateimonial pkopeett. . 187. English common law conflicts in this respect with recent statutes. — By the English common law, while the wife's dow- er attaches to all real estate of which her husband was seised during coverture, she has no analogous right to his personal property. The husband takes title to all movables belonging to his wife at the marriage, except her paraphernalia, and to all her choses in action which he has reduced into possession. These provisions have been more or less modified in England and in most of our states. Statutes have been passed enabling the wife to release her dower, and, in some jurisdictions, doing away with dower entirely, while her interest as a successor to her husband's personalty is variously assessed. In this way we have collisions between states retaining the English com- mon law and states modifying or abandoning it.^ 188. Law of community conflicting with English common law. — Conflicts, also, arise between the English common law, or the iGlasson, ut supra, pp. 104 et seq., iSoe Glenn v. Glenn, 47 Ala. 204. 168 et seq.: and see ante, §§ 164, The Scotch law is given by Mr. Van 174-178. Winkle, in 22 Alb. L. J. 269. See iJour. du droit int. privg, 1876, p. Fraser, Husb. & W. 2d ed. 649, 1319 141 ; Ibid., 1880, pp. 330 et seq. et seq. 2Glasson, ut supra, pp. 68 et seq.; ante, §§ 152, 164, 174-78. § 188] CONFLICTS AS TO MATRIMONIAL PROPERTY. 401 statutory modifications of that law, just noticed, and the law of community {communaute) , as accepted in France, and in French-settled states. This community is a species of partner- ship, and extends to all movables possessed or acquired by hus- band and wife, and to all immovables purchased during mar- riage, but not to such as were held by either of them before marriage, or came to either of them subsequently by suece,^- sion or gift. The husband is the sole manager of the common estate, which he may pledge or sell, but not (except in pecu- liar cases) give away, without his wife's consent. In case of death, the survivor takes one half of the estate, the other half going to the heirs. In case of absolute separation de corps et de Mens, the wife is remanded to a free control of her mov- ables.^ She can make a will, and, if a recognized trader, may bind the joint estate, in all that concerns her business ; though, with this exception, she cannot, without her husband's consent, acquire, sell, or pledge property. In most parts of Germany, the law of matrimonial commun- ity prevails; though in some provinces the Koman Dotal Re- gime still exists, and in others, to a qualified extent, is recog- nized. ^ In Louisiana, the system of community, established by the French settlers, obtains. In the remaining states of the Union, the English common law is the basis of legislation on this top- ic ; but it has been so modified as to remove many of the points of original confiict between it and the French law. 189. Exemption statutes of residence conflicting with law of domicil. — Statutes have been passed in many states exempting, in cases of insolvency, certain articles or items of property for a widow's benefit. When these are to be awarded to her on a settlement of her husband's estate, the law of her husband's last domicil must prevail. But when the object of the law is to prevent local destitution, and to afford relief to residents, then a widow is, on principle, entitled to avail herself of such a law if in force in the place of her residence, though her hus- iCode Civil, arts. 1309, 1408, 1497. That the question of community is 2See at large Dr. Belirend's excel- determined by the law of the matri- lent treatise on the Law of Familie- monial domicil and not by the lex Eecht, in his Deutsche Privatrecht, situs, see Conner v. Elliott, 18 How. Holtzendorff' s EncyclopsEdia, Leip- 591, 15 L. ed. 497. zig, 1870, p. 400. Compare McKen- A full exposition of the French law na's Succession, 23 La. Ann. 369; of community, by Mr. Van Winkle, ■ Robinson's Succession, 23 La. Ann. will be found in 22 Alb. L. J. pp 174. 266 et seq. Vol. I. CoNFL. op Laws — 26. 402 MARRIAGE. [Chap. IV. band may have been domiciled in another state. ^ The lex rei sitw will award such relief, so far as concerns specific ar- ticles of property, irrespective of the question of domicil.^ 190. Site of matrimonial domicil is intended permanent resi- dence. — Savigny unhesitatingly says that the matrimonial domicil, or as he terms it, the seat of the marital relation, must be assumed to be the domicil of the husband, who is the true head of the family. The wife's domicil at once merges in that of the husband.^ Judge Story puts the question: "Suppose a man domiciled in Massachusetts should marry a lady dom- iciled in Louisiana; what is, then, to be deemed the matri- monial domicil?" And he answers: "Foreign jurists would answer that it is the domicil of the husband, if the intention of the parties is to fix their residence there; and of the wife, if the intention is to fix their residence there; and if the resi- dence is intended to be in some other place, as in New York, then the matrimonial domicil would be ISTew York." He then cites several of the older jurists to this effect.^ And so has it been ruled, where parties married in one state intend forth- with to move their domicil to another state, which intention is carried out. ^ Mr. Parsons, in his work on Contracts, declares the rule to be that "the rights of the parties, as springing from the relation of marriage, must be determined by the place where they then supposed themselves, and intended to be, dom- iciled."* But in case of a conflict between the domicil at the time of marriage, and that which the parties intend to per- manently adopt, and in which they take up their residence, the latter should prevail." Where there is no intention to remove ''^Odiorne's Appeal, 54 Pa. 178, 93 See also, to the same effect, last Am. Dec. 683; Hettrick v. Eettrick, ijst of cases added to note 6, infra. 55 Pa. 292; Piatt's Appeal, 80 Pa. 501 9"po»* R8 KTi S7R i?QQ TQi *Yol. 2, *p. 559. To this he cites Pos* §§ 5/1, 576 598 791 Le Breton ^ Nouchet, 3 M^rt. (La.) w 9^ Tilio^ ' ' 60, 5 Am. Dec. 736; Ford v. Ford, 2 sn^ fl T s 10^ Mart. N. S. 574, 14 Am. Dee. 201; zoonll. L,. § IJ4. _4jjg^ ^ ^j;g^^ g jj^^^ jj^g^ J jQ^^ 33 As to last hypothesis, see infra. Am. Dec. 553; Doe ex dem. Birtwhis- note 5 *'« ^- 'Vardill, 5 Barn. & C. 438, 8 Dowl. & R. 185. SFord V. Ford, 2 Mart. N. S. 574, 6To this effect, in addition to the 14 Am. Dee. 201 ; State v. Barrow, 14 cases already given, may be cited Gol- Tex. 187, G5 Am. Dec. 109; Land v. liss v. Hector, L. R. 19 Eq. 334, 44 L. Land, 14 Smedes & M. 99; Carroll v. J. Ch. N. S. 267, 32 L. T. N. S. 223, 23 Ecnich, 7 Smedes & M. 798; Knee- Week. Rep. 485; Davenport v. land V. Fnsley, Meigs, 620, 33 Am. Karnes, 70 III. 465; Olenn v. Glenn, Dec. 168. Ante, § 43. 47 Ala. 204; and cases cited post, § § 190] CONFLICTS AS TO MATRIMONIAL PROPERTY. 403 to another domicil, the husband's domicil at the time of the marriage gives the prevailing law.® 199. See MoEenna's Succession, 23 ^Layne v. Pardee, 2 Swan, 232; La. Ann. 369. Parrett v. Palmer, 8 Ind. App. 356, The previous domieil of the parties ^2 Am. St. R«p. 479, 35 N. E. 713; seems to be entirely immaterial, ex- ^^^^ ^- ^^^' ^ ^^'^- N- S. 574, 14 cept for the purpose of illustrating ^- ^^<=- ^01 ; Carrie's Case, 2 their intention as to the matrimo- ^^^''^' ^^- ^^S' ^<^°» ^- ^<""«'-' l^^ nial domicil. In the first group of ^^^«- ^^^' ^""^ ^- ^'^' 1* ^medes cases added to the next note, the hus- 'S^ M. 99; Kneeland y. Ensley, Meigs, band's previous domicil was held to «20, 33 Am. Dec. 168; Brien Dit fix the matrimonial domicil, upon 0^'''<"=^^' ^- MarcUldon, R^p. Jud. the presumption that such was the «"*«<=' ^^ C. S. 318; Laustalan v. intention of the parties. In the sec- 'f'««'*«'<"*. 69 L. J. Prob. N. S. 75, ond group, where the intention was ^'^'^'^^ ^- ^H. 82 L. T. N. S. 806, expressly shown, it happened that ^8 Week. Rep. 509. In the forego- the intended domicil was the hus- '"« '^^^^ ^'^^ intention to establish band's previous domicil; but in all ^^^ matrimonial domicil at the pre- these cases it was the intention, fol- ^^""^ « observed, however, was not regarded as of any signifi- ^^^^ ^^^^^ ^^^ °°t^'"8^ *« negative cance, except, perhaps, as a circum- ^'^''^ intention, and it is expressly stance aiding the proof of intention. ^^^^^^ °'" ^^^^'^^^> i° ^11 of these It is somewhat singular that, in the •=^«««' ^^^^ ^^"^ °i^"t^l ^°™« ^^«' ^"^ only case in which it appeared that ^^''*' established there within a rea- the intention was to establish a, mat- ^°^^'^^^ t™^. rimonial domicil at a place other ^ fortiori, the husband's previous than the previous domieil of either domicil fixes the matrimonial domicil party {Molntyre v. Chappell, 4 Tex. ^^™ ^'^'^^ "^^^ ^^^ expressed inteu- 187), the applicability of the rule "on of the parties at the time of the was denied. The point, however, was marriage, if it was carried out with- not necessary to a decision of the '" * reasonable time, though it is ease; and in a subsequent case [State ^"^ '^ ®*^*e different from that in V. Barrow, 14 Tex. 179, 65 Am. Dee. '^^^<^^ the marriage was celebrated 109) the correctness of the decision ^""^ '" which the previous domicil of on the point was questioned. The ^^e wife was established. GlerM v. court stated that the means of in- Glenn, 47 Ala. 204; Jaffrey v. Mc- vestigating the subject at the time of Gough, 83 Ala. 202, 3 So. 694; Mason the earlier decision were very lim- '*'• Fuller, 36 Conn. 162; LeBreton v. ited, and that, though the decision Nouchet, 3 Mart. (La.) 60, 5 Am. was not expressly overruled, the Dee. 736; Pord v. Ford, 2 Mart. N. S. point would be held open for re-ex- 574, 14 Am. Dec. 201; Routh v. amination whenever the necessity Routh, 9 Rob. (La.) 224, 41 Am. Dec. arose. 326; Fisher v. Fisher, 2 La. Ann. 404 MARRIAGE. [Chap. IV. And that seems to be so when the original intention to es- tablish a domicil elsewhere is abandoned.'' If, however, there be no determinate domicil of either party at the time of the marriage, and their intention as to the matrimonial domicil is not shown, it will be presumed that the intention was to estab- lish the domicil in the state or country where the marriage was celebrated. ® 191. Law of that domicil controls movables. — ^When there is no express marriage settlement, the Roman law is distinct on this point: "Die indistincte quod ad effectum et decisionem jurium matrimonii, ubi non fuit specificatum nee facta rela- tio ad alium certum, inspiciatur locus domicilii habitationis viri destinatae tempore matrimonii."^ Mr. Westlake (185Y), on this point, thus speaks: "It is universally allowed that, when a marriage takes place without settlement, the mu- tual rights of the husband and wife in each other's movable property . . . are to be regulated by the law of the mat- rimonial domicil as long as that remains unchanged."^ New 774; Walker v. Duverger, 4 La. Ann. 2 Westlake, Private International 569; Percy v. Percy, 9 La. Ann. 185; Law (1857), arts. 361, 366. To this fiffcct s^G T)ups v Siwi fh Connor v. Connor, 10 La. Ann. 440; j^^ g^^. ^f.^ormick v. Garnett, 5 De Arendell v. Arendell, 10 La. Ann. G.M.& G. 278, 2 Eq. Rep. 536, 23 L. J. 506; Vertner v. Humphreys, 14 Ch. N. S. 777, 18 Jur. 412, 2 Week. Smedes & M. 130. ^'^V- 408; De Serre v. Clarke, L. R. % ^ D J o a oQ^ 1» Eq. 587, 43 L. J. Ch. N. S. 821, 31 In Layne v. Pardee, 2 Swan, 234, j. .p^j^ g' j^j^ 33 ^^^^ ^^ 3 '^^^ it was held that the law of Tennes- Watts v. Shrimpton, 21 Beav. 97; see, the previous domicil of the hus- Mason v. Fuller, 36 Conn. 160; Besse band, fixed the matrimonial domicil, v-Pellochoux, 73 111. 285, 24 Am. Rep. although the marriage was celebrated ."^^ j^j ^j^^; tacitement adoptfie in Texas, where the wife was pre- devait ressortir les memes efifets viously domiciled, and he entertained qu'un contrat expres; il en rgsultait a floating idea of making his home ^^^ ^""^^^^ dfifinitivement acquis et . rr, . i- i.1 -J. gC'neraux, quelle que flit la vanetg in Texas at some time or other, it ^^^ eoutumes sur le territoire des- appearing as a fact that the marital quelles les biens pourvaient se trou- home was established in Tennessee ver, quels que fussent les change- and continued there until his death. ™<^'itf 1^ deyaient y intervenir." „ , „ „ no^ Brocher, Droit mt. privg, p. 225. M. iLayne v. Pardee, 2 Swan, 234. Brocher, however, questions whether ^Kneeland v. Ensley, Meigs, 620, such a law can properly be said to be 33 Am. Dec. 168. accepted by the parties to a marriage ( Ihid. ) , and whether, if so, there is IL. 1, chap, de Summa Trin. title proper notice of the fact to third par- Concl. de Stat, cited Phil. iv. 292. ties. He argues (p. 226) that, in ab- § 191] CONFLICTS AS TO MATRIMONIAL PROPERTY. 403 acquisitions, however, are governed by the law of the actual domicil. ^ At the outset arises the question whether the law of matri- monial domicil, as thus determined, applies to foreign real es- tate. It is argued by Savigny, sustained by the highest au- thorities, German and French, that it does.* He places it on the ground that by marriage both parties agree to submit themselves to the law of the husband's domicil, where they pro- pose to take up their abode. It is highly improbable, he de- clares, that either party would make their pecuniary arrange- ments to depend upon the fortuitous existence of a certain portion of their estate in a foreign land. Great perplexities would thus arise ; and this could not be their design. ^ On the other hand, the English and American authorities except for- eign real estate from the operation of this principle.® "The sence of a contract, the proper law is son v. Goree, 34 Ala. 565; Newcomer "la loi personelle de I'epoux au mo- y. Orem, 2 Md. 297, 56 Am. Dec. 717; r*379; mJS'n. ^^fS ^^^^' - ^-''-^ ^^^ ^^- ^^^^ 32 So. ed. Demangeat, i. 88; Layne v. Par- 95> and see note to this case In 57 dee. 2 Swan, 232. Ante, § 189; post, L. R. A. 353; Nott v. Nott, 111 La. § 200. 1028, 36 So. 109; Vertner v. Hum- 'savignyyiil. 379; Hertius, § 46; P^'-'y'' 1* ^medes & M. 130; Duffy Wachter, ii. p. 48 ; Foelix, ed. Deman- v. White, 1 15 Mich. 264, 73 N. \V. geat, i. 188. To the same effect is 363; MoGoUum v. Smith, Meigs, 342, the Prussian Code, ii. 1, §§ 365, 369. 33 ^jjj jjg^ ^^y 5The same view is taken generally _ ' ' ',,..,„,,. by Dumoulin (title 2, p. 963; title 3, ^^P°^ ^- ^"-y"' " ^°- 314, 49 Am. p. 555), and by Pothier, Traitfi de la Dee. 88, while conceding that the ex- Commnnaute, art. Pr61. n. 10. istenee of an equity in favor of the 3 Redf. Wills, 426; 1 Burce, Colonial ,.,, , , . , ... & Foreign Law, 618. *"1^ °' which was m the husband, When real estate of a wife in an- must be determined by the law of other state is sold by husband and Missouri, and not by the law of wife, the proceeds when received are i^o„i,i^„^ (the matrimonial domi- relieved from the wife's interests im- -t. , ■,■, ,i , posd by the lex situs of the real es- <^"'' '^^'■°- ^'^^^ S'i<=" equity arose by tate, and become the wife's property reason of the use, in the purchase according to the law of her domicil. of the property, of money which bv Castleman v. Jeffries, 60 Ala. 380. the law of Louisiana ( lex domic^U ), The respective rights of husband was a part of the community estate, and wife in real property, in the ab- The court, in Welch v. Tennent sence of an antenuptial contract, are [1891] A. C. 639, conceded, for the determined by the law of the place purposes of the case at least, that wliere the property is situated, irre- the law of Scotland (where the par- spi'ctive of the domicil of the parties, ties were domiciled), by which mov- er of the place of the marriage. Nel- ables representing the proceeds of 406 MARRIAGE. [Chap. IV. position of these two great jurists," says Mr. Westlake, speak- ing of Dumoulin afid Savigny, "appears to me unassailable, but its consequence as to land cannot be admitted in England, partly from the strict forms of conveyance to which we tie the acquisition, not only of the full property in land, but even of any interest in it; and partly from the discrepancy between the nature of those limited estates which our system of real property recognizes, and those interests which would be creat- ed under most continental marriage laws."'' To the same ef- fect are the opinions of the supreme courts of Illinois and Louisiana. ® A distinction, however, is to be observed in this connection. It may be that the lex rei sitae will prescribe a different rule when the parties are domiciled outside of the state than when they are domiciled within the state.® So, the character im- pressed upon personal property by the law of the domicil at the time it was acquired may attach to real property purchased with the proceeds thereof, though the real property would oth- the heritable estate of the wife are 'Private International Law, 1st ed. not sublect to the jus mariti, but ^^^- ■^^^• ^ c \, \. -t- ^Besse v. Pellochoux, 73 111. 285, 24 are . surrogatum for her heritage, ^^ ^^^ ^^^, ^^^^ ^'^.^ Creditors, and by which her assent to the hus- 5 Mart. N. S. 569, 16 Amt. Dee. 212. band's receiving the entire price would be regarded as a revocable do- 9 Thus, it has been held that, prior nation inter virum et uxorem, — to Louisiana act of March, 1852 (by would govern, though the heritable which the community of property estate of the wife was situated out was extended to nonresident married of Scotland; but held that the ques- persons with respect to property tion whether real property was the thereafter acquired in the state), heritable estate of the wife for the real property acquired by nonresi- purposes of the Scotch law was to dents who were not married within be determined by the law of its situs, the state did not fall into the corn- It was then held that, by the law of munity. Waterer's Succession, 25 England, upon the marriage of the La. Ann. 210; Wolfe v. Gilmer, 7 parties, the heritable estate in Eng- La. Ann. 583; Huff v. Borland, 6 La. land of which the wife was then posr Ann. 436; Leech v. Guild, 15 La. sessed became the heritable estate of Ann. 349; Dohan v. Murdoch, 41 both husband and wife, and therefore La. Ann. 494, 6 So. 131. And it could not be regarded as the herit- was held in Conner v. Elliott, 18 able estate of the wife for the pur- How. 591, 15 L. ed. 497, that, the poses of the Scotch law, distinction being based on the place § 191] CONFLICTS AS TO MATRIMONIAL PROPERTY. 407 erwise be impressed witli a different character by the lex rei sitos.^'^ This distinction, however, does not detract from the universality of the lex rei sitce, but merely affects the result of the application of that law. 192. Law of place of marriage not decisive. — Judge Story starts at this point a new distinction. He declares that "per- haps the most simple and satisfactory exposition of the sub- ject, or, at least, that which best harmonizes with the analogies of the common [English] law, is that in the case of a marriage, where there is no special nuptial contract, and there has been no change of domicil, the law of the place of the celebration of the marriage ought to govern the rights of the parties in respect to all personal or movable property, wherever that is acquired, and wherever it may be situate; but real or immovable prop- erty ought to be left to be adjudged by the lex rei sitce, as not within the reach of any extraterritorial law."^ But the the- ory that the place of the celebration of the marriage applies its law to determine the capacity and relations of the parties is now, as has been seen,^ abandoned. This place, when it is not that of the domicil, is one that is selected fortuitously, and often ignorantly, as, when travelers pass rapidly over a line on one side of which the wife has the power of a feme sole, on the other side of which she has no power at all. And such place of the marriage or the residence of Texas purchased by the husband aft- the parties, and not on their clti- er becoming domiciled in that state, zenship, there was no violation of the with money which he earned in an- provision of the Federal Constitu- other state while domiciled there, tion, that the citizens of each state and which, by the law of that state, shall be entitled to all the privileges was his separate property, — is not and immunities of citizens of the community property, though it would several states. In these cases there have been had the fxmds with which was no question of conflict between it was purchased been earned while the law of Louisiana and that of the husband was domiciled in Texas, the domicil of the parties, but it Elliott v. Eawley (Wash.) 76 Pao. was simply a, question as to which 93, is to the same eflfect. law of Louisiana was applicable to the facts. iConfl. L. § 159. "Thus, it is held in Blethen v. ^Ante, §§ 160-165. [See, however, Bonner, 30 Tex. Civ. App. 585, 71 §§ 165a-165c upon the question as to a w <,n,» ^1. i , i . '^^^^ ^^"^ governs the capacity of the t>. W. 290, that real property in parties to marry.] 408 MARRIAGE. [Chap. IV. of celebration is not necessarily the place of the performance of the marriage, which later jurists have agreed is its true legal site. This place of performance is the matrimonial domicil, to which husband and wife jointly propose to repair.^ And the qualification thus introduced by Judge Story, that the place of contract is to govern as to personal or movable property, is surrendered by the learned editor of the sixth edition (1865) of the Conflict of Laws. Judge Redfield here* argues that a "proper appreciation of the true principles involved in the na- ture of the married relation, and of the extent to which its rights and duties enter into all social and civil rights and du- ties in the state, could not fail to convince every thoughtful and dispassionate mind of the indispensable importance, and almost necessity, of regarding the law of the place of actual domicil as the controlling law, in regard to all the rights and duties, for the time being, springing from the relation." If by actual domicil is here meant a domicil other than that which existed at the time of marriage, there is here a divergence from the great body of recent authorities ; but be this as it may, it is clear that the idea of the place of celebration, as generally de- termining the marriage relation, must be considered as now no longer tenable. ^ The English law seems now well settled, that 3 See, as to this point, Sawer v. 1; Allen v. Allen, 6 Rob. (La.) 104, Shute. 1 Anstr. 63 ; Warrender v. 39 j^^^^ jjgg 553 . ^„o„ ^ Knott, 26 Warrender,2 Clark & F 488 489 9 ^^.^^_ Bliffh, N. R. 89; Christies Succes- ' ' sion, 20 La. Ann. 383, 96 Am. Dec. J- Eq. 279, 51 Am. Rep. 17; New- ill. Ante, §§ 44, 189. [See also comer v. Orem, 2 Md. 297, 56 Am. cases cited ante, in notes 5 and 6 to Dec. 717; Noonan v. Kemp, 34 Md. ^ tory, Confl. L. § 454; Fuss v. ,„ ^ , Fuss, 24 Wis. 256, 1 Am. Eep. 180- TO './,»^''?i Bishop, Married anie, § 190; post, § 294; Jephson v. Women, §§ 170-182; 3 Eedf. Wills, p. Riera, 3 Knapp, P. C. 130 149 416 MARRIAGE. LChap. IV. after be shown, * such a vested right is not devested by a change of domicil, or removal of the property. These two rules are not at all inconsistent, for the former only operates upon prop- erty which the decedent owned at the time of his death, and only to the extent of his title; and the latter rule operates to deduct from the distributable estate of the deceased spouse the property, or interest in property, which has vested in the other spouse under the law of some previous domicil. It is obvious that a mere statute of distribution of the original matrimonial domicil, or of any domicil other than the last, by which either spouse is to share in the other's personal estate upon the latter's death, creates no vested right, and therefore ofEers no obstacle to the application of the si? tute of distribution of the lasl domicil. ^ iPost, § 197. husband of the personal property of 2 In Lyon v. Knott, 26 Miss. 548, the wife, however, it was held that the right The same statute was involved in of the husband, under the statute of Powell v. De Blane, 23 Tex. 66, and Mississippi, where the marriage was the Texas supreme court felt con- celebrated and the original matrimo- strained to follow the construction nial domicil was established, to adopted in the last ease, though it slaves owned by the wife at the time was very much inclined to doubt of the marriage, in the event of her whether, as an independent proposi- death without issue, was a vested tion, the right ought to be regarded right, which was not defeated by the as a vested one. It was held in Fair- removal of the matrimonial domicil ston v. Hairston, 27 Miss. 704, 61 and the slaves to Texas; and that Am. Dec. 530, however, that a stat- upon the death of the wife while the ute of the original matrimonial dom- matrimonial domicil was established icil, which prevents a husband, by in Texas, the husband's right, under testamentary disposition, from de- the Mississippi statute, would pre- priving the wife of her statutory vail over the rights of the wife's next portion of the effects of which he of kin under the Texas statute of may die possessed, does not create a distribution. The decision with ref- vested right in the wife with respect erence to the vested character of the to personal property owned by thf husband's right was upon the ground husband before the removal of the that the Mississippi statute merely matrininnial domicil to another modified, and did not abrogate, the state, and does not govern the distri- common-law rule by which marriage bution of the husband's personal es- operates as an absolute gift to the tate if, at the time of his death, the § 194] CONFLICTS AS TO MATRIMONIAL PROPERTY. 417 194. When domicil is changed, Mgh authorities hold that first domicil controls. — ^When the matrimonial domicil has been changed for another with a distinct jurisprudence, it becomes often a question of great interest whether the matrimonial es- tate, and the respective interests of husband and wife, are mod- ified so as to accord with the new jurisprudence. Two distinct opinions have been held in this connection. The first is that the law of the intended matrimonial domicil extends itself per- manently over the whole marriage relation. It is assumed that by a tacit contract the parties agree to submit themselves to the control of that law. To this effect are the judgments of sev- eral German courts,^ and the opinions of P. Voet," J. Voet,* Hertius,* Fcelix,^ and Savigny.^ In defense of this view, it is maintained by Savigny that when the marriage was entered into, it was at the wife's option either to abandon it altogether, or to couple it with positive business settlements. When she determines not to make such stipulations, she accepts the limits that the law of domicil prescribes for the matrimonial estate, naturally viewing it as having a continuous effect. If the hus- band arbitrarily changes his domicil, this, on the opposite theory, would subject the matrimonial property to a law differ- ent from that to which the marriage contract submitted it. If the wife agrees to this change, this, on the principle of the modern Roman law by which she is competent to give such consent, settles the question; for then the law which was orig- inally accepted by agreement is now changed by agreement But a different question arises when the change is disadvan- tageous to the wife and is not accepted by her. In order to prevent such an arbitrary exercise of power on the part of the husband, the advocates of the first opinion have adopted the theory of a tacit contract. But this theory, to which exception may be taken, is not essential to the conclusion. For, however it may be as to a contract, either express or implied, between the parties to a marriage to submit themselves to a particular law, it is clear, as a matter of fact, that what the woman does, on marriage, is to accept the intended matrimonial domicil. From the law of this domicil, thus adopted by her, she cannot, matrimonial domicil was established ^Section 9, e. 2, § 7. at another place, where a different 'I" Pandect, xxiii. 2, § 87. law nrevailed *§§ ^^' *^- law prevailed. ^Pp 130-132, ed. Demangeat, 1. 195. iSeuffert, Archiv. i. n. 152. e'vill. § 379. Vol. I. CoNFL. of Laws — 27. 418 MAHRIAGE. [Chap. IV. in this view, be detached except with her free consent. And this consent she cannot, after coverture, so it is argued, give. Mr. Westlake^ (1880), after saying that there is no Eng- lish case determining the rule when there has been a change of domicil subsequent to marriage, adds : "Much is not prob- ably adventured in predicting that, when cases arise on which the point can be tried, the law of the domicil referred to will be declared to be that of the matrimonial domicil, even al- though another dpmieil may have been adopted between the date of the marriage and that when the property was acquired." He adopts, in this respect, the reasoning of Savigny. 195. Intention of parties supposed to point to this result. — It is further urged by Savigny that the intention of the law- maker is pointed at marriages within his own particular do- minions, and not those contracted elsewhere. He says : "You are about to marry here; you must accept certain laws as ap- plicatory to your estate." He certainly does not mean to in- terfere with the vested interests of those married elsewhere. If the wife's m.atrimonial rights to her husband's estate have thus vested in the place of their matrimonial domicil, it cannot be presumed to be the intention of the legislature to subse- quently strip her of her property against her protest. And yet this must be assumed if the position here advocated be not sus- tained. In conformity with this view, the Court of Paris, in 1849, and the Court of Cassation, in 1854, decided that when, on marriage, the law of the domicil once attached, it could not be displaced or altered, by a change either of national status, or of domicil, on the part of the husband. ^ Consequently, it was ruled that when parties married in England, which was their domicil, and afterwards removed to France, where the husband was naturalized, and where he afterwards purchased, con- jointly with his wife, immovable property, this inured solely to himself, this being the English law, which was that of the matrimonial domicil. And Sir R. Phillimore,^ speaking of this case, says: "A stronger instance of what appears to the writer of these pages to be a sound maxim of the jios gentium cannot be well imagined." And the same learned writer sub- sequently says that, "as to property accruing before the mar- riage, it must obviously be considered that the wife's rights have vested, and cannot be affected by any subsequent conduct 7P. 64. 2International Law, iv. 294. iFoelix, p. 91. § 195] CONFLICTS AS TO MATRIMONIAL PEOPERTY. 419 or acts of the husband j and that the same principles will, on examination, be found applicable to property accruing after the marriage; in other words, that the reasoning of Savigny, and the jurists who agree with him, is both superior to that of Story, and more in harmony with the English decisions which have been just mentioned."* As a marked authority to the same effect may be cited a decision of the court of appeals in New York,* and a case in Kentucky, where the Louisiana law, giving a lien to a wife on her husband's estate, was enforced, in 1866, in Kentucky, against a husband who was domiciled in Louisiana at the time of his marriage. "By the law of Louisi- ana," said Robertson, J., "the matrimonial domicil of John K. Leary and his first wife, her property was secured to her as a dotal portion by a legal lien on his estate, and all his future ac- quisitions; and by the acknowledged law of comity, that paraphernal right and lien to protect it were as ubiquitous as the persons themselves, and followed them wherever they might afterwards settle."® 195a. Effect upon personal property subsequently acquired of wife's refusal to accept new domicil. — As will hereafter be shown, ^ acquisitions of personal property, subsequent to a change of the matrimonial domicil, are, in the absence of an 3 International Law, 314, citing The same reasoning, however, may Watts V. Shrimpton, 21 Beav. 97; Re be used to assail the position taken Wright, 2 Kay. & J. 595, 25 L. by Fiore, that it is the law of the J. Ch. N. S. 621, 2 Jur. N. S. 465, husband's nationality that is to pre- 4 Week. Rep. 541, where it was held vail. There are multitudes of per- that marriage in England, by persons sons who marry in Europe on the there domiciled, was an assignment eve, and in view, of an intended set- of all the wife's personalty, operat- tlement in the United States. The ing, without regard to territory, all husband's nationality, at the time of the world over. the marriage, is utterly distinct from iBonati v. WelsoJi, 24 N. Y. 1S7. the nationality in which he expects See further, as to this case, post, § to establish his home. If the im- 195a. portance, public and private, of the ^Kendall v. Coons, 1 Bush, 530. interests involved in marriage is a See also Smith v. MoAtee, 27 Md. reason against governing it by a. ju- 421, 92 Am. Dec. 641. risprudence they select, it is still That the parties to a marriage con- stronger reason against forcing on tract cannot arbitrarily select the t'l^™ a jurisprudence which they do law by which it is to be governed is "°t select, which they repudiate, and to be inferred, so argues Fiore (Op. w-hieh is incompatible with the new eit. § 325), from the scope of the eon- conditions of life in which they ex- tract, which determines not only the pect to engage. See post, § 198. domestic economy of the parties and of their children, but their relations ^Post, § 196. to the state. This is all very true. 420 MAEEIAGE. [Chap. IV. express marital contract, governed by the law of the new dom- icil, at least if the new domicil is accepted by both spouses. The implication that the rule may be different when the change is disadvantageous to the wife, and she refuses to accept the new domicil, has but little support in the English and American cases. It is true that the New York court of appeals^ did hold that the right of a wife under the law of France (where the marriage was celebrated and the original matrimonial domicil established) to be reimbursed out of her husband's estate, in preference to his legatees and creditors, for the proceeds of a sale of her immovable property in France, appropriated by him, was not defeated by the fact that the husband was domiciled in New York at the time of his death, and that no part of the property left by him was acquired in France. The majority opinion, however, proceeds upon the express assumption that the domicil of the wife, who remained in France, was not changed. It expressly said: "As a general rule, the domicil of the wife follows that of her husband, and there is much force in the argument that, in the absence of an express agree- ment defining the matrimonial rights, the law of the contem- plated, or any future, domicil should govern. But in the ease now under consideration, the domicil of the wife has not been changed, and the rights she acquired by the tacit contract made in the matrimonial domicil are not, we think, lost or impaired by the change of the domicil of the husband." The circum- stances Y/hich, in the opinion of the court, prevented the dom- icil of the wife from following that of her husband in accord- ance with the general rule, do not appear; but, in view of the language quoted, it is clear that this case cannot be regarded as authority for the broad proposition that, when the change of domicil would be disadvantageous to the wife and she refuses to accept the new domicil, the law of the original matrimonial domicil will govern. Upon the assumption that the wife's iBonati v. WeUch, 24 N. Y. 157. § 195a] CONFLICTS AS TO MATRIMONIAL PROPERTY. 421 domicil did not, under the circumstances of the case, follow that of the husband, this case would not seem to come within the terms of the rule stated in the next section, that acquisitions of personal property after a change of domicil are governed by the law of the new domicil, for the domicil there referred to undoubtedly m.eans matrimonial, or marital, domicil, and, if the circumstances are such as to justify the wife in retaining the original domicil, the new domicil of the husband can scarce- ly be regarded as the matrimonial, or marital, domicil, to the exclusion of that of the wife. There was a dissenting opinion in this case, which expressly proceeded upon the assumption that the wife's domicil followed the husband's; and the difference in these two assumptions explains the difference in the results reached, without imputing to either majority or minority any intention to hold that in all cases the law of the original mat- rimonial domicil will govern when the change is disadvantage- ous to the wife and she refuses to accept the new domicil. In- deed, it has been expressly held in Louisiana that property ac- quired by a husband after his removal to that state falls into the commimity, although the marriage was celebrated, and the original matrimonial domicil established, elsewhere, and the wife never actually resided in Louisiana;* but these decisions were upon the ground that the Louisiana statute regulating rights of husband and wife was real, not personal, — that is, regulated things and subjected them to the laws of the country in which they were found irrespective of the residence of the parties. 196. Acquisitions subsequent to change governed by new dom- icil. — ^When, however, the matrimonial domicil has been aban- doned and a new domicil is accepted, acquisitions subsequent to the change are governed by the law of the new domicil. This view has been accepted by high German authorities,^ as well ^Cole V. His Executors, 7 Mart. N. iSee Puchta, Pandekten, § 113. S. 42, 18 Am. Dec. 241 ; Diccon v. Dix- on, 4 La. 188, 23 Am. Dec. 478. 422 MARRIAGE. [Chap. IV. as hj several American courts.^ Nor can it be denied that there is much strength in this position. A husband and wife, for instance, whose matrimonial domicil is in a state subject to the English common law, move into a state where a woman is entitled to hold as separate property money given to or made by her. It would be a hard thing if, when domiciled in the latter state, she should be excluded from the privileges the local law gives to all subject to it; nor is it likely that any court would hold that what she made or what she received in such a 2 See Dcms v. Zimmerman, 67 Pa. property. As it affects only such 70; Smith v. McAtee, 27 Md. 421, 92 real property as is actually situated . 1^ ^A-, If ^ 1, a -ii. m the country where it is established. Am. Dec. 641; MoCollum y. Sm^th, ^^ j^ affects personal property only Meigsi, 342, 33 Am. Dec. 147; Knee- when its owner is actually domiciled land r. Ensley, Meigs, 620, 33 Am. in the country where such law is es- Dee. 168; Doss v. Campbell, 19 Ala. tablished, because the place of his 590, 54 Am. Dec. 198; Clanton v. ^rijl^' ^i^V'^Topttf thVS Barnes, 50 Ala. 260; Gavnus v. Can- j^w as to personal property is that non, 42 Ark. 503; Dow v. Gould & which prevails in the place of the G. Silver Uim. Go. 31 Cal. 629; he owner's actual domicil. He acquires B...o„v.^o«...,3Mart. (La.) 60, tTo'n 'of tUt Ta^t! i? Se^K 5 Am. Dec. 736; Saul v. His Gred- that law whether he and his wife ac- itors, 5 Mart. N. S. 569, 16 Am. Dec. quire it for their joint benefit, or for 212: Gale v. Davis, 4 Mart. (La.) ^is sole benefit." See, as tending in „,, „ , „ , d -MI I. the same direction. Ware v. Owens, 645; Murphy v. Murphy, 5 Mart. ^^ ^j^ g^g, 94 Am. Dec. 642, where (La.) 83, 12 Am. Dec. 475; Pack- it was held that the law that governs wood's Succession, 9 Rob. (La.) 438, dower is not that in force at the time 41 Am. Dec. 341 ; Bicks v. Pope, 8 °l *!?? marriage, but that in force at „ , ' , >r^ T> the time of the husband s death. La. 556, 28 Am. Dec. 142; Bruneau v. BrwweoM, 9 Mart. (La.) 217 ; Lyon y. t rr j™ m j i in r ,,. _.„„■/ In Henderson v. Trousdale, 10 La. Knott, 26 Miss. 548; Havrston v. -,o -j. v u 4.u i. i- u j _ ,,. „„'„,. T^ Ann. 548, it was held that a husband Hairston, 27 Miss. 704, 61 Am. Dec. j. v vi i i,- -i i j-i. „«^T^.n^ was not liable to his wife for the 530; Gidney v. Moore, 86 N. C. 485; , , , . ,, „ , . r^ , „„ ,., A value of personal property, other State V. Borr-OMJ, 14 Tex. 180, 65 Am. ,, , ^. j.. j , . „ ^„. „„ rr, than choses in action, owned by her Dec. 109; Castro v. Ilhes, 22 Tex. . t t ir. t- ■ _ . „ „»» „ T, prior to the removal of the matn- 479, 73 Am. Dec. 277; Fuss v. Fuss, ^ .,,.., , , , , ^. _„ , . -r. ■. ^,% T> monial domicil from a state where 24 Wis. 256, 1 Am. Rep. 180; Re ,, , , x j., • , ^ , . , ,„„,,„„ „ , the common-law rule as to the rights BauUchon, 49 Cal. 19; Besse v. Pel- , , , , , ., ,. . , , ' ^„ „ „, , _ „.„ of husband and wife obtained, al- loohoux, 73 111. 285, 24 Am. Rep. 242. ,, , ,, , 4. j j . , ,. . „ a -r though the property was not reduced Story concurs m this view, Confl. L. , ° . t , ■ ^-,11. j.i. •i to possession by him until after the removal to Louisiana; but that he Mr. Surge, Colonial and Foreign ^^s liable for the proceeds of choses Laws, pt. i. chap. 7, § 8, takes in action not reduced to possession, the same view, saying: "If the but collected after the removal, and law of community be a real law, its ^^^ ^ received after the removal, power as to personal property cannot , . ,, , j. i be more extensive than as to real representing the proceeds of real § 196] CONFLICTS AS TO MATRIMONIAL PROPERTY. 423 jurisdiction was not her own.* On the other hand, if the matrimonial domicil was in a state where the wife had a com- munity of property with her husband, and they should change their domicil to a state where the English common law obtains, it is not to be expected that a court of the latter state would undertake, with no adequate machinery for the purpose, to ap- ply to the parties the law of community. As we have already argued in cases of status,* and as we shall hereafter argue in cases of divorce,^ when a married person bona fide changes his domicil, the law of the new domicil is the law by which he is controlled. 197. But vested rights are not thereby devested. — But even if we hold that with a change of domicil there is a change of mat- rimonial relations as to subsequently acquired property, it is plain that by such change property already vested in either husband or wife is not disturbed. Thus, a husband's ovsmer- ship of his wife's goods, under the common law, will not be de- vested by their removal into a state where the common law does not exist ^ And a married woman's personal property, bought property of the wife situated at the iBond v. Cwmmings, 70 Me. 125; former domicil. The distinction be- Lichtenlerger v. Graham, 50 Ind. J. it, 4. 1 t ^ „-*„ 288: Kraemer v. Kraemer, 52 Gal. tween the two classes of property g^^; g^^ ^^^^ ^ Fuller, Z& Conn. arose from the fact that reduction 160; [Oa/ioiare v. Jlf owroe, 70 Ala. 271 ; to possession was not necessary to Jaffrey v. UcQough, 83 Ala. 202, 3 vest the title of the husband with re- So. 594; Tltorn v. Weatherly, 50 Ark. SDPpt to the firqt class while it was ^^'^' '^ ®- ^- '^^' ^2/6 v. Dye, 11 Cal. speet to the hrst class, while it was jgg. ^^ Burrows, 136 Cal. 113, 68 with respect to the second class. Pac. 488; Duhois v. Jaokson, 49 111. So, in Schurman \. Marley, 29 Ind. 49; Tinkler v. Coai, 68 111. 119; 458, personal property was protected Schurmam v. Marley, 29 Ind. 458; * ii. 1. u J. j-j. 4.1. Srmth V. Peterson, 63 Ind. 243; from the husband's creditors as the p^^^^ ^_ Weston, 4 Rob. (La.) 165^ separate property of the wife, accord- Bayden v. A"m«, 4 La. Ann. 65 ; ing to the Indiana statute, although Henderson v. Trousdale, 10 La. Ann. it was conceded that, if the husband, ^|^; Martin v Boler, 13 La. Ann. „5 , ., 1 « j-i, J ■ -1 369; Lyon v. Knott, 26 Miss. 548; prior to the removal of the domioil stokes v. Machen, 62 Barb. 145; Cade from North Carolina, where the com- v. Davis, 96 N. C. 139, 2 S. E. 225; mon-law rule was, presumptively, in Gressey v. Tatom, 9 Or. 541 ; Mo- force, had reduced the property to his ^f^y^e v. Ohappell^ Tex. 187; Var- ^„,,=„ • 1-- ■ i.i 4.1. / ij 4. de»i f , n ^Este V. Smyth, 18 Beav. 112, 23 L. ,, ^ ^ , J. Ch. N. S. 705, 18 Jur. 300, 2 Week. „, T"^^'"^^ t, ''•. J^'^^"'^^- , 2 Rep 148 Bhgh, 60, 21 Revised Rep. 43; An- iibid.} Phillimore, International struther ^^ Adair, 2 Ujl. & K. 513; Law, iv. 311; DeLane v. Moore, 14 ^o"»S y. Templeton, 4 La. Ann. 254, How. 253. 14L. ed. 409; ieSretOTC V. 5," ■*™- ■"'^''- ^°^- "''^ Duncan v. Miles, 8 Paige, 261; Besse v. Pellooh- Cam,nan, 18 Beav. 128, 7 De G., M. & oux, 73 111. 285, 24 Am-. Rep. 242; ^- '8- :,.,,, „ Adams v. Hayes, 24 N. C (2 Ired. ^° '^ "^^^ decided by the supreme L.) 361; Smith v. Morehead, 59 N. C. court of Louisiana in 1870 it ap- (6 Jones, Eq.) 300; Bicks v. Skinner, 'Pf^l?^ ^'^^^ ^!^^ husband, at the time 71 N. C. 539, 17 Am. Rep. 16; Glenn 2* ^?? marriage, was domiciled in V. aienn, 47 Ala. 204; Murphy v. Louisiana, and the wife in Missis- Murphy, 5 Mart. (La.) 83, 12 Am. ^'PP'' "^"^^^ *"e wedding took place, Deo. 475; Saul v. His Creditors, 5 and where an antenuptial marriage Mart. N. S. 605, 16 Am. Dec 212- settlement was executed. The parties -WcLcodv. Board,'30Tex. 238, 94 Am'. ™™'^'^*^^^y ^**^" ^^^ marriage Dec. 301. moved to Louisiana, where they re- sided until the husband's death. It The statement of the text is un- ""^^. ^'^^^ ^^^'^ *^^ question of the ca- rlnnKfo.n.., j.» i. j. pacitv of the wife and the form of doubtedly true as to property ac- ^^e contract were to be governed by quired before the change of domi- the lex loci actus, but its effect by oil. De Lane v. Moore, 14 How. 253, *!>« la-w of Louisiana, which was the 14 L. ed. 409; O'Neill v. Henderson, intended place of the matrimonial l"! Art oQK an A tx r„„ „ , domicil. Wilder's Succession, 22 La. 15 Ark. 235, 60 Am. Dec. 568; Frank Ann. 219, 2 Am. Rep. 721. 128 MAJRRIAGE. [Chap. IV. emed by the lex loci contractus. * But in the case before Chan- cellor Kent the place of contract was that of the matrimonial domicil ; and the reasoning goes to show that if there be a con- flict between the two, that of the matrimonial domicil, so far as concerns the mode of performance, would prevail. To this ef- fect is a decision of the Supreme Court of the United States that an antenuptial contract, duly made and recorded in the state of the parties' matrimonial domicil, where the property then was,, binds such property as against creditors and purchasers, though it had been removed to another state.'' It is clear that subse- quent creditors of the husband, in one state, cannot attach prop- erty settled on the wife by antenuptial contract valid in the matrimonial domicil.* Personal property not included in the settlement, nor subse- quently acquired, is governed by the law of matrimonial dom- icil. » Where the parties intend to adopt a new domicil after the marriage, we may hold, in view of what has been stated, to the following conclusions : — ^Decouche v. Sametier, 3 Johns. Ch. 211, 8 Am. Dec. 478; Story, Confl. L. § 376. TDe Lane v. Moore, 14 How. 253, 14 L. ed. 409. See Hicks v. Skinner, 71 N. C. 555, 17 Am. Rep. 16. To enforce in all cases the law of the place of celebration would be to impose an arbitrary and sometimes utterly incongruous and subversive test, since marriages are often solem- nized in places whose laws the parties have no idea of accepting as their own — laws which may seriously con- flict with other arrangements made by the parties. Ante, § 192. The same objection, though perhaps in a less degree, applies to Mr. Westlake's test, — the law of the husband's domi- cil. However it may be in England, it is often the case in the United States that marriage is the epoch wliich the husband selects for a change of his domicil. In the ma- jority of cases, it is true, the hus- ibiind's domicil, at the time the mar- riage is solemnized, is that to which the parties propose in future to sub- mit themselves, and in these cases Mr. Westlake's test is just. But where the parties intend to abandon this domicil for another immediately after the marriage, the domicil thus intended must determine the mode of performance. iBank of United States v. Lee, 13 Pet. 107, 10 L. ed. 81. That real estate, when put in trust for matrimonial purposes, must be governed in accordance with the laws of the matrimonial domicil, see Besse V. Pellochouas, 73 111. 285, 24 Am. Rep. 242. See Fuss v. Fuss, 24 Wis. 256, 1 Am. Rep. 180. It has been held in California, in the case of an antenuptial marriage contract made in France, where the parties were domiciled, in which the husband and wife agreed that the survivor should hold all the property whidi the one first dying should leave, except what the law gives to the children of the marriage, and the survivor died in California, being domiciled there, that the estate would be distributed in accordance with the law of California. Be Baubichon, 49 Cal. 19. 9 Story, Confl. L. § 185; Watts v. Skrimpton, 21 Beav. 97; Ordronaux V. Bey, 2 Sandf. Ch. 45. Ante, § 196. S 199] CONFLICTS AS TO MARRIAGE SETTLEMENTS. 429 1. The verbal interpretation of the contract, so far as con- cerns ambiguities, is to be governed by the law the parties had in mind and were familiar with, which is usually that of their residence at the time. 2. The rule locus regit actum determines the mode of sol- emnizing the contract. 3. The mode of performance is regulated by the law of the intended matrimonial domicil. ^ ° 199a. When future acquisitions after change of domicil not ■within the scope of the contract. — The statement in the last sec- lOCoHiss v.Heetor, L. R. 19 Eq.334, parties at the time of the marriage 44 L. J. Ch. N. S. 267, 32 L. T. N. S. select as the seat of their married 223, 23 Week. Rep. 485, may seem to life, and at which, after their mar- confliet with the conclusion. In this riage, they take up their abode, case the husband's domicil was Jour, du droit int. privg, 1875, p. 281, Turkey, while the marriage settle- and cases there cited, ment was English, and the wife was That as to formalities of execution an English woman. But in this case of a marriage contract the rule locus (aside from the barbarous character regit actum prevails is illustrated of the procedure by which the Eng- in Hicks v. Skinner, 71 N. C. 539, lish settlement had been annulled by 17 Am. Rep. 16, where an antenuptial the Turkish court without notice to contract entered into in New York, the wife ) , it was made plain that the and there registered, between a hus- wife was made to believe, at the time band domiciled in North Carolina, of the marriage, that the husband in- and a wife domiciled in New York, tended to make his domicil in Eng- was held good against the husband's land, and that such was at the time creditors, though the assignment was his expressed intent. England, there- not registered in North Carolina, to fore, may have been properly held to which place the property was moved be the matrimonial domicil; and the after the marriage. To the same ef- case, therefore, sustains the distinc- feet is Wilder's Succession, 22 La. tion taken in the text. See also Van Ann. 219, 2 Am. Rep. 721. Orutten v. Digly, 31 Beav. 561, 32 L. Whether, after marriage, a mar- J. Ch. N. S. 179, 9 Jur. N. S. Ill, 7 riage contract can be changed or L. T. N. S. 455, 11 Week. Rep. 230. amended by the consent of the par- As sustaining the text may be cited ties, is a matter as to which the law Davenport v. Earns, 70 111. 465, a of the actual domicil must decide, case of parol settlement, and authori- The French law forbids this. "Toutes ties cited ante, § 194. To same eflFeet conventions matrimoniales seront r6- is argument of Lord Brougham in digfies avant le mariage par acte Anstruther Y. Adair, 2 Mjl. & K. 513. devant notaire." "Elles ne peuvent Both in France and Germany the recevoir aueun changement aprSs la matrimonial estate, so far as con- cf>16bratian du mariage." Code Civil, cems the moneyed relations of hus- arts. 1394, 1395; but see a judgment band and wife, is determined finally of the Court of Appeals at Limoges, by the law of the matrimonial domi- August 8, 1809, given in Sirey, 9, 2, cil; nor is there any change in these p. 386. By the English common law, relations effected by a subsequent a married woman is incapable of change of domicil. The domicil is thus modifying or surrendering her not necessarily that of the place of estate. See Fuss v. Fuss, 24 Wis. marriage. It'ls the place which the 256, 1 Am. Rep. 180. 430 MAURI AGE. [Chap. IV. tion, that a change of domicil does not work any change of law governing the construction of the contract, is undoubtedly true with respect to property, wherever situated, which is within the scope of the contract. It is often a question, however, what property is within the scope of the contract. That question is, in its last analysis, one as to the intention of the parties. When the contract expressly, or by clear implication, covers future acquisitions after a change of domicil, its construction and effect with reference to such property, as well as property ac- quired before the change of domicil, are undoubtedly to be governed by the law of the original matrimonial domicil. -^ But when the contract applies, in terms or intent, only to present property, or is to be performed only in the country where made, and there is a change of domicil, the law of the actual domicil will govern the rights of the parties as to all future acquisi- tions;^ for, upon this assumption, the contract is eliminated so far as such property is concerned, and the rule previously stated with reference to acquisitions after a change of domicil has free scope.* The Illinois supreme court has held* that an ante- nuptial contract executed in a foreign country, where the par- ties were then domiciled, could not be regarded as having con- templated future acquisitions of property after a change of domicil, because, to use the language of Judge Story, it "did not speak fully to the very point j" and the Louisiana supreme 1 Thus, a stipulation in a marriage ^Besse v. Pellochoux, 73 lU. 285, 24 contract that there shall be a com- Am. Rep. 242; Long v. Eess, 154 111. munity of goods, to be regulated by 4S2, 27 L. R. A. 791, 45 Am. St. Rep. the custom of Paris wherever the 143, 40 N. E. 335; Fuss v. Fuss, 24 parties shall go, governs with respect Wis. 256, 1 Am. Rep. 180. At least to property acquired after a change so far as real property is concerned, of matrimonial domicil, and will be Castro v. lilies, 22 Tex. 479, 73 Am. enforced by the courts of the new Dec. 277. domicil, if not incompatible with its 3Ante, § 196. own laws, or prejudicial to its ov/n *Lonf/ v. Hess, 154 111. 482, 27 L. citizens. Murphy v. Murphy, 5 R. A. 791, 45 Am. St. Rep. 143, 40 N. Mart. (La.) 83, 12 Am. Dec. 475. E. 335. p^' § 199a] CONFLICTS AS TO MAKEIAGE SETTLEMENTS. 431 court has held^ that, notwithstanding the marriage contract was entered into at a place where no community of acquets and gains existed by law, and none were stipulated, yet, when the parties removed to Louisiana, such a community took place, by operation of law, with reference to property acquired in that state, unless expressly excluded by the contract. The change of domicil, therefore, while immaterial with respect to property previously acquired, and also with respect to property subse- quently acquired, if clearly within the contemplation of the parties at the time of making the contract, may, nevertheless, be an important element in determining whether certain property is within the scope of the contract. 199b. Law governing validity and construction of contract as to property within its scope. — If, after the application of the principles stated in the preceding section, it be found that cer- tain property is within the scope of the contract, it becomes necessary to determine the validity and construction of the con- tract as affecting such property; and to determine that qiies- tion, it may be necessary to choose between two or more possible applicatory laws. The original § 199 does not, perhaps, dis- tinguish, as clearly as is desirable, the cases in which the con- flict was between the law of the place where the contract was made, upon the one side, and the law of the matrimonial dom- icil, upon the other, from the cases in which the conflict was be- tween the law of the place of the contract and of the matrimon- ial domicil (the two being coincident), upon the one side, and the law of the place where the property is situated, or the law of the forum, upon the other. As between the law of the place of the contract and of the matrimonial domicil {lex loci con- tractus et domicilii), on the one side, and the law of the place where the property is situated (lex rei sites), or the law of the forum (lex fori), on the other, the former governs with respect ^Tourne v. Tourne, 9 La. 457. 432 MAKRIAGE. [Chap. IV. to the validity of the contract, at least so far as matters of sub- stance are concerned ; ^ and so, though it yields when a contrary intention in this respect is manifest, it governs with respect to the construction of the contract, using the term "construction" in the sense of the interpretation of the language of the contract and the determination of its effect upon property, which, under the rules previously stated, is within its scope. ^ Thus far it has been assumed that the place of the contract and the place of the matrimonial domicil were the same. When these are different, the law of the matrimonial domicil (lex domicilii), rather than that of the place of the contract (lex loci contrac- tus) generally governs, both as to the construction of the con- tract and as to its validity, so far as matters of substance are T-Scheferlmg v. Huffman, 4 Ohio erenee to the law of that state, rath- St. 241, 62 Am. Dec. 281; Townsend er than the law of France; and it V. Maynard, 45 Pa. 198. In both of was held, in accordance with the law these cases the lex loci and lex domi- of Louisiana, that such provision of oilii were the same. the contract did not impose any duty '^Crosby v. Berger, 3 Edw. Ch. 538; on the purchaser of the property Decouche v. Savetier, 3 Johns. Ch. with reference to the investment of 190, 8 Am. Dec. 478; Carroll v. Ren- the proceeds. ich, 7 Smedes & M. 798; Lafitte v. So, in Richardson v. DeGiverville, Lawton, 25 Ga. 305; Brown v. Ran- 107 Mo. 422, 28 Am. St. Rep. 426, 17 sey, 74 Ga. 210 ; Sviith v. Ghapell, 31 S. W. 974, it was held that the ques- Conn. 589 ; Sherrod v. Galleghan, 9 tion whether a separate estate in real La. Ann. 510; Spears v. Shropshire, property in Missouri ovmed by the 11 La. Ann. 559, 60 Am. Dec. 206; Le wife at the time of the marriage was Prince v. Guillemot, 1 Rich. Eq. 187; secured to her by an antenuptial con- McLeod V. Board, 30 Tex. 238, 94 tract executed in France, the original Am. Dec. 301. matrimonial domicil, was to be deter- In Eeine v. Mechanics & T. Ins. mined by the law of Missouri, rather Co. 45 La. Ann. 770, 13 So. 1, how- than the law of France. This deei- ever, it was held that a provision of sion was upon the gi'ound that the an antenuptial contract made in contract contained no agreement as France, where the parties were dom- to the rights of the husband to the iciled, which permitted the wife to wife's property during the marriage, sell her property, but required that but merely provided that the proper- the proceeds should be reinvested in ty owned by her at the time of the it prescribed manner, was to be con- marriage should not fall into the strued, so far as it affected immov- community, and that at her death, he able property in Louisiana, with ref- should, during his life, have the 1 199b] CONFLICTS AS TO MARRIAGE SETTLEMENTS. 433 •concerned.^ But this rule yields to an express stipulation that .some other law shall apply, or to other sufficient indications whole or the half of the income aris- It was held in Wilder's Succession, ing therefrom, accordingly as there 22 La. Ann. 219, 2 Am. Rep. 721, should or should not be children liv- however, that the capacity of the ing, of the marriage. The court said parties to, and the form of, an ante- that the question was whether such nuptial contract must be tested by an agreement secured to the wife a the law of the place where it was separate estate, as understood by the made, although its effect would be laws of Missouri. governed by the law of the contem- And it was held in Suarez v. De plated matrimonial domicil. Montigny, 12 Mise. 259, 33 N. Y. In Davenport v. Karnes, 70 111. \Supp. 292, that a marriage settle- 465, the validity of a parol antenup- ment executed in a foreign country tial contract was determined by the (the matrimonial domicil), relating law of Illinois, the matrimonial dom- to real and personal property in New icil, rather thaji that of Pennsylva- York, and appointing a. trustee who nia, where it was made, resided in New York, would be con- In Este v. Smyth, 18 Beav. 112, 23 strued according to the law of New L. J. Ch. N. S. 705, 18 Jur. 300, 2 York. This was upon the ground Week. Rep. 148, the rule that, as be- that it was obviously contemplated tween the lex loci and the lex domi- that the contract was to be per- cilii. the latter governs, was regarded formed in New York. as resting upon the presumed inten- ^LeBreton v. Miles, 8 Paige, 261 ; tion of the parties, and as yielding to Este V. Smyth, 18 Beav. 112, 23 L. an expressed intention to the con- ,1. Ch. N. S. 705, 18 Jur. 300, 2 Week, trary. Rep. 148. In Bouroier v. Lanusse, 3 Mart. In Golliss V. Hector, L. R. 19 Eq. (La.) 581, however, it was held that 334, 44 L. J. Ch. N. S. 267, 32 L. T. a provision in a marriage contract N. S. 223, 23 Week. Rep. 485, and An- entered into in Louisiana ( which, so struther v. Adair, 2 Myl. & K. 513, far as appears, was tlie matrimonial the country whose law was held to domicil ) , providing that the rights govern was not only the place of the of the parties should be determined matrimonial domicil, but also the according to the custom of Paris, place v.'here the contract was made; was invalid, and that their rights and that was true of the cases cited must be determined according to the in the preceding note. In some of law of Louisiana. It was admitted, "the latter, language was used indi- however, that if strangers had made eating that it was the lex loci that such a submission of their rights in was to be applied, hut in view of the a foreign country, subject to that -coincidence of the lex loci and lex law, it would have regulated the ef- domiciUi in these cases, they cannot feet of the contract in Louisiana, be regarded as authority that the lex In Morales v. Marigny, 14 La. loci should prevail over the lex domi- Ann. 867, it was held that, although '"''"• the parties by their marriage con- VoL. I. CoNFL. OF Laws — 28. *34 MAKKIAGE. [Chap. IV. that the parties contracted with reference to some other law.'' 200. Limitations under which foreign law can be applied. — Whether when there is a provision in a marriage contract that the contract shall be construed by a foreign law, and not that of the matrimonial domieil, such a provision is valid, is doubtful. In England the validity of such a provision has been affirmed. ^ In Louisiana it has been denied.^ And this is the better rule,, unless (1) the law designated is that of the matrimonial domi- eil; or (2) that of the place where property designated is situated. ^ 201. Limitations will not be enforced when contrary to the pol- icy of the law. — Limitations in a marriage settlement, contra- vening the policy of the state in which the parties are resident, or in which the property to be affected is placed, will not be enforced. ^ tract submitted themselves to the governs and subjects them to the law law of Spain as to the interpretation of the wife's previous domieil. Vi- of their rights and claims upon each dits v. O'Hagan [1899] 2 Ch. 569, 68 other, they did not, and could not, L. J. Ch. N. S. 553, 80 L. T. K S. oust the tribunals of Louisiana, the 794, 47 Week. Rep. 571, Reversed on place of their intended and actual another point in [1900] 2 Ch. 87, 69 residence, of jurisdiction of their L. J. Ch. N. S. 507, 82 L. T. N. S. disputes, and that such jurisdiction 480, 48 Week. Rep. 510; Surman v. was necessarily to be exercised ac- Fitzgerald [1904] 1 Ch. 573, Eevers- cording to "our own" approval. In ing [1903] 1 Ch. 933, 72 L. J. Ch. N. this case, also, the contract was ap- S. 430, 51 Week. Rep. 586, 88 L. T. N. parently executed in Louisiana. S. 326, 19 Times L. R. 347; Re Me- Neither of these cases, therefore, pre- gret [1901] 1 Ch. 547, 70 L. J. Ch. N. aents the question whether the par- S. 451, 84 L. T. N". S. 192; Reynolds ties may, by express provision to v. Ellis [1902] 2 Ch. 333, 71 L. J. Ch. that effect, stipulate that their N. S. 708, 87 L. T. N. S. 432, 50 rights shall be determined by the lex Week. Kep. 663. loci, rather than the lex domicilii. 4 Thus, in the following cases the ^ ^ ?**^/\*'™J'*^' ^^ ^^"■- "2, 23 . j..„ , . , ^ . „ L. ,T. Ch. N. S. 705, 18 Jur. 300, 2 particular circumstances, especially ^eek. Rep. 148. See ante, § 199b. the form of the settlement, were held ^Bourcier v. Lanusse, 3 Mart, sufficient to take marriage settle- (La.) 587. Ante, § 199b. ments out of the general rule that l^^ f"!''',!^^^^- "°*^ ^- ,, +i,„ 7 ™ f tv, i • • 1 J ■ ■, ^Post, § 490; Fergusson, Marr. & the law of the matrimonial domieil Djy 358_ ^ ' s > § 202] GIFTS BETWEEN HUSBAND AND WIFE. 435 IX. Gifts detween husband and wife. 202. By Roman law, gifts between husband and wife invalid. — By the Roman law all gifts from husband ,to wife, and from wife to husband, are forbidden. This is a matter of local policy, which is still maintained in several European states ; and, from its nature, is to be subject to the laws of the domicil of the par- ties at the time of the proposed gift.^ The reason given for this prohibition is the importance of maintaining the unselfish- ness and purity of the marriage relation; and even those jurists who most insist upon the maintenance of this policy regard it, nevertheless, as only national or local, and agree that it is not to be enforced on subjects who are temporarily residing within the bounds of a state in which no such law obtains. ^ Hence, it is held that if a husband domiciled in Vienna, where no such prohibition exists, should, while in Vienna, give to his wife land situated in Hanover, where the prohibition is in force, the gift is valid. ^ As the topic has been much discussed, and as it is likely to arise in America, in any case where German husbands, who have acquired domicil among us, should convey to their wives their German real estate, it may not be out of place to notice the question at issue a little more fully. The present rule in Germany seems to be that restrictive laws of this kind do not bind even the immovable property of persons who are domi- ciled in another land, though such immovable property lies in the land where the restriction is imposed. To this effect speak Savigny,* Rodenburg,^ Demangeat," and Wachter.'' A judg- ment in the Imperial Court of Paris, on February 6, 1856, is expressly to this point. A foreigner domiciled in France made a gift to his wife in conformity with the 1096th article of the Code E^apoleon. The court held the gift valid, although pro- hibited by the lex rei sitce. ^ The question on both sides is ones of state policy. "Moribus apud nos receptum est, ne inter virum et uxorem donationes valerent. Hoc autem receptum est ne mutato amore invicem spoliarentur, donationibus non tem- perantes, et profusa erga se facilitate." But this does not ap- ply to the immovable property of foreigners, though such iBar, § 97; Savigny, viii. p. 335; sBar, § 97. Boiihier, ehap. 12, No. 95; Deman- IVIII. p. 335. geat, note to Foelix, i. p. 228. sTitle 2, chap. 5, § 1. 2Bi;rgundus, i. 38; Bartol, in L. 1, 60n Foelix, i. p. 109. chap, de S. Trin. No. 32; Wachter, ii. m. p. 199. p. 199; Bar, § 97. slUd. i. p. 228. 436 MARRIAGE. [Chap. IV. property be situated within the territory. N^or do persons whose matrimonial domicil is under this law continue to be subject to it when they acquire a matrimonial domicil elsewhere. 203. So, by English common law. — By the English common law, the wife, after marriage, has no independent legal exist- ence, and hence can neither make gifts to her husband, nor, ex- cept as to paraphernalia, receive gifts from him. In cases of «hange of domicil, however, from a state where the common law exists to a state where the wife has an independent business existence, the law of the latter state prevails. ^ X. DiVOECE. a. Foreign divorces to he viewed with disfavor. 204. Marriage to be for life. — By the common law of Christen- dom, as has already been seen, marriage is the union of two per- sons, capable of intermarrying, for life, to the exclusion of all •others.^ This was the law adopted, prior to the settlement of this country, by the then powers of Christendom meeting in •councils, which were in this relation international congresses.^ 205. Power of divorce an attribute of sovereignty. — Waiving the question how far divorces with the right to remarry have the authority of Holy Scriptures, and how far they are supported by ecclesiastical sanction, there can be no question that by pres- ent international law a sovereign state has the power to divorce its domiciled subjects. This holds as to the several states of the American Union even under the Federal Constitution, which forbids a state from passing any law impairing the obligation of contracts. And it is also conceded by those European states which do not in their own legislation permit divorces.^ But lit should be added that even by wife. Walker v. Marseilles, 70 Miss, the common law a husband may con- 283, 12 So. 211. vey to trustees property for his wife's benefit. See 6 Southern L. Rev. (1880) 041. ^^^ I ^l The laws of the state in which a ^^nff, §§ 132 et seq. The authori- .„ . _ , i_ u J J. !,•„ ties are collected post, § 209. gift IS made by a husband to his r^^^ ^ ^^^^^ j^^^ ^^^^^ ^^ ji^o„e wife can have no operation after the j^g domiciled subjects, see ante, § 88; persons and property are removed Strader v. Graham, 10 How. 82, 93, to another state, assuming that, by {^^I^f s. ^1^6, ^2^3^ 'A^nTX^ 2^ the laws of the former state, the gift ^^^^^ ^.j^^^ .^^^^_ was good as between the husband and Whether nationality can be substi- § 205] DIVORCE. 437 while -we must concede this to be a doctrine of private interna- tional law, it is also a part of private international law that a divorce, to be extraterritorially valid, should have been granted on a regular procedure, by a court having jurisdiction. 206. Foreign divorces should be closely scrutinized on account of looseness of procedure. — In view, however, of the important interests at stake, it is proper, when a foreign divorce is set up, that it should be subjected to a close scrutiny ; and this scrutiny is the more essential from the carelessness and arbitrariness tuted for domieil, see ante, §§ 87, Essay on Divorce and Divorce Legis- 165; post, § 209. lation, with special reference to the That divorce of citizens of states is United States, by Theodore D. Wool- exclusively under state control, see sey, D. D., LL. D. New York: Scrib- Hophins v. Hopkins, 3 Mass. 158. ner, 1869. A Treatise on the Chris- That state divorces do not conflict tian Doctrine of Marriage, by Hugh with the Constitution of the United Davey Evans, LL. D. New York; States, see Cheever v. MHlson, 9 Wall. Hurd & Houghton, 1870. 123, 19 L. ed. 608. As asserting the right of divorce, A state can divorce by legislative after wilful desertion, may be cited act, unless the procedure be given by Matt. Henry, Com. 1 Cor. vii. 10-15. the Constitution to the judiciary. Tlie same view is taken by Grotius, This is an inherent incident of sov- by Luther, by Melancthon, and by ercignty exercised repeatedly in Eng- Calvin. land and in this country. See Ma- The Protestant Episcopal Church guire v. Maguire, 7 Dana, 183 ; Rugh in the United States prohibits its V. Ottenkeimer, 6 Or. 231, 25 Am. ministers from officiating at the mar- Rep. 513. It is otherwise when the riage of divorced persons except function is given by the Constitution those of the innocent party in cases to the judiciary. 2 Story, Const, of adultery. 271; Adams v. Palmer, 51 Me. 480; Although the Roman Cr.tholic Clark V. Clark, 10 N. H. 385, 34 Am. Church condemns divorces of all Dee. 165; White v. White, 105 Mass. classes, it annuls marriages for 325, 7 Am. Rep 526; Cronisev. grounds so numerous as to make Orornse 5i Pa. 255; Carson v. Car- marriages, in communities closely re- son, 40 xMiss 349. As to unconstitu- j^ted, and marriages between Chris- lonahty and mvahdity of special tians and non-Christians, always legislative divorces, see Simonds v. .„_„ 2.. _„,„•„:„„ «„j j., ' ."^'""J" sLonds, 103 Mass. 572; Bicheson v. 2ZrJ,T?\^^ ,v * ^'i Simmon!:, 47 Mo. 20. '""'"^y objection to the annulling of For Roman law, see Glasson, «'^rriage from the fact that, unlike Mariage Civil, Paris, 1879, London '^"IT'^'n • ''.^^*'i^'J'''<=| ^^l is^ue. Law Mag. Feb. 1879, p. 161, and , ^"^ Quinisextme Synod, held un- article by Mr. Van Winkle, 18 Alb. ^^"^ Justmian II., in A. d. 692, at L. J. 305. Constantinople, a synod accepted by That states not themselves grant- Hefele (Concilien Geschiehte, iii. 329) ing divorces will recognize the validi- f ^ authoritative, adopted the follow- ty of foreign divorces when granted ing as the seventy-second canon: — by a court having jurisdiction, see "Marriages between the orthodox post, § 209. and heretics are forbidden under pain _ The ecclesiastical issues involved of excommunication, and must be dis- in questions of divorce are elaborate- solved." ly treated by President Woolsey, of The position of the several states Yale College, and by the late Mr. of Europe in respect to divorce may Hugh Davey Evans, of Baltimore, be taken from the followino- table 438 MARRIAGE. [Chap. IV. with which in some jurisdictions divorces are granted, and from the usually ex parte character of the procedure. To accept un- questioningly the decrees of foreign states dissolving marriages would he to reduce marriage to a mere sexual union, to be ter- minated at will. Such is the theory of marriage in non-Chris- tian countries, whose aid, if it were likely to be successful, a short journey might readily secure, in order to vacate a tie from which either party might desire to be relieved. No doubt in drawn mainly from Glasson, Mariage either for determinate causes, or by Civil, PariSj 1879 : — mutual consent : Roumania, Code of I. Where only divorce {a vinculo 1865; Bavaria; Denmark; Norway; matrimonii ) exists : Roumania, Prussia, Landrecht and Imperial Law Switzerland, Germany, Sweden, Nor- of 1875. way, Denmark, Russia, Montenegro, VI. Where both separation de Sorvia. corps and divorce a vinculo exist, but II. Wherft only separation de corps only for determinate causes : Eng- perpetuelle (divorce o mensa et land, act of 1857. thoro ) exists^ and this for determi- VII. Whore separation de corps ex- nate causes: France, Civil Code, ists for determinate causes, and di- modified by Law of May 8, 1816 (see, voree either for determinate causes for French law, post, § 209; Fiore, p. or by mutual consent: Belgium. 653) ; Spain, Law of June 18, 1870; VIII. Where divorce exists for de- Portugal, Code of 1867. terminate causes, and separation ae III. Where separation de corps corps for either determinate causes perpetuelle exists, only for determi- or mutual consent: Holland. nate causes, or by mutual consent: IX. Where both separation de Italy, Code of 1866. corps and divorce, for determinate [The Italian courts assume the ju- causes, are permitted, subject to the risdietion of determining not only religion of the parties: Russian procedures for the "separation du Poland. corps" of foreigners resident in Italy, X. Where separation de corps for but also of procedures for "sgpara- determinate causes, or mutual con- tion de biens," although no such pro- sent, exists only for Catholics; while cedures are recognized by the states non-Catholics may be divorced either to which such foreigners belong. The in accordance with the laws of their French courts, on the other hand, do religious communion, or by consent, not exercise the jurisdiction over on the ground of mere incompatibil- foreigners as to "separation de ity: Austria. biens." Fiore, Op. cit. App^ p. 654. In Austria divorces, though pro- It is hard to see how the Italian rul- hibited in cases where the parties are ings are consistent with the Italian Catholics, are permitted for adultery, maxim that nationality determines cruelty, and desertion, where the par- status.] ties are Protestants. For Jews the IV. Where only divorce {a vinculo only sufficient cause (unless there be matrimonii) exists for determinate consent) is adultery. It has been causes : Switzerland, Federal Law, the habit of persons who in the eye 1874; Bavaria, Imperial Law of of the law are Catholics, and who de- 1875; Brunswick; Frankfort on the sire a divorce, to resort to Transyl- Main; Hanover; Saxony, Imperial vania (where there are Protestant Law of 1875; Wiirtemberg, Imperial ecclesiastical tribunals competent to Law of 1875; Sweden, Code of 1734; decree divorces), profess conversion Russia; Servia, Code of 1844; Monte- to Protestantism, and then be di- negro. vorced. The extraterritorial validi- V. Where such divorce only exists, ty of these divorces is discussed in S 206] DIVORCE. 439 such a case an American or English court would say : "We will allow to such a barbarous decree no extraterritorial force." But unfortunately, divorces, in some of our American states, are obtained by a procedure almost equally obnoxious. The domicil of the party petitioning, even when such domicil is re- quired, is often illusory. The proceedings are secret and lax, and the records, if kept at all, are kept vrith a slovenliness which often defies subsequent explorations.^ The court is sometimes satisfied with a notice to the defendant by publication, which in most cases in which there is no collusion is no notice at all. roreign judgments, as hereafter will be seen, which are granted with such carelessness, would be regarded as having no extrater- ritorial force. ^ If such be the rule with regard to judgments affecting mere private and individual rights, much more rigor- ously should such safeguards be invoked when the evil is one which touches, not merely the private interests of the parties, but the most sacred rights of innocent offspring, and the most essential sanctions of the community at large. 307. And also from the fact that marriage is governed by dis- tinctive national policy. — As is elsewhere fully shown, it is a fun- the Jour, du droit int. privg for 1880, it, is permitted, they are governed, as p. 268. to divorce, by the laws of the latter The conflict between European country. He holds, however, that Codes may be illustrated as fol- this rule only applies where the wife lows: — follows her husband, and that it does In France and Italy divorces a vin- not apply when she does not follow cuh matrimonii for any cause are him, but retains her old nationality, prohibited. The Prussian Code ad- He adds, dissenting in this respect mits any one of the following causes from Merlin, that such question as suflicient to sustain a divorce: should be based on facts anterior to (1) Adultery; (2) legitimate sus- the naturalization. See ante, §§ picion of adultery; (3) desertion; 132-135. (4) unnatural vices; (5) refusal of The peculiar jurisprudence in this wife to follow husband to a new respect of France is detE(.iled post, § domicil chosen by him; (6) refusal 209. to perform conjugal duties; (7) im- iPresident Woolsey, p. 271, gives potency; (8) insanity, lasting for a the following statement from a year without hope of recovery; (9) "legal gentleman in Indiana:" "It cruelty; (10) conviction of infamous frequently happens that the petition, crime; (11) dissipation and prodi- which is not sworn to, contains sev- gality; (12) refusal of husband to eral statutory causes, and, perhaps, support wife; (13) change of religion also states facts which could only be by either party; (14) mutual con- the basis of a divorce under the sent when there are no children, and seventh clause; and as the evidence in certain cases where there are chil- is heard orally, and no record is kept ^■^^ii- of it, probably in not one in five of According to Fiore (Op. cit. §132), the records of divorces can the real if parties, married in a country ground of divorce be obtained from where divorce is prohibited, are after- the paper with certainty." wards naturalized in a country where 2Pos*, §§ 646 et seq. 440 MAHRIAGE. [Chap. IV. damental principle of international law that each state, in all matters of morals and national policy, is bound to regard its own legislation as supreme.^ Even in so slight a matter as a single foreign judgment based on a principle at variance with a domestic police law is this principle invoked. ^ But to a state retaining the essential principles of the common law of Chris- tendom so far as to regard the marriage tie as on principle in- dissoluble, a lax system of foreign divorce presents itself with aspects far more threatening than could any single judgment militating against some local ordinance of police. The interest assailed is one that is essential not only to the welfare of the state, but to the peace of every household. And the aggressor is not a foreign judge, saying, "One of your marriages I dis- solve ;" but a foreign^ sovereign, saying, "Your whole social sys- tem I revolutionize." So numerous are the divorces granted in some of the American states, so freely are these divorces dis- pensed, so convenient is it for dissatisfied parties to have re- course to them, that to allow them to their full limit is to grant to foreign sovereigns the control of our most vital social ordi- nance. ^ 208. Domiciliary jurisdiction and regular procedure essential. — It is here that the first principles of sovereignty require that a firm position of independence should be taken. And this po- sition is simply this: "To entitle you to grant a decree of di- lAnte, §§ 127, 140, 165. Savig- rate of divorce for a. series of years ny (viii. p. 337), Schseffner (1247, has been to that of marriage as one- and Waehter (ii. p. 184), adopt this to ten (Divorce, etc., pp. 222, 223); view. Savigny says that divorce is and that by the same able and care- peculiar in this respect, from the ful writer an estimate is given {Ibid.^ reason that the laws relating to it p. 227) by which the annual divorces are of a distinctively positive char- in Indiana are rated at two thousand, acter, and each judge must follow making a still greater proportion., the laws of his own land. To the "It is not a very pleasant thought," same general effect are the remarks says Mr. Mansfield, of Ohio, as of Judge Sewall, in Barber v. Root, quoted by President Woolsey, "that 10 Mass. 205, to be hereafter quoted, when we look upon twenty-six couples And so also Mr. Burge, vol. 1, of . young married people, we know Colonial & Foreign Laws, 618. that one of those couples must be di- zPosi, § 656. See Fenton v. voreed." According to a writer on Livingstone. 3 Macq. H. L. Cas. 497, the condition of Germany, in the 5 Jur. N. S. 1183, 7 Week. Rep. 671. London Quarterly Review, for Octo- sSuppose the question to be, for ber, 1880, there are some German instance, as to accepting as inter- states in which the proportion of nationally binding the divorce legis- marriages divorced to those un- lation of Connecticut or Indiana. It divorced, is one to ten, and in which will be worth while to remember, in by a tacit understanding marriages such an issue, that in Connecticut, are determinable at will, according to President Woolsey, the § 208] DIVORCE. Ul voice, you must have domiciliary jurisdiction over the parties^ and the proceedings must be in accordance "with the rules of in- ternational law. In other "words, there must be an intelligent, record; there must, -when practicable, have been due notice to the defendant ; there must have been a formal submission of tes- timony; and there must have been no collusion." How far these views have been adopted by the several powers of Chris- tendom will now be seen. b. How foreign divorces are regarded on the Continent of Europe. No one who examines the opinions of continental jurists in this relation can do otherwise than unite with Savigny in re- marking the extraordinary variations of reasoning which these- opinions unfold. At the same time, from among these vari- ations, we may be able to extract the following fixed practical results. 209. Domicil alone or bona fide nationality essential to jurisdic- tion. — The court of actual domicil alone has jurisdiction to pro- nounce a valid divorce ; and a voluntary submission by the par- ties to any other tribunal is inoperative. This opinion is maintained by Bar,^ and by Savigny,^ and is no doubt that of present German jurists generally. It is sustained by several decisions of French courts.* Hence, a divorce pronounced in a state in which the parties are not domiciled is regarded by other states as invalid.* To this effect is a judgment of the Paris Court of Appeals, in February, 1808,^ and of the Court of Cassation, of November, 1822.® It is true that by Italian and Belgian jurists it is agreed that nationality is the criterion. But (apart from the objections to nationality already given) we must hold that unless nationality amounts to domicil in the i§ 92. be heard before the Bavarian courts, 2Vni. p. 337. unless they have taken up their domi- sGand, Code des :fitrangeres ou cil, with the permission of the gov- 6tat civil et politique des fitrangeres ernment, in Bavaria. Even vehen the- eu France^ No. 390 ; Judgment of the "wife has her domicil in Bavaria, this- C. de Cass. 14 Avril, 1818 (Sirey, 19, does not vest jurisdiction in the Ba- i. p. 193); 27 Novb. 1822 (Sirey, 24, varian courts, unless the husband i. pp. 48-52) ; C. Royale de Paris, 26 consents, vfith the permission of his- Avril, 1823 (Sirey, 24, ii. p. 65) ; C. home government, to submit to such Eoyale de Metz, 25 Aoflt, 1825 (Sirey, jurisdiction. 27, ii. p. 192). By the Bavarian 4Scha;fiFner, p. 160; Bar, § 92. Code (L. R. § 234), matrimonial 5Sirey, 8, ii. p. 86. questions between foreigners cannot sSirey, 24, i. p. 48. 442 MARRIAGE. [Chap. IV. forum, it does not give a party applying for a divorce such a status as invests that forum with international jurisdiction.^ ■'Esperson, a distinguished ItaliEin professor and jurist, takes the ground that in Italy, as marriages are indis- soluble, the divorce of Italians, mar- ried at home, when domiciled in a foreign land^ will not be regarded as valid. On the other hand, divorces of persons of foreign nationality by their national courts will be regard- ed as valid in Italy. Undoubtedly, he says, divorce belongs to the domain of "good morals" and "public order." But internationally it can- not be held that divorce, as an insti- tution, contravenes "public order" and "good morals" since it is permit- ted by some of the most civilized nations, and since "the countries in which divorce is permitted (England, Holland, some of the German states, Switzerland, the United States) are, in respect to morality, superior to al- most all the Latin races where mar- riage is indissoluble." In this re- spect, as well as in all others, "public order" and "good morals," he argues, are to be determined from the nation- al standpoint. Jour, du droit int. privg, 1880, p. 345. Distinctive French Law. — Notwith- standing divorces are prohibited in France, the French courts hold that after a divorce of persons of foreign nationality in courts having jurisdic- tion, such parties will be regarded in France as regularly divorced. This was ruled by the Cour de Cassation in Bulhey's 'Case, Dalloz, 1860, p. 57. To same effect, see Fiore, § 133; Foe- lix et Demangeat, i. p. 68; Brocher, Droit int. priv6, p. 351. See amte, § 132. Fiore follows the preponderating opinion of French jurists to the effect that parties legally divorced in their own country will be held free to marry in countries where divorce is prohibited. An ofBcer of the Italian civil service, he argues, cannot refuse to assist at the marriage of parties validly divorced in their own land. Fiore, Op. cit. § 134. But see Jour, du droit int. privg, 1877, p. 39. In Stramal v. Mairesse, it was held by the Tribunal civ. de la Seine, in 1876, that a foreign court is incompe- tent to annul a marriage contracted by a Frenchman in the land of the divorce, according to the law of that land. Jour, du droit int. privg, 1877, p. 147. The ground of this ruling, however, is justly criticized by the editor of the Journal. The reason given by the court is that a French- man's status is to be regulated, wherever he is, by French law. But, as the editor remarks, if the French law recognizes marriages as valid according to the laws of the state of celebration, it follows that it should recognize as valid dissolutions of the tie when decreed by the same state. This, however, is inconsistent with the view maintained in the text. Ac- cording to that view, a divorce, to be valid, must be decreed by a court of a. state in which at least one of the parties is domiciled. If this be cor- rect, it makes no matter where the marriage was celebrated. The fact that the husband is a citi- zen of a state (France) where di- vorce is not permitted does not pre- clude the wife from obtaining a di- vorce from the judex domicilii. Gas- ton V. Gaston, Cour d'appel des Deux-Points, 1870; Jour, du droit int. privg, 1875, p. 120. The effect of naturalization estab- lishing a domioil for divorce purposes is considered in the Jour, du droit int. privg, for 1877, p. 114. An article on the effect of foreign divorces will be found in the Jour, du droit int. privg, 1877, p. 14. Tlie writer, M. Labbg, contends that a foreign divorce cannot dissolve a marriage contracted by French sub- jects in France as long as the defend- ant maintains his French nationality. "He cannot," so it is argued, "be de- prived of the advantages given him by French law, French civilization, French morality." The same view is taken by Merlin, Questions, Divorce, § xi. M. Labbg adopts as correct § 214 of the first edition of this work. It has been held in France that a French subject cannot, by naturaliza- 210] DIVORCE. 443 210. Place of misconduct does not give jurisdiction. — Cruelty, or other misconduct, gives jurisdiction, for police piirposes, to the courts of the place where such misconduct takes place, and tion in a foreign land, obtain such a status in such land as will sustain, in France, a divorce from a French citizen, in eases in which the naturalization was undertaken in fraud of French law. Vidal's Case, Cour de Paris, 1877; Jour, du droit int. priv6, 1878, p. 268. And it was lield in 1878, by the Trib. civ. de la ;Seine, that this second marriage -would be dissolved on the application of the public minister (le ministere puilic). Jour, du droit int. privg, 1878, p. 603. See Bibesco Case, infra. In Plaquet v. Lille, Court of Amiens, Ap. 1880, it was held that a foreigner legally divorced in his own country could afterwards marry in France a French woman, although the first marriage was contracted in France with a French woman living in the same city with the second wife. Jour, du droit int. privS, 1880, p. 298. The French courts have jurisdic- tion to decree the nullity of a mar- riage contracted in a foreign land be- tween a man who is a foreigner and a woman who is a French minor. Jour, du droit int. prive for 1880, p. 300. Whether the French courts have jurisdiction to decree a "separation de corps" between foreigners not domiciled but resident in France has been much doubted. But in cases where no objection is taken to the competency of the court, there is a, growing tendency to maintain juris- diction in such oases. Jour, du droit int.privg, 1876, p. 222; 1877, p. 145; Foelix et Demangeat, i. No. 158; Au- bry et Rau, vi. § 748. This juris- diction is maintained in Switzerland. Jour, du droit int. priv6, 1876, p. 227. But see Jour, du droit int. prive, 1870, p. 362. In any view the French courts will, in cases where such a course is re- quired as a matter of family peace and comfort, give provisional alimony to the wife on due cause shown, and take measures for her protection and that of her children. Jour, du droit int. priv6, 1878, p. 45. See same Journal, 1876, p. 362. And the French courts have juris- diction, on application of a woman of foreign nationality, who was mar- ried in France, to decree a separa- tion de Hens from her husband. Jour, du droit int. priv6, 1874, p. 127. The following interesting Swiss case is given in the Jour, du droit int. prive for 1879, p. 526:— J., born at Bordeaux, his father being Genevese, was married to a French woman in France. On July 14, 1869, a decree pronounced a "sep- aration de corps" between himself and his wife. Wishing to obtain a divorce, he cited his wife to appear before the Geneva court, Geneva ber ing his domicil of origin, in conform- ity with the Swiss law. His wife pleaded in bar of jurisdiction that her husband was French ; that he had filled in I'rance a municipal office; that he had served in the French national guard; that he had exercised in France his electoral rights; and that in consequence he could not fall back on his paternal domicil, but must be held to have adopted that of France. The court, however, over- ruled the plea on the ground that the quality of Genevese nationality, hav- ing been fixed on J. by virtue of his parentage, was by the Genevese Constitution indelible; that he could not therefore lose it by acquiring a distinct nationality; and that conse- quently the Genevese court had juris- diction to grant the divorce on his petition. This decision is elaborately discussed in the Jour du droit int. prive for 1879, p. 528, and it is there correctly argued that if J., on ar- riving at his majority, had elected to surrender his Genevese paternal na- tionality and accept that of France, he would have been subject to the French and not to the Genevese law of divorce. Be De Bauffremont was discusser! 444 MARRIAGE. [Chap. IV. Avliere the offender, may be cited, though he be not there domi- ciled ; but without such domicil the court, while it will interpose for the protection of the injured party, and for a provisional separation, can grant no permanent dissolution of the marriage tie.^ by me at large in 19 Alb. L. J. pp. 250 et seq., pp. 269 et seq. The question at issue was whether a domiciled French woman (of Belgian birth ) , who has been in France separie de corps from her hus- band (1) eould become naturalized in a foreign state without her hus- band's consent ; and ( 2 ) if so natural- ized, was so far subject to the juris- prudence of that state as to become absolutely divorced a vinculo matri- monii from her husband, such state treating all separations de corps as divorces o vinculo matrimonii. In Paris, where the case was first lit- igated, the last point was decided in the negative, and the second mar- riage of the Princess de Bauffremont ( solemnized after her alleged first di- vorce) was declared invalid. In Belgium a contrary conclusion was subsequently reached. The court of appeals at Brussels, however, subse- quently held that Madame de Bauffre- mont's second marriage was invalid, she having no right to acquire a foreign naturalization. Jour, du droit int. priv6, 1880, p. 508. Numer- ous pamphlets were published on the subject, and opinions of eminent jurists were given for and against the validity of the marriage, in the Revue Pratique de droit Francois, 1876; in the Jour, du droit int. prive, 1876-7; and in the Revue de droit int. for 1876. These publications are reviewed by me in 19 Alb. L. J. 250. The decision of the French Court of Cassation, invalidating the second marriage of the Princess de Bauffre- mont to Prince Bibesco, will be found in the Jour, du droit int. priv6 for 1S78, p. 505. The French law, we may hold, in summing up this discussion, agrees with our own in the following posi- tions: — I. Subjects of a state which pro- hibits them from marrying cannot evade this prohibition by taking up, in fraudem legis, their residence in a foreign state, where such marriage is lawful. Should they return to their native land, after such illusory resi- dence, their marriage will be declared void by home tribunals. 2. But where both parties acquire a bona fide domicil in a foreign state, abandoning in reality the expec- tation of returning to their native land, then their divorce by the sov- ereign of their domicil will be con- sidered as valid everywhere. In France, indeed, this conclusion is em- barrassed by the statute providing that French nationality shall be con- sidered as continuing until nation- ality is acquired in a foreign state, and that while nationality lasts, obedience to the law is required, even by subjects residing abroad. So it would seem that in France a foreign divorce of a native French- man will not be respected unless he be naturalized as well as domiciled in the state granting the divorce. 3. The French law, however, dif- fers from that obtaining in most American states in this: With us, by the prevalent opinion, the wife can obtain, for divorce purposes, a domicil other than that of her hus- band; and this without his consent. In France it is doubtful whether a French woman, even though siparee de corps, can obtain such independent domicil. And aside from this ques- tion of domicil, it is held in France that if either party remains on French soil, as a French subject, such party cannot be affected by a divorce abroad obtained by the other party, though such other party was natural- ized and domiciled in the state grant- ing the divorce. As to whether the wife can acquire a separate domicil, see post, § 212. iBar, § 92. This question is dis- cussed more fully post, § 232. j 2]1] DIVORCE. 445 211. Nor does the place of the celebration of the marriage. — The place where a marriage is celebrated has not, from the fact of such celebration, jurisdiction over procedure for its dissolu- tion. The right to a divorce is not a part of the contract of marriage. That contract is indissoluble, and contemplates per- petuity. Divorce is a penalty, imposed by the court of domi- cil.^ Marriage is founded on the jus publicum, and the parties are therefore unconditionally subjected to the jus publicum of the place where they are domiciled. ^ 212. Wife may retain matrimonial domicil for divorce purposes. — As an ordinary rule, the wife's domicil is that of her hus- band.-^ Should the husband, however, after the cause for di- vorce has been given, abandon this domicil, the wife may never- theless proceed in the courts of such domicil, provided she has not followed him, animo mMnendi, to his new domicil. Were not this right given to the wife, the husband who absconds to a remote, or unknown, land, might, by thus aggravating his deser- tion, destroy the wife's remedy.^ 213. Nullity procedure governed by same rules. — The same general principles apply to processes to declare marriages null. ^ iPlitt.er, Rechtsfalle, iii. Th. i. p. I'ltalie ellt 6t6 connUj c'est assur6- .'80. ment a ce domicile que la demande 2Bar, § 92. aurait dll etre portSe; mais en fait '^Ante, §§ 43-46. See this dis- son domicile et mSnie sa residence •cussed fully in Re De Baiiffremont, gtaient inconnus. DSs lors le tri- 19 Alb. L. J. 250, ante, § 209, note 7. bunal de la residence de la femme, iPost, § 224; Bar, § 92. See bien que cette femme flit «trang6re Toelix, 1. p. 337. The question how et ftlt legalement domicilifie dans le far the French courts regard domicile inconnu de son mari, devait naturalization by a woman judicially 6tre tenu pour compfitent. D6cider separated de corps from her husband autreraent, c'est blesser la conscience as a basis of divorce is discussed autant que la raison et le droit, oar ■ante, §§ 205, 209. c'est decider qu'une femme, abandon- Tlie rule that the wife, for divorce n6e par un mari qui dispartatt de purposes, can acquire a domicil inde- telle fagon qu'il est impossible de pendent of her husband, is approved savoir oil il se trouve, ne peut ni by Prof. Bar, in a review of the first rompre les liens dans lesquels elle est •edition of this work , published in engagee, si elle appartient a un pays 1873. oH le divorce est admis, ni mSme par- For divorce purposes, the wife, in venir ft faire relacher ces liens par la Italy, can obtain a separate domicil separation de corps legale, et cela, from her husband. Decision of Vene- quelque juste et gvidente que soit sa ■tian Court of Appeals, 1876, cited in demande, et uniquement parce qu'il Jour, du droit int. privS, 1879 p. 299. n'y aurait pas, dans tout le monde. In a note to this case, the editor dis- de juges compgtents pour en con- sents from the position that, when naltre." For a fuller discussion of ■the husband's domicil is known, the this point, see Be De Baufremont, 19 wife can obtain an independent domi- Alb. L. J. 2.50, ante, § 209, note 7. •cil. To this, however, it is added: — i See Demangeat, note to Fcelix, i, "Si le domicile du mari hors de p. 337. 446 MARRIAGE. [Chap. IV. There must he domiciliary jurisdiction, and the proceedings must be regular. 214. Right to remarry determined by law of domicil. — On the question of the competency of divorced persons to marry again, the French courts have frequently determined that thi? is a per- sonal question, to be adjudicated, not by the law of the place of the divorce, but by that of actual domicil.^ And as to this a subordinate point has arisen: Is it enough if A., the divorced person, is entitled by the law of his domicil io marry; or is it also necessary for B., who is to marry A., to be entitled to do so by the law of B.'s domicil ? In other words, must the laws of both domicils permit such marriage, to make it valid; or is it enough that the law of the domicil of the divorced person should do so ? The Cour Eoyale of Paris held, in 1824, that the laws of both domicils should sustain the right ;^ the Cour Royale of Ifancy, in 1826, held that it was sufficient if the marriage was permitted by the laws of the domicil of the divorced person alone. ^ There has been a similar conflict among French ju- rists. Merlin earnestly argues that an English woman, divorced in her own country, can lawfully marry in France a French- man, during the lifetime of her former husband.* On the other hand, Demangeat declares the law to be clear that a for- eigner, divorced in his own country, cannot marry in France, during the lifetime of his wife. ® So far as concerns French di- vorces, these being prohibited by the law of May 8, 1816, all marriages by divorced Frenchmen in France are invalid by the French law. According to Merlin, French subjects who be- come naturalized in a foreign country may be legally divorced in such country ; but to effect this, both parties must become so naturalized, — if one remains in France the divorce is illegal.^ In Germany, it is held by Bar to be enough if the divorced party is entitled to such remarriage by the law of the court of divorce. And the reason given is that, in recognizing the com- petency of a foreign court to divorce, we recognize the practical consequences of such divorce, if they be such, in the right to contract new marriages. But, at the same time, if such right is not recognized in the place of divorce, but is recognized in a sub- 1 Foelix, i. p. 66. 3 Bar, § 92; Foelix, i. p. 66, 2 Sirey, 25, ii. p. 203; Merlin, 4 Merlin, Qu. de Droit, xiii. Quest, de Droit, xiii. See ante, § 135 ; _ 5 Revue Pratique de Dr. Tr. title and as to distinctive French law, i. p. 57. ante, § 209, note 7. * Ques. de Droit, Divorce, xi. j 214] i ■ DIVORCE. 447 sequent domicil of the divorced party, the latter law entitles him to marry. '' The English and American law on this topic has been already noticed. * c. How foreign divorces are regarded in Scotland. 215. Jurisdiction based on local policy. — The Scotch law con- tains a provision to the effect that a foreigner may be cited as defendant in a divorce suit as soon as he personally appears in the Kingdom ; and after a forty days' residence, a citation may he legally served on his dwelling place. ^ The Scotch courts go so far as to hold that, divorce being a matter of status, it is to be decided irrespective of the lex loci contractus, or domicil, or al- legiance, simply on grounds of public welfare and order. Hence, Scotch divorces have been decreed in cases where the parties, who were foreigners, entered Scotland for the purpose of defeating in this respect the laws of their own domicil. ^ And hence, foreign divorces granted under similar circumstances are recognized as valid in Scotland. ^ But this laxity of the Scotch law is not only deserving of severe reprehension on ground of principle, but has led to great practical confusion and disaster. Scotch divorces may be binding in Scotland, and yet without force in the remaining portions of Christendom; and Scotland is resorted to, as are some of our own states, to obtain dissolu- tions of tlie marriage tie which are often double frauds. They 7 Bar, § 92. Clark & F. 488, 9 Bligh, N. E. 89. iAnte, §§ 132, 135, 154. They have further maintained that Wtterton v. Tewsh, Fergusson, jurisdiction is given by (1) the corn- Consist. Eep. 23; Geils v. Geils, 1 mission in Scotland of a divorce of- Macq. H. L. Cas. 255; Phil. iv. 325. fense {locus delicti) and the personal 2 See Phil. iv. 334; 2 Bishop, Marr. citation of the defendant {2'Praser, fe Div. § 150; Warrender v. Warren. Husb. & W. 2d ed. pp. 1288, 1289) ; ier, 2 Clark & F. 561, 9 Bligh, N. K. or (2) the residence of the parties B9; Comcay v. Beazley, 3 Hagg. Bccl. (i. e., in effect, of the husband) in Rep. 646. Scotland for a period of forty days 3 Phil. iv. 335. ( see Ringer v. Ghurchhill, 2 Dunlop, "The Scotch courts, adopting in B. & M. .307; Jack v. Jack, 24 D. the main the 'penal' theory of divorce 467); or (3) the bona fide domicil (see pp. 350, 351, ante; JJtterton v. of the parties in Scotland. The Eng- Teicsh, Fergusson, Consist. Rep. 23), lish courts have never conceded the have never admitted that the fact of validity of the claims put forward by a marriage being celebrated in Eng- Scotch tribunals." Dicey, Domicil, land, or of its being in strictness an p- 354. [As to extraterritorial recog- linglish marriage, deprives them oi nition of Scotch divorces based on jurisdiction to grant a divorce. 2 residence as distinguished from dom- ^'raser, Husb. & W. 2d ed. pp. 1286- icil, see notes, post, § 219.] 1294; Warrender v. Warrender, 2 448 MARRIAGE. [Chap. IV. •are frauds on the party innocently divorced, who is at least plunged into distress, and is compelled to resort, for vindica- tion, to litigation, whose consequences, if not precarious, are at least one-sided. And they are frauds on parties subsequently marrying in reliance on the divorce record. d. How foreign divorces, are regarded in England. 216. Until 1858 no judicial divorces.— Until 1858, when the act establishing the divorce court was passed, no judicial di- vorces were granted in England,^ though proceedings before •ecclesiastical courts to annul marriages were frequent. 217. At one time held that no foreign state could dissolve an English marriage. — Before the act of 1858 the courts were in- •clined to apply to foreign divorces the principle of marriage indissolubility, which was then a recognized doctrine of Eng- lish jurisprudence ; and hence, to sustain this principle, reasons were from time to time thrown out which, since 1858, it will be difficult to maintain.^ At one time it was said that a mar- riage solemnized in England could be dissolved in no other land;'' at another, that divorces, being contra bonos mores ^ «could under no circumstances be recognized in England, — an idea now exploded by the statute of 1858.* For these and •other reasons, it was held that when a husband went to Scot- land, was divorced, and married again he was guilty of big- 1 Mr. Bishop states, it is true, that was void. It was as to this point "anciently in England judicial di- "that John Whitgift, then Arch- vorces for adultery were probably bishop of Canterbury" (not Bancroft, from the bond of matrimony." 1 as Salkeld states ), "said that he had Bishop, Marr. & Div. § 661. He goes called to himself at Lambeth the 'On to say that "in 1601 a contrary most sage divines and civilians, and rule was in the Court of Star Cham- that they had all agreed thereon." ber established, by Whitgift, Arch- An examination of the record in the bishop of Canterbury, assisted by Chapter House shows the correctness ■other eminent divines and civilians;" of Moore's report. See Woolsey, and he cites to this effect Foliamb's p. 291. Of course, there were in Case, 3 Salk. 138, F. Moore, 4, note 14, those days numerous decrees that Noy, 100, where he says that the de- marriages, for causes specified in the -eision is, through mistake, attributed canon law, should be annulled. But -to Archbishop Bancroft. President there is not a single case reported (if Woolsey, on the other hand (p. 290), we except Foliamb's) of a judicial argues that Salkeld not only errs as divorce (distinguishing divorce from to the judge presiding, but as to the decrees of nullity) prior to the di- point decided. In the report by vorce act of 18.58. 'Moore, it appears that the divorce in i See ante, § 204. Foliamb's Case was only a mensa et ^WGarthy v. Decaix, 2 Euss. & M. thoro, and not a vinculo matrimonii, 614, 2 Clark & F. 568 note. ;and that his subsequent marriage 3 Phil. iv. 350. I 217] DIVORCE. 449 &vaj, irrespective of the question of domicil;* and that where the husband, a Dane by birth and domicil, married in England an English wife, and the parties then became domiciled in Denmark, where they were divorced, the divorce was invalid.^ In 1860, the court of probate (Cresswell, J., Channell, B., and Keating, J.) carried the doctrine that the lex loci contr ac- tus determines the quality of a marriage to its furthest ex- treme.* In that case it appeared that C. and D., being native and domiciled subjects of France, came to London in June, 1854, and were married by license, according to the law of England, but without the observance of certain formalities and consents required by the law of France in respect to the mar- riage of its own subjects in foreign countries, which formali- ties it was their object to avoid. C. and D. returned to France, ^Rex V. Lolley, 1 Russ. & R. C. C. not only the marriage was celebrated ■237, 15 Revised Rep. 737. The doc- in England, but the original matri- trine originally rested upon the sup- menial domicil was also there; and posed authority of this case, though in Harvey v. Farnie, L. R. 8 App. it is now pretty well settled that the Cas. 43, 52 L. J. Prob. N. S. 33, 48 ■decision was upon the ground that L. T. N. S. 273, 31 Week. Rep. 433, neither party was bona fide domiciled 47 J. P. 308, Affirming L. R. 6 Prob. in Scotland, where the divorce was Div. 45, which affirmed L. R. 5 Prob. granted. That fact would alone de- Div. 153, 42 L. T. N. S. 482, a feat the jurisdiction from an inter- Scotch divorce dissolving a marriage national point of view. See post, celebrated in England was upheld in notes to § 219. England, the case being distinguished 5iY)/i ii r. - o T. L TLi from LoUey's Case upon the ground oM'Garthy v. Decaix, 2 Russ. & M. ,, , ,, , ,,^ \. , ^ '614, 2 Clark & F. 568 note. See also *'*^* *"« phrase English marriage," Warrender v. Warre-hder, 2 Clark & as used in that case, had reference P. 488, 2 Shaw & Maclean, 154, 9 not only to a marriage celebrated in S-' Erased; Hulb.Tw.' ad"^." pp! ^"^^-^' "^^ *° ^ """^^^ "^^^ 1277 et seq. persons domiciled in England, where- as, in the case at bar, while the wom- In Tovey v. Lindsay, 1 Dow, 140, an was domiciled in England, the also, Lord Eldon expressed a doubt man was domiciled in Scotland, and whether an English marriage could the matrimonial domicil was estab- he dissolved by a Scotch divorce. lished in the latter country. A simi- ^Simonin v. Mallac, 2 Swabey & lar distinction was made in Maghee T. 67, 29 L. J. Prob. N. S. 97, 6 Jur. v. M'Allister, 3 Ir. Ch. Rep. ^04. N. S. 561, 2 L. T. N. S. 327. The doctrine has now, however, been With the exception of this case, entirely repudiated, so that the dis- "the doctrine, even while it was sup- tinction is no longer of practical im- posed to prevail in England, seems portance. (See next section.) to have been confined to cases where Vol. I. CoNFL. of La^S — 29. 450 MARRIAGE. [Chap. TV. and the husband having refused to celebrate the marriage ac- cording to French law, and the marriage not having been con- summated, the wife instituted a suit for nullity in the French courts, which the husband did not defend, and in December, 1854, the wife obtained a decree of nullity. The wife after- wards became a resident of England, and petitioned for a de- cree of nullity in the court of probate; and personal service of the citation was made at Naples on the husband, who, how- ever, did not appear. It was held that the fact of the marriage having been celebrated in England gave the co^lrt jurisdiction, and that, as the marriage was contracted in England, it could not be dissolved by a French divorce. In a subsequent case, in the same court, the evidence showed that A., an English woman, and B., a Belgian, were married in Scotland, and subsequently in Belgium, according to the usage of the latter country. After cohabitation in Belgium, a compe- tent Belgian tribunal, on the ground of mutual consent, dis- solved the Belgian marriage, not touching the Scotch. The court of probate and divorce, in 1868, held that the divorce, so far as concerned the Scotch marriage, was a nullity. '^ 218. This view no longer held. — But in 1868 this extreme theory was repudiated in the House of Lords on the following facts : After an English marriage by two persons domiciled in England, who, however, never lived together, the marriage never having been consummated, the husband committed adul- tery; and, some years afterwards, he, living in adultery, con- sented to go to Scotland to found jurisdiction against himself. He never, however, obtained a domicil there, though his resi- dence was sufficient, according to the Scotch law, to give the Scotch courts jurisdiction. A divorce was duly had in Scotland, on proof of his adultery, and the wife married again. It was held by the whole court. Lords Cranworth, Chelmsford, West- bury, and Colonsay, that the Scotch divorce did not operate to dissolve the English marriage, and that therefore the children of the wife's second marriage were not legitimate in England. But the judges were very positive in distinguishing the case be- fore them from what it would have been if the husband had been domiciled, on the principles of international law, in Scot- land. Lord Cranworth, in speaking of Doe ex dem. Birtwhistle V. Vardill 1 Clark & F. 895, West, 500, 4 Jur. 1076, 6 Bing. TBirt V. Boutinez, L. R. 1 Prob. & Div. 487. See 11 Cent. L. J. 201. § 218j DIVORCE. 461 F. C. 385, 1 Scott N. E. 828, said that "the opinions of the judges in that case, and of the noble lords who spoke in the House, left untouched the question of legitimacy, except so far as it was connected with succession to real estate. I think they inclined to the opinion that, for purposes other than succession to real estate, ... the law of the domicil would decide the question of status." Lord Chelmsford throughout his opinion implied that a bona iide domicil would have given jurisdiction to the Scotch courts. Lord Westbury rested his argument on the position that the husband's Scotch residence was illusory. "If the court of a foreign country," he said with much force, "permits the subjects of a bordering nation to resort to it for the purpose only of getting rid of the personal status and obligations of husband and wife, which release they cannot obtain in the courts of their own country, it is plain that such foreign court is, in real- ity, by its tribunals, usurping the rights and functions of sov- ereignty over the subjects of another country who still retain, and, as soon as the purpose is answered, intend to return to their native country and resume, their original position." "But this right to reject a foreign sentence of divorce cannot rest on the principle stated by the Vice Chancellor in his judgment; namely, that where, by the lex loci contractus, the marriage is indissoluble, it cannot be dissolved by the sentence of any tribu- nal. Such a principle is at variance with the best-established rules of universal jurisprudence ; that is to say, with those rules which, for the sake of general convenience, and by tacit consent, are received by Christian nations and observed in their tribu- nals. One of these rules certainly is that questions of personal status depend on the law of the actual domicil." He then pro- ceeded to show, from an examination of the previous cases, that the sole test is that of the law of domicil, and that to adopt, as ruling such matters, the lex loci contractus, is absurd. And Lord Colonsay went even further: "What is meant by domi- cil? I observe that it is designated sometimes as a bona fide domicil, sometimes as a complete domicil, sometimes as a domi- cil for all purposes. But I must, with deference, hesitate to hold that on general principles of jurisprudence, or rules of international law, the jurisdiction to redress matrimonial wrongs, including the granting of a divorce a vinculo, dependt upon there being a domicil such as seems to be implied in some of these expressions." "If you put the case of parties resorting to Scotland with no such view, and being resident there for a 452 MARRIAGE. [Chap. IV. considerable time, though not so as to change the domicil for all purposes, and then suppose that the wife commits adultery in Scotland, and that the husband discovers it, and immediately raises an action of divorce in the court of Scotland, where the witnesses reside, and where his own duties detain him, and that he proves his case and obtains a decree, which decree is unques- tionably good in Scotland, and would, I believe, be recognized in most other countries, I am slow to think that it would be ig- nored in England because it had not been pronounced by the court of divorce here."^ iSliaw V. Gould, L. R. 3 H. L. 56, recent dicta, and neither in the argu- 37 L, 0. Ch. N. S. 433, 18 L. T. ment nor in the judgment does any N. S. 833. See, to the same effect, attention seem to have been paid to Robins v. Dolphin, 1 Swabey & T. 37, the faet that the domicil of the hua- AfErmed in 7 H. L. Cas. 390, 3 Macq. band in that case (where a Danish H. L. Cas. 563, 29 L. J. Prob. N. S. divorce was held incompetent to af- 11, 5 Jur. N. S. 1271, 7 Week. Rep. feet an English marriage) was Dan- 074. In Robins v. Dolphin, A., a ish throughout." Foote, Private In- domiciled Englishman, married B., ternational Jur. (1878) 60. an English woman, in England. They Colliss v. Hector, L. R. 19 Eq. 334, subsequently separated by consent, 32 L. T. N. S. 223, 23 Week. Rep. 485, and A. went to Scotland, where he 44 L. J. Ch. N. S. 267, did not touch remained six months, though without the question of the effect of a for- giving proof of an intention to make eign divorce in dissolving the tie of his domicil in that country. While a marriage contracted in England, there, he was cited by his wife before It simply held that a marriage set- the Lords of Sessions for adultery, tlement maue in England, the place and a decree was passed dissolving of marriage, between an English the marriage. It was held by Sir C. woman and a domiciled Turk, was Cresswell that the Scotch divorce did not affected by a Turkish divorce, not dissolve the English marriage. In Harvey v. Farnie (1880) L. R. See also Teh-erton v. Telverton, 1 5 Prob. & Div. 153. 42 L. T. N. S. Swabey & T. 586, 29 L. J. Prob. N. S. 182, Affirmed in L. R. 6 Prob. Div. 34, 6 Jur. N. S. 24, 1 L. T. N. S. 194, 45, which is also Affirmed in L. R. 8 Week. Rep. 134. 8 App. Cas. 43, 52 L. J. Prob. N. S. "In none of these cases ( flea! v. Z/oZ- 33, 48 L. T. N. S. 273, 31 Week. Rep. ley, 1 Russ. cSi, R. C. C. 237, 15 Re- 433, 47 J. P. 308, cited post, § 221, vised Rep. 737: Dolphin v. Robins, 7 Sir J. Hannen said: — H. L. Cas. 390, 3 Macq. H. L. Cas. "Then comes the question whether 563, 29 L. J. Prob. N. S. 11, 5 Jur. we are bound to recognize this decree N. S. 1271, 7 Week. Rep. 674; Shmo of the Scotch court dissolving this V. Attv. Gen. L. R. 2 Prob. & Div. marriage, which was celebrated in 156, 2.3 L. T. N. S. 322, 18 Week. Rep. England. But it follows from what. 1145, 39 L. J. Prob. N. S. 81), how- I have said that we really have ever, has it been decided that an Eng- nothing to do with the respondent lish marriage cannot be dissolved by and his wife from the time they left a foreign tribunal, where the parties this country. Their connection with are, at the time of the divorce, bona this country was entireljr at an end, fide domiciled in a, foreign state, and while they remained in the coun- M'Carthy v. Decaisc (2 Russ. & M. try of the respondent's domicil, they 614, 2 Clark & F. 568 note) was eer- were only subject to the law of that tainly a decision to that effect, but country. That being so, the sentence considerable doubt has been thrown of the court of domicil, the only ju- upon the principle involved by more risdiction to which they could be sub- § 218a] DIVOECE. 453 . 218a. Abandonment cf doctrine of indissolubility of English marriage. — The doctrine that an English marriage could not, under any circumstances, be dissolved by a court of another country, seems to have sprung from a misapprehension of the grounds of an early English decision,-^ and has now been dis- tinctly repudiated by the courts of England.^ ject, and the only jurisdiction before is a domiciled Scotchman, and when which the question of dissolving the he returns to the place of his domicil marriage could be brought, is a bind- his marriage is dissolved there. In iiig decree. It is like a judgment my judgment that is a good divorce in rem, and not merely a decision everywhere." inter partes. It altered the status of the respendent to that of an un- iRex v. Lolley, 1 Russ. & R. C. C. married man, and that status he car- 237, 15 Revised Rep. 737, ante, § 217, ries with him into whatever country ^^^ ^ he goes. It is clear that these are -r.' . . ,-, . ■ a ^ n the general principles that govern ^ I* 's "ue that m Shaw v. GouU^ this case, and that I must follow L. R. 3 H. L. 55, 18 L. T. N. S. themi unless there he some decision of 833, 37 L. J. Ch. N. S. 433, and Dol- the municipal law of England which ^.^ ^ ^^^.^ ^ jj_ ^ Cas. 390, 3 may compel me to decide the case ' ' _.„„._ t t> t upon some special ground applicable *Iaeq. H. L. Cas. 503, 29 L. J. Prob. to England alone. That there is N. S. 11, 5 Jur. N. S. 1271, 7 Week, nothing in statutory law on the sub- fiep. 674, the decree of divorce was ject is clear and the only case which ^^^^^^^ recognition, but that was up- has been referred to as having this , j , , , effect is Lolley's Case. [Having on the ground that there was no bona pointed out that the judgment in fide domicil in Scotland at the time Lolley's Case, which was carefully of the divorce. In LeMesurier v. Le worded, h£ui relation to the marriage j^gs^^er- [1895] A. C. 517, 64 L. J. of two English people who had not ■■ „„ i,. ^ _ changed their domicil at the time P- <^- ^- ^- ^'' "2 L. T. N. S. 873, 11 when the Scotch court was invited to Reports, 527, the court said that the dissolve the marriage, and referred doubt, created by the opinions of the to the cases cited in argument, dwell- common-law judges in Lolley's Case, ing especially on the case of Mag nee , ^, ,, ,. . V. M'AUister, 3 Ir. Ch. Rep. 604, in whether an linglish marriage could which it was held by the Irish Court be dissolved by a court of another of Chancery that a marriage cele- country, has since been dispelled, and brated in England between a native i.r,„i +!„ ^„i„ ■ „„„ „„j.+i„j *!,„* „„j J . ., ^ o i 1. J that the rule is now settled that an and domiciled Scotchman and an Irish woman might be dissolved by a English marriage, between persons at decree for a divorce pronounced by that time domiciled in England, may the Court of Sessions in Scotland, the be dissolved by a decree of a court of w'i^'^'^'^f * concluded] : For ^^^^-^^^ ^^^^^ .^ ^.^ ^^ . these reasons I am of opinion that ,, , Lolley's Case is only applicable to subsequently become bona fide domi- cases where the circumstances are ciled. In this case, also, the juris- similar to those in that case, namely, diction of the court which rendered S.d;\K:tTL^°tf alpiy ^^« '^'^^^^ ^^ '^^'^^ ''— «-- to a case where the parties are dom- "^^^ "° o™^ ^^^ domicil m the coun- iciled Scotch, or where the husband try where the decree was rendered; 4S4 MARRIAGE. [Chap. IV. 319. Petitioner's mere residence in divorcing state not enough. — Whatever may be said as to other points, it is clear that the English courts will not recognize as valid the dissolution of an English marriage by a foreign court when that court's jurisdic- tion rests on the mere residence, without domicil, of the peti^ tioner. but it is clear from the language of the opinion that the doctrine of in- dissolubility has now been thorough- ly repudiated in England. In Soott V. Atty. Gen. L. K. 11 Prob. Div. 128, 55 L. J. Prob. N. S. 57, 56 L. T. N. S. 924, 50 J. P. 824, it was held that a divorce for adultery, rendered by a, court of Cape Colony in Africa, dis- solving a marriage contracted in Ire- land between persons then domiciled in Ireland, would be upheld as valid in England if the parties were domi- ciled in Cape Colony at the time the divorce was granted. So, the fact that the parties to a divorce suit were domiciled in England at the time of the marriage, and at the time of the commencement of an action for divorce, is sufficient to give the court jurisdiction, notwithstanding that the marriage, and the facts up- on which the action is based, took place in India. RatcUff v. Ratcliff, 1 Swabey & T. 467. 1 That residence cannot be an in- ternational basis of jurisdiction, see jmst, § 223. In July, 1870, the question of the validity of an American divorce, based on residence, when the parties had been married in England, came up before Lord Penzance. The peti- tioner, Mrs. Betty Shaw, prayed for a decree, under the legitimacy decla- ration act, that her marriage with William Shaw, celebrated on the 22d •of September, 1859, at Rock Island, in the state of Illinois, should be de- clared valid. It appeared that the petitioner was born in England; and ■on the 26th of August, 1851, was married to William Suthers, in Eng- land. They cohabited in England until 1853, when they went to Amer- ica. They returned to England in 1855, and cohabited until March, 1856, when Suthers deserted his wife, and went back to America. In 1857, the petitioner followed him, but made no attempt to discover him. She re- mained for six months in Massachu- setts, and then went to Iowa, where she lived upwards of two years, sup- porting herself as a seamstress. In 1859, while a resident in Iowa, she presented a petition to the district court of Scott county, in that state, praying a divorce from Suthers, on the ground of his adultery, coupled with desertion. Suthers never re- sided in Iowa, and, his whereabouts not being known, the citation was served on him by advertisement. No appearance was entered on his behalf. On the 12th of September, 1859, the district court pronounced a decreti dissolving the marriage, and on the; 22d of the same month the petitioner was married to William Shaw, at Rook Island, in the state of Illinois. Mr. Shaw and the petitioner after- wards went to England, where Mr. Shaw died, leaving the petitioner a life interest in his property. Suthers, her first husband, never abandoned his English domicil, and was alive when his wife married Shaw. At the hearing, "Mr. De Traeey Gould, an American advocate, proved that, by the law of the state of Iowa, the resi- dence of the petitioner for six months in the state was sufficient to found the jurisdiction of the district court. The decree of divorce was valid, ac- cording to the law of the state, and would be recognized by the courts of all the states of America. He also proved that the marriage of the peti- tioner with William Shaw, in the state of Illinois, was valid according J 220] DIVORCE.- 455 220. Nor is mere residence of defendant. — What has been said of the petitioner applies equally to the defendant. The fact to the law of the state, and would except an advertisement which he he recognized in the other states of never saw, and was never likely to America." How far this statement see, obtain a divorce against him be- was accurate will be hereafter dis- hind his back." Shaw v. Atty. Gen. tussed. Post, §§ 231, 232. Lord Pen- L. R. 2 Prob. & Div. 161, 162, 39 L. J. zanee after recapitulating the facts, Prob. N. S. 81, 23 L. T. N. S. 322, said: "The principles upon which 18 Week. Rep. 1145. the question here raised must be de- It will be seen that Lord Penzance cided have been so recently discussed rests the case on Mrs. Shaw not being in several cases in the court of ulti^ domiciled in Iowa at the time of the mate appeal, that it is not necessary divorce. What he may be viewed, to enter upon the discussion at large therefore, as deciding, is that a for- on the present occasion. It may be eign divorce, granted in a state in sufficient to observe, firstly, that Lol- which neither of the parties were ley's Case has never been overruled; domiciled, and in which the defend- secondly, that in no ease has a for- ant was served only by publication, «ign divorce been held to invalidate with no proof of notice, will not be an English marriage between English regarded in England as valid, subjects, where the parties were not The Royal Commissioners on the domiciled in the country by whose Laws of Marriage, in their Report of tribunals the divorce was granted. 1868, say (p. 26) : "It is a settled Whether, if so domiciled, the Eng- point in the law of Scotland, that a lish courts would recognize and act sentence of dissolution of marriage upon such a divorce appears to be a (on proof of facts constituting suffi- question not wholly free from doubt; cient ground for dissolution of mar- hut the better opinion seems to be riage according to that law, which al- that they would do so if the divorce lows of more latitude in this respect he for a ground of divorce recognized than the law of England) may com- as such in this country, and the for- petently be pronounced by a Scottish eign country be not resorted to for court between persons having their the collusive purpose of calling in the legal and matrimonial domicil and aid of its tribunals. To my mind it ordinary residence in England or in is manifestly just and expedient that any other country, who have only re- those who may have permanently sided in Scotland for a very short taken up their abode in a foreign time, who have resorted thither (per- country, resigning their English dom- haps by mutual arrangement ) for the icil, should, in contemplation of Eng- express purpose of obtaining such a lish law, be permitted to resort with sentence, and who have no intention effect to the tribunal exercising juris- of remaining there after their divorce diction over the community, of which, has been obtained, by their change of domicil, they have "The English courts, on the other become a part, rather than they hand (with which, as we apprehend, should be forced back for relief upon the Irish courts agree), refuse, under the tribunals of the country they such circumstances, to acknoAvledge have abandoned. But the inquiry is the validity of such a Scottish sen- needless in this case, because it seems tence ; they treat a marriage subse- to me to be neither just nor expedient quently contracted in England by that a woman whose domicil is Eng- either of the parties so divorced as lish, and whose husband's domicil is bigamous, and the issue of such sub- English, should, whilst living sepa- sequent marriage as illegitimate, rate from him^ in a foreign state in "If. indeed, tlie suit was bona fide, which he has never, up to the time of and the legal domicil of the husband the divorce, set his foot, be permitted Scotch at the, time of the divorce, al- to resort to the local tribunal, and though the marriage might have been without any notice to her husband, originally English, the English 456 MARRIAGE. [Chap. IV, that the defendant is a mere undomiciled resident in a foreign state does not, on the grounds just noticed, give that state the courts, according to the more recent cause neither party was bona fide authorities, might regard the mar- domiciled in Scotland at the time- riage as effectually dissolved by a , ., j:y..„„ nroceedinffs Scotch sentence; but it may be con- °* ^''^ tuvorce proceettmgs. sidered still an unsettled point In ■?*«* v. Pitt, 4 Macq. H. L. Cas. whether they would recognize a bona 627, it was conceded by counsel at ifide temporary residence of both par- the bar of the House that a Scotch ties in Scotland, unconnected with ,. , , ., ,. any purpose of obtaining a divorce ^'''°'"'^ ^^^^^ ^P"'^ residence, as dis- (but without a legal domieil in that tinguished from domicil, could not country), as sufficient to enable Eng- be upheld on that ground, so that lish persons, when divorced by a ^^le question was not fairly before Scotch sentence, to marry again in ,, „ i, j. -j. ■ i.- j. j • each other's lifetime." Cited in ^^^ ^ouse; but it was intimated m Guthrie's Savigny, p. 250. "It is the the opinion that the concession was strong inclination of my own opinion, in accordance with the law. that the only fair and satisfactory j^ Jffiboyet v. Niboyet (1878) L. rule to adopt on this matter of juris- x> ^ t. u -r.- t ^o t t t. u tt diction is to insist upon the parties ^- ^ ^'^°^- D^^- 1' ^8 L. J. Prob. N. in all cases referring their matri- S. 1, 39 L. T. N. S. 486, 27 Week, monial differences to the courts of Eep. 203, the jurisdiction of a court the country in which they are domi- ^f England to grant a divorce was ciled." Lord Penzance, m Wilson v. , , , , j., ^ j. i? . i Wilson, L. R. 2 Prob. & Div. 441, 20 "Pl^^l-i ^'y ^^"^ Court of Appeal upon Week. Rep. 891, cited post, § 221. the groimd that the matrimonial resi- See, to same effect. Burton v. Burton, dence was in England at the time 21 Week. Rep. 648; Mannings Man- ^he cause of divorce occurred and at nmg, L. R. 2 Prob. & Div. 223, 40 L. . J. Prob. N. S. 18, 24 L. T. N. S. 196, ^^^ ^™e of the suit, although the 19 Week. Rep. 479; Niboyet v. Ni- domicil was in France, the husband, boyet, L. R. 4 Prob. Div. 1, 48 L. J. who was the defendant in the suit, lr\ ^- ^- U^ ^- ^- ^- ^- *^®' ^^ being a French consul residing in Week. Rep. 203. -c. f j a j- i- i- /v. ^ England. A distinction was made be- The statement of the text is sup- tween a mere temporary sojourn and ported by Conway v. Beazley, 3 Hagg. a matrimonial residence, and while Eccl. Rep. 639; Dolphin v. Robins, 7 it was conceded that the former H. L. Cas. 390, 3 Macq. H. L. Cas. would not be sufficient to uphold the 563, 29 L. J. Prob. N. S. 11, 5 Jur. jurisdiction, it was held that the lat- J\. S. 1271, 7 Week. Rep. 674; Shaw ter would be sufficient, though the V. Gould, L. R. 3 H. L. 55, 37 L. J. legal domicil were elsewhere. It is Ch. N. S. 433, 18 L. T. N. S. 833; true that the decision was governed Wilson V. Wilson, L. R. 2 Prob. & by a statute ; but the statute was not Div. 435, 20 Week. Rep. 891 ; Bona- explicit upon the point in question, parte v. Bonaparte [1892] P. 402, 62 and its construction was clearly de- L. J. Prob. N. S. 1, 67 L. T. N. S. termined by what the majority of the 531, 1 Reports, 490, where divorces court deemed the true principle of granted in Scotland were refused international law on the subject. recognition when they came collat- Brett, L. J., dissented, insisting that erally in question in England, be- jurisdiction could only rest upon true § 220] DIVORCE. 457 domicil. This was also the position pend upon domicil and cannot rest of Phillimore, from whose order the upon residence, matrimonial or oth- appeal was taken. erwise, has been clearly settled in In Manning v. Manning, L. R. 2 England by a decision of the Privy Prob. & Div. 223, 40 L. J. Prob. M. Council in LeMesurier y. LeMesurier S. 18, 24 L. T. N. S. 196, 19 Week. [1895] A. C. 517, 64 L. J. P. C. N. S. Rep. 479, the court, without express- 97, 11 Reports, 527, 72 L. T. N. S. ing any opinion upon the question 873, it being there expressly held whether mere residence in England that the domicil that will give a, was sufficient to sustain the juris- court jurisdiction to decree a divorce diction in a, divorce suit, held that entitled to extraterritorial recogni- the residence must be at least bona tion under the law of nations must fide, and not casual, or that of a be a permanent domicil, and that a mere traveler. so-called "matrimonial domicil," said In Gallwell v. Gallwell, 3 Swabey to be created by bona fide residence & T. 259, a divorce was granted in of the spouses within the territory England at the suit of the husband, of a less degree of permanency than who was domiciled in Ireland, and is required to fix the true domicil, had only a temporary residence in cannot be recognized as conferring England at the date of filing the peti- such jurisdiction. There is an ex- tion; but in this case the wife ap- tended discussion in this ease of the peared, and there was no discussion question whether "matrimonial domi- of the question of the jurisdiction. cil," as distinguished from true domi- In Argent v. Argent, 11 Jur. N. S. cil, is sufficient as a basis of juris- 864, 4 Swabey & T. S2, 34 L. J. Prob. diction from an international stand- N. S. 133, 12 L. T. N. S. 768, the point; and the position of the ma- court of probate, while not going jority of the court of appeal in to the extent of holding that a court Kiboyet v. Niboyet (1878) L. R. 4 of a country where the parties are Prob. Div. 1, 48 L. J. Prob. N. S. substantially resident, though not 1, 39 L. T. N. S. 486, 27 Week. Rep. domiciled, ought to be held in other 203, on the question, is distinctly re- countries to have the power to en- pudiated. The question arose upon tertain a suit for divorce, held that an appeal from a decision of a court a woman, whom a soldier in Her of India, but was decided upon prin- Majesty's service married while sta- ciples of international law, as there tioned at the Cape of Good Hope was no local law contrary to those after he nad there obtained a decree principles. Roberts v. Brennan of divorce from a former wife whom [1902] P. 143, 71 L. J. Prob. N. S. he also married there, the second 74, 86 L. T. N. S. 599, 50 Week. Rep. marriage being a valid one accord- 414, while admitting that Niboyet v. ing to the law of the Cape of Good Niboyet is of discredited authority Hope, — ^was entitled to administra- as applied to suits for dissolution of tion of the goods of his estate as marriage, held that matrimonial resi- his lawful widow. dence, and not domicil, is the test The principle of international law of jurisdiction in a suit to ajinul the that jurisdiction in divorce must de- marriage. 458 MARRIAGE. [Chap. IV. right to dissolve a marriage entered into in England. * And an English divorce, based on residence without domicil, would mot be extraterritorially valid. ^ 221. Husband's domicil the test. — The test of jurisdiction adopted by the cases now (1880) authoritative is the husband's domicil. That domicil is in point of law the matrimonial domi- cil; it is that of wife as well as husband; and it is therefore that which is to determine their marriage status. ^ 1 See post, § 223. Mr. Westlake (1880, p. 75) states that "when the husband, being either petitioner or respondent, though not •domiciled in England, is resident there, not on a visit or as a traveler, and not having taken up that resi- dence for the purpose of obtaining or facilitating a, divorce, the court has authority to grant a divorce, wher- ever the adultery was committed; or, if the husband be respondent, wher- ever the adultery and cruelty or de- sertion were committed." To this he cites Brodie v. Brodie, 2 Swabey & T. 259, 30 h. J. Prob. N. S. 185, 4 L. T. N. S. 307, 9 Week. Rep. 815; Niboyet X. Niboyet (1878) L. R. 4 Prob. Div. 1, 48 L. J. Prob. N. S. 1, 39 L. T. N. S. 486, 27 Week. Rep. 203. But Lord Penzance, in Manning v. Man- ning ( 1871 ) L. R. 2 Prob. & Div. 223, 40 L. J. Prob. N. S. 18, 24 L. T. N. S. 196, 19 Week. Rep. 479, takes strong ground in favor of making domicil the exclusive test, and this view is affirmed by Brett, L. J., in Niboyet ■V. Niboyet (1878) L. R. 4 Prob. Div. 1, 48 L. J. Prob. N. S. 1, 39 L. T. N. S. 486, 27 Week. Rep. 203, and by ;Sir R. Phillimore, L. R. 3. Prob. Div. .52. We have, in this last case (see next section ) , the authority of James and Cotton, L. JJ., for extending the jurisdiction to residence, as against Lord Penzance, Brett,, L. J., and Sir Tl. Phillimore. iPost, § 223. "I adopt the language of Ix)rd Westbury, in the case of Udny v. .Udny, L. R. 1 H. L. Sc. App. Cas. p. 458: 'Domicil of choice is a con- clusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an inten- ition of continuing to reside there for an unlimited time. This is a descrip- tion of the circumstances which cre- ate or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any ex- ternal necessity, such as the duties of office, the demands of creditors, or the relief from' illness ; and it must be residence fixed, not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that resi- dence originally temporary, or in- tended for a limited period, may afterwards become general and un- limited, and in such a case, so soon as the change of purpose or animus w,anendi can be inferred, the fact of domicil is established.' " Lord Pen- zance, in Wilson v. Wilson, L. R. 2 Prob. & Div. 435, 20 Week. Rep. 891. See also cases added to note to last section. 1 In Manning v. Manning (1871) L. R. 2 Prob. & Div. 223, 40 L. J. Prob. N. S. 18, 24 L. T. N. S. 196, 19 Week. Rep. 479, the husband, whose domicil of origin was Irish, having presented a petition for judicial sep- aration, on the ground of desertion, the wife appeared under protest, and pleaded to the jurisdiction. The hus- band filed an affidavit to the effect that he was permanently settled in England, and had no intention of re- turning to Ireland, yet even this affi- davit was held not to prove an Eng- lish domicil. On the other hand, it was proved that he retained a house in Dublin, where he kept his clothes, and that his place of business in Bayswater, England, consisted of a single room. The court held that the petitioner- was not domiciled iii England ; that there was nothing per- manent in his arrangements to stay i 222] DIVORCE. 459 222. Tendency to allow wife independent domicil.~There is, nevertheless, a tendency in England to admit a right of a de- there; that his affidavit failed from its deficiency in particularity; and that generally, to give jurisdiction, domicil must be bona fide. Compare Burton v. Burton, 21 Week. Kep. 648. Even when the marriage was in Scot- land, and the parties were then dom- iciled in Scotland, where the wife continued to reside, a subsequently acquired domicil of the husband in England gives the English court ju- risdiction of a divorce on the hus- band's suit. Wilson v. Wilson, L. R. 2 Prob. & Div. 435^ 20 Week. Rep. ■891. Firebrace v. Firebrace (1878) L. R. 4 Prob. Div. 63, 39 L. T. N. S. 94, 4T L. J. Prob. N. S. 41, 26 Week. Rep. 617, was a suit for the restitution of conjugal rights, the suit being brought by the wife, who had been for some time resident in England, and whose domicil of origin was Eng- lish. The court held that the de- fendant's domicil being proved to be in Australia, the petitioner could only have redress in that country, saying substantially, as quoted by Sir R.' Piiillimore, that "the domicil of the wife is that of her husband, and that her remedy for matrimonial wrongs must, as a. general rule, be sought in the place of that domicil." To this, however, is added the signifi- cant qualification: "It is not, how- ever, inconsistent with this principle that a wife should be allowed in some cases to obtain relief against her hus- 'band in the tribunal of the country in which she is resident, though not 'domiciled;" but it is then said that restitution of conjugal rights does not form such an exception. Fire- brace V. Firebrace, therefore, is not authority for the position that the wife cannot sue for divorce in any place but that of her husband's dom- icil. In mboyet v. Niboyet (1878) L. R. 3 Prob. Div. 52, it was ruled by Sir E. Phillimore that even for divorce purposes the wife cannot, by inere Tesidence, acquire a domicil which will sustain proceedings on her part •when the husband is domiciled in an- other state. In this memorable case {Niboyet v. Niboyet, L. R. 3 Prob. Div. 52), the petitioner, Caroline Prudence Niboyet, alleged that in 1856 she was married in Gibraltar, under English sovereignty, to Jean Niboyet, the defendant; that they lived together in various European countries; that her domicil of origin was English; that from April, 1859, at which time lie deserted her, she had resided in England; that his res- idence, for several years prior to the petition, had been in England; and that in England the acts of adultery complained of (the petition being based on adultery as well as deser- tion) had been committed. On the other hand, the defendant filed an affidavit to the eft'ect that his perma- nent place of abode was Paris; and that though for two years he had re- sided in England, this was in a con- sular capacity, he representing the Fiench government as acting French consul at Newcastle. It is clear, therefore, that his domicil was French, but it is equally clear that the wife's domicil, if our American rule be good, was English. Her dom- icil of origin was English; and in England she had resided, deserted by her husband, for nearly twenty years. But the court held that the petitioner had no such domicil as would give the court jurisdiction, and it was broadly announced, quoting from the as then unreported case of Firebrace V. Firebrace, L. R. 4 Prob. Div. 67, 39 L. T. N. S. 94, 47 L. J. Prob, N. S. 41, 26 Week. Rep. 617, that "the dom. icil of the wife is that of the hus- band, and her remedy for matrimo- nial vvrongs must be usually sought in the place of that domicil." Sir R. Philliraore's decision having been ijppealed from, the case was heard at length before the Court of Appeal on July 16 and 19, 1878; and a ruling was made on November 18, 1878, reversing the ruling of the court below. Written judgments were given by James, Brett, and Cot- ton, L. JJ. Niboyet v. Niboyet, 3!) L, T. N. S. 486, L. R. 4 Prob. Div. 1, 460 MARRIAGE. [Chap. IV. serted wife to sue in the old matrimonial domicil. Not only is this view tihe only rational basis on which recent cases can he 48 L. J. Prob. N. S. 1, 27 Week. Rep. 20.3. The majority of the court (James and Cotton, L. JJ. ) placed the reversal on grounds so extraordi- nary that a brief review of their rea- soning is indispensable. In the opin- ion of James, L. J., we find jurisdic- tion claimed over all cases where there is matrimonial residence: — "If I were asked to define, and it Avere necessary to define, what in the particular case of matrimonial infi- delity constituted a matter matrimo- nial in England at the time when the act was passed, I should define it to be a case of infidelity where the mat- rimonial home was in England, — viz., the matrimonial home in which the ofi'ended husband ought to be no longer bound to entertain the un- chaste wife, or in which the chaste and offended wife ought to be no longer bound to share the bed and board of the polluted husband, — the matrimonial home, the purity of which was under the watch and ward of the church there. I will give two illustrations of my meaning. It ap- pears to me impossible to suppose that an English court would lose its jurisdiction or not have jurisdiction because the guilty party consorted with his or her paramour outside the territorial limits of the diocese or on a journey. And, on the other hand, I do not think that an English court ought to have exercised, or would have exercised, jurisdiction in the case of a French matrimonial home, by reason of an act of infidelity done during a visit or transit to or through the English diocese. The proper court in that case would have been a French court." The American rule, that domicil of the petitioning party gives jurisdic- tion, is thus repudiated: — "I am unable more especially to imply any limitation of the authority of the court by reference to the prin- ciples of law which were at the pass- ing of the act in the course of devel- opment in the American courts, where it is now settled that the juris- diction is to be determined by the domicil of the complaining party at the time of the complaint brought. No such principle had then been es- tablished or recognized in any court of this kingdom ; and on the contrary, in one very important decision of the realm ( Scotland ) , the Scotch courts had exercised jurisdiction in entire disregard of any such principle." The inconvenience of the conclu- sion at which the court arrives is thus candidly admitted: — "It is very inconvenient and very distressing that two persons should be husband and wife in one country, and not husband and wife in another ; that their marriage should be a law- ful marriage in one and bigamous in another; that they should be com- pelled by the laws of one Christian country to a cohabitation, which by the laws of another Christian coim- try would be adulterous intercourse; and if we could find in the general application of the law as laid down by the American authorities a satis- factory escape from that difiiculty, we would be sorely tempted to strain the construction of the English stat- ute to bring it into harmony with that law. But I do not find any such satisfactory solution in that law." The objections to the American rule are rested on the two following grounds : — "In the first place, it appears to me to be a violation of every prin- ciple to make the dissolubility of a marriage depend upon the mere will and pleasure of the husband, and domicil is entirely a matter of his will and pleasure." But domicil is not "entirely a mat- ter of will and pleasure" of anyone. I may desire to change my present domicil, for instance, but if my ob- ject is simply to evade the duties it imposes on me, I cannot make the change until I make a bona fide set- tlement, with the intention of per- manent residence, in the place to which I remove. And so far as con- cerns the marital domicil, the Amer- ican rule to which Lord Justice James excepts, as making the hua- § 222] DIVORCE. 461 band's will supreme, so far from car- In Harvey v. Farnie (April, 1880) rying with it this consequence, per- 42 L. T. N. S. 482, L. R. 5 Prob. Div. mits the wife, as he himself states in 153, Affirmed on appeal in L. R. 8 a prior part of the same opinion, to App. Cas. 43, 48 L. T. N. S. 273, 31 acquire for divorce purposes a sepa- Week. Rep. 433, 47 J. P. 303, 52 L. rate domicil of her own. J. Prob. N. S. 33, amte, § 218, a dom- Equally futile is the remaining ob- iciled Scotchman, after marrying an jection: — English woman in England, retained "Moreover, a dissolution of the his Scotch domicil, and continued to marriage for adultery is only one of reside in that country with his wife the modes by which the status or al- for about two years, when she ob- leged status of husband and wife is tained a divorce from him before the judicially determined; a decree of Scotch Court of Session, on the nullity of a pretended marriage is ground of his adultery only. Sub- quite as much a decree in rem, and sequently he came to reside in Eng- has all the consequences. How could land, where he married for the sec- it be possible to make domicil the ond time. The second wife sought test of jurisdiction in such a case? to have her marriage declared null Suppose the alleged wife were the and void, on the ground that the complainant; her domicil would de- Scotch divorce was inoperative, at pend upon the very matter in contro- any rate in England, and that thcre- versy." fore the respondent had a wife living In other words, the argument would at the time of such marriage. It was be a vicious circle ; being tantamount held by Sir J. Hannen that the first to this: "The court has jurisdiction marriage was properly dissolved by because the marriage is lawful, and the Scotch divorce. See opinion cited, the marriage is lawful because the ante, § 218. court has jurisdiction." The assump- In Briggs v. Briggs (May, 1880) tion that the court has jurisdiction L. R. 5 Prob. Div. 163, 42 L. T. N. S. is based on the assumption that the 662, after a marriage of two domi- marriage is lawful, which is the very ciled English subjects in England, question in dispute. the husband went to the United Effective would this argument in- States, and took up his residence, deed be did the American rule, without acquiring internationally a against which it is directed, make the domicil, in Kansas. After a year's marital domicil the basis of jurisdic- residence in Kansas he presented a tion. But the American rule does petition to the courts of that state no such thing; and Lord Justice for, and obtained, a divorce on the James forgets, when he makes this ground of his wife's desertion. He objection, that only a few sentences then married again. The wife had back he stated the American rule to received no notice of the petition. It be that the "jurisdiction is to be de- was held by Sir J. Hannen that his termined by the domicil of the com- domicil at the time of the divorce plaining party at the time of the was English, and consequently that complaint brought." "Of the com- the American divorce was invalid, plaining party" is the test ; and when and that he had committed bigamy, the wife is the complaining party. It was doubted whether the domicil she may acquire an independent dom- of the wife follows the domicil of the ieil. There is no petitio principii in husband so as to compel her to be- this. The woman thus suing, says : come subject to the jurisdiction of "You have jurisdiction whether I am the tribunals of any country in which married or not. For I am here dom- the husband may choose to acquire a iciled, and my domicil gives you ju- domicil. "This view of the facts," he risdiction over my suit." See review said, "renders it unnecessary for me by me in 19 Alb."L. J. 147, 148, from to determine whether I ought to act which the above is reduced. Niboyet upon the doubt expressed by Lord V. tiihoyet is discussed in the London Westbury in Pitt v. Pitt, 4 Macq. H. Law Mag. for May, 1878, pp. 326 L. Cas. 256, 'whether the domicil of ^* se?- the husband is to be regarded in law 462 MARRIAGE. [Chap. IV. hanaonized, but it is the only theory consistent with the rule determining the continuance of matrimonial domicil in other respects. ■* as the domicil of the wife, either by construction or obstruction, so as to compel the wife to become subject to the jurisdiction of the tribunals of any country in which the husband may choose to acquire a domicil' — a doubt, however, which Lord Kings- down stated he did not share." The question, it should be remembered, arose in a petition from Mrs. Briggs for divorce on the ground of her hus- band's bigamy. Sir. Dicey on Domicil (Op. cit. p. 234) gives the following rule: "Sub- ject to the exceptions hereinafter mentioned, the divorce court of a for- eign country has jurisdiction to dis- solve the marriage of any persons domiciled in such foreign country at the commencement of proceedings for divorce, and a divorce by such a court of such parties is valid." The excep- tions are : ( 1 ) Cases in fraud of English law, where the domicil was illusory (Shaw v. Qould, L. R. 3 H. L. 55, 37 L. J. Ch. N. S. 433, 18 L. T. N. S. 833) ; (2) cases where the pro- ceedings were contrary to natural justice [IMd.) ; (3) eases where the cause was one for which a di- vorce could not be obtained in Eng- land; which last point, however, he queries, but cites Shaw v. Atty. Gen. L. R. 2 Prob. & Div. 156, 39 L. J. Prob. N. S. 81, 23 L. T. N. S. 322, 18 Week. Rep. 1145. That domicil is the test is argued by Mr. Foote in the London Law Mag. for May, 1878, pp. 326 et seq. iSee ante, §§ 194, 221 et seq. Ac- cording to a decision of the divorce court (Yelverton v. Yelverton, 1 Swabey & T. 591, 29 L. J. Prob. N. S. 34, 6 .Jur. N. S. 24, 1 L. T. N. S. 194. 8 Week. Rep. 134), the residence of the wife alone is insuificient to found jurisdiction in a suit against a hus- band who has not been and is not re- siding within the limits of the state to which the court belongs. For a further discussion of this case in other relations, see ante, §§ 43, 73, 120, 183. Sir R. Phillimore, in commenting afterwards on Yelverton v. Yelverton (Phil. iv. 326), while admitting that the husband's domicil is generally that of the wife, goes on to argue "that if the husband commits such an offense against the marriage state as renders her cohabitation morally and perhaps physically impossible, he has destroyed the basis upon which the general doctrine rests, and has enti- tled, or rather compelled, her to es- tablish, for the purposes of obtaining justice against him, at least, if not a separate domicil, in the full sense of the term, a separate forensic domi- cil ; otherwise the husband may eas- ily take, what all sound jurispru- dence abhors, advantage of his own wrong." Under the law constituting the English court of divorce, Ireland and Scotland are foreign countries; and persons domiciled in such countries cannot apply to such court for relief. Yelverton v. Yelverton, 1 Swabey & T. 591, 29 L. J. Prob. N. S. 34, 6 Jur. N. S. 24, 1 L. T. N. S. 194, 8 Week. Rep. 134. That the personal capacity of a married woman is determined by the law of her domicil, see ante, § 118. That a married woman's domicil ordi- narily changes with that of her hus- band, see ante, § 45. How far this is generally affected by legal separa- tions, see ante, § 46; post, § 225. In Dech v. Deck, 2 Swabey &, T. 90, 29 L. J. Prob. N. S. 129, 2 L. T. N. S. 542, 8 Week. Rep. 666, after an Eng- lish marriage, the husband acquired an American domicil. ISfotwithstand- ing this domicil it was held that the English divorce court had jurisdic- tion of a suit brought against him for divorce. On international princi- ples this can only be sustamed on the ground that the wife had acquired an independent domicil. The court, however, rested its jurisdiction on the peculiar phraseology of the stat- ute (20 & 21 Vict. chap. 85, § 27), wliich, it was held, covered the ease of all natural-born British subjects. In Callwell v. Callwell. 3 Swabey & T. 259, the husband's domicil was not in England, nor had the marriage f 223] DIYORCB. 46» e. How foreign divorces are regarded in the United States. 223. Domicil, not residence or nationality, the test of jurisdic- tion. — That the sovereign of the place of domicil, and not the sovereign of residence as distinguished from domicil, deter- mines the marriage status, has been already abundantly shown.-' To divorce, this principle is peculiarly applicable. If a mere residence gave the sovereign of the residence juris- diction to grant divorce, marriage would be a status, not for life, but at will ; since all that would be necessary for a party desiring a divorce would be for him to visit a state where di- vorces are granted on ex parte statements of incompatibility, and there present his petition. So disastrous would be the con- sequences, that there is a concurrence of opinion among civil- ized states that residence by itself of the petitioner, or even of both parties, in a country, is not sufficient to give to the sov- ereign of that country divorce jurisdiction.^ That national- ity presents difficulties almost equally serious has been already seen;^ and nationality cannot be the test in the United States, not only because here we have one nationality with forty juris- been solemnized in England. This, wise the aggravation of a crime however, seems to have been regarded would be its exoneration. The hus- as cured by the appearance and sub- band, by covering up the traces of his mission of the wife, who did not flight, could make it remediless. The raise the question of jurisdiction. very act which perfects the wife's That a wife, for divorce purposes, desolateness would preclude her from may acquire an inuependent domicil, redress. See post, § 224. see Sanio Teodoro v. Santo Teodoro, L. E. 5 Prob. Div. 79, 49 L. J. Prob. I" ^« ^»««^ ''■ i« Sueur, L. R. I N. S. 20, 42 L. T. N. S. 331. To the Prob. Div. 139, 45 L. J. Prob. N. S. same eiiect is the argument of Brett, 73 34 L T N S 511 24 Week Rep IrtZ'^Wl: fSN.- It ''''' ^^"1--' ^- J-' -P--d the .39 L. T. N. S. 486, 27 Week. Rep. 203, opimon. although he did not decide as discussed ante, § 221. the question, that desertion by the Mr. Westlake (1880, p. 79) main- husband may entitle the wife, with- tama that "not even where the hus- „ . -,„ * ; j- • i j.- band had. deserted the wife, or so con- ""* ^ ^^'''^'' °^ ^■^^"''^i separation, ducted himself that she was justified *» choose a new domicil for herself, in living apart from him, will a di- though he stated that, in coming to vorce obtained by her in a country that conclusion, he went a step fur- wlucti was not that of his actual ,, ,, ,, . j- • i j . . , ■, domicil be treated as valid in Eng- ^^^"^ *''^'' ^^^ ^"'^'"='^1 decisions had land." . The correctness of this infer- gone- ence from the later English rulings I doubt, holding, for reasons above giv- ^Ante, §§ 190, 209. en, that they may be best explained 2See, for English law, ante, § 219. and harmonized by assuming that the Scotland is the sole European excep- Wife may for divorce purposes ac- tion. Ante, § 215. quire an independeint domicil. Other- 3 See ante. § 209. 464 MAERIAGB. [Chap. IV. prudences,* but because we number among our population nearly five hundred thousand persons, domiciled among us, who, owing to the probation of our naturalization statutes, are still nationalized in Europe, whose marriages would, upon this hypothesis, be subject to the caprice of sovereignties essentially foreign, in some of which divorces are granted on mere ex "parte petitions. The only remaining test is domicil, and it is a right test, since it assumes, not merely residence, but an in- tention to remain permanently in the territory of the state as- serting jurisdiction. When the record of a foreign divorce is presented to us, therefore, the first question is, Was there a domicil of at least one of the parties in the divorcing state? Supposing the record merely avers "residence," — the term "residence" being ambiguous, it is competent to show that there was no domicil. Supposing the record to aver "domicil," — it is competent, as we will hereafter see, collaterally to dispute this averment.^ Domicil being a prerequisite to jurisdiction, it is a petitio principii to prove domicil by averring domicil. It is no reply to this position that the state granting the di- vorce makes "residence," and not "domicil," the test. Inde- pendently of the position, already taken, that "residence," in statutes to this effect, is to be treated as convertible with "dom- icil,"^ we must remember that no state can, so far as concerns others, change the standard of jurisdiction.'^ A state may say, "I will divorce persons on the mere residence of the petition- er;" but a decree of divorce, based solely on such residence, though binding in the state granting it, will not be regarded as binding by states making domicil the test. So far as this coun- try is concerned, it is generally settled that residence without domicil will not entitle a party to sue for a divorce that will bind extraterritorially. * There must be a real domicil; that *See ante, §§ 7, 8, 34. That domi- Pick. 410; Eanover v. Turner, 14 •oil, not allegiance, is the test, see Ni- Mass. 227, 7 Am. Dec. 203; Chase v. boyet V. Niboyet, L. R. 4 Prob. Div. Chase, 6 Gray, 157 ; Shannon v. Shan- 1, 48 L. J. Prob. N. S. 1, 39 L. T. N. non, 4 Allen, 134; Coddington v. Cod- S. 480, 27 Week. Rep. 203. dington, 20 N. J. Eq. 263; Smith v. BSee post, § 230. Smith, 4 G. Greene, 266; People v. (Ante, § 21 ; post, § 229. Dawell, 25 Mich. 247, 12 Am. Rep. 7See ante, §§ 77^, 215. 260; Thompson v. State, 28 Ala. 12, ^Winship v. Winship, 16 N. J. Eq. and see cases cited post, § 228. 107; Broun v. Brown, 14 N. J. Eq. "To each state belongs the exclu- 78. See Cooley, Const. Lim. 400; 2 sive right and power of determining Bishop, Marr. & Div. § 121 ; Leith v. upon the status of its resident and Leith, 39 N. H. 20; Ditson v. Ditson, domiciled citizens and subjects, in re- 4 R. I. 87 ; Johnson v. Johnson, 4 spect to the question of marriage and Paige, 460; Greene v. Greene, 11 divorce; and no other state, nor its I 223] DIVORCE 465 judicial tribunals, can acquire any Am. Rep. 299. In most of these lawful jurisdiction to interfere in gases the service upon the defendant sach matters between any such sub- constructive or substituted serv- iects, when neither of them has be- ^^^ constructive or substituted serv iome bona fide domiciled within its ice, but the significance of that fact limits, and any judgment rendered by appears to be only in its bearing on any such tribunal under any such cir- the question whether the defendant is cumstances is an absolute nullity. i j j ^ j ■ 4.1 j. i.u Ditson V. Ditson, 4 R. I. 87; Cooley, Precluded from denying that the ■Const. Lim. 400, and notes cited; plaintiff was domiciled at the forum. Kerr v. Kerr, 41 N. Y. 272; Hoffman See post, § 230a. The statutes of T. Hoffman, 46 N. Y. 30, 7 Am. Rep. t^e states in which the decrees in- •299; Hanover v. Turner, 14 Mass. , , ■ j.,. j j 227, 7 Am. Dec. 203." Cornell, J., in ^"l^^d "^ ^hese cases were rendered Mate V. Armington, 25 Minn. 29. make domicil, or residence ammo ■manendi, a prerequisite of jurisdic- In addition to the cases cited tion, though in most of the cases the above, it is held by the following decision was referred to the general cases, upon principles of interna- principles of international law. tional law, that a decree of divorce In People v. Darnell, 25 Mich. 247, rendered in a state in which neither 12 Am. Rep. 260, a decree of divorce •of the parties was domiciled, or re- rendered in Indiana was held invalid sided ammo manendi, was not en- in Michigan because neither of the titled to recognition in another, parties to the suit ever resided in In- Bell V. Bell, 181 U. S. 175, 45 L. ed. diana, even upon the assumption •804, 21 Sup. Ct. Rep. 551, Afiirming that the decree would have been valid 157 N. Y. 719, 53 N. E. 1123; 8treit- by the laws of that state. wolf V. Streitwolf, 181 U. S. 179, 45 At one time the statutes of Utah 1. ed. 807, 21 Sup. Ct. Rep. 553; attempted to confer jurisdiction to Andrews v. Andrews, 188 U. S. 14, grant divorces at the suit of a per- 47 L. ed. 366, 23 Sup. Ct. Rep. 237; son who was not, but desired to be- Harrison v. Harrison, 20 Ala. 629, come, a resident of the territory. In 56 Am. Dec. 227; Strait v. Strait, 3 the following eases Utah divorces MacArth. 415 ; Hood v. State, 56 Ind. based on such statute were refused 563, 26 Am. Rep. 21; Watkins v. recognition in other states because WatUns, 125 Ind. 163, 21 Am. St. neither party was bona fide domi- Eep. 217, 25 N. E. 175; Beeman v. ciled in Utah: Hood v. State, 56 Kitzman (Iowa) 99 N. W. 171; Greg- Ind. 263, 26 Am. Rep. 21; Litowioh, ■ory V. Gregory, 78 Me. 187, 57 Am. v. Litowioh, 19 Kan. 451, 27 Am. Eep. 792, 3 Atl. 280; Beed v. Reed, Rep. 145; State v. Armington, 25 •52 Mich. 117, 50 Am. Rep. 247, 17 Minn. 29; Smith v. Smith, 19 N. W. 720; Thelen' V. Thelen, 75 Neb. 706, 28 N. W. 296; People ex Minn. 433, 78 N. W. 108 ; St. Sure v. rel. Publio Charities & Correction Lmdsfelt, 82 Wis. 346, 19 L. R. A. Comrs. v. Smith, 13 Hun, 414; •515, 33 Am. St. Rep. 50, 52 N. W. 308 Gettys v. Gettys, 3 Lea, 260, 31 Am. (divorce rendered in foreign coun- Rep. 637; Morgan v. Morgan, 1 Tex. tvy); Kerr v. Kerr, 41 N. Y. 272; Civ. App. 315, 20 S. W. 154; Hardy Hoffman v. Hofman, 46 N. Y. 30, 7 v. Smith, 136 Mass. 328. Vol. I. CoNPL. or Laws — 30. 466 MARRIAGE. [Chap. IV. is to say, the domicil must be adopted as a permanency;* though the fact that the object was to acquire the benefit of a more favorable type of jurisprudence does not prevent a dom- icil from vesting.^" 223a. When local statute substitutes residence for domicil. Since the principle stated in the last section, to the effect that jurisdiction of the subject-matter in divorce depends upon domicil, and not on residence merely, is one of international law, it ought, in the absence of conflicting statutes, to govern the courts in the assumption of jurisdiction to grant divorces, as well as in the recognition of divorces granted in other coun- tries. Generally, however, the jurisdiction of the court of any particular state or country, as affected by domicil or residence, is fixed by statute. Therefore, when it is merely a question as to the jurisdiction of a domestic court, the only function of the principle is to serve as a rule of statutory construction if the language of the statute is ambiguous.^ Of course, if the lan- 9 See nost, § 228. by statute. WMtcomi v. Whitcomb, 10 Ante, §§ 28, 56, 135. 46 Iowa, 437. That it is sufficient for one party The statement of the text on this to he domiciled in the jurisdiction point is supported by Col,urnj. Col- ^^ ^^^^ '"^^i^Z^ X burn, 70 Mich. 647, 38 N. W. 607; ju^ge Redfield, who claims that the Fosdick V. Fosdick, 15 R. I. 130, 23 common domicil alone is sufficient. Atl. 140; and Re Hall, 61 App. Div. For a learned examination of the ORR Tn-K -v «!„r.r^ dOR quBstion, scB 16 Am. L. Reg. N. S. 266, 70 N. y. Supp. 406. 1^^^ jg^^^ gg . As to the Massachusetts statute, ^ I" Maguire v. Maguire, 7 Dana, see post, § 229; Chase t. Chase, 6 181, it was held, under the iniiuenee Gray, 157 ; Smith v. Smith, 13 Gray, of this principle, that the statute of 2""; , ,,. ., . ., . Kentucky, relied on by plaintiff, had As holding that mere residence of ,,,,,. i ■ ■ j' j.- the complainant is sufficient when it "O* attempted to confer jurisdiction comes up to the statutory limit,, see upon the courts of that state over Babbitt v. Babbitt, 69 111. 277 ; Dutch- suits for divorce, where neither par- er ^.Dutoher 3<> Wis. esi But such ^ ^^^ domiciled within the state, residence, without domicil, will not •' . .,,..■, . bind extraterritorially; and it has even if it were withm the power of been expressly held in Iowa that resi- the legislature to confer jurisdiction dence in that state, for the mere pur- under such circumstances, pose of bringing a divorce suit, does j^ j.^^^^ ^ y^^ 13 j^ j ^ not give lurisdiction, though contin- „„ „, , , ' i , oi ued for the length of time required ^80= Blumenthal v. Tannenholz, 31 223a] DIVORCE. 467 guage of the statute is unambiguous, and substitutes residence for domicil as the basis of jurisdiction, the general principle of international law must yield, unless the statute is unconstitu- tional.^ 224. Wife may acquire independent domicil. — ^Domicil being the test, the question next comes up, whose domicil ? In Eng- land, as we have seen, the prevailing opinion has been, the hus- band's domicil.'^ But in the United States, from our peculiar position as a confederation of independent sovereignties, con- tiguous, but each with its distinctive municipal law of divorce, the difficulties of the rule soon became manifest. A man might give his wife cause for divorce and then defy her and defy the law, by putting it out of her power to avail herself of this cause. That which is an aggravation of the offense would become its shield. Deserting her, he might take up his home in a remote state, where she could only pursue him at great expense, en- countering a jurisprudence selected by him as the most tinfav- orable to her claims. Or he might drive her, by his cruelty, N. J. JEq. 194; and Pay son v. Pay son, 34 N. H. 518, the refusal to take ju- risdiction where neither party was domiciled within the state seems to have been prompted, or at least in- iluenced, by the general principle. So, in Andrews v. Andrews, 176 Mass. 92, 57 N. E. 333, under the in- fluence of this principle of interna- tional law, the vords "resident of the territory" in the South Dakota statute defining the jurisdiction in divorce were construed to require a domicil in the territory. To the same effect are Qralwmi v. Graham, 9 N. D. 88, 81 N. W. 44; De Meli v. De Meli, 120 N. Y. 485, 17 Am. St. Rep. 652, 24 N. E. 996; Hooker v. Hooker (N- J. Eq.) 37 Atl. 773; Blake v. Dudley, 111 La. 1096, 36 So. 203; namill V. Talboit, 81 Mo. App. 210. And nearly all of the cases seem to assume that "residence" for the pur- poses of divorce means domicil, or at least residence animo manendi. °- In Oalef v. Calef, 54 Me. 365, 92 Am. Dec. 549, the principle, as appli- cable in Maine, was stated with the qualification that the parties were not married in that state; but this qualification is due to the fact that the Maine statute, contrary to the general principle of international law, makes the celebration of the marriage in that state a ground of jurisdiction, without reference to the domicil of the parties at the time of the suit. That is also true in New York. (Code Civ. Proc. § 1756, subd. 2.) Holmes, Ch. J., in Andrews v. A.ndreios, 176 Mass. 92, 57 N. E. 333, seems to intimate a doubt as to the constitutionality of a statute substi- tuting simply bodily presence for domicil as a basis of jurisdiction. lAnte. 6 221. 468 MARRIAGE. , [Chap. IV. to another state, compelling her, if she sue him, to sue as an alien, with the burdens attending one instituting proceedinga in a foreign land. Or, what would be still more oppressive, he, might steal a march on her and proceed to a jurisdiction with lax laws of divorce, and sue her in that jurisdiction, that be- ing constructively her domicil, though within its bounds she had never set foot, and yet whose laws would be treated as bind- ing her absolutely. So iniquitous is this, that in Massachu- setts, in a celebrated case,^ it was ruled that for divorce pur- poses a woman can adopt her permanent residence as her dom- icil, and in this sue, or, if sued, set up its laws as those to which she is subject. This case has been followed in most of the states of the American Union. In Pennsylvania, however, as will be soon more fully seen,^ a distinct mode of removing the ob- jections to the old rule has been taken, it being held in that state that the injured party must seek redress in the forum of the defendant, unless when the defendant had removed from the common domicil, in which case the suit may be brought in the domicil of the injured party at the time of injury. Pass- ing, however, this last distinction, we may now hold as the pre- vailing American doctrine, that for the purposes of divorce either party may acquire an independent domicil. The hus- band is in any view entitled to do so at any time. The wife can do so, under the new rule, for the purpose of suing the de- fendant, as otherwise, in a process in which their advantages should be equal, great disadvantage would be heaped on her. It should be remembered that when the allegation of the alleged wife is that the marriage was null, she can sue irrespective of the defendant's domicil, since it would be i. petitio principii to assume a marriage when the marriage is in dispute.* iBarteau v. Harteau, 14 Pick. 181, bed and board being put, a part for 25 Am. Dec. 372. the whole, as expressive of the idea 3 See post, § 239, note. of home. Otherwise the parties, in 4See Doughty v. Doughty, 27 N. J. this respect, would stand upon very Eq. 3] 5. Ante, § 221. unequal gi'ounds; it being in the "The law," said Chief Justice Shaw power of the husband to change his {HarteoAi v. Harteau, 14 Pick. 181, 25 domicil at will, but not in that of the Am. Dec. 372), "will recognize a wife wife." And by the Supreme Court of as having a separate existence, and the United States it has been decided separate interests, and separate that a wife may acquire a domicil rights, in those cases where the ex- different from her husband's when- press object of all proceedings is to ever It is necessary or proper that show that the relation itself ought she should have such a domicil, and to be dissolved, or so modified as to in such a domicil, if the case other- establish separate interests, and espe- ^ wise allow it, may institute proceed- cially a separate domicil and home; ings for divorce, though it be neither 225] DIVORCE. 469 225. And so may wife after judicial separation. — A separa- tion judicially granted a mensa et thoro by itself entitles a wo- her husband's domieil nor the domi- cil of the parties at the time of the marriage or of the offense. Cheever V. Wilson, 9 Wall. 108, 19 L. ed. 604. To same effect are Harding v. Alden, 9 Me. 140, 23 Am. Dee. 549; Frary v. Frary, 10 N. H. 61, 32 Am. Dec. 395; Brett V. Brett, 5 Met. 233; Sawtell V. Smotell, 17 Conn. 284; Jenness v. Jenness, 24 Ind. 355, 87 Am. Dec. 335; Tolen v. Tolen, 2 Blackf. 407, 20 Am. Dec. 742; Fishliv.Fishli, 2]Jitt. (Ky.) 337; Moffatt v. Moffatt, 5 Cal. 280; Craven \. Graven, 27 Wis. 418; Shrech v. Slireclc, 32 Tex. 579, 5 Am. Etp. 251. Since a wife may acquire an inde- pendent domieil for divorce cases, it follows that when a wife, after mat- rimonial difficulties, returns to her domieil of origin, she may sue for a. divorce in the courts of such origin. Tims, domieil for the purpose of di- vorce, it was held in Massachusetts, in 1867, might be retained by the wife in that state, although she had left it with her husband some months before with the intention of perma- nently settling in Colorado; she hav- ing returned to Massachusetts, after the journey had commenced, in conse- quence of her husband's cruelty to her in Philadelphia. Shaw v. Shaw, 98 Mass. 158. So, wliere husband and wife were domiciled and married in New York, in 1856, and before 1861 moved to North Carolina, and the wife in 1864 returned to New York, where she was divorced, and then married a second time, it was held in North Carolina, in 1868, that the di- vorce and second marriage were val- id. State V. Sehlachter, 61 N. C. (Phill. L.) 520. A divorce procedure instituted by the husband in the place of his domi- eil is no bar to a divorce procedure instituted by the wife in the place of her domieil. Wright v. Wright, 24 Mich. 180. The Massachusetts cases are thus recapitulated by Gray, Ch. J., in Bur- den v. Sharmon, 115 Mass. 438: — "In Barteau v. Harteau, 14 Pick. 181, 25 Am. Dec. 372, the parties were married in this state, lived here several years, and then removed into the state of New York, and took up their residence there. The wife, on the ground of the husband's desertion and cruel neglect to support her in that state, returned to Massachu- setts, and took up her abode here, and applied for a divorce here for the causes alleged to have occurred in New York, the husband continuing to have his domieil in New York. The court was of opinion that if the wife had always continued to reside in this commonwealth, she might have maintained a libel here, even for a cause which occurred in another state, and after the husband had ac- quired a domieil there ; and dis- missed the libel, because, both parties having renounced their domieil here, the return of the Avife to this state would not give the court jurisdiction over the husband under the statutes then in force. "The later statutes provide that a libellant who has resided in this state for five years, and did not re- move into this state for the purpose of procuring a divorce, may obtain a divorce for any cause allowed by law, whether it occurred in this common- wealth or elsewhere, and that in no other case shall a divorce be decreed for any cause arising out of this state, unless the parties had previ- ously lived together as husband and wife in this state, and one of them lived in this state when the cause oc- curred. Gen. Stat. chap. 107, §§ 11, 12. In Shaw v. Shaw, 98 Mass. 158, the husband and wife, having been married and resided together here, left this commonwealth to take up their residence in Colorado. In Penn- sylvania, on the journey, he treated her with extreme cruelty, and she left him and returned to this state, and continued to reside here. It was held that she might maintain a libel here for a divorce for the cause oc- curring in Pennsylvania, although the husband, before it occurred, had left this state with the intention of never returning, and never did ip 470 MARRIAGE. [Chap. IV. fact return, and therefore no notice ried 80 far in favor of the wife as to was or could be served upon him in permit her to acquire a new domieil this commonwealth." j-a i. i it, • i. ■ different from the previous matri- In the following cases it is express- monial domieil. ly held or assumed that a wife may Banberry v. Hanberry, 29 Ala. 719, not only have a separate domieil for held that, while the general rule is the purposes of divorce, but that such t^^^t a wife's domieil follows her hus- separate domieil may be acquired in band's, yet she may, for the purpose a state or country different from that of procuring a divorce, acquire a sep- of the previous matrimonial domieil: arate domieil in the state in which Cheever v. Wilson, 9 Wall. 108, 19 L. she is actually living at the time she ed. 604; Eehhing v. Pfaff, 82 Fed. is deserted, even though the husband 403 ; Chapman v. Chapman, .129 111. is domiciled in another state. 386, 21 N. E. 806; Dunham v. Dun- Maguire v. Maguire, 7 Dana, 181, ham, 162 111. 589, 35 L. R. A. 70, 44 held that, although the wife may N. E. 841; Hill v. Bill, 166 111. 54, have had a good cause for leaving 46 N. E. 751 ; Smith v. Smith, 43 La. her husband, and was actually resi- Ann. 1140, 10 So. 248; Benton's Sue- dent in Kentucky, yet her legal domi- cession, 106 La. 494, 59 L. R. A. 135, eil was still in Alabama, where the 31 So. 123; Barding v. Alden, 9 Me. husband resided. 140, 23 Am. Dec. 549; Barteau v. Upon the same principle that up- Barteau, 14 Pick. 181, 25 Am. Dee. holds the right of the wife to acquire 372; Frary v. Frary, 10 N. H. 61, 32 "■ separate domieil, it has been held Am. Dec. 395 ; Ditson v. Ditson, i R. that the maxim that a wife's domieil J gY follows her husband's cannot be in- In the following cases, where the voked in her favor for the purpose principle that a wife may have a sep- of conferring jurisdiction of a suit arate domieil for the purposes of di- hy her upon a court of a, state in vorce was applied, the wife retained which the husband is domiciled, if the original matrimonial domieil, the she is actually a resident of another husband having acquired a domieil state. Wood v. Wood, 54 Ark. 172, in another state: Turner v. Turner, 15 S. W. 459; Jenness v. Jenness, 24 44 Ala. 437; Moffatt v. Moffatt, 5 I^d. 355, 87 Am. Dec. 335; Pate v. Cal. 280; Lazovert v. Lazovert, 14 -P«*«' 6 Mo. App. 49; Sohonwald v. 111. App. 653; Derby v. Derby, 14 111. Schonwald, 55 N. C. (2 Jones, Eq.) App. 645; Bowmam v. Bovmian, 24 367; White v. White, 18 R. I. 292, 111. App. 165; Rhyms v. Rhyms, 7 27 Atl. 506; Michael v. Michael Bush, 316; Wathims v. Watkins, 135 (Tex. Civ. App.) 79 S. W. 74; Dutch- Mass. 83; Burtis v. Burtis, 161 Mass. «^ v. Dutcher, 39 Wis. 651. 508, 37 N. E. 740; VoMPossen v. TBut it has been held otherwise in State, 37 Ohio St. 317, 41 Am. Rep. Bashaw v. Kashaw, 3 Cal. 312; Dm- 507.' lop V. Dunlop, 3 Ky. L. Rep. 20; Burtis V. Burtis, 161 Mass. 508, 37 Masten v. Masten, 15 N. H. 159; N. E. 740, expressly refrained from Payson v. Payson, 34 N. H. 518; Se- deciding whether the exception to wall v. Sewall, 122 Mass. 156, 23 Am. the general rule that a wife's domieil Rep. 299 ; Smith v. Smith, 19 Neb. follows her husband's could be car- 706, 28 N. W. 296. In these eases § 225] DIVORCE. 471 man to establish an independent domicil. ^ It has been ruled differently, however, in France.^ 226. Wife cannot acquire new domicil on voluntary separa- tion. — When the parties are separated by voluntary agreement, the wife's domicil, as a rule, continues that of the husband.^ The theory of such voluntary separation excludes the idea of hostile action; and hence it has been said that during such a separation the wife cannot acquire an independent domicil.^ In Indiana, however, it has been ruled that in case of final separation between husband and wife, and their actual per- manent residence in different states, the domicil of the husband does not fix that of the wife so as to determine the question of jurisdiction in divorce.* 227. If wife wrongfully separates from her husband, she may 1)6 sued in Ms domicil. — A wife cannot obtain an independent domicil by her own wrong. Hence, in proceedings against her for divorce, though she may have separated from her husband, and be living in a different state, her domicil is presumed to be the same as his. ^ It may be said that this is a petitio prin- cipii, assuming the very point of wrongful separation which, at least in cases of desertion, divorce proceedings are instituted to test. But it must be remembered that the wife's domicil is the domicil of the husband was at- the right of the wife to acquire a tributed to the wife for the purpose separate domicil is not dependent of enabling her to bring a suit for upon her freedom from fault, al- divorce at that domicil, notwith- though they seem to be in the mi- standing that she had separated nority. from the husband, and was actually residing elsewhere iJenness v. Jenness, 24 Ind. 355, 87 Am. Dee. 335. See Deck v. Deolc, 2 iDn^h„^ „ T,„ T. on TT roo ,o Swabey & T. 90, 29 L. J. Prob. N. S. '■iSa/rber y. Barler, 21 How. 582, 16 .nn or t xt q kao a tit„„v t3„ L. ed, 226; Vischer v. Yischer 12 T.' ' ^^ Barb. 640. See ante, § 46. J. 250, mte, § 209, note 7, and also ^'" ^"'■^^"'■' °° *^^' P<^'"*' <^*^' ante, § 212. § 224, note 4. U«te, § 46. Hbid.; Bood v. Hood, 11 Allen, citing Warrender v. Warrender, 2 196, 87 Am. Dec. 709; Warrender v. i See 2 Bishop, Marr. & Div. § 126, Warrender, 2 Clark & F. 488, 9 Bligh, Clark & F. 488, 9 Bligh, N. R. 89; N. R. 89; 1 Bishop, Marr. & Div. § Tovey v. Lindsay, 1 Dow, 117, 138, 634; 2 Bishop, Marr. & Div. § 129. 139. But see Borden v. Fitoh, 15 Johns. 121, 8 Am. Dec. 225; Greene The statement of the text on this v. Greene, 11 Pick. 410; Hull v. Hull, point is, in effect, denied by the cases ^ ^^^.J'^.-.^l^l^*' Harrison v. Barri- mii^A i^ 4.1, 1. ,. , , ,. SOTO, 19 Ala. 499. cited m the next section holding that 472 MAKKIAGE. [Chap. IV, the husband's even on the system of jurisprudence now before us, and that the burden is on her, therefore, in cases where an independent domicil can be obtained when necessary, to show that such necessity existed.^ 227a. Separate domicil of wife for purposes of divorce jurisdic- tion. — The doctrine that a wife may have a separate domicil for the purposes of divorce is usually, whether she is the plaintiff or the defendant in the divorce suit, stated with the qualifica- tion that the separation was not due to her fault ; ^ but some of the cases hold that, in view of the hostile attitude assumed by the parties, the fiction that the wife's domicil follows the hus- band's does not apply to a divorce suit, and that, for the pur- poses of such a suit, the question of her domicil depends upon the actual facts of the case,^ i. e., the facts as to her actual residence and her intention respecting such residence. When it is merely a question as to the jurisdiction of a domestic court 2See post, § 238. How the service is to be made in such cases is afterwards considered. Post, § 236. 1 It was expressly held in Suter v. Suter, 72 Miss. 345, 16 So. 673, that a wife who remained in Mississippi after her husband had invited her to return to their home in Louisiana could not acquire a domicil in the former state so as to enable her to maintain a suit for divorce in that state. So, it has been expressly held, when the wife was defendant, that, in the absence of justification on her part, she is to be regarded, for the purposes of the suit, as domiciled with her husband. Gheely v. Clay- ion, 110 U. S. 701, 28 L. ed. 298, 4 Sup. Ct. Rep. 328 ; Hood v. Hood, 11 Allen, 190, 87 Am. Dee. 709 ; Lolcer v. GeraUl, 1.57 Mass. 42, 16 L. R. A. 497, 34 Am. St. Rep. 252, 31 N. E. 709; Burlen v. Shannon, 115 Mass. 438; Burtis V. Burtis, 161 Mass. 508, 37 N. E. 740; Guest v. &uest, 3 Ont. Rep. 344. See note to 59 L. R. A. 135, 146, 103. ^McGrew v. Mutual L. Ins. Co. 132 Cal. 85, 84 Am. St. Rep. 20, 64 Pac. 103; Umith v. Smith, 4 Maekey, 255; Johnson v. Johnson, 57 Kan. 343, 46 Pac. 700; Irhy v. Wilson, 21 N. C. (1 Dev. & B. Eq.) 508. So, in Colvin v. Reed, 55 Pa. 375, it was held that the wife's domicil did not follow her husband's to Iowa when he removed from Pennsylvania, although she was the party at fault. A feme covert's residence follows that of her husband, but terminates with the reason upon which it rests; and when the union between the two ceases, and an attitude of hostility arises, they may each have different residences. Ilarteau v. Harteau, 14 Pick. 181, 25 Am. Dec. 372; Tracy v. Tracy, 62 N. J. Eq. 807, 48 Atl. 533. § 227a] DIVORCE. 473' over a suit brought by, or against, the wife, for a caiise of di- vorce antedating the separation, it is, perhaps, not a matter of great practical importance whether her right to acquire a sep- arate domicil is absolute, or qualified by the condition already mentioned, since, even if it be subject to that condition, the finding on the merits in her favor will ordinarily establish her freedom from fault. And, even if the cause of divorce oc- curred after the separation, the jurisdiction may, perhaps, be- upheld upon the theory that, from the time of the occurrence of such cause, the separation was justified on her part, what- ever may have been the case in the beginning. When, however,, the jurisdiction of the court is limited to causes of divorce oc- curring while she was domiciled at the forum, the question whether her right to acquire a separate domicil is absolute or qualified is important, since a finding on the merits in her favor would not necessarily establish her freedom from fault respect- ing the antecedent separation. But the point is more impor- tant when the question is, not as to the jurisdiction of a domes- tic court, but as to the recognition by a court of one state or country of a decree of divorce rendered in another. If hei right to acquire a separate domicil is absolute and uncondi- tional, an attempt to impeach a decree of divorce in her favor when set up in another state, upon the ground that she was not domiciled at the divorce forum, merely involves an inquiry with: respect to the facts concerning her residence, and her intention with reference thereto at the time she brought the divorce suit ;, while, if her right to acquire a separate domicil is conditional,, the inquiry extends back to the antecedent separation, and em- braces the causes thereof ; for, while the finding upon the merits as such is undoubtedly conclusive upon the court of anothe] state, ^ the latter will not be concluded so far as the incidental- 3 It will be observed that the deci- R. A. 291, 63 Am. St. Rep. 650, 49 N. sion of the court of appeals in Ather- E. 933, refusing to recognize a decree ion V. Atherton, 155 N. Y. 129, 40 L. of divorce rendered in Kentucky up- 474 MARRIAGE. [Chap. IV, effect of such finding upon the jurisdictional fact of domicil ia concerned. From the point of view of a court which concedes the sufficiency of a constructive or substituted service to confer jurisdiction to grant, even against a nonresident, a' divorce that is entitled to extraterritorial recognition, the question of the wife's domicil is not important, even when the decree rendered against her comes collaterally in question in another state or country, since, from this point of view, the domicil of the hus- band at the divorce forum is sufficient to uphold the jurisdic- tion. The question of her domicil, however, is important from the point of view of a court that denies, or does not concede, the sufficiency of constructive or substituted service as against a nonresident, since these courts admit that such service is suffi- cient as against a resident even if temporarily absent from the state where the decree is rendered- From this point of view, it is obvious that, if the wife's right to acquire a separate dom- icil is conditioned upon her freedom from fault respecting the separation, a court of one state or country cannot refuse to recognize a decree of divorce rendered against her in another, upon the ground that she was a nonresident and was served con- structively only, unless it is further found that she was justified in living apart from her husband, and, to make such finding, it may be necessary to contradict the finding of the court of the other state upon the merits.* on constructive service against the U. S. 155, 45 L. ed. 795, 21 Sup. Ct. vrite, was based on the finding of the Rep. 544, reversing the foregoing de- lower court that the wife was justi- cision, seems to be based on the idea fied in leaving her husband, and had that the wife was legally domiciled therefore acquired a separate domicil mth her husband in Kentuclcy; but in New York, notwithstanding that the right of the New York court to the Kentucky divorce was granted go behind the finding of the Ken- upon the finding of the Kentucky tucky court on the merits, for the court that she had abandoned her purpose of inquiring into the juris- husband, which would negative the dictional fact of the wife's domicil, existence of an adequate excuse for does not seem to be denied, leaving him. The decision of the * See cases cited supra, note 1. United States Supreme Court in 181 § 228] DIVORCE. 475 328. Domicil of petitioner must be real. — We have already seen^ that a residence, to constitute a domicil, must be adopted as a final abode. A mere temporary residence, therefore, sim- ply for the purpose of obtaining a divorce under a supposed favorable jurisprudence, is not such a domicil as will be in- ternationally regarded as giving jurisdiction to the courts of such residence.^ On the other hand, a real domicil obtained by the petitioner in a state other than that in which the mar- riage was celebrated will give the courts of the forum juris- diction. ^ iAnte, §§ 21, 56, 223. matrimonial domicil] to the state of 2See authorities given ante, § 223. Indiana, his wife was living apart 3See cases cited ante, §§ 223, 224; from him, and, as the jury have Rood V. Rood, 11 Allen, 196, 87 Am. found, without justifiable cause. Dec. 709; Burlen v. Shannon, 115 Such being the fact, the new domicil Mass. 438; Whitcomh v. Whitcomh, acquired by him in that state was in 46 Iowa, 437 ; State v. Armington, 25 law her domicil, and the courts of Minn. 29. See a learned review of that state had jurisdiction of the thp cases in 16 Am. L. Keg. N. S. cause and both the parties; and the (Feb. 1877), pp. 71 et seq. divorce there obtained must, by the The distinctive jurisprudence of express terms of Gen. Stat. chap. 107, Pennsylvania is noticed post, § 239. § 55, be held valid and effectual in In Burlen v. Shannon, 115 Mass. this commonwealth." 438, Gray, Ch. J., said: "In Hood v. In Bood v. Hood, 56 Ind. 263, 26 Hood, 11 Allen, 196, 87 Am. Dec. 709, Am. Rep. 21, it was held that a di- the parties together removed from vorce granted in Utah, when the peti- this state to Illinois, and resided tioner was not at the time it was ob- tliere some years. The wife then de- tained, and for years previously had serted the husband and returned to not been, within the territory of Massachusetts, and ever after resided Utah, and the defendant in the di- ■here, and the husband entered into vorce suit was never within that ter- an agreement for her separate main- ritory, was void, and that the defcnd- tenance. He afterwards applied in ant was guilty of bigamy in contract- Illinois for, and after notice to her ing a subsequent marriage in Indi- by publication in that state obtained, ana. The court held, also, that the a decree of divorce from the bond of provision in the statute of Utah matrimony for her desertion. This which authorizes its courts to grant court held that as the husband's dom- divorces to citizens of foreign states ieil was in Illinois, and his domicil and nations who are not, but merely was in law the domicil of the wife, desire to become, residents of Utah, the decree of divorce there obtained is ultra vires and void. People ex by him was valid and conclusive rel. Public Charities and Correction against her. And it has since been Comrs. v. Smith, 13 Hun, 414; Lito- decided that that decree, being con- laich v. Litomch, 19 Kan. 451, 27 chisive between the parties upon the Am. Rep. 145. subject whether the marriage between In Foss v. Foss, 58 N. H. 283, it them was dissolved, was equally con- was said by Allen, J. : "To entitle elusive upon that subject in an ac- the court to take jurisdiction of a tion between any persons whatever, cause of divorce, the libellant must Bood V. Hood, 110 Mass. 463. have an actual bona fide residence in "The case at bar is not distin- the state. Fellows v. Fellows, 8 N. guishable from that of Hood v. Rood. H. 160; Greenlaw v. Greenlaw, 12 N. At the time of Mr. Shannon's remov- H. 202; Batchelder v. Batchelder, 14 al [from Massachusetts, the place of N. H. 380; Payson v. Payson, 34 N. 476 MARRIAGE. [Chap. IV. 229. In Massachusetts, by statute a foreign divorce granted in fraud of home law is invalid.— In Massachusetts it is provided by statute that "when an inhabitant of this commonwealth goes into another state or country to obtain a divorce for a cause which occurred here, while the parties resided here, or for cause which would not authorize a divorce by the laws of this commonwealth, a divorce so obtained shall be of no force or effect in this commonwealth."^ It has been ruled that this statute has no application to cases where the parties move to another state for other purposes, and when five years after- wards the husband commences proceedings for divorce, though the wife had intermediately returned, and become domiciled again in Massachusetts.^ Internationally, the statute can only affect persons domiciled in Massachusetts.^ But in all cases where the record of a for- eign divorce is offered in evidence in Massachusetts, it is admis- sible to show that the party obtaining it, when domiciled in Massachusetts, in evasion of its laws went into the state grant- H. 520. And the cause of divorce, if tention not to change it. Hart v. arising out of the state, must have JAndsey, 17 N. H. 235, 43 Am. Dee. been at a time when the domicil of 597 ; Leach v. Pillsbury, 15 N. H. 138. the libellant was in the state. Glarh An existing domicil is not changed or V. Clark, 8 N. H. 21 ; Frary v. Frary, lost by a departure from it for a tem- 10 N. H. 61, 32 Am. Dec. 395; Smith porary purpose, or with an intention V. Smith, 12 N. H. 80; Kimball v. of returning. Bump v. Smith, 11 N. Eimhall, 13 N. H. 2125; Hopkins v. H. 4S." Hopkins, 35 N. H. 474; Leith v. Jurisdiction, when acquired, is not Leith, 39 N. H. 20, 32, 33. If the devested by removal. Baily v. Schra- domieil of the libellant, at the time der, 34 Ind. 260. the alleged causes of divorce took In New York, however, there is a place, was in New Hampshire, as he tendency to hold that residence of the claims, the court has jurisdiction of petitioner, followed by an appearance the cause; otherwise, not. The place of the defendant, when there is no of one's domicil is the place of his collusion, may sustain jurisdiction, home. Phillimore, Domicil, 11. In Yischer v. Vischer, 12 Barb. 640. But the ordinary acceptation, it is where .see Hunt v. Hunt, 72 N. Y. 217, 2& he lives and has his home. Story, Am. Eep. 129, cited post, § 237. Confl. L. p. 41. It is the place in which, both in fact and intent, the i This statute, in substantially the home of a, person is established, with- game language, was continued in the out any existing purpose of mmd to t,.^:.;--, .j ^am return to a former home. It is the J^^ision ol IJU^. place which the fact and the intent, combining with one another, gravi- ^Hood v. Hood, 11 Allen, 196, 87 tate to and center in as the home. 2 Am. Dec. 709. See Shannon v. Shan- Bishop, Marr. & Div. 118. To ac- non, 4 Allen, 134, where a fraudulent quire a domicil, residence and the in- divorce, granted in another state, was tention to make it the home must held invalid. concur. Once acquired, actual resi- 3The statute requiring that the derce is not indispensable for its re- parties should "have lived together tention; it may be retained by an in- as man and wife" in the state is con- § 229] DIVORCE. 477 ing the divorce to obtain a divorce for a cause not recognized by tbe laws of Massachusetts; and if this be proved, the di- vorce will be a nullity.* 230. Record must aver necessary facts, and these facts may be collaterally disputed. — The record must aver the facts neces- sary to give jurisdiction;^ and these facts (e. g., the allegation of domicil) may be collaterally disputed.^ But when the con- strued to mean that they must have ed States ... we find it unneo- had a domicil in the state. Schrow essary to decide." V. Schrow, \0Z M^ss.bU; Ross j. Q^egory v. Gregory, 76 Me. 535, Ross, 103 Mass. 575. See ante, % 21. f / . ., /. . ' held that a similar statute was mere- „ „ , > 1,4- nn^ ly an affirmance of the general prin- iHanover v. Turner, 14 Mass. 227, ' ° / „ „.„ „, , ^T 7 o ciple 01 international law, and did 7 Am. Dee. 203; Clark v. Clark, 8 ' ' „ , „ _ 7- o /~i not apply where the party who pro- Cush. 385; Lyon v. Lyon, 2 Gray, /'^J' ^ . •^ / „,„ _, ^, „ ^ ,-„ cured the divorce obtained a bona 367; Chase v. Chase, 6 Gray, 157; ..,.,, x , , -x „ . , n -^1 Tn r^ nnn cv„ T7 fide domicil in the state where it Simth V. Smith, 13 Gray, 209; Seicall v. Seimll, 122 Mass. 156, 23 Am. Eep. "^^^ granted. 2m; Ba/rdy y. Smith, 136 Ma.ss. 328; ip^jg y Qgi^^ 3 ]y;o ^pp. 571- Dickinson v. Dickinson, 167 Mass. Uood v. Hood, 56 Ind. 263, 26 Am. 474, 45 N. E. 1091; Andrews v. An- Rep- 21. J -iTc -Mr „r. no KT AT T? QQ? ^Thompson V. WMtmaw, 18 Wall. dre«,-s, 176 Mass. 92, 57 N. B. 333. ^^^^ ^l L ed.897; Leith v. Leith, 39 While the language of the statute jg-_ jj_ 20 ; Adams v. Adorns, 51 N. H. does not, perhaps, necessarily nega- 388, 12 Am. Rep. 134; Carleton v. tive the acquisition of a, domicil in Bickford, 13 Gray, 591, 74 Am. Dec. the other state, the later cases, at 6f 5 P"^Ser\ColumUa Ins Go. 99 , ^, . ,, , ' , Mass. 267, 96 Am. Dec. /i/ ; jSJdsow V. least, seem to take the view that the fj^son, 108 Mass. 590, 11 Am. Eep. statute presupposes that there is no 393; Sewall v. Sewall, 122 Mass. 156, bona fide domicil acquired in the 23 Am. Rep. 299; Hoffman v. ff off- state where the decree is rendered; ";««■ f N. Y 30 7 Am. Rep 299; ,,,.,. J. , ,_, Doughty v. Doughty, 28 N. J. Eq. and the implication from these cases gg^ . Blumenthal v. Tannenholz, 31 seems to be that if, notwithstanding N. J. Eq. 194; Reel v. Elder, 62 Pa. that the motive of a person in going 308, 1 Am. Rep. 414; Cox v. Cox, 19 to another state was to take advan- O^ijo ^*-„^^!i L^'?' ?.f 'it^^/ ^^-^^'^ . ., ,. , , ^, V. Darnell, 25 Mich. 247, 12 Am. Rep. tage of its divorce laws, he neverthe- 26O; Litomch v. Litowich, 19 Kan. leas Intended to make it his perma- 451, 27 Am. Rep. 145; State v. Ar- nent residence, the statute will not mington, 25 Minn. 29. J, J In Cheever v. Wilson, 9 Wall. 123, " ^' 19 L. ed, 608, Judge Swayne reserved In Dickinson v. Dickinson, 167 the question whether the averment of Mass. 474, 45 N. E. 1091, the court domicil in the record of the divorce said: "Wliether, if the libellee had was conclusive "It is said," so he . speaks, the petitioner went to Indi- acquired a domicil in Indiana at the ana to procure the divorce, and that time he filed his application for a she never resided there. The only divorce there, we should recognize question is as to the reality of her i„. J. ,., , , . new residence and of the change of lus divorce as valid, under art. 4, domicil. That she did reside in the § 1, of the Constitution of the Unit- county where the petition was filed is 478 MARRIAGE. [Chap. IV. struction of the laws of the divorcing state is concerned, the judgment of the courts of that state is conclusive.^ 230a. Impeachment of decree of sister state upon jurisdictional facts. — It is a well-established principle, in the application of the "full faith and credit" provision of the Federal Constitu- tion, that the recital in the divorce proceedings of the jurisdic- tional fact of the plaintiff's residence or domicil in the state or territory where the divorce was granted may he impeached when the divorce comes in question in another state, at least if the defendant did not appear.-' There is considerable conflict be- tween the decisions of the state courts as to the effect of the defendant's appearance in the original suit upon the right to impeach the decree upon the ground of the nonresidenc© of the plaintiff who procured it, and the tendency of those decisions seems to be to deny the right in such case if the action or pro- ceeding in which the decree is introduced is between the par- expressly found by the decree. Wheth- Rep. 217, 25 N. E. 175; Dunham v. er this finding is conclusive, or only Dunham, 162 III. 589, 35 L. R. A. 70, prima facie sufficient, is a point on ^^ jj_ ^ g^j ^^^^^ ^_ ^^ j. g^ which the authorities are not in har- „ „ •„ „r,r. ,t mony. We do not deem it necessary ^o^a, 429, 6 N. W. 689; Neff v. Beau- to express any opinion upon the champ, 74 Iowa, 92, 36 N. W. 905; point. The finding is clearly suffi- Smith v. limith, 43 La. Ann. 1140, 10 eient unless overcome by adverse tes- ^^ g^g Benton's Succession, 106 La. timony. None adequate to the re- -„ t t, < nr,^ „■, c -.no suit is found in the record. Giving 494, 59 L. R. A. 135, 31 So. 123; to what there is the fullest effect, it Gregory v. Gregory, 78 Me. 187, 57 only raises a suspicion that the ani- Am. Rep. 792, 3 Atl. 280; Adams v. m«s ma«eny virtue of the Massachusetts stat- cal statute was involved, ute providing that, when an inhabit- ^Thurston v. Thurston, 58 Minn, ant of the commonwealth goes into 279, 59 N. W. 1017; Kern v. Field, 68 another state to obtain a divorce for Minn. 317, 64 Am. St. Rep. 479, 71 N. a cause which occurred in the com- W. 393. monwealth, a divorce so obtained 6 The rule is thus expressly lira- shall be of no force or effect in the ited in Magowan v. Magowan, 57 N. commonwealth; and held that, by J. Eq. 322, 73 Am. St. Rep. 645, 42 that statute, the legislature had con- Atl. 330, and FaircMld v. Fairchild, ferred the right to impeach the de- 53 N. J. Eq. 678, 51 Am. St. Rep. 650, -cree, irrespective of whether there 34 Atl. 10. ^vas an appearance or not. The de- J 230a,] DIVORCE. 481 to confer jurisdiction of the person as personal service of pro- cess within the state. 231. Domicil at time of offense immaterial. — In Pennsylvania, Chief Justice Gibson, in a case of much celebrity, took the po- sition that jurisdiction depends upon the real domicil of the parties at the time of the offense.^ An act was passed in 1850 ^Dorset/ v. Dorsey, 7 Watts. 350, not be maintained, obviously because 32 Am. Dee. 767 ; M'DermoU's Ap- the court had no jurisdiction of the peal, 8 Watts & S. 256. „„„„„ , ., ,, , . „ ji '^ ' person of the defendant. So far as It seems at least doubtful whether appears, the defendant in Dorsey v. the doctrine announced in Dorsey v. Dorsey, 7 Watts, 350, 32 Am. Dec. Dorsey, 7 Watts, 350, 32 Am. Dee. 767, was not personally served in 767, was not intended to be limited Pennsylvania and did not appear, so to cases where the defendant is not that, under the doctrine of the Alli- at the time of the suit, and has not son Case, the action in the Dorsey been at any time since the delictum. Case would have failed for want of a. resident of Pennsylvania. At jurisdiction of the person of the de- least, those were the facts in the fendant, even if the case had arisen case. After the passage of the act after the act of 1850, which expressly referred to, it was certainly no removes any objection (so far as ju- longer an objection to the jurisdic- risdiction of the subject-matter is tion of a Pennsylvania court over the concerned) based on the fact that the subject-matter that the cause of di- domicil of both parties was in an- vorce occurred while the parties were other state at the time of the de- domiciled in another state; and yet Uctum. The doctrine of the Allison it was held in Allison v. Allison, 18 Case has been adopted and applied W. N. C. 508, that that act did not in the following eases: 'Nigh v. confer jurisdiction to grant a di- Nigh, 2 Pa. Co. Ct. 574; Davis v. Torce for desertion occurring while Davis, 12 Pa. Co. Ct. 541; Burdick both parties were domiciled in an- v. Burdick, 2 Pa. Dist. R. 622; Tay- other state, notwithstanding that the lor v. Taylor, 1 Chester Co. Rep. 485 plaintiff had since become domiciled Ramsay v. Ramsay, 5 Legal Gazette in Pennsylvania, if the defendant 53; Fitcli v. Fitch, 1 C. P. Rep. 46 was still a nonresident, was not Conrad v. Conrad, 1 Lack. Jur. 34 served personally within the state. Tucker v. Tucker, 1 Lack. Jur. 263 and did not appear. Here is a clear Benton v. Benton, 1 Lack. Jur. 450 distinction between jurisdiction of Grimes v. Grimes, 12 Lane. L. Rev, the subject-matter and jurisdiction 23. But it was held in Hull v. Hull, of the person of the defendant ; and, 8 Pa. Dist. R. 420, that constructive while the court clearly had juris- service was sufBeient, even if defend- dietion of the subject-matter because ant remained a nonresident. In all it was expressly conferred by stat- these cases it appeared that the de- "te> yet it held that the action could fendaat was still a nonresident of Vol. I. CoNFL. of Laws — 31. 482 MARRIAGE. [Chap, IV. to remove this limitation, but the supreme court, in 1858, ruled that the act did not give jurisdiction in cases where the Pennsylvania when the suit was com- tion in such case was denied, not- meneed, and that he was not person- withstanding that the libellee, who ally served within the state and did was still a nonresident of Pennsylva- not appear; and the intimation, in nia, appeared and submitted to the all except the last case, is that, if he jurisdiction. The last decision had been a resident, or had been per- seems to be the only one which clear- sonally served in the state, or had ly rests upon lack of jurisdiction of appeared, the court would have had the subject-matter; at least, it is the jurisdiction. In Austin v. Austin, only case in which the right of a 4 Pa. Co. Ct. 368, the jurisdiction court of Pennsylvania to entertain was upheld, notwithstanding that the suit is denied where it appeared the cause of divorce arose while the that defendant was personally sub- parties were domiciled in New York, ject to the jurisdiction of the court, it appearing that the respondent sub- Again, the following eases in sequently came to Pennsylvania, and Pennsylvania, which have refused to resided there up to the time that recognize decrees of divorce rendered service by publication was complete, in other states for causes of divorce Again, in view of the decision in occurring before the acquisition of a Bishop V. Bishop, 30 Pa. 416, re- domieil therein, emphasize the facts ferred to in the next note, the stat- which negative jurisdiction of the ute did not interfere with any doc- person of the defendant {i. e., his trine previously established in the nonresidence at the time of the suit state, so far as causes of divorce and lack of personal service or ap- arising in another country were con- peavance in the state), as well as the eerned; and yet, in Lewis v. Lewis, fact that the delictum occurred while 6 Kulp, 429; Lohes v. Lakes, 14 W. both parties were domiciled in an- N. C. 306; Kellow v. Kellow, 1 Le- other state: Golvin v. Reed, 55 high Valley Law Rep. 202 (decided Pa. 375; Reel v. Elder, 62 Pa. 308. after the Bishop Case), where the 1 Am. Rep. 414; Piatt's Appeal, 8U jurisdiction of the court of Pennsyl- Pa. 501 ; Fyock's Estate, 135 Pa. 522, vania to grant a divorce for deser- 19 Atl. 1056; Com. v. Maize, 23 W. tion or adultery occurring while the X. C. 572; Philadelphia use of Weth- parties were domiciled in another erhy v. Wetherby, 15 Phila. 403; country was denied, the facts that Com. v. Stevens, 25 Pa. Co. Ct. 68; that defendant was a nonresident of Com. v. Taylor, 1 Susquehanna Le- Pennsylvania at the time of the gal Chronicle, 15; Com. v. Shuler, 2 suit, was not personally served in Pa. Dist. R. 552; Board of Charities that state, and did not appear, as v. Moore, 6 Pa. Co. Ct. 66. well as the fact that both parties But, it may be asked, if these de- were domiciled in a foreign country cisions were really upon the ground at the time of the delictum, are ex- that the court, under the circumstan- pressly stated and apparently relied ces, had no jurisdiction of the per- on. In McCartney v. McCartney, 30 son of the defendant, why the insist- W. N. C. 132, however, the jurisdic- ence upon the fact that the occur- § 231] DIVORCE. 483 offense was committed outside of the United States.^ And the view of Gibson, Ch. J., as just stated, has been coimtenanced by eases in New Hampshire,^ and in Louisiana/ But the rence of the offense relied upon an- tedated the acquisition of the domi- cil in the state where the decree was rendered? While the courts in these cases do not clearly distinguish be- tween jurisdiction of the subject- matter and jurisdiction of the per- son of the defendant, there seems to be involved in them the idea that, in case of a cause of divorce occurring while both parties were domiciled at the forum, or perhaps, if subsequent- ly to the occurrence of such cause both parties had acquired a domicil there, the court might proceed with- out jurisdiction of the person of the defendant. In other words, when such is the case, the guilty party can- not deprive the court of jurisdiction by leaving the state after the com- mission of the offense, and acquir- ing a domicil elsewhere, thus putting it beyond the power of the court to obtain jurisdiction of his or her per- son; the court in such case may pro- ceed as in rem; but, when the cause occurred while neither party was domiciled at the forum, the injured party cannot, by subsequently acquir- ing a domicil there, enable the court to proceed without acquiring juris- diction of the person of the defend- ant. This theory, by which the right to proceed without jurisdiction of the person of the defendant is limited to cases where the matrimo- nial domicil was in the state at the time of the delictum, or, at least, has been in the state since that time and before the commencement of the suit, seems to be in accord with the inti- mation, in the opinion of the United States Supreme Court in Atherton V. Atherton, 181 U. S. 175, 45 L. ed. 804, 21 Sup. Ct. Rep. 544, that the fact that the matrimonial domicil, up to the time of the separation of the parties, was at the forum, may affect the right of the court to pro- ceed upon constructive service, even against a nonresident, although the decision in that case, as is pointed out in a subsequent section, seems to rest upon the assumption that the defendant in that case was legally domiciled at the divorce forum. The foregoing explanation of the Pennsylvania doctrine seems equally applicable to the early decisions in Massachusetts. Bopkins v. Hop- kins, 3 Mass. 158; Carter v. Carter, 6 Mass. 263; Harteau v. Harteau, 14 Pick. 181, 25 Am. Dec. 372. In these cases, which deny the jurisdiction of a court of Massachusetts, it appeared not only that the cause of divorce occurred while the parties were dom- iciled in another state, but also that though the plaintiff had since be- come domiciled in Massachusetts, the defendant was still a nonresident, and, so far as appears, there was no personal service in the state, or ap- pearance. ''Bishop V. Bishop, 30 Pa. 416. iLeith V. Leith, 39 N. H. 20; Clark V. Clwrh, 8 N. H. 21; Fellows v. Fel- lows, 8 N. H. 160; Greenlaw v. Green- law, 12 N. H. 202; Batohelder v. Batohelder, 14 N. H. 380; Pay son v. Pay son, 34 N. H. 518; Hopkins v. Hopkins, 35 N. H. 474; Foss v. Foss, 58 N. H. 283; Norris v. Norris, 64 N. 484 MARRIAGE. [Chap. IV. weight of authority is that the suit may be brought in any state where either party is domiciled at the time of suit, irrespec- H. 523, 15 Atl. 19. In this state the New Hampshire while the parties rule is based upon a, ground which were domiciled there, notwithstand- makes it applicable whether both or ing that, at the time of the divorce only one of the parties are domiciled in the other state, the defendant still at the forum at the time of the suit, retained his domicil in New Hamp- and without reference to whether the sliire. defendant is personally subject to the In Harrington v. Harrington, 68 jurisdiction of the court; and in N. H. 360, 44 Atl. 522, it was held some of the foregoing cases it ap- that a decree of divorce might be peared, as a matter of fact, that de- rendered in New Hampshire for con- fendant was a resident of New viction of crime and punishment, Hampshire at the time of the suit, or which took place there while the li- appeared, and was thus personally bellee was domiciled there, but before subject to the jurisdiction of the the libellant had acquired a residence court. there. This decision, however, was It is held in this state, however, influenced by the consideration that that, when the cause of divorce is conviction of crime and imprison- desertion, the court will have juris- ment are a cause of divorce only in diction of the subject-matter if the the jurisdiction in which they occur, desertion continues for three years and not in any other. after the acquisition of the domicil .Edwards v. Green, 9 La. Ann. in the state, although it may have g^^. ^„j^^^ ^ ^-j^^^^ j3 ^a. Ann. originated while the domicil was out- j ^j ^^ j)^^ 504 . champon v. side of the state. Kimball v. Kim- cham.pon, 40 La. Ann. 29, 3 So. 397; ball, 13 N. H. 225; Batchelder v. ^^^,^j,^ ^ ^^^^^^ 42 La. Ann. 437, 7 Batchelder, 14 N. H. 380; Payson v. g^ 540. j^^cholas v. Maddox, 52 La. Fayson, 34 N. H. 518. \„„ 1493^ o^ So. 966; Benton's Sue- Frost v. Frost, 17 N. H. 251, to the cc.' « i7Kfi op, Marr. & Div. § 180. The English ^ N. Y. Code Civ. Proc. § 1756, cases will be found ante, § 218. subd. 2. § 233b] DIVORCE. 48» the existence or nonexistence of a cause of divorce is to be de- termined by the law of the forum ; and it would seem to follow that it is immaterial whether the law of the place where the marriage was celebrated recognizes the particular cause of di- vorce upon which the action is founded, or any cause. This result has been expressly or impliedly recognized in some of the cases,* and is very generally assumed; though it has been held in South Carolina, where is not permitted divorce for any causes, that a marriage celebrated in that state is indissoluble iB any other state. ^ 234. Fraud vitiates. — It is unnecessary to do more than state that the position that all judgments are avoided by fraud lies to judgments in cases of divorce.* Were fraudulent Wheely v. Clayton, 110 U. S. 701, the fact that the Illinois decree was 28 L. ed. 298, 4 Sup. Ct. Hep. 328; rendered upon constructive service Earrison v. Harrison, 19 Ala. 499; against the husband, who was still a Thompson y. State, 25 Ala.. 12; Starir resident of South Carolina. The dridge v. Standridge, 31 Ga. 223 ; To- South Carolina court seems to con- len V. Tolen, 2 Blaekf. 407, 20 Am. cede that, if the Illinois court had Dec. 742; Dorsey v. Dorsey, 7 Watts, had jurisdiction of the person of the 349, 32 Am. Dec. 767; Shreck v. defendant, or if a divorce suit could Shreclc, 32 Tex. 578, 5 Am. Rep. 251 ; be regarded as a proceeding in rem Harding v. Alden, 9 Me. 140, 23 Am. involving the status of the parties in Dec. 549. See note to 59 L. R. A. all states, it would have been 135, 141. obliged, by the full faith and credit 'Hull V. Hull, 2 Strobh. Eq. 174; provision of the Federal Constitu- Duke V. Fnlmer, 5 Rich. Eq. 121. In tion, to recognize the decree. The MoGreery v. Davis, 44 S. C. 195, 28 decision, therefore, appears to be up- L. E. A. 655, 51 Am. St. Rep. 794, 22 on the ground of lack of jurisdiction S. E. 178, it was held that a decree of of the person of the defendant, and divorce, rendered in Illinois, dissolv- inability, under the circumstances, to ing a marriage celebrated in New proceed without such jurisdiction, York (the original matrimonial rather than upon lack of jurisdiction domicil being established in South of the subject-matter, though the Carolina, where the husband was pre- ^a-ct that the divorce was granted for viously domiciled), upon a ground a cause not recognized by the law of which was not a cause of divorce New York or South Carolina was em- either by the law of New York or of phasized. South Carolina, did not affect the , . , , , -, -vt tt ,oo io -j.„i . ,, . ^Adanis V. Adams, 51 N.H.. 3SS, 12 status of the parties in South Caro- Am. Rep. 134; hidson, v. Bdson, lOS hna; but this decision is qualified by Mass. 590, 11 Am. Rep. 393; Stanton 490 JIAEHIAGE. [Cu..p. IV divorces permitted, marriage would be reduced to a mere union at will. So detrimental would this be to the best interests of society, that no foreign divorce will be recognized in which the judgment is based on mere consent, no due cause being proved on record, and t^e court not having jurisdiction of both par- ties. ^ But it would seem that where the wife appeared by coun- sel in a divorce suit in Indiana, and received alimony in pur- suance of the decree of divorce, she cannot subsequently in another state impeach the divorce on the ground that it was obtained by fraud.® And a judgment will not be avoided, when due cause appears on the record, by the fact that, the defendant having appeared, he declined to defend, and per- mitted judgment to go by default.* 235. Procedure must be internationally regular. — As has been already remarked, whatever safeguards have been judged nec- essary to prevent an invasion of the rights of property by ir- regular foreign judg-ments should be applied in the fullest measure to foreign divorces, which touch, not merely proper- ty, but the rights and status of parents and children, and the integrity of the whole body politic. Whether a service by pub- lication is good when the defendant is not domiciled in the di- vorcing state will be presently discussed.^ The law of in- ternational process in general is considered in a distinct chap- ter. ^ 236. Extraterritorial service not usually adequate. — On the subject of extraterritorial service private international law is in a state of transition.-^ Twenty years ago such service was unauthorized either in England or in the United States. Al- though by the Eoman law, which rests upon the assumption of a cosmopolitan jurisprudence extending over Christendom, the extraterritorial force of monitions is recognized for inter- national ends, such is not the case with the English common law. By that law a defendant must be served within the ju- risdiction of the sovereign of the forum, or he cannot be served V. Crosby, 9 Hun, 370 ; 7'rtie v. True, ^Kirriyun v. Kirrigan, 15 N. J. Eq. 6 Minn. 4,58, Gil. 315; Davenport v. 146. See Cole v. Cole, 3 Mo. App. Davenport (N. J. Eq.) 58 Atl. 535. 571. See also note to 59 L. R. A. 135, 186. iPost, § 238. ZAdams v. Adorns, 51 Is". H. 388, 12 iPost, § 236. See Doughty ». Am. Rep. 134; Baker's Will, 2 Redf. Doughty, 28 N. J. Eq. 581. 179; Jackson y\ Jackson, 1 Johns. ^Post, §§ 049 ct seq. 424; Hanover v. Turner, 14 Mass. ^Post §§ 646 et seq, 227, 7 Am. Dec. 203. § 236] DIVOECE. 491 at all. Ib a suit brought in England, for instance, there can by eommon law be no service on the defendant in France. But by a statute passed in England in 1852, provision was made for the summons abroad of parties to contracts over which the English courts have jurisdiction, such summons to be made by the service of a notice of the writ upon the defendant. In most of the states of the American Union similar provisions have been enacted. It is true that when a judgment in a mat- ter belonging to private municipal, as distinguished from inter- national law, is obtained by such a process against a defendant domiciled abroad, the sovereign of the defendant's domicil will not recognize the binding force of such judgment. "You must come and sue my subject in my own state," is the attitude, "if you wish to obtain a judgment against him which I will recog- nize as binding." But divorce is not a matter of merely mu- nicipal concern. As is marriage, so is divorce, an internation- al status. As married persons carry their immunities wherever they go, it is fitting they should carry their liabilities wherever they go. They claim their marital rights in foreign lands; it is but fair that a foreign land, when it acquires jurisdiction 'by being the domicil of either party, should be entitled to re- quire the attendance of the other party at a matrimonial suit. And there is less ground to complain of such jurisdiction be- ing assumed, since almost without exception the nations of Christendom authorize extraterritorial citations. That the rules of private international law can be so altered there can be no question. At one time divorces of all kinds were con- sidered invalid by private international law, as the great ma- jority of civilized nations repudiated divorces of any kind. I^ow, however, divorces, when the sovereign granting them has jurisdiction, are good by private international law, since all civilized nations sustain such divorces. It is hard to see how a state which authorizes extraterritorial service in suits brought in its own court can refuse to recognize such service when duly made in suits in courts of other states. On the oth- er hand, a state which does not permit such service will not sustain a divorce based on such service. ^ And in divorce suits, as we will presently see, there is peculiar reason for this re- ciprocal recognition. Were extraterritorial service, or service by publication, not allowed in cases where a defendant leaves ^SeeRalston's Appeal, 8 W. N. C. service in Louisiana, see Holbrook v. 393, cited in next section. As to Branson, 25 La. Ann. 51. *92 MAEEJAGE. [Chap. IV. the jurisdiction, the law would be defied in the very class of cases in which its interposition is most required, and relief would be prevented in the cases where it is most needed. The aggravation of the wrong would secure its immunity. 237. Summons by publication will not be regarded as interna- tionally conferring jurisdiction when in fraud of defendant's rights. — Service by publication in divorce cases is by most states authorized by statute. The cases in this view may be di- vided into four classes. The first is where the defendant lives abroad, and the statutes of the state of procedure provide for extraterritorial service. In such ease, if the petitioner knew the defendant's extraterritorial residence, and neglected to have him served, a judgment entered on mere publication, for de- fault of appearance, will be open to extraterritorial impeach- ment. The second class is where the defendant is domiciled and resides in the home jurisdiction, and is not served; in which case it stands to reason that the judgment against him is im- providently entered; though it may be argued that if entered by a court of his domicil his duty is to apply to that court for redress, and that he is bound by that court, subject to appeal to the supreme appellate court of the state. The third class is where the defendant is domiciled and re- sides out of the state of procedure, but there is no statute in that state authorizing extraterritorial service. Even in this case, thouffh the publication was duly made, yet if the defend- ant is not personally notified, when he readily could be, his residence being known to the petitioner, there is high author- ity to the effect that the courts of his domicil will treat the di- vorce as invalid, if the case was one of surprise and wrong. A fourth class is where both parties are domiciled within the state granting the divorce, but the defendant is at the time absent, in which case notice by publication, if in conformity with local law, will be sufficient.' lit has been held in Massachusetts See Atkins v. Atkins, 9 Neb. 191, 2 that there is no presumption of the N. W. 466. jurisdiction of a, court of record of A divorce for desertion obtained in another state over a nonresident li- Illinois, by a husband from his wife, bellee in divorce, whose citation does upon due notice to her in the nevvs- not appear by the record. Com. v. papers, both parties being domiciled Blood, 97 Mass. 533. See Piatt's Ap- in Illinois at the time of the libel, peal, 80 Pa. 501; Irby v. Wilson, 21 was held in 1865, in Massachusetts N. C. (1 Dev. & B. Eq.) afiS ; State v. {Hood v. Hood, 11 Allen, 196, 87 Am. Schlachter. 61 N. C. (Phill. L.) 520. Dec. 709), to be valid, though she 5 237] DIVORCE. 493 The ground on which notice by mere publication is regarded in some cases as sufficient is that, otherwise, where a defend- ant has absconded, justice would be defeated. Undoubtedly was then living in Massachusetts, un- with means by him to go to that der an agreement by which he was to state, and was without such means, pay her a certain weekly sum "so See opinion ante, §§ 224, 228. long as she shall remain single," and In New York the question arose though she had no notice of the pro- for the first time in 1818 (Borden v. ceedings; and it was ruled incompe- Fitch, 15 Johns. 121, 8 Am. Dec. 225), tent for her, in Massachusetts, to when the supreme court was called show that the Illinois divorce was ob- upon to pronounce on the validity of tained by fraud, and upon facts that a Vermont divorce, granted on the would not entitle the husband to a husband's petition, the wife being at divorce in Massachusetts. It should the time a resident of Connecticut, be observed, however, that the deci- and having no notice of the proced- sion in this case was put by the court ure. "The first question," said Chief exclusively on the ground that as Justice Thompson, "is whether such both parties were domiciled in lUi- pi"Oceedings in Vermont were not ab- nois they were bound by the laws of solutely void. To sanction and give that state, which permitted divorces validity and effect to such a divorce on such process; and the case, there- appears to me to be contrary to the fore, has no bearing on the question first principles of justice. To give now under discussion, as to how far any binding effect to a judgment, it notice by publication alone is suffi- is essential that the court should cient when the defendant is domiciled have jurisdiction of the person and of in another state, and receives no per- the subject-matter, and the want of sonal notification. jurisdiction is a matter that may al- In Burlen v. Shannon, 115 Mass. ways be set up against a judgment 438, it was held by the supreme court when sought to be enforced, or when of Massachusetts, that where a hus- any benefit is claimed under it. The band, whose wife is living apart from want of jurisdiction makes it utterly him without justifiable cause, re- void and unavailable for any pur- moves from Massachusetts to another pose." In 1851, in a case before the state, and acquires a domicil there, supreme court sitting at Schenectady without the purpose of obtaining a {Vischer v. Vischer, 12 Barb. 640), divorce, and afterwards obtains a de- the evidence was that the husband crec of divorce in that state, accord- and wife, at the time of marriage, ing to the laws thereof, and after no- were domiciled in New York, where tice to her, by leaving a summons at the marriage took place; and that her abode in Massachusetts, and by subsequently the husband removed to publication in a newspaper in that Michigan where he obtained a decree state, the courts of that state have of divorce, the wife not appearing, jurisdiction of the suit and of both and having no notice except by publi- parties, and the divorce is valid in cation. It was held by the court that Massachusetts as to all persons; al- the divorce was a nullity. It is in- though the wife was never in the di- valid, said Judge Hand, for want of vorcing state, had no settlement jurisdiction, because there was no there derived from her parents or an- service of process upon or appearance cestors, never appeared in the suit of the wife. "No process was served there, had no knowledge or informa- upon or notice given to the wife, ex- tion that he contemplated going to cept by publication in a local news- that state, or that he had left Massa- paper." "Whatever may be the rule chusetts,^ till after he had filed his li- in respect to divorces granted by the Del for divorce, and was never provid- courts in other countries, I am in- ed byhim -with a home or support in clined to the opinion that a divorce the divorcing state, or was furnished granted by tbe courts of one of our 494 MARRIAGE. [Chap. IV. sister states, after appearance, or, if the parties are domiciled there, after personal service, there being no fraud or collusion, would be conclusive here. And it may be doubted, in case of an appearance and litigation on the merits, whether proof of the dom- icil of the parties, or the lea> loci con- tractus, or the loeus delicti, would affect the decree. However, the de- cree of divorce in Michigan is inval- id, on the ground just suggested." The same doctrine was reafBrmed by the supreme court in 1859 (McGiffert V. McGiffert, 31 Barb. 70), and in 1869 (Hoffman v. Hoffman, 55 Barb. 209). In 1869, in a, case before the New York court of appeals, on an ap- plication by Jane F. Kerr, claiming to be the widow of Richard E. Kerr, it appeared that Richard E. Kerr, the husband, from 1802 to his death in 1807, was a, citizen and resident of New York; that in 1866, on a com- plaint stating that he was then, and for more than a year past had been, a bona fide citizen of Indiana, he had been divorced in Indiana from his said wife; and that the Inv.'s of Indi- ana require, to give jurisdiction, that the plaintiff should be a bona fide resident of the state for one year pre- vious to filing the bill for divorce. The record did not show any service of process on the wife, or notice of the proceeding to her; but it did show thnt a firm, H. & W., describing themselves as attorneys, of which there was no proof, did appear and answer for her. There was, however, positive evidence that no process or notice had been served on her, that she had no knowledge of the suit, and gave no authority to H. & W. to appear for her. The court held the divorce void. Judge James put the decision on the ground of "want of jurisdiction in the court to enter- tain the proceedings and render judgment." Judge Grover added that "such appearance was not only a fraud upon the respondent, but also upon the court in Indiana, and the laws of that state. The judg- ment was therefore void as to the re- spondent." Kerr v. Kerr, 41 N. Y. 272. In 1870 I Holmes v. Holmes, 57 Biivb. .'?0.")). it is true a broader view WHS expressed by Judge Board- man, at the Chenango special term; but the most advanced position of this learned judge is that "by impli- cation nearly all the cases hold that such service [personal service out of the jurisdiction] is suflBcient;" and all that was expressly decided is that a decree of divorce obtained by the husband in Iowa, upon personal service of process upon the wife in New York, is valid and effectual, so far as concerns the plaintiff. In Hunt V. Hunt, 72 N. Y. 217, 28 Am. Rep. 129, both parties were domiciled in Ijouisiana, but before the proceedings commenced the de- fendant (the wife) left the state. She had actual notice of all the pro- ceedings, and was advised through- ovit by eminent counsel. No process was served on her; but the court ap- pointed for her a curator ad hoc; which, by proof before the New York court, appears to be, by the laws of Louisiana, a, valid substitute for a personal service of protest in the case of a domiciled defendant in a suit for divorce, wno is aosent from the state when the suit is com- menced. Folger, J., in delivering the opinion of the court, said: "There are numerous authorities to the effect thit a judg- ment of another state got against a resident of this state and who has never been a citizen of that, without personal service of process or volun- tary appearance, is not a valid judg- ment, and may be inquired into in our courts, and on such facts appear- ing may be disregarded as having been rendered without jurisdiction. Kerr. V. Kerr, 41 N. Y. 272; Hoffman v. Hoffman, 46 N. Y. 30, 7 Am. Rep. 299, and others. "We have not seen a decision which so holds, where the defendant was :iiitioii ; but in Pell v. Felt, 59 808 MARRIAGE. [Chap. IV. quisscion as to the recognition of such a decree is treated as purely one of comity, unaffected by the "full faith and credit" provision. Erom this point of view the fact that the defendant had actual notice of the pendency of the suit, even if imparted by merely constructive or substituted service of process, may be material. But considering the question from the point of view of the "full faith and credit" provision, it becomes simply one as to the jurisdiction of the court which rendered the decree, and it is well settled that actual notice imparted by personal service out of the state is no more effectual to subject the defendant personally to the jurisdiction of the court than publication of notice which never, in fact, reaches the defendant;* and, on the other hand, it is well established that service by publication, if reasonable under the circumstances of the particular case, is as effective in proceedings in rem as personal service outside of the state. * 237f. — theories as to character and extraterritorial effect of decree. — While, as stated in previous sections,^ constructive or substituted service is generally conceded to be sufficient, even against a nonresident, when the question of jurisdiction is lo- cally considered, there is great difference of opinion respecting the question whether a decree rendered under svich circumstan- ces affects the status of the spouses in other states. One class of oases — and they are, perhaps, in the majority — takes the view N. J. Eq. 606, 47 L. R. A. 548, 83 Am. tual notice of the pendency of the St. Rep. 612, 45 Atl. 105, 49 Atl., suit will not be recognized in New 1071, where it appeared that the de- Jersey, at least if the adverse party fendant had actual notice through Icnew where the former resided, service out of the state where the de- sPcnnoyer v. Ncff., 95 U. S. 714, 24 cree was rendered, the decree was L. ed. 505. recognized, notwithstanding that de- ^ See note to Pinney v. Providenee fendant was a, nonresident. Loan d Invest. Co. 50 L. R. A. 577. So, Davenport v. Davenport (N. J. ^.inte, §§ 237c, 237d. See, upon Eq.) 58 Atl. 535, holds that a di- general subject discussed in this sec- vorce rendered in another state tion, note to 59 L. R. A. 135, 167 et against a nonresident who had no ac- seq. § 237f] DIVORCE. 609 that a divorce suit is a proceeding in rem, or quasi in rem, and therefore holds that constructive or substituted service, if rea- sonable of its kind, is sufficient, not only to uphold the decree in the state where rendered, but to entitle it to recognition in other states under the provision of the Federal Constitution re- quiring each state to give full faith and credit to the judicial proceedings of the others.^ By recognition, the cases of this class mean that the decree is entitled to be recognized as estab- lishing the status of the spouses, not only in the state where rendered, but also in all other states. This position rests upon the ground that the court has jurisdiction by virtue of its right to determine the status of its own citizens, and, incidentally, that of nonresidents as related to them. Another class of cases concedes the validity, in the state where rendered, of a decree of divorce rendered upon construc- tive service against a nonresident, but refuses to recognize it as affecting the status of the spouses in other states. This class may be divided into two subclasses which, though practically reaching the same result, proceed upon different theories. One theory, which is the exact opposite of that adopted by the class of cases first mentioned, is that a decree of divorce is gov- erned by the principles applicable to a decree in personam, and, therefore, tliat constructive or substituted service is insufficient mekking v. Pfaff, 82 Fed. 403; 579; Chapman, v. Chapman, 48 Kan. nompson V. State, 23 Ala. 12; 036, 29 Pac. 1071; Haickins v. Rags- Thompson V. Thompson, 91 Ala. 591, dale, 80 Ky. 353, 44 Am. Eep. 483; 11 L. R. A. 443, 8 So. 419; Re James, Smith v. Smith, 43 La. Ann. 1140, 10 «9 Cal. 374, 37 Am. St. Rep. 60, 33 So. 248; Benton's Succession, 108 La. Pac. 1122; Dunham v. Dunham, 162 494, 59 L. R. A. 135, 31 So. 123; 111. 589, 35 L. E. A. 70, 44 N. E. 841 ; Hardinij v. Alden, 9 Me. 140, 23 Am. Hood V. State, 56 Ind. 203, 26 Am. Dec. 549; GnuU v. Grow, 57 Mo. 200; Eep. 21; Uilbish v. Battle, 145 Ind. Anthony v. Rtct, 110 Mo. 223, 19 S. 59, 33 L. R. A. 783, 44 N. E. 20; W. 423; Ditson v. Ditson, 4 R. I. 87; Wakefield v. Ives, 35 Iowa, 238; Thorns v. King, 95 Tenn. 60, 31 S. Klme V. Kline, 57 Iowa, 386, 42 Am. W. 983. See also Schafer v. Bush- Eep. 47, 10 N. W. 825; VanOrsdal v. nell, 24 Wis. 372; Cook v. Cook, 56 TanOrsdal, 67 Iowa, 35, 24 N. W. Wis. 195, 43 Am. Rep. 706,' 14 N. W. 810 MABHIAGE. [Chap. IV, as against a nonresident.* The theory upon which the other subclass rests has assumed, at various times, somewhat different forms. In none of these forms, however, does it deny altogether the res theory, or apply to a decree of divorce the principles ap- plicable to decrees in personam. In the original form it rested upon the idea that, if there is a res in a divorce suit, the res is the status of the resident spouse only, and that the jurisdiction which the court has by virtue of that res, in the absence of per- sonal jurisdiction over the defendant, is confined to the estab- lishment of the status of that spouse, and does not affect the status of the nonresident spouse.* In this form there is no necessary limitation of the effect of the decree on the status of the resident spouse to the state where it was rendered ; but, with the exception of one case, ^ this theory seems never to have been 33, 443, infra. See also the New Jer- sey cases cited in note 2 to § 237e, (mte. ^Barney v. DeKraft, 6 D. C. 361 ; Iriy V. Wilson, 21 N. C. (1 Dev. & B. Eq.) 568; Arrington v. Arrington, 102 N. C. 491, 9 S. B. 200 (in this case, however, the decree was recog- nized because the defendant appeared in the divorce suit) ; Ewrris v. Har- ris, 115 N. C. 587, 44 Am. St. Rep. 471, 20 S. E. 187. Prosser v. Warner, 47 Vt. 667, 19 Am. Kep. 132, questions whether the decree was entitled to recognition in another state, even as affecting the status of the parties, but the deci- sion was merely that the award of alimony on constructive service against a nonresident was not enti- tled to such recognition. 4 Tliis seems to have been the the- ory of People V. Baker, 76 N. Y. 78, 32 Am. Rep. 274. In reply to the ar- gument that a divorce suit is a pro- ceeding in rem, or quasi in rem, the court, in this case, asks: "Now, if the matrimonial relation of the one party is the res in one state, is not the matrimonial relation of the other party a res in another state?" It then proceeds to argue that a decree in rem can only affect the res which is within the jurisdiction. The practical absurdity, referred to in the text, inherent in this theory, seems to have escaped tho attention of the court, probably because the New York action in which the ques- tion arose involved only the status of the nonresident spouse, it being a criminal prosecution of the husband, against whom the divorce was ren- dered in the other state, for re- marrying in New York. Even in this opinion there is some intimation that the decree could have no effect, even on the status of the resident spouse, outside of the state in which it was rendered. 5 In STiafer v. Bushnell, 24 Wis. 372, the question was as to the § 237f] DIVORCE. 511 praGtically applied so as to accord extra* errit'irial effect to the decree upon the status of the resident spouse, while deuying it such effect upon the status of the nonresident spouse. The theory in this form answers well enotigh the practical purposes of a case which involves the status of only one of the parties to the divorce suit, but it is obvious that it involves the absur'lity that one may be the husband of a woman who is not his wife, or the wife of a man who is not her husband. Therefore, when cases have arisen involving the status of both parties to the divorce suit, the theory has usually been modified by restricting the effect of the decree on the status, of the resident spouse even, to the state where rendered," though there is a reenrring validity of a marriage contracted by parties had never lived together, was a woman who had procured a divorce net a bar to an action by the wife in from her former husband in another Wisconsin for a divorce, alimony, al- state upon constructive service, lowance, and division of lands situ- There was no question, in this case, ated within the latter state. Taylor, as to the status of the former hus- J., concurred in the result, but took band, and the decision seems to be the position that the divorce granted carefully limited to the status of the in the other state determined the wife who procured the divorce. The status of the wife, but that it did court said: "It appears to us that not necessarily affect her right to the decree of the district court of alimony, or a division of property in Minnesota dissolving the marriage Wisconsin. And he added that the between Mrs. Shafer and her husband husband could not be prejudiced by must be deemed conclusive in this a formal judgment for a divorce state in respect to the status or from a woman from whom he was domestic and social condition of the already divorced, wife." That the court did not ^In the following eases, where the mean to concede that the decree doctrine of the Baker Case was ap- would affect the status of the non- plied, the suit in New York was for resident husband is made still more a divorce or separation brought by apparent by the fact that, in Cook the spouse against whom the decree V. Cook, 56 Wis. 195, 43 Am. Rep. was rendered in the other state (that 706, 14 N. W. 33, 443, it was held, is, by the spouse who was a, non- witliout (expressly, at least) over- resident of that state) against the ruling the previous decision, that a spouse who obtained the decree in decree of divorce rendered upon con- the other state (that is, against the structive service in fayor of the hus- spouse who was a resident of that band in another state in which he re- state) . In these cases, therefore, the sided at the time, but in which the status of both spouses in New York 612 MAEKIAGE. [Chap. IV. tendency to revert to the original form of the theory when a case arises involving the status of but one of the spouses. '^ This was involved, and the court must to either party." In Re Kimball, 155 necessarily have taken the position N. Y. 62, 19 N. E. 331, and Dwvis v. that the decree did not affect the Davis, 2 Misc. 549, 22 N. Y. Supp. status, of even the resident spouse, 191, the doctrine of the Baker Case outside of the state in which it was was applied so as to invalidate a rendered, since the divorce, or subsequent marriage contracted by separation, asked for in the New the party who procured the divorce York suit was granted, or if refused, in the other state, the refusal was upon another ground In addition to the foregoing cases which presupposed the continued ex- the doctrine has been applied, or istence of the marriage relation at recognized, by O'Dea v. O'Dea, 101 the time of the New York suit. N. Y. 23, 4 N. E. 110 (which, like Cross V. Gross, 108 N. Y. 628, People v. Baker, 76 N. Y. 78, 32 Am. 15 N. E. 333; Williams v. Wil- Kep. 274, only involved the status of Hams, 130 N. Y. 193, 14 L. R. A. 220, the spouse against whom the decree 27 Am. St. Rep. 517, 29 N. E. 98; was rendered) ; De Meli v. De Meli, Atherton v. Atherton, 155 N. Y. 129, 120 N. Y. 485, 17 Am. St. Rep. 652, 40 L. R. A. 291, 63 Am. St. Rep. 650, 24 N. E. 996 (though, in this case, 49 N. E. 933, Reversed on other the decree was rendered in a foreign grounds in 181 U. S. 155, 45 L. ed. country and not in another state); 795, 21 Sup. Ct. Rep. 644; Winston Rigney v. Rigney, 127 N..Y. 408, 24 V. Winston, 165 N. Y. 553, 59 N. E. Am. St. Rep. 462, 28 N. E. 405; Re 273; Bailie v. Bailie, 30 App. Div. Degaramo, 86 Hun, 390, 33 N. Y. 461, 52 N. Y. Supp. 228; McGown v. Supp. 502; Re House, 2 Connoly, 524, McGown, 19 App. Div. 368, 46 N. Y. 14 N. Y. Supp. 275. Supp. 285, Affirmed in 164 N. Y. 558, In Eunt v. Hunt, 72 N. Y. 217, 28 58 N. E. 1089; Mellen v. Mellen, 10 Am. Rep. 129, the defendant in the Abb. N. C. 329; Geihard v. Gebhard, divorce suit was a resident of the 25 Misc. 1, 54 N. Y. Supp. 406; state in which the decree was grant- Hamilton v. Hamilton, 26 Misc. 336, ed, and for that reason the doctrine 56 N. Y. Supp. 122. was not applicable. In Starbuck v. Starbuch, 62 App. ^Rigney v. Rigney, 127 N. Y. 408, Div. 437, 71 N. Y. Supp. 104, the 24 Am. St. Rep. 402, 28 N. E. 405; court, after a discussion of the Re Swales, 60 App. Div. 599, 70 K. Y. previous decisions in the state, says Supp. 220, AfBrmed in 172 N. Y. 651, the effect of these decisions is "that 65 N. E. 1122. whatever effect is to bo given the de- In Lacey v. Lacey, 38 Misc. 196, 77 cree must be confiiiBd to the plaintiff N. Y. Supp. 235. this view of the and to the state in which it was New York doctrine was taken, al- granted; and that in this state it is though the New York suit involved without binding force or efficacy in the status of both spouses, any respect, for any purpose and as § 237f] DIVORCE. 513 modification of the theory, however, without a further modifica- tion by conceding that the decree has the effect of establishing the status of the nonresident spouse in the state where rendered, would merely confine the absurdity to that state, and would not entirely obviate it. Practically, therefore, the second form of the theory concedes that the res is the marriage relation, — that is, the reciprocal relations of the resident and nonresident spouses, — but the marriage relation only within the state where the decree is rendered; and therefore denies the decree any effect on the marriage relation outside of that state.* The doctrine which refuses recognition of a decree of divorce rendered in another state upon constructive or substituted service against a nonresident does not apply if the defendant personally appeared in the suit, since such appearance is as effective as personal service within the state to subject the de- fendant personally to the jurisdiction of the court.® While in most of the cases it appears that the defendant, at the time of the divorce, was domiciled in the state whose courts refused to recognize the divorce, that fact does not qualify the doctrine announced, and its significance lies only in its eifect to negative the domicil of the defendant at the divorce forum. ^^ If the question as to the recognition by a court of one state of a decree of divorce rendered in another were purely one of comity, the question whether the ground of divorce was one which was rec- ognized by the law of the former state — especially if the de- V. Davis, 44 S. C. 195, Appeal, 23 L. R. A. 287, as to effect 28 L. R. A. 655, 51 Am. St. Rep. 794, of appearance by nonresident to give 22 S. E. 178. jurisdiction of divorce ease. 9In Jones v. Jones, 108 N. Y. 415, lo In O'Dea v. O'Dea, 101 N. Y. 23, 2 Am. St. Rep. 447, 15 N. E. 707, and 4 N. E. 110, the doctrine was ap- fficft V. Rich, 88 Hun, 566, 34 N. Y. plied to a divorce rendered in an- Supp. 854, the doctrine of the Baker other state in favor of the husband Case was reasserted, but was not ap- while the wife was domiciled in plied because the defendant appeared Canada, and the divorce was accord- in the action in which the decree was ingly refused recognition, rendered. See also note to Ellis's Vol. I. CoNFL. of Laws— 33. 614 MARRIAGE. [Chap. IV. fendant were domiciled in such state at the time of the divorce — ^might be material; but from the point of view of a court which refuses to recognize the decree upon the ground that de- fendant was not personally subject to the jurisdiction of the court, and that a divorce suit is not a proceeding in rem, it is not apparent how the question as to the cause of divorce, which only goes to the jurisdiction of the subject-matter, can be ma- terial. 1 ^ There is still another class of cases which neither admits nor denies, under all circumstances, the extraterritorial effect of a 1 1 In most of the New York casea that have applied the doctrine, the divorce in the other state vpas grant- ed for a cause not recognized by the law of New York, but no distinction seems to have been based on that fact until the decision in Re Mor- risson, 52 Hun, 102, 5 N. Y. Supp. 90, AflSrmed, without opinion, in 117 N. Y. 638, 22 N. E. 1130, where it was held that the rule in the Baker Case did not apply to a divorce obtained in Ohio upon service by publication against the wife, who was at the time resident in New York, upon the ground of adultery committed by her in Ohio while the parties were domi- ciled in the latter state, the marriage having also been celebrated in that state. The affirmance by the court of appeals may have been upon the theory that the wife, although an actual resident in New York at the time of the divorce, had not acquired a separate domicil there, but was legally domiciled with her husband in Ohio. The decision of the general term, however, seems to proceed upon the theory that the wife had a separate domicil in New York, but that the case was distinguishable from the previous cases by reason of the fact that the divorce was for adultery, which was also a ground of divorce in New York, in connection with the fact that, at the time of the adultery, the matrimonial domicil was in Ohio. The possibility of basing any distinction on the latter fact seems to be negatived by the de- cision of the court of appeals in Atherton v.-Atherton, 155 N. Y. 129, 40 L. E. A. 291, 63 Am. St. Rep. 650, 49 N. E. 933, where the doctrine of the BaJcer Case was applied, notwith- standing that the domicil at the time of the delictum was in the state where the divorce was granted. In Hoffman v. Hoffman, 46 N. Y. 30, 7 Am. Rep. 299, and Rigney v. Itigney, 127 N. Y. 408, 24 Am. St. Rep. 462, 28 N. E. 405, the divorce in the other state was granted upon the ground of adultery; but in the former ease the jurisdiction was de- feated by the nonresidence of the plaintiff, and in the latter case the question was not as to the validity of the divorce, but of the award of alimony. In this case, however, the doctrine of the Baker Case was re- affirmed without raising any ques- tion as to the cause of the divorce. § 237f] DIVORCE. 516 decree of divorce rendered against a nonresident under such circumstances; but apparently concedes it such effect when the last common matrimonial domicil of the parties, prior to their separation, was in the state where the decree was rendered, not- withstanding that, prior to the commencement of the suit, one of them had acquired a separate domicil in another state ; and denies it such effect under other circumstances. ^ ^ izThis seems to be the principle of 709; Bwrlen v. Shannon, 115 Mass. international law deducible from the 438; and Loker v. Chrald, 157 Mass. Pennsylvania cases — -both those in- 42, 16 L. E. A. 497, 34 Am. St. Rep. volving the jurisdiction of a domestic 252, 31 N. E. 709, where a divorce court upon constructive service, and procured by the husband in another those involving the recognition of a state upon constructive or substitut- decree of divorce rendered in another ed service was recognized, the de- state upon such service. As pointed cisions are upon the ground that the out in the note to cmte, § 231, the wife, though actually living in cases in whinh divorces, granted in Massachusetts at the time of the di- other states against nonresidents vorce, was nevertheless legally domi- upon constructive service, have been ciled with her husband in the state refused recognition in Pennsylvania, where the decree was granted. In have emphasized the fact that, at the Cummington v. Belchertoion, 149 time of the delictum, the matrimoni- Mass. 223, 4 L. R. A. 131, 21 N. E. al domicil was outside the divorce 435, it was held that a, decree ren- forum. And, indeed, so much ini- dered in New York at the suit of the portance was attached to that fact husband, who had removed there that these decisions have sometimes from Massachusetts, though not for been supposed { erreneously, how- the purpose of procuring the decree, ever) to rest, not on the ground of annulling the marriage upon the Want of jurisdiction over the person ground of fraud, was not binding in cf the defendant, but upon the Massachusetts, the wife being in an ground of lack of jurisdiction over insane asylum in that state and not the subject-matter. having been served in any manner The same principle seems to be de- \vithin the state of New York. A ducible from the early Massachusetts decree annulling the marriage was decisions cited in the note awte, § 231, distinguished from a decree of di- as applied to the right of a court vorce, and the court expressly said of Massachusetts to assume juris- that it had no occasion to consider diction. The question, however, as what would have been the effect of a to the recognition of decrees rendered decree of divorce rendered under such against nonresidents in other states circumstances. upon eonstnietive service has not The decision in Cook v. Cook, 56 been settled in this state. In ffood Wis. 195, 43 Am. Rep. 706, 14 N. W. V. Bood, 11 Allen, 196, 87 Am. Deo. 33, 443, supra, note 5, seems to be 516 MARRIAGE. [Chap. IV. A decision by the United States Supreme Court to the effect that a decree of divorce rendered upon constructive or substi- tuted service against a nonresident is binding upon the courts of other states, under the "full faith and credit" provision, would, of course, settle the question discussed in this section; and there is a recent decision^ ^ of that court which seems to indicate a disposition upon the part of that court to so hold; but when the majority opinion is considered in its entirety, it seems reasonably clear that the decision proceeds upon the theory that the defendant, who in that case was the wife, was, in legal effect, domiciled with her husband in Kentucky, where the decree was rendered. In this view the decision is entirely consistent with the JSTew York doctrine refusing to accord extra- territorial effect to decrees rendered under such circumstances against nonresidents, for it is admitted in that state, as well as in other states which hold the same doctrine, that the doctrine does not apply to decrees rendered against residents; and the decision of the New York court of appeals (which was reversed in the case referred to) refusing to recognize the Kentucky divorce expressly proceeded upon the finding of the lower court- in New York, that the wife was justified in leaving her hus- limited to a, case where the matri- ferred to this class, but none of them inonial domieil was not in the state bases any distinction upon the previ- where the decree was rendered. In ous matrimonial domieil; and in most of the cases cited supra, note Atherton v. Atherton. 155 N. Y. 129, 2, where the decree was recognized, 40 L. R. A. 291, 63 Am. St. Rep. 650, however, it appeared, as a matter of 49 N. B. 933, the decree was refused fact, that the last common matri- recognition, notwithstanding that the monial domieil of the parties was in previous matrimonial domieil was in a state other than that in which the the state where the decree was ren- divorce was granted, and that the de- dered. But see the text with r?f- fendant retained that domieil, or, at crenee to the position taken by the least, did not acquire a domieil in United States Supreme Court upon the state where the divorce was the appeal in this case, granted. These cases, therefore, T^'i Atherton v. Athei-ton, 181 U. S. are not referable to the class under 155, 45 L. ed. 795, 21 Sup. Ct Rep. discussion. Most of the New York 544. o:isoii could, upon their facts, be re- i ,237f] DIVORCE. 517 band, and had acquired a separate domicil in that state. ^ * The Supreme Court, after referring to many of the cases upon the question, says: "The authorities above cited show the wide diversity of opinion existing upon this important subject, and admonish us to confine our decision to the exact case before us. This ease does not involve the validity of a divorce granted on constructive service by the court of a state in which only one of the parties ever had a domicil, nor the question to what extent the good faith of the domicil may be afterwards inquired into. In this case, the divorce in Kentucky was by the court of the state which had always been the undoubted domicil of the hus- band, and which was the only matrimonial domicil of the hus- band and wife. The single question to be decided is the validity of that divorce granted after such notice had been given as was required by the statutes of Kentucky." The language quoted is, perhaps, not inconsistent with the idea that the wife had acquired a separate domicil in ISew York; but the argument in the subsequent part of the opinion seems designed to negative the existence of such a separate domicil, and that idea is em- phasized by the following quotation from the close of the opin- ion: "The wife not being within the state of Kentucky, if constructive notice, with all the precautions prescribed by the statutes of that state, were insufficient to bind her by a decree dissolving the bond of matrimony, the husband could only get a divorce by suing in the state in which she was found ; and by the very fact of suing her there he would admit that she had acquired a separate domicil (which he denied), and would dis- prove his own ground of action that she had abandoned him in Kentucky." The dissent of ilr. Justice Peckham was expressly based upon the finding of the iSTew York court that the wife had acquired a separate domicil in that state. Even if the court i<155 N. Y. 129, 40 L. E. A. 291, 63 Am. St. Rep. 650, 49 N. E. 933. 518 MAERIAGE. [Chap. IV. intended to decide the case upon the assumption that the wife was domiciled in ITew York, the decision would not entirely overthrow the ISTew York doctrine, but would, at most, only sup- port the position assumed by the third class of cases above re- ferred to, — ^namely, that a decree rendered under such circum- stances is entitled to recognition in other states when the last common matrimonial domicil of the parties was in the state where the decree was rendered. ^ ^ 237g. — right of spouse who obtained decree to deny its extra- territorial effect. — Most of the cases that have refused to recog- nize divorces granted in other states upon constructive service have applied the doctrine, if not to the disadvantage, at least not to the advantage, of the spouse who procured the divorce; but, in a few cases, such spouse has successfully invoked the IB None of the prior decisions of fendant appeared in the divorce suit, the United States Supreme Court and was therefore personally subject have definitely settled the question to the jurisdiction of the court, discussed in this section. In Pen- In Gheely v. Clayton, 110 U. S. 701, noyer v. Neff, 95 U. S. 714, 24 L. ed. 28 L. ed. 298, 4 Sup. Ct. Rep. 328, 565, Justice Field intimated that, where the service was by publication where one of the parties to a mar- against an absent wife, the court riage, who has been guilty of acts said: "The courts of the state of for which, by the law of the state, a the domicil of the parties doubtless dissolution may be granted, has re- have jurisdiction to decree a divorce moved to another state, a divorce in accordance with its laws for any may be authorized without personal cause allowed by those laws . . . ; service of process, or personal notice and a divorce so obtained is valid to the offending party. But the re- everywhere." But this remark seems marks on this point are clearly to be made upon the assumption that obiter, and, besides, they seem to both parties are domiciled at the have reference only to the validity forum; and, besides, the divorce in of the decree in the state where this case was held invalid because rendered. the statutes of the forum were not In Cheever v. Wilson, 9 Wall. 108, complied with. 19 L. ed. 604, the court, referring to In Maynard v. Hill, 125 U. S. 100, a decree of divorce, said if a judg- 31 L. ed. 654, 8 Sup. Ct. Rep. 723, ment is conclusive in a state where where a divorce granted by the terri- it is rendered, it is equally conclu- torial legislature of Oregon was up- sive elsewliere in the courts of the held, notwithstanding that the wife United States. In this case the de- was a nonresident of the territory ; 237g] DIVORCE. 519 doctrine to hia or her own advantage.-^ Under the theory, re- ferred to in the previous section, which concedes the jurisdiction over the status of the resident spouse without limiting the effect of the decree on such status to the state where it was rendered, this would be manifestly impossible, since, ex hypothesi, such spouse would have the status of an unmarried person in all the states.^ But, under the theory that coiifines the effect of the decree on the status of the resident spouse to the state where the divorce was granted, the right of such spouse to invoke the doctrine can only be denied upon the theory of estoppel ; and there are at least theoretical difficulties in establishing an estop- pel, since, upon this theory, the assertion, by the spouse who procured the divorce, of her continued status as a wife in the state where such theory prevails, does not involve any attack upon the validity of the decree, but merely a limitation of the decree to its own confines; that is, to the limits of the state iind had no notice of the intended di- wife to letters of administration voice, the question arose in an action upon the estate of her deceased hus- concerning land which, at the time band, from whom she had obtained the divorce was rendered, was with- a divorce in Illinois upon substitut- in the territory of Oregon, so that in ed service of process while he was a this case there was no question as resident of New York, seems to rest to the extraterritorial effect of the upon this theory, so far as the ques- divorce. tion of the substituted service is con- 1 Thus, in People v. Chase, 27 Hun, eerned, though the wife, in this case, 256, the doctrine was applied at the sought also to impeach the decree instance of defendant in a prose- upon the ground that she was not eution for bigamy, with the result legally domiciiled in Illinois; and, as that the first marriage charged in to this point, the decision was upon the indictment, which was celebrated the ground that she was estopped to after a previous divorce procured by deny the jurisdictional fact, the defendant, was held invalid, and And Lacey v. Lacey, 38 Misc. 196, therefore insufficient to sustain the 77 N. Y. Supp. 235, denying the right indictment. of the wife to maintain a suit for di- 2The decision in Re Swales, 60 vorce in New York after procuring App. Div. 599, 70 N. Y. Supp. 220, a divorce in another state under such Affirmed in 172 N. Y. 651, 65 N. E. circumstances, expressly adopts this 1122, which denied the right of a theory. 520 MARRIAGE. [Chap. IV. where it is rendered.' It is difficult to understand how a per- son, by the mere fact of obtaining a decree, can be estopped to deny that it affects her status in another state when, according to the rule of law that prevails in the latter state, the legal effect of the decree is merely to establish her status in the state where rendered. The right of the spouse who procures the divorce to deny the jurisdictional fact of his or her domicil at the di- vorce forum presents an entirely different question. 237h. — effect of subsequent marriage celebrated in state where decree rendered. — The theoretical objections to the view that the decree conclusively establishes the status of one or both spouses within the state where it is rendered, but does not affect their status outside of that state, have been alluded to in a pre- vious section. These difficulties assume a practical form when the spouse who procured the divorce in another state marries again in that state, and the question as to the validity of that marriage arises in a state in which the theory referred to pre- vails. The marriage, from this point of view, must be conceded to be valid in the state where it was celebrated, for, ex hypoihesi, the spouse who procured the divorce was free to marry there, and the court must, therefore, choose between the theory that the divorce has no extraterritorial operation, and the general sThis was the position taken by 93 Am. St. Rep. 631, 66 N. E. 193) the appellate division in Starbuck v. reversed this decision upon the broad Btarbuck, 62 App. Div. 437, 71 N. Y. ground that the party who procured Supp. 104, which held that a wife the divorce was estopped to question who had obtained a divorce in Massa- the jurisdiction of the court that chusetts upon service by publication rendered it. This seems to evade against her husband, a resident of the point, since the position of the New York, was not estopped to appellate division was that the claim claim, as his widow, dower in real of dower, under the circumstances, property acquired by him in New did not involve any attack upon the York after the divorce, notwithstand- jurisdiction of the Massachusetts ing that after the divorce he re- court, but merely a limitation of its married in Pennsylvania and had jurisdiction in accordance with the children by the second marriage. New York rule. The court of appeals (173 N. Y. 503, § 237h] DIVORCE. 521 rule that a marriage valid where celebrated is valid everywhere. When confronted with such a situation, the courts have adhered to the theory, and abandoned the rule,^ though they recognize the legitimacy of the children of the subsequent marriage.^ 238. Service within jurisdiction sufficient, though defendant is npndomiciled; and so, of appearance. — If the defendant is per- sonally summoned within the jurisdiction, this is sufficient to confer competency on the court, unless there is a distinctive rule in the state that the only competent court is that of the defendant's domicil. An appearance by the defendant, also, with the same limitation, confers competency, even though he be a nonresident.^ iRe Kimhall, 155 N. Y. 62, 49 N. E. 331; MoGoir^ v. McGown, 19 App. Wv. 368, 40 N. Y. Supp. 285, Af- firmed in 1G4 N. Y. 558, 58 N. E. 1089; Hamilton v. Hamilton, 26 Misc. 336, 56 N. Y. Supp. 122; Davis T. Coots, 2 Misc. 549, 22 N. Y. Supp. 191. ^Re Hall, 61 App. Div. 266, 70 N. Y. Supp. 406. iKinnier v. Kinnier, 58 Barb. 424, 45 N. Y. 535, 6 Am. Rep. 132. In Loud V. Loud, 129 Mass. 14, it was held that a wife residing in Massachusetts, who appeared in a previous successful bona fide suit for divorce broiught by her husband in another state, and afterwards ex- ecuted a release to him of all claims on his estate for a pecuniary con- sideration paid by him, cannot treat his subsequent marriage as illegal, and obtain a divorce here therefor. Gray, Gb. J., said: "The con- clusive answer to this libel is that the wife not only appeared in the suit brought by the husband, but that she afterwards executed a re- lease, reciting the divorce therein ob- tained by him, and, for a pecuniary consideration, discharging all her claims upon him or his estate. Hav- ing done this, she cannot treat his subsequent marriage and cohabi- tation with another woman as a violation of his marital obligations to herself. The defense is allowed, not upon the ground of strict estop- pel, but because her own conduct amounts to a connivance at, or acquiescence in, his subsequent mar- riage. Kirrigan v. Kirrigan-, 15 N. J. Eq. 146; Palmer v. Palmer, 1 Swabey & T. 551, 29 L. J. Prob. N. S. 26, 2 L. T. N. S. 88; Boulting v. lioultingi 3 Swabev & T. 329, 335, 33 L. J. Prob. N. S."'33, 10 Jur. N. s. 182, 9 L. T. N. S. 779, 12 Week. Rep. 389; Gipps v. Gipps, 3 Swabey & T. 116, 11 H. L. Cas. 1, 4 New Reports, 303, 33 L. J. Prob. N. S. 161. 10 Jur. N. S. 641, 10 L. T. N. S. 735, 12 Week. Rep. 937; Pierce v. Pierce, 3 Pick. 299; Lysier v. Lyster, 111 Mass. 327, 330. See also Smith v. Smith, 13 Gray, 209, in which it was decided that a decree of divorce, ob- tained in another state ex parte, and in violation of Gen. Stat. chap. 107, § 54, was no bar to a libel previously filed in this commonwealth by the same libellant for the same cause." A divorce in another state, when both parties were at the time resi- dent in New York, and when the de- fendant was not at the time served with process, will not be held valid in New York, though the defendant, subsequent to the decree, applied to set it aside, and was defeated on technical grounds. Hoffman v. Hoff- man, 46 N. Y. 30, 7 Am. Rep. 299. That appearance will not giv<' jurisdiction, when otherwise want- ^ MARRIAGE. [Chap. IV. 239. In Pennsylvania the forum is the matrimonial domicil. — Pennsylvania has taken an exceptional position in this re- spect, it being maintained in that state, on reasoning entitled to great respect, that the primary forum of divorce is the mat- rimonial domicil; i. e., the domicil the parties, when in agree- ment, select as their permanent home.-' Thus, where a hus- band left his wife in Pennsylvania, their common domicil, and settled in Iowa, where he obtained a divorce from the wife on ground of desertion, notice being given by publication, there being no personal notice, it was held by the supreme court of Pennsylvania, in 1867, that the divorce did not devest the wife of her marriage rights in Pennsylvania.^ "The injured par- ty," to adopt the succinct language of Judge Sharswood, "must seek redress in the forum of the defendant, unless where such defendant has removed from what was before the common dom- icil of both."* 2391/2- Judgment may dissolve marriage, yet not affect prop- erty. — Whether an ex parte judgment of divorce against a de- fendant domiciled in another state, supposing it to bind his person, binds his property in such other state, has been doubted. That such a judg-ment has no extraterritorial force as to prop- erty, though it may dissolve the marriage, is maintained by high authority;^ and it is clear that, at least as to real estate, the lex rei sitce must prevail. On the other hand, that such a ing, see Chase v. Chase, 6 Gray, 157, Starch v. Griffin, 71 Pa. 240; Scott t. 161; People v. Dawell, 25 Mich. 247, J'oftfe, 72 Pa. 115, 13 Am. Rep. 603; 12 Am. Rep. 260. Ante, §§ 23, 230. Piatt's Appeal, SO Pa. 501; Turner m. In liinnier v. Kinnier, 45 K. Y. Turner, 44 Ala. 437. 535, 6 Am. Rep. 132, Church, Ch. J., "When the injured party seeka a said: — new domicil, and the domicils are, "The court had jurisdiction of the therefore, actually different, there is subject-matter of the action; that is, no greater reason ■vvhy the husband's it had jurisdiction to decree divorces new domicil should prevail over the according to the laws of that state; wife's than that hers should prevail and every state has the right to de- over his." Ag-new, J,, in Golvm v. termine for itself the ground upon Reed, 55 Pa. 375. which it will dissolve the marriage relation of those within its juris- sSee, with reference to the posi- diction. The court also had juris- tio„ of the Pennsylvania courts, the diction of the parties by the volun- ,. . _,„„„, . , j . tary appearance of the defendant." discussion, ante, § 231, note 1, and § In Piatt's Appeal, 80 Pa. 501, ap- ''^37f, iioLe 12. pearanee is viewed as completing jurisdiction, when the suit is brought 12 Kent, Com. 110, note 6; 2 within plaintiff's domicil. Bishop, Marr. &■ Div. § 69; Harding iSee ante, § 190. v. Alden, 9 Me. 140, 23 Am. Dec. 549; ^Colvin v. Reed, 55 Pa. 375, Ap- GouU v. Crow, 57 Mo. 200. See proved in Reel v. Elder, 62 Pa. 308, Colvin v. Reed, 55 Pa. 375, cited in 1 Am. Rop. 414. See also Van last section. This would follow, it § 239J] DIVOBOE. 523 distinction is illogical and untrue has been maintained by em- inent judges.^ The question depends upon the local policy of the state where the contested property is situated ; and so it is regarded, as is seen in the prior section, in Pennsylvania. At the same time it is difficult to avoid the force of the conclu- sion that an ex parte judgment cannot bind property extrater- ritorially. It may divorce, for instance, an Indiana husband from a Massachusetts wife. But it cannot devest the wife's interest in her husband's property in Massachusetts.^ 1. Award of alimony upon constructive or substituted serv- ice. — ^Whatever may be the true view with reference to the extra- territorial effect, on the status of the parties, of a decree of di- vorce rendered upon constructive service against a nonresident, it is clear that an award of alimony on such service against a nonresident is invalid, as well in the state where made as in other states,^ except so far as concerns property, within the may be argued, from the nature of concerned, and notwithstanding that CT parte judgments. Post, § 667. a statute of that state purported to S:'tii:^^m'rLrJ:^l-t^% authorize personal judgments upon Am. L. Reg. N.' S 215. constructive service against non- 3See post, § 665. residents. The position of these courts is that the statute is contrary mekking v. Pfaff, 82 Fed. 403; ^ due process. Beard v. Beard, 21 Ind. 321 ; Middle- j^ Middleicorth v. McDowell, 49 worth V. McDowell, 49 Ind. 386; i^j. 386, it was held that u. decree t'leming v. West, 98 Ga. 778, 27 S. E. f^^ alimony rendered in another 157; Bea v. Rea (Iowa) 98 N. W. state, under such circumstances, was 787; Johnson v. Matthews (Iowa) not valid in Indiana, whatever effect «9 N. W. 1064; Hamill v. Talhott, 72 jt might have in the state where it Mo. App. 22; Elmendorf v. Elmen- ^.^s rendered. This qualification, ^^" domiciled m England, mate for all purposes, except of ^^^^ ^^^^f « children by T. a woman taking by inheritance as represent- ""'^ ^1'°" he there cohabited He . „„„ „, +i,„ „ „ j.„ , „„_4. „f subsequently became domiciled m mg one of the parents any part of g^jj^H^ ^^^^^ ^^ ^^ ^^^ the estate of the kmdred, Imeal or j^^j^^^ ^'^^ ^^^^^ ^^^^ marriag^, had collateral, of such parent; and that ^^j^g^ children by her. It was held the children took directly under the ^y the court that, as the law of Hol- will of their grandfather, and not as j^nd admitted of retroactive legiti- the representatives of their father, mation by marriage, all the children and were therefore not within the ex- born during the Holland domicil eeption of the statute, but were en- -were legitimate; but as the test was titled to the benefit of the bequest." the period of the child's birth, those Gray, Ch. J., in Ross v. Ross, 129 bom in Englajad were illegitimate. Mass. 243, 37 Am. Rep. 321. The question was, not inheritance to 241] LEGITIMATION. 53T realty, but right to take under a be- quest to the children of S. Good- more V. Ooodman, 3 Giff. 643, 8 Jur. N. S. 554, 6 L. T. N. S. 641. That children illegitimate by the law of the domieil of their birth cannot be subsequently legitimated by their parents' change of domieil to a state where such legitimation is the law, and their subsequent marriage in such state, is ruled also in Munro v. Saunders, 6 Bligh, N. R. 468. On the same state of facts it is now finally held, that "brothers' and sisters' children," in the English statute of distributions means chil- dren legitimate by English law. Be Goodman, L. R. 14 Ch. Div. 619, 43 L. T. N. S. 14. In Ross V. Boss, 129 Mass. 243, 37 Am. Eep. 321, we have the following criticism by Gray, Ch. J. : — "The leading case in Great Britain on this subject is Shedden v. Patrick, briefly reported in Morison's Diet. Dec. Foreign, App. I. No. 6, and more fully in 5 Paton, 194, which was decided by the House of Lords, on appeal from the Scotch Court of Session, in 1808, and in which a Scotchman, owning land in Scotland, became domiciled in New York, and there cohabited with an American woman, had a son by her, and after- wards married her, and died there; and the son was held not entitled to inherit his land in Scotland. Two questions were argued: 1st. Wheth- er the plaintiff, being by the law of the country where he was born, and where his parents were domiciled at the time of his birth and of their subsequent marriage, a bastard and not made legitimate by such mar- riage, could inherit as a legitimate son in Scotland, the law of which al- lows legitimation by subsequent matrimony. 2d. Whether, being a bastard, and therefore nulUus filius at the time of his birth in America, he was an alien and therefore in- capable of inheriting land in Great Britain; the act of Parliament of 4 <«o- II. chap. 21, making only those children, born out of the ligeance of the British Crown, natural-born sub- jects, whose fathers were such sub- jects 'at the time of the birth of such children respectively.' The Court of Session decided the case upon the first ground. In the House of Lords, after full argument of both questions by Fletcher and Brougham for the appellant, and by Romilly and Nolan for the respondent, Lord Chancellor Eldon, speaking for him- self and Lord Redesdale, said that, 'as it was not usual to state any reasons for affirming the judgment of the court below, he should merely observe that the decision in this case would not be a, precedent for any other which was not precisely the same in all its circumstances,' and thereupon moved that the judgment of the Court of Session should be affirmed, which was accordingly ordered. On a suit brought forty years afterwards by the same plain- tiff against the same defendant, to set aside that judgment for fraud in procuring it, the House of LordSj in 1854, without discussing the first point except so far as it bore upon the question whether there had been any fraudulent suppression of facts relating to the father's domi- eil, held that the plaintiff was an alien at the time of his birth, and could not be afterwards naturalized except by act of Parliament. Shed- den V. Patrick, 1 Macq. H. L. Cas. 535. "But the remark of Lord Eldon, above quoted, in moving judgment in the original ease, and the state- ment? made in subsequent cases by him, by Lord Redesdale, who con- curred in that judgment, and by Lord Brougham, who was of counsel in that case, clearly show that the judgment in the House of Lords, as well as in the Court of Session, went upon the ground that the child was illegitimate because the law of the foreign country, in which the father was domiciled at the time of the birth of the child and of the sub- sequent marriage of the parents, did not allow legitimation by subsequent matrimony. Lord Eldon's judgment in the Strathmore Peerage Cause, 4 Wilson & S. Appx. 89-91, 95, 6 Paton, 645, 656, 657, 662. Lord Redesdale's judgment in S. C. 4 Wilson & S. Appx. 93, 94, and 6 Paton, 660, 661; ex- pounded by Lord Lyndhurst, in the presence and with the concurrence of ,538 PARENTAL RELATIONS. [Chap. V. last domicil determines.^ Judge Story contents himself -with giving at large on this point the views of prior jurists without advancing a positive opinion of his own. He intimates, how- ever, that the law of the place of the birth of the child, and not ,the law of the place of the marriage of the parents, is to decide whether a subsequent marriage will legitimate a child or not* But this is based on English decisions, which, as we have seen, now tend to the conclusion that the applicatory law is that of the father's domicil at the time of marriage and the time of birth, and not that of the place of birth itself. Mr. Wheaton's gen- eral statement is that "legitimacy or illegitimacy" are among Lord Eldori, in Rose v. Boss, 4 Wil- son & S. 289, 295-297, 299, 6 Bligh, N. R. 468, 472-475, 478. Lord Brougham in Doe ex dem. Birt- wUstle V. Vardill, 2 Clark & F. 571, 587, 592, 595, 600, 9 Bligh, N. R. 32, 75, 80, 83; in Munro v. Munro, 7 Clark & F. 842, 885, 1 Robinson, So. App. Cas. 492, 615; and in Shedden V. Patrick. 1 Macq. H. L. Cas. 622. "That decision is wholly inconsist- ent with the theory that upon gen- •eral principles, independently of any positive rule of law, the question whether a person claiming an inheri- tance in real estate is the lawful child of the last owner is to be de- termined by the lex rei sitae; for, if that law had been applicable to that question, the plaintifi' must have been held to be the legitimate heir; and it was only by trying that ques- tion by the law of the domicil of his father that he was held to be illegiti- mate. The decision receives ad- ditional interest and weight from the fact that the case for the appel- lant (which is printed in 1 Macq. H. L. Cas. 539-552) was drawn up by Mr. Brougham, then a member of the Scotch bar, and contained a very able statement of reasons why the lex rei sitw should govern. "In later eases in the House of Lords, like questions have been de- termined by the application of the same test of the law of the domicil. In the case of the Strathmore Peer- age, above cited, which was what is commonly called a Scotch peerage, having been such a peerage before 'the miion of the two kingdoms, the last peer was domiciled in England, had an illegitimate son there by an English woman and married her in England; and it was held that by force of the law of England the son did not inherit the peerage. So, in Rose V. Ross, 4 Wilson & S. 289, where a Scotchman by birth became domiciled in England, and had a son there by an English woman, and afterwards went to Scotland with the mother and son, and married her there, retaining his domicil in Eng- land, and then returned with them to England and died there, it was held that the son could not inherit the lands of the father in Scotland, be- cause the domicil of the father, at the time of the birth of the child and of the subsequent marriage, was in England. On the other hand, where a Scotchman, domiciled in Scotland, has an illegitimate son born in Eng- land, and afterwards marries the mother, either in England, whether in the Scotch or in the English form, or in Scotland, the son inherits the father's land in Scotland, because, the father's domicil being through- out in Scotland, the place of the birth or marriage is immaterial. Dalhousie v. M'Douall, 7 Clark & F. 817, 1 Robinson, Sc. App. Cas. 475; Mvnro v. Munro, 7 Clark & F. 842, 1 Robinson, Sc. App. Cas. 492; Aik- man v. A ihman, 3 Macq. H. L. Cas. 854, 7 Jur. N. S. 1017, 4 L. T. N. S. 374; Udny v. Vdny, L. E. 1 H. L. Sc. App. Cas. 441." 3Lingen v. Lingen, 45 Ala. 411, cited vost. § 243. 4Confl. L. § 93 s. « 241] LEGITIMATION. 539 ^'uniyersal personal qualities;" and "that the laws of the state affecting all tht the person proposed to be resident? Supposing him to be a adopted." Mackenzie's Roman Law, mere temporary resident, it has been 123. argued in France that he cannot, the s Code, art. 173. privilege being one which, from the ' Code, art. 668. nature of things, is limited to the 8 The laws of several European subjects of the state conferring it. states in respect to adoption are Demolorabe, Adoption, No. 48. given by Mr,. Lawrence, Com. sur The Roman law is distinct to this Wheaton, iii. 162 et seq. effect, the paternal power, in the In an instructive article in 1 Roman sense, being restricted to Ro- Southern Law Rev. N. S. (April, man citizens. On the other hand, 1875) pp. 78 et seq., will be found an it is argued (Fiore, Op. cit. § 151) analysis of the adoption statutes at that adoption is a contract, and as the time in force in several states. such subject to the same law as Whether the Massachusetts stat- other contracts. A foreigner in France ute involves a contract with the may make a contract for apprentice- adopted party, see SevMll v. Roberts, ship ; why not for adoption ? A for- 116 Mass. 262. eigner may marry in France, and The_ Mexican law, which was in may thus convey family rights to his force in 1832 in Texas, did not per- descendants; why may he not adopt? fflit anyone who had a legitimate Hence the prevalent opinion is that child living to adopt a stranger as a foreigner in France may exercise 564 PARENTAL RELATIONa [Chap. V. SO far as concerns the change of status, the act must be one which the domiciliary law of both parties approves. ^^ Whether a foreign adoption will be recognized in a state re- taining in this respect the English common law may be ques- tioned. In such states, judging from the law laid down in re- spect to other forms of modification of the common-law rules of descent, the lex rei sites, at least as to real estate, in cases of intestacy, would be held to prevail. ^^ As to movables, we encounter the same disputes as exist in reference to the legit- imation. By Fiore, ^ ^ it is held, in consistency with the scheme of nationality maintained by him in common with recent Ital- ian and French jurists, that the law of nationality must pre- vail. The law of the nationality of the adopter is to decide in all that concerns his relations to the adopted person; the law of the nationality of the adopted person is to decide in all that concerns the relations of the latter to his own family. Ac- cording to the view maintained in the prior pages as to status, the law of domicil, and not the law of nationality, is to deter- mine. In the United States, where the legislation of partic- ular states differs so widely in this connection, to take the test of nationality would be impracticable. Each of the states is part of one nationality; no state is a distinct nation. Each state, however, has its special legislation as to civil status; and domicil, therefore, must determine what particular legislation is to apply. In this country, therefore, the law of the domicil of the par- ties must determine the validity of the adoption. If both par- ties are domiciled in the state of the adoption, then the adop- tion should be held extraterritorially valid, at least in all ptates which accept the policy of adoption, or to whose jurisprudence adoption is not repugnant. ^ * But no state can declare that a this privilege. Zaccharise, § 78; suit in a change of status, it rests on Demangeat, Condition civile des the principles on which status rests, strangers en France, p. 362, and note But the true view is that the act by Frelix to No. 36 ; Dragoumis, Con- should be authorized by the personal dition de I'fitranger en France, p. 37 ; law of both of the parties. One state Pradier-Fod6r6, note to Fiore, Op. cannot impose such a status as this cit. § 151. on the domiciled subject of another In Italy the right is limited by the state. Civil Code. Fiore, § 151. Brocher IT-Ante, §§ 84 et seq. (Droit int. privg, p. 156) argues that i^See ante, §§ 242, 243. if adoption concern only title to 13 Op. cit. § 153. property, it is a contractual institu- i* See Foster v. Waterman, 124 tion, and should be subjected to the Mass. 592. rules regulating contracts. If it re- § 251] ADOPTION. 565 person not its domiciled subject shall be the adopted child of another person. Both the adopter and the adopted must be personally subject to the laws of the state by whom the adoption is enacted. But when those conditions exist, then an adoption so effected will be regarded by states with cognate jurispru- dences as placing the adopted child in the same position as if he were a legitimate child of the adopting parent. ^^ 251a. Adoption, generally. — As in the case of property rights dependent upon legitimation, 'so in the case of property rights dependent upon adoption, two distinct questions are involved, — one as to the personal status of the adopted child ; and the other as to the acceptance of that status, outside of the jurisdiction in which it originated, for the purposes of the particular prop- erty right in question. When, however, as is frequently the case, adoption is effected by a decree of court rendered with ref- erence to the particular case, the inquiry, so far as it affects personal status, is directed to the jurisdiction of the court, and not, as in the case of legitimation by general law, to the ques- tion what law governs, though, undoubtedly, the principles of private international law that have been applied in the deter- mination of the latter question are instructive upon the question as to which of the parties concerned must be domiciled in a particular state or country to give its courts jurisdiction in adoption proceedings. In most of the cases in which foreign adoption has been recognized, the child and the adoptive parents were domiciled in the state where the decree was rendered.^ 15 In goss V. Ross, 129 Mass. 243, person adopting him', is entitled, 37 Am. Rep. .321, the question was after the adopting parent and the whether a child adopted, with the adopted child have removed their sanction of a judicial decree, and domicil into Massachusetts, to in- with the consent of his father, by an- herit the real estate of such parent other person, in Pennsylvania, where in Massachusetts upon his dying in- the parties, at the time of the adop- testate. This question was decided tion, had their domicil, under stat- in the affirmative by the court, Gray, irtes substantially similar to those of Oh. .J., giving its opinion, portions Massachusetts, and which give a of which have been cited ante, § 241. child so adopted the same rights of ,t j, ^ ■,„ , ,„, „ succession and inheritance as legiti- ^" ^°''*®'" ^- WntermtMi, 124 Mass. mate offspring in the estate of the 592, the court refused to recognize a 586 PARENTAL RELATIONS. [Chap. V. When the court which rendered the decree had jurisdiction, it may be argued that, as between the states of the Union, the recognition in other states of the status of the child, as fixed by the decree, does not depend upon principles of international law or comity, but is compelled by the provision of the Federal Constitution requiring each state to give full faith and credit to the judicial proceedings of every other state. Perhaps this constitutional requirement would in any event be satisfied by recognizing the status of the child as an adopted child, without conceding to him, in another jurisdiction, all the property rights of a natural child which attach to the status of an adopted child by virtue of the law of the state where the status originated. Aside from this distinction, there is authority for the position that a decree affecting the status of a person, even if rendered by a court of competent jurisdiction, only affects his status within the state in which it is rendered, and that the constitu- tional provision referred to is satisfied by conceding his status, as established by the decree, within that state, without holding decree of adoption rendered by a child and the adoptive parents being court of New Hampshire because the domiciled there until after the mar- adoptive parents were, at the time, riage of the child, and her parentage domiciled in Massachusetts, notwith- being unknown. It was accordingly standing that the child and its natu- held that there was no adoption be- ral parents were domiciled in New cause the statute of Iowa on the sub- Hampshire. The decision was for- ject was not complied with. So, in mally based on the ground that the all the cases cited, infra, note 6, ex- New Hampshire statute did not eon- cept Van Matre v. Sankey, 148 111. template such a case, but doubtless 536, 23 L. R. A. 665, 36 N. E. 628, this construction of the statute was the child and the adoptive parents influenced by the idea that, from an seem to have been domiciled in the international point of view, the dom- state where the adoption occurred. icil of the adoptive parents ought to In WoZf's Appeal (Pa.) 12 Cent. Rep. be in the state where the adoption 426, 13 Atl. 760, however, the Penn- occurs. sylvania supreme court, construing In Renz v. Drury, 57 Kan. 84, 45 the statute of that state, held that Pac. 71, where acknowledgment of the temporary residence of the adop- the child, without any adoption pro- tive parent in that state was suffi- ceedings, was relied on, it was held cient to confer jurisdiction; and in that the law of Iowa governed, the Vom Matre v. Sankey, 148 111. 536, 23 I 251a] ADOPTION. / 567 that it follows him when he goes outside of the state. " In either yiew the question as to whether the status of a person, as estab- lished by a decree of adoption rendered by a court of competent jurisdiction, will be recognized in another state (at least for the purposes of a particular property right which does not, by the law of the latter state, attach to such status) is one of .comity, depending upon principles of private international law. The courts before which the question has arisen seem to have so regarded it, and none of them make any reference to the con- stitutional provision. Considering the question as one of Kiomity, the public policy of the forum is to be consulted. The ■opinion, expressed in the last section, that foreign adoption will not be recognized for the purpose of the descent of real prop- erty in states retaining the English common law, which does not provide for adoption, was based on an analogy drawn from the •decisions refusing to recognize foreign legitimation for such purpose. In view of the cases* decided since the second edition ■of this work which have recognized foreign legitimation for ■that purpose, although the lex rei sitae did not provide for legit- imation, the argument from analogy is at least as strongly in favor of, as againsty the proposition that foreign adoption will be recognized for such purpose even in a state or country whose L. R. A. 665, 36 N. E. 628 (a case in- note 5, it was held that legitimation, folving the eflCect of the adoption pro- even by a decree of a court of com- ceedinga considered in the last case petent jurisdiction in another state, upon the right of the child to inherit would not be recognized in Pennsyl- ■real property in Illinois), the court vania for the purpose of the descent regarded such construction of the of real property in that state, statute as conclusive upon it, and ac- This principle was applied in Mg- tordingly recognized the status of Grecry v. Davis, 44 S. C. 195, 28 L. the child as fixed by the Pennsyl- R. A. 655, 51 Am. St. Rep. 794, 22 vania decree, though it was inti- S. E. 178, to a decree of divorce ren- mated that, as an independent propo- dered in another state, even upon the sition, it might have been held other- assumption that the court had juris- ^'^^' diction to render the decree. ^ Thus, in Smith v. Derr, 34 Pa. 3 See ante, § 250a, note 12. 126, 75 Am. Dee. 641, ante, § 250a, 568 PARENTAL EJELATIONS [Chap. V, law does not provide for adoption. As a matter of fact, how- ever, in every instance where foreign adoption has been recog- nized for that purpose, the lex rei sitw did provide for adoption ; and the Illinois supreme court has expressly adopted the rule that the status, as established by foreign adoption, will be rec- o^ized only to the extent that it is consistent with the laws and public policy of Illinois, and upon that ground has held that a child adopted in Wisconsin could not inherit real property in Illinois from a natural child of her adoptive father, although by the law of Wisconsin she had the status of a sister of such natural child and, as such, the capacity to inherit from her in that state, because the statute of Illinois regulating adoption denies the right of an adopted child to take by representation from the collateral or lineal kindred of the adoptive parents.* Upon the other hand, it has been held that the rights of the adopted child with reference to inheritance, as fixed by the law of the state where the adoption proceedings were had, cannot be enlarged or extended by the law of the state where the prop- erty is situated and the question arises.® There is, however, no doubt as to the general principle that the status acquired by iKeegan v. Geraghty, 101 111. 26; if any one of the children of an intcs- see also Markover v. Krauss, 132 Ind. tate be dead, the heirs of such child 294, 17 L. R. A. 806, 31 N. E. 1047, shall inherit his share. The Louisi- infra, note 10. ana statute provided that an adopted 6 Thus, in Sunderland's Estate, 60 child should inherit from her adop- lowa, 732, 13 N. W. 655, it was held tive parents as if she were their legit- tliat a child adopted in Louisiana, iraate child. A dissenting opinion the adoption law oi which was con- in the case, without disputing the strued to exclude adopted children correctness of the majority's position from representing their adoptive that the adopted child would be ex- parents, could not take the share of eluded from such inheritance in her adoptive father in the estate of Louisiana, held that, since, by the his father who was domiciled in Iowa law of that state she was entitled and survived his son (the adoptive to inherit from her adoptive father, father ) , though it was apparently as- she had the status of an heir of such sumed that she could have taken such father within the Iowa statute of share if she had been adopted in descent. Iowa. The Iowa Code provided that. § 251a] ADOPTION. 569 adoption in a state or country having jurisdiction will be rec- ognized both for the purpose of the descent of real, and the distribution of personal, property in other states or countries, at least in those whose laws provide for adoption.® While it may be that the lex rei sitw will, for its own purposes, operate to qualify the status as fixed by the law of the place where the same originated,'' yet it cannot be looked to to create* or en- large® the status, at least unless it expressly so provides.'"' When it is a question of the right of a child, adopted in a for- eign country, to take under a general designation (e. g., "lawful issue") in a will, its legal status is not necessarily involved, since the intention of the testator controls, and the child may, conformably to that intention as gathered from the will, be ex- cluded, without regard to its legal status. ^ ^ The domicil of an adopted child while an infant follows the 6 The rule stated in the text has it was assumed that the question been expressly applied to the descent whether a child adopted in another of real property by Van Matre v. state was embraced by the expression Sankey, 148 111. 536, 23 L. R. A. 665, "children by a former wife" in an 36 N. E. 628; Gray \. Holmes, 57 Indiana statute limiting the dower Kan. 217, 33 L. E.. A. 207, 45 Pac. of the second wife to a life estatt 596; Ross -v.Ross, 129 Mass. 243, 37 when her husband leaves "children Am. Rep. 321 ; Melvin v. Martin, 18 by a former wife" was the same as R. I. 050, 30 Atl. 467; McColpin v. if the child had been adopted in In- McColpin (Tex. Civ. App.) 77 S. W. diana; but the Indiana statute ex- 238; and was assumed to be true in pressly provided that a child adopted the eases cited to the other notes in in another state should have the tliis section, though, for the reasons same rights as if the adoption had stated, it was held not to apply. occurred in Indiana; and, so far as UCeegan v. Geraghty, 101 111. 26, appears, the child, even by the law supra, note 4. , of the place where the adoption oc- sfieng V. Drury, 57 Kan. 84, 45 curred, had the full status, for all Pac. 71, supra, note I. purposes, of a natural child of the ^Smiderland's Estate, 60 Iowa, 732, adoptive parents. 13 N. W. 655, supra, note 5. UNew York Life Ins. d T. Go. v. 10 In Markover v. KroMss, 132 Ind. Viele, 161 N. Y. 11, 76 Am. St. Rep. 294, 17 L. R. A. 806, 31 N. E. 1047, 238, 55 N. E. 311. 570 PARENTAL RELATIONS. [Chap. V. domicil of the adoptive parents when they remove to another state. ^ ^ 252. Adoption by Indian tribes. — Adoption in a North Ameri- can Indian tribe, according to our legislation/ involves a change of political allegiance and of personal lavsr as well as ■of family relations. The person adopted loses full citizenship in the United States, and in the particular state in which he previously resided, and becomes nationalized in the tribe of his adoption. He no longer is taxable by either Federal or state authorities, nor is he liable to suit, in either Federal or state •court, by other members of his tribe. He may be indicted, it is true, in state or territorial courts for crimes committed by him on persons not of his tribe ; but for offenses against mem- bers of his tribe he is only justiciable before the tribal author- ities. So far as concerns his domestic relations, he is governed, not by territorial, but by tribal, law. When living within the tribal reservation he is not indictable for polygamy, should he have two wives; though it would be otherwise should he leave the reservation and undertake to carry his two wives with him into nontribal life. In case of his contracting in the tribe a marriage not monogamous, this marriage, though valid in the tribe, would be considered invalid by state or Federal courts.^ He inherits, after adoption, in accordance with tribal law; hut in those tribes (forming a great majority) in which suc- cession is only through women, only through the adoptive moth- er or the adoptive sister. In short, while he retains his subjec- tion to the territorial government (state or Federal, as the case may be), in all that relates to transactions outside of the tribe, :so far as concerns transactions within the tribe, his allegiance is to the tribe, and he is governed exclusively by tribal law.^ In addition to this, he becomes a member of the family by which he is specially adopted.* ^^Woodward v. Woodward, 87 of Captivity among the Indian Tenn 644 11 S W 892 Tribes, Loudon, 1823, pp. 13 et seq., Pliil. 1823, p. 235, and in John Tan- ner's Narrative of Captivity, N. Y., iAnte, § 9. 1830, p. 30. In Schoolcraft's great 2 Ante, § 130. work on the History, Condition, and ^United States v. Rogers, 4 How. Prospects of the Indian Tribes, pub- 571, 11 L. ed. 1106; United States v. lished by Congress in 1851 (5 vols.), Ragsdale, Hempst. 497, Fed. Cas. No. under the titles Manners and Gus- 16,113; 2 Ops. Atty. Gen. 403. toms, and Tribal Organization, will 7 ' ,j ^ n 7 >, the infants, two in number, the fruit '^^ ^« Montanya v. De la Mon- of the marriage. The father, in iomya, 112 Cal. 131, 44 Pac. 354; XeZ- 1875, becoming suddenly insane, was sey v. Green 69 Conn. 291, 38 L. E. taken by his brother, who resided in a. 471^ 37 ^y. 679; Ross v. South- that state, to Rhode Island, and „„„„,„„ i> /-i„ kq n ci,i r. n- t. , ji ■ 1 j-i, -tr western R, vo. 53 (la. 514; Re Huo- placed m an asylum there. He re- ' ^ ""■" covered his reason and was dis- °'^°'> 82 N. Y. 90. But see contra, charged from the asylum. In 1877, Yennard's Succession, 44 La. Ann. upon a recurrence of the malady, he io76 11 So 705 was again placed In the asylum, ,{^ .^ ^ well-established rule of where he has since remamed. He never returned to New York after law that the proper court at the leaving in 1875. The infants were place of the domicil of the child has taken to Rhode Island in 1875, and jurisdiction of the matter of guar- remained there until 1878, when one j;„„„i,,-„ „f ,-j.„ ^..„ j of them was secretly taken from a ^lanship of its person; and a person school she was attending, by a son- ^^J nave a domicil at one place in-law of their maternal grandfather, while he is a resident of another, and brought to the grandfather's Re Benton, 92 Iowa, 202, 54 Am St house in New York, where she has ^ g^g g^ jj ^ g^ since resided. The evidence strongly ,, « x^^s ^u. tended to show that she was brought Montanya v. De la Montanya, 112 into New York for the purpose of Cal. 131, 44 Pac. 354, holds that having her within the jurisdiction of actual residence, and not domicil, is the New York courts, for the insti- j.j,„ +„„+ _f ;,,„-„j:„j.; 4. • j. ... , J- J! J- tns i-^st 01 jurisdiction to appoint a tution of proceedings for guardian- _. . ,, '^'^ ship. Neither infant had property ^"ardian of the person of infants; in New York. It was held that the ^^^ a- oMt of the state in which in- § 260a] HOW TO BE CONSTITUTED. 583 a state other than his legal domicil or residence, however, does not give a court of that state jurisdiction to appoint a guardian of his property,* though it seems that jurisdiction to appoint a guardian of the person may rest upon the temporary presence within the state of an infant who is domiciled and resides else- where.* Nor can the jurisdiction of the proper court of the legal domicil and residence be defeated, or jurisdiction con- ferred upon the court of another state or country, by the unau- thorized removal of the infant.® The jurisdiction to appoint a guardian exists as well when the infant has property within the state where the jurisdiction is sought to be exercised as when he is domiciled and resides there- in.® It rests upon a like basis in both cases; namely, the right and duty of a government to take care of those who are unable to take care of themselves as respects either person or property. So, the court of a state or country in which the administration of a decedent's estate is pending has jurisdiction to appoint a guar- dian for a nonresident infant who is entitled to a share of the estate.^ ISTor is it essential to the jurisdiction founded upon lo- cal property or property rights, that a general guardian shall have been appointed at the ward's domicil.* If, however, a guardian has been appointed at the domicil, the courts of the state or country in which the property is located will ordinarily give him the preference in the appointment of an ancillary guar- famts are domiciled has no jurisdic- ^Davis v. Hudson, 29 Minn. 27, 11 tion to appoint a guardian for them N. W. 136; West Duluth Land Co. v. while they are absent from' the state. Kurte, 45 Minn. 380, 47 N. W. 1134; ^Modern Woodmen v. Hester, 66 Be Hubbard, 82 N. Y. 90; Re Rice, Kan. 129, 71 Pac. 279. 42 Mieh. 528, 4 N. W. 284. *Z)e la Montanya v. De la Mon- TKraft v. Wickey, 4 Gill & J. 332, tanya, 112 Cal. 131, 44 Pac. 354. 23 Am. Dec. 569. ^Shorter v. Williams, 74 Ga. 539; ^West Duluth Land Co. v. Kurtz, Re Willett, 71 Hun, 195, 24 N. Y. 45 Minn. 380, 47 N. W. 1134; Cass's Supp. 506; Munday v. Baldxoin, 79 Succession, 42 La. Ann. 381, 7 So. Kv. 121. 617. 58* trUAEDIANSHlP. [Chap. VI. dian.® The jurisdiction which rests upon local property or property rights is doubtless limited to the appointment of a guar- dian of the property within the jurisdiction, and does not extend to the appointment of the guardian of the person of the infant, or of property of the latter beyond the territorial jurisdiction. ^ ° It is only when a minor is a nonresident that an estate within the jurisdiction is necessary to give a court authority to appoint a guardian. ^ ^ It has been held in Louisiana that, when a tutor appointed in that state goes to another state and acquires a domicil there, he, ipso facto, forfeits the tutorship under the laws of Louisiana j and if he takes the children with him, the tutorship is ended, and the courts have no further jurisdiction in the matter of the tutor- ship so far as it relates to the custody and care of the children, though they may, if necessary, appoint a tutor for the special purpose of administering property within the state. ^ ^ 260b. Right of foreign guardian to sue. — A guardian cannot sue in a state or country other than that of his appointment, ex- cept as atithorized by the laws of such other state or country. ^ The right to sue has, however, been extended to foreign guar- dians by statute in some of the states. And, even in the absence of such a statute, a foreign guardian may doubtless maintain a suit to recover property which was wrongfully taken from his possession, or which was improperly removed from the jurisdic- tion of his appointment in order to defeat his right thereto. - iHoyt V. Sprague, 103 U. S. 613, 26 ^Morgan v. Potter, 157 U. S. 195, L. ed. 585. 39 L. ed. 670, 15 Sup. Ct. Rep. 590; 10 See Boyd v. Glass, 34 Ga. 253, Kraft v. Wicl-ey, 4 Gill & J. 332, 23 89 Am. Dec. 252. Am. Dec. 5li9. iiPeoyjZe use of Kaiser v. Medart, - See Cnrr v. Wellborn, Dallam 63 111. App. Ill, Affirmed in 166 111. (Tex.) 624. 348, 46 N. E. 1095. 12 Cass's Succession, 42 La. Ann. 381, 7 So. 017. § 2G1] HOW TO BE ADMINISTERED. 585 II. How TO BE ADMINISTERED. a. As to person. 261. Foreign guardian at one time refused all authority. — By the Eoman law, as has been noticed, the power of the guardian appointed by the state within which the ward is domiciled is universal, though it will be necessary for him to apply for the appointment of ancillary guardians in order to take charge of special foreign assets. At one time the English courts exhib- ited a disposition to go to the opposite extreme, denying all authority whatever to a foreign guardian. An English guard- ian, to carry out this principle, has no power over his ward in a foreign state. A foreign guardian has no power over his ward in England. In a conspicuous case in England,^ an attempt was made to recognize in that land the authority of a Scotch guardian over a ward who was personally in England, but all whose estate was in Scotland; but this attempt failed, in the House of Lords, by the preponderating voices of Lords Lynd- liurst, Cottenham, and Langdale, against Lords Brougham and Campbell. It had previously been held, somewhat exception- ally, by the House of Lords, that the authority of an English guardian extended to the institution and management of a suit respecting the ward's personal property in Scotland.^ Judge Story, after discussing these cases, adds: "It [the Ro- man view] has certainly not received any sanction in America in the states acting under the jurisprudence of the common law. The rights and powers of guardians are considered as strictly local; and not as entitling them to exercise any authority over the person or personal property of their wards in other states, upon the same general reasoning and policy which have cir- cumscribed the rights and authorities of executors and admin- istrators."* 262. Tendency now to recognize such authority prima facie, but, if disputed, to require local sanction. — But notwithstanding i Johnstone v. Beattie, 10 Clark & Judge Story's statement upon this P. 42, 7 Jur. 1023; Approved in Re point has been frequently approved Huhbard, 82 N. Y. 90. v^ +i „ + c rr , c, ^Morison's Case, cited in 4 T. R. ^^ *'^^ <=''"'^*^- ^^^ ^°2'* ^- ^Prague, 185. 103 U. S. 613, 26 L. ed. 585; Re Nick- 3 Confl. L. § 499. He cites Mor- als, 21 Nev. 462, 34 Pae. 250; Rogers rell V. Dickey, 1 Johns P'iJ^^I v. McLean, 31 Barb. 304; Carr v. Kraft V. Wickey, 4 Gill & J. 332, 23 „, ,,, ' ,. „ Am. Dec. 569. Welliorn, Dallam (Tex.) 624. -586 GUARDIANSHIP. [Chap. Y1. these high authorities, and notwithstanding the weight to be .attached to the judicial action of the majority of the House of Lords in Johnstone v. Beattie, there is a growing tendency to Tiold that in this respect the English law has taken an attitude ftoo provincial to permit its general and permanent acceptation. Next to the parents of a minor, his country, acting through its proper courts charged with such an office, has the greatest per- sonal interest in his welfare. It is there that his property ■generally lies. It is to that country that his prosperity will be •of value; by it his circumstances are best known; by its offi- cers, duly charged with such a trust, the education, the mode ■of living, the marriage, best suited to him can be most wisely ■settled. Hence, as has already been said, the tendency both in England and the United States is to recognize foreign domicil- iary guardianships in all cases where this will best conduce to the interests of the ward.-^ 263. Question one of local policy. — The question of the recog- nition of a foreign guardian is one of local policy, but not of a policy based on mere caprice. It is a policy which itself is a rule of private international law, viz., that the court of a place of a minor's sojourn will, when there is no positive local law in the way, and when there is nothing in the foreign guard- ianship repugnant to local institutions, "support" (to adopt Mr. Westlake's statement)^ "the authority of the guardian or ■committee existing under the personal law or jurisdiction, and not defeat it unless it should be abused." Thus Lord Chancel- lor Hatherley, in 1866, refused to interfere with a foreign ■guardian, duly appointed, of subjects of a foreign country, when he wished to remove his wards from England, where they bad been sent to be educated, in order to complete their educa- tion in their own country. The court declined to discharge an order appointing English guardians, but gave the foreign ^ardians exclusive control of the children.^ And in a sub- sequent case, before Vice-Chancellor James, the aiithority of the lex domicilii in this respect was asserted with even in- creased emphasis.^ But how far a foreign guardian is to be 1 See ante, § 102. This passage is N. S. 781, 15 L. T. N. S. 33, 14 Week. adopted and approved by M. Broeher, Kep. 960. See ante, § 260. in his Droit int. priv6, p. 163. ^Di iSavini v. Lousada, 18 Week. iWestlake (1880) § 7. Rep. 425, 22 L. T. N. S. 61; Town- 'iKugent v. Vetsera, L. R. 2 Eq. send v. Kendall, 4 Minn. 412, 77 Am. 704, 35 L. J. Ch. N. S. 777, 12 Jur. Dec. 534, Gil. 315. % 263] HOW TO BE ADMINISTERED. 587 controlled or superseded is to be determined by local law.* And foreign guardians, in order 'duly to exercise a control over their wards' estate in England, should obtain authority from English courts. That they have been appointed by the judex domicilii is no bar to independent appointment in England, ° *Stuart V. Bute, 9 H. L. Gas. 440, 4 Macq. H. L. Gas. 1, 7 Jur. N. S. 1129, 4 L. T. N. S. 382, 9 Week. Rep. 722. That we must act as to prop- ■erty under the leai situs, see Leverich V. Adams, 15 La. Ann. 310. ^Johnstone v. Beattie, 10 Glark & F. 42, 7 Jur. 1023; Nugent v. Vet- eera, L. R. 2 Eq. 704, 35 L. J. Ch. N. S. 777, 12 Jur. :;sr. S. 781, 15 L. T. N. S. 33, 14 Week. Rep. 960. Stat- utes exist in several states permitting foreign guardians to act as such un- der specific limitations. Morrell v. Dickey, 1 Johns. Ch. 153; Kraft v. Wickey, 4 Gill & J. 332, 23 Am. Dee. 569; Stephens's Succession, 19 La. Ann. 499. That foreign parents or guardians will not he permitted to exercise au- thority not in conformity with do- mestic law, see ante, § 116, and com- pare McLoskey v. Reid, 4 Bradf. 334. In Georgia a father's gfuardianship will be extraterritorially sustained. Taylor v. Jeter, 33 Ga. 195, 81 Am. Dee. 202. By the French law (Aubry et Rau, 4th ed. i. 285; Demolombe, i. p. 245), a foreigner cannot be guardian of a French minor. Guardianship, it is said, is munus puMicum, an institu- tion of civil law distinctively French, and not controlled by the law of na- tions. Parents, however, by a decree of the Court of Cassation, February 16, 1875, are excepted from the oper- ation of this law. Jour, du droit int. privg, 1875, p. 441. By Pasquale Fiore, Droit int. priv6, p. 302, and Laurent, i. p. 560, it is argued that by private international law foreign- ers are not excluded from guardian- ship. When a foreigner, who is not capax negotU, is left in France with- out a legal protector, the French courts, in cases where it is necessary for the foreigner's protection, will intervene and appoint a guardian. Jour, du droit int. priv6, 1878; Pas- quale Fiore, Droit int. privS, trad. Pradier-FodSrg, No. 174; Aubry et Rau, Cours de droit civil, i. p. 264. And a natural guardian, though a foreigner, will be recognized in proper eases by the courts, when the child is of the father's domicil. Bro- cher. Droit int. privS, p. 158. Such a guardian, however, cannot act per- manently in France for want of the conditions requisite to French guar- dianship. Post, § 267. "S'il s'agit d'une incapacitg suf- iisamment grave, ggnSrale et perma- nente, pour constituer un 6tat special et bicn caractSris§, c'est la loi de statut personnel qui doit la regir. Si cette incapacitg ne porte pas une atteinte assez grave pour causer un tel rfeultat, si la personne ne se trouve affectSe que transitoirement pour telle localitg et dans quelques- unes de ses attributions seulement, c'est le caract6re de police civile, ou, souivant les cas, celui de procedure qui prSdomine dans les mesures prises en telles circonstances." Bro- cher. Droit int. priv6, p. 158. Even by the stanehest adherents of the theory of nationality it is ad- mitted that a child, or other incapa- ble person of foreign nationality, may be protected, when necessary, by a guardianship instituted by a state in which he is temporarily resident. Fiore, Op. cit. § 174. Sir R. Phillimore, on this point, thus speaks (iv. 381) : "It is to be observed, however, that though these countries (England and the United States) differ from the rest of the civilized world, in holding a new au- thority to be requisite in the case of a foreigner in respect to movable as well as immovable property, there is no reason to suppose that such an authority would be denied to the per- son already clothed with the author- ity of guardian in his own country; the analogy, as will be seen, of the foreign executor or administrator 588 GUARDIANSH IP. [Chap. VI. 263a. Same. — The courts apply substantially the same princi- ples whether the right of a foreign or a domestic guardian to the custody of the ward is involved. Prima facie, the guardian, whether domestic or foreign, is entitled to the custody of the ward. And the recognition of the right of the foreign guardian in this respect is not conditional upon an ancillary appointment,. or other express authorization, emanating from the juisdiction in which the question arises, though he will doubtless be required to make proper proof of his foreign appointment and authority. ^ leads to the opposite conclusion. The fortune. Both parents died, leaving^ practice is justified by the allegation an infant daughter, who inherited that comity may, in both instances, the mother's estate. Attempts hav- require you to clothe the foreign offi- ing been made to remove the child cer with the power necessary for the from New York, the supreme court execution of his office in the foreign of the state granted an injunction tO' country, but that in both instances restrain such removal. The surro- the state has a, right to take care gate of New York city appointed a that its own subjects are not de- maternal aunt of the child as guar- barred from an opportunity of vin- dian; but after this, and after the dicating their claims upon the prop- injunction, the child was surrepti- erty in the country wherein it, mov- tiously removed from her residence, able or immovable, is situate." and brought to England by paternal That a foreign guardian of a minor relatives. In England, the maternal will be appointed in England to act aunt claimed the custody of the in subordination to the English law child; and on a cross petition by the in controlling the person of the paternal relatives praying the ap- minor, see Nugent v. Vetzera, L. R. pointment of other guardians, the 2 Eq. 704, 35 L. J. Ch. N. S. 777, 12 court appointed the maternal aunt Jur. N. S. 781, 15 L. T. N. S. 33, 14 and two paternal relatives guardians^ Week. Rep. 960; Di Savini v. Lou- The reason of the decision was that sada, 18 Week. Rep. 425, 22 L. T. the infant was domiciled in England,^ N. S. 61. In the latter case an her father being held never to have Italian court appointed guardians lost his English domicil. Dawson for an Italian infant, who, on remov- v. Jay (1854) 3 De G. M. & G. 764, ing to England, was made a ward in per Lord Cranworth. See Lord Camp- chancery. With the consent of the bell's criticism in Stuart v. Bute, ^ Italian guardians, he was placed in H. L. Cas. 463, 4 Macq. H. L. Cas. 1, the custody of English guardians, 7 Jur. N. S. 1129, 4 L. T. N. S. 382, who did not, however, carry out the Week. Rep. 722; Bennett's Story, directions of me Italian guardians. § 499 a. The authority of this case, Upon this the Court of Chancery, on however, is weakened by tlie rulings- the application of the Italian court, above given, appointed new guardians, and de- clared its readiness to carry out the , . ,. • x j i j.i. orders of the Italian court with re- '^ guardian appointed by the gard to the infant, so far as might be courts of one state has no authority consistent with the laws of England, over the ward's person or property in In a much discussed English case, another, except so far as allowed br determined in 1854, a British subject ., „ ,,„ „,.,.,, \ was naturalized in New York, and *''<= ''™"*>' °^ *'^«t ^^ate as expresse,! there married a. New York lady of through its legislature or its courts; 263a] HOW TO BE ADMINISTEEED. 589 The prima facie right of the guardian, however, whether foreign •or domestic, yields to the best interests of the ward if they re- quire that the latter shall be intrusted to the custody of another person. The fact that the guardian receives his appointment from a foreign state or country, and, if awarded the custody of the ward, will remove the latter from the jurisdiction, may, per- haps, make the courts more cautious in granting him the cus- but the tendency of modern statutes and decisions is to defer to the law ■of the domicil, and to support the authority of the guardian appointed there. Lamwr v. Micou, 112 U. S. 452, 28 L. ed. 751, 5 Sup. Ct. Rep. 221. In Woodworth v. Spring, 4 Allen, 321, the court said that the appoint- ment of a guardian in Massachusetts might be expedient and proper for the purpose of clothing someone in the state with authority over the per- son of an infant, domiciled in an- other state, for his protection and security against any unauthorized in- terference and control ; but that such appointment does not conclusively settle his permanent status or con- dition so long as he remains an in- fant, or prevent his being removed irom the state by the guardian ap- pointed in the place of his domicil if his interests and welfare render such removal expedient or necessary, though, no doubt, the guardian ap- pointed in the state would have the exclusive right to the custody of the ward's person so long as the latter continued within the jurisdiction. A guardian of the person of a minor appointed on the application of the father in another state at his technical domicil has not an absolute right to the custody of the child as against a guardian appointed at the child's actual residence, but the cus- tody will be awarded with reference to the welfare of the child. Kelsey V. Green, 69 Conn. 291, 38 L. R. A. 471, 37 Atl. 679. Jones v. Bowman (Wyo.) 77 Pac. 439, is to similar effect. Tlie right of a guardian, appointed in another state where the ward was domiciled, to the custody and control of the latter, will be recognized and enforced by a court of Indiana in a controversy over the custody of the ward betv,'een such guardian and a sister of the ward who induced the latter to run away and come to her home in Indiana. Grimes v. Butsch, 142 Ind. 113, 41 N. E. 328. The court seems to have assumed that, if the interests of the child required it, the latter could have been confided to the custody of the sister, though, as a matter of fact, the custody was awarded to the foreign guardian. A guardian appointed at the dom- icil of the minor has no absolute right to the custody of the ward in another state, but such a guardian can never be held guilty of false im- prisonment simply from the fact that he takes charge of the ward's person, and removes him to the domicil. Townsend v. Kendall, 4 Minn. 412, 77 Am. Dec. 534, Gil. 315. So, in Re Stockman, 71 Jlich. 180, 38 N. W. 876; Re Rice, 42 Mich. 528, 590 GUARDIANSHIP. [Chap. VI. tody of the ward than if he were a domestic guardian who would remain subject to the control of the court. With this exception, however, a foreign guardian appointed at the domicil of the ward seems to stand as well before the court, so far as the cus- tody of the ward's person is concerned, as though he had re- ceived his appointment and authority from a local tribunal. Since, however, this recognition of the right of a foreign guar- dian is dependent upon comity, it may be encumbered with such conditions as the state or country in which the question arises may see fit to impose. 264. Not permitted in case of artificial minority. — ^It should, however, be kept in mind, as has just been repeated, that the infancy which is thus extraterritorially protected is that which is such jure gentium, and which bears notice of incapacity and tutelage on its face. A mere artificial minority — i. e., one ex- tended beyond the time of natural immaturity, and bearing on its face no notice of incapacity^ — will not, as has been already seen, be thus protected.^ The power of the guardian to change the ward's domicil has been previously discussed.^ b. As to property. 265. Foreign guardian cannot seize ward's effects without local authority. — The jurists of continental Europe are now agreed that, at least so far as concerns movables, the power of the domiciliary guardian extends to foreign lands. ^ Whether such power is or should be recognized by the courts of England and of the United States has been the subject of the same strug- gle as has been noticed as existing in relation to the guardian's 4 N. W. 284; and Foster v. Alston, other jurisdiction would not have 6 How. (Miss.) 406, where the court prevented the court from awarding refused to yield the custody of the the custody of the ward to him if it ward to the foreign guardian, the de- had been for the latter's best in- cisions were controlled by the court's terests. view of the best interests of the child, and it is assumed that the fact that Jf »*«. §§ 104%= "3, 116, 117. ^, . . ,. ■ J V 2Amie §§ 41-44. the foreign guardian received his ap- i gee Savigny, viii. J 380- Bar pointment and authority from an- §§ io5^ 106. ' ' § 265] HOW TO BE ADMINISTERED. 59r personal autliority. Certainly the practice among us is to re- quire a foreign guardian, before he can formally act, to take out fresh authority from the appropriate local tribunal {forum gestce administrationis) .^ "Few decisions," says Judge- Story,* "upon the point are to be found in the English or American authorities, probably because the principle has al- ways been taken to be unquestionable, founded upon the close- analogy of the case of foreign executors and administrators." And he justly states that "no foreign guardian can virtute offi- cii exercise any rights, or powers, or functions, over the mov- able property of his ward, which is situated in a different state- or country from that in which he has obtained his letters of guardianship. But he must- obtain new letters of guardian- ship from the local tribunals, authorized to grant the same, be- fore he can exercise any rights, powers, or functions over the- same."* And under the English practice it is within the dis- ^Curtis V. Smith, 6 Blatchf. 537, Ohio. Banning v. Gotshall, 62 Ohio- Fed. Cas. No. 3,505; 'Noonan v. Brad- gt. 210, 228, 56 N. E. 1030. ley, 9 Wall. 394, 19 L. ed. 757; j ^ ^ 93 j ^ xoung s Suooession, 21 La. Ann. 394; ' ' ' Stephens's Succession, 19 La. Ann. St. Rep. 546, 60 N. W. 614, the court. 409; Woodworth v. Spring, 4 Allen, said that the appointment of an 321. auxiliary guardian in Towa was 3 Confl. L. § 504 a. j v^i • j i. , mid. As to administrators, see doubtless necessary in order to col- post, §§ 606-608. leet money due on a policy of insur- ance issued by an Iowa corporation, One of the ordinary rules of com- payable to a minor who was domi- ity exercised by some European oiled in another state in which a,. states is to acknowledge the author- guardian had been appointed, ity and power of foreign guardians, A tutor of minor heirs, appointed'. — that is, guardians of minors and in Louisiana, whose father was dom- others appointed under the laws of iciled and died in Kentucky, has no- their domicil in other states. But power of adrainistration over a pol- this rule of comity does not prevail icy of insurance issued by a New to the same extent in England and York corporation upon the life of the- the United States. In regard to real father, the policy being payable to- estate it is entirely disallowed, and the executors or administrators of is rarely admitted in regard to per- the insured. Moise v. Mutual Re- sonal property. Hoyt v. Sprague, serve Fund Life Asso. 45 La. Ann. 103 U. S. 613, 26 L. ed. 585. 736, 13 So. 170. A foreign guardian is not entitled, A guardian appointed in another merely by virtue of his appointment state, where the infant was domi- and qualification, to receive money ciled, is not within a local statute- belonging to his ward in the hands providing that, if any person entitled of an executor or administrator in to letters of administration shall bo; 692 GUARDIANSHIP. [Chap. VI. cretion of the court to determine under what conditions proj)- erty, under the control of the court, will be given to a foreign committee.*^ 265a. Statutory recognition of foreign guardian. — Many of the state legislatures have, upon principles of comity, relaxed the rule, as stated by Judge Story, requiring an ancillary appoint- a minor, administration shall be granted to his or her guardian. lie Nickah, 21 Nev. 462, 34 Pae. 250. The court said that, except as a mat- ter of comity and to a very limite ^ v. tion to a foreign land, which requires United States v. Bender, 5 Cranch, a special order of the tutelary court c. C. 620, Fed. Cas. No. 14,567. (die ohermundschaftliche Genehmi- gung). A. L. R. Einl. § 85; Mann- kopf, das Pr. a. L. R. Bd. 7, 8, 16. § 266a] HOW TO BE ADMINISTEEED. 595 ceedings to be instituted in some form to collect the note unlesS' the expenses and risk make it inexpedient, and he is account- able to the ward for loss resulting from his failure to do so. ^ 267. Foreign law as to sale of assets not ubiquitous. — ^Much discussion has been had as to what court is to determine as to the sale of the ward's foreign assets. Even among those who insist most strongly on the general applicability of the ward's lex domicilii, there are those who hold that when it comes to the alienation of foreign assets, an exception is to be made, for the reason that this concerns the ward's property, not his per- son. Of this view are Argentrseus, ^ Burgundus,^ Molinaeus,* Merlin,* and Burge.' On the other hand, Savigny argues that as laws regulating the sale of a ward's estate are for his special protection, the court of his domicil, which is familiar with his case, is the one most competent to so mould and apply these laws as best to supply his wants and promote his inter- ests ; and that the court of the domicil, therefore, should control such matters, even as to foreign assets. In accordance with Savigny are Eodenburg,* Bouhier,'^ Walter,* Stockmans,** and Bar.-^** Express decisions to the same effect have been given in Berlin by the courts of last resort. ^ ^ The French Code is such as to make an interference of a for- eign court in a French guardianship peculiarly difficult. In the case of a proposed sale of the ward's real estate, it is re- quired that a family council should be convened, to discuss the question under the superintendence of the Juge de paix of the domicil of the minor. ^^ Of course, this could not be done un- der the lex rei sitce, when the estate is in a foreign land. And yet, according to the French view, the deliberations of a family council are essential to the preservation of the true interests of the ward.-^* 268. By English common law lex rei sits controls. — The Eng- lish rule that, as to real estate, the lex rei sitce must govern, and that the guardian cannot intermeddle with land without spotter V. Hiscox, 30 Conn. 508. « I. 3, § 7. 7 Chap. 24, No. 10. s § 46. 1 Nos. 19, 20. 9 Deeis. Brabant, deeis. 125. 2 I. § 6. 10 § 106. s L. i. C. de S. Trin. ii Bar, § 106. t RSp. Majoritg, § 5. izArts. 406-457. B II. p. 270; i. p. 14. 13 Lawrence, sur Wheat, ili. 170. o96 GUAEDIANSHIP. [Chap. VI. the sanction of the local court, is too deeply settled in the Eng- lish common law to be shaken.-' A guardian cannot, by virtue of his appointment, or of any authority emanating from the state or country of his appoint- ment, sell or convey real property in another state or coxmtry.^ Any authority in this respect must emanate from the jurisdic- tion in which the property is located. In some states, however, provision is made by statute for the sale and conveyance of real property by foreign guardians upon complying with certain prescribed conditions.^ An award upon the condemnation of a nonresident ward's real property for public purposes is to be treated as real property, and kept subject to the control of the court until the incompetency is removed, and is not to be paid 1 Phil. iv. 383 ; Story, Confl. L. appoint a guardian of nonresident § 500; Westlake, Private Interna- minors may, to provide funds for the tional Law, art. 402; though see „, , . _ , ., • „,„ „,j„ „ „„i, „ , ^ , 7 Vi 1 /^ V education of the minors, order a sale Brooke v. Potowmack Co. 1 Crancn, C. C. 526, Fed. Gas. No. 1,935. °f tl^eir lands within the state. Bouldin v. Miller, 87 Tex. 359, 28 S. ^Mclfeil V. First Cong. Sac. 66 Gal. w. 940. 105, 4 Pac. 1096; Musson v. Fall So, a guardian who resides in an- Back Plcmting & Mercantile Go. other state with his wards, and has (Miss.) 12 So. 587; Wren v. Eow- been regularly and properly appoint- land (Tex. Giv. App.) 75 S. W. 894. ed and qualified in such state, may See also post, § 289, as to power of file a bill in Tennessee for the sale courts of one jurisdiction to confer of real estate belonging to his wards upon fiduciaries power to sell and in the latter state; but he can only convey real property in another ju- receive the funds arising from the risdiction. sale upon the execution of a bond for sPfirrman v. Wattles, 86 Mich, their proper management and appli- 254, 49 N. W. 40. See Menage v. cation. McClelland v. McClelland. Jones, 40 Minn. 254, 41 N. W. 972; 7 Baxt. 210. Myers v. McGavock, 39 Neb. 843, 42 The chancery court may sell the Am. St. Rep. 627, 58 N. W. 522; Ad- realty of a married woman or an in- kins V. Loucks, 107 Wis. 587, 83 N. fant for the purpose of removing the W. 934. Other means are also re- proceeds to another state where the sorted to to enable a sale and con- married woman or infant permanent- veyance of real property of a non- ly resides, upon the ground that it resident infant to be made, when it is manifestly to the party's interests, is for the latter's best interests, if the proof establishes the fa^t. Thus, a court having jurisdiction to Oreenlaw v. Greenlaw, 16 Lea, 435. HOW TO BE ADMINISTERED. 597 over either to the foreign or ancillary guardian.* This rule, however, will doubtless be relaxed when it is made to appear that it would have been for the best interests of the ward to have sold the property if it had not been condemned. [II. PeCULIAEITIES IIT CASES OF LUNATICS AND SPBNDTHEIFTS. 269. Foreign guardian of lunatic may act with local sanction. — A lunatic differs from an infant in this, that a lunatic is ca- pable of inflicting peculiar mischief, from the fact that his dis- ease may be latent as well as dangerous; and hence the reason for the interposition of the authority of a court of residence, as distinguished from a court of domicil, applies to lunatics with even greater force than to infants. It is also to be ob- served that lunacy is a fluctuating state ; that a man may have been held insane last year in England who this year is sane in France ; and that a man may be this year insane in France who last year was decreed to be sane in England. It would be therefore impracticable to give absolute effect to a foreign de- cree of lunacy, and it is settled in England that a foreigner will not be treated as a lunatic without an English commis- sion. ^ It may also be necessary to appoint a local guardian for a resident but nondomiciled lunatic who may have a guard- ian already appointed in his domicil. At the same time, when iRe Department of Public Parks, the authority conferred upon a per- 89 Hun, 529, 35 N. Y. Supp. 1106. son appointed at the domicil and res- idence of a lunatic to collect the lat- iRe Boustoun, 1 Kuss. Ch. 312. ter's personal property, there being no lunacy proceedings pending in So, an inquisition of lunacy at the England, domicil of the lunatic is insufficient And in New York Security £ T. to enable the committee to obtain Co. v. Keyser [1901] 1 Ch. 666, the control of property in another state, court, while holding that a commit- A new inquisition and appointment tee of a lunatic appointed by a for- in the latter state are necessary. Re eign court of the estate of a lunatic Perkins, 2 Johns. Ch. 124; Re Petit, residing within its jurisdiction, but 2 Paige, 174; Re Neally, 26 How. Pr. domiciled in England, could not, as 402. a matter of right, recover personal But it was said in Didisheim v. property of the lunatic situated in London £ W. Bank [1900] 2 Ch. 15, England, further held that it was 51, that, upon general principles of discretionary with the English court private international law, the courts to order the property to be turned of England were bound to recognize over to him. 698 GUARDIANSHIP. [Chap. VI. an application is made for such an appointment, the local court (following the rule already laid down as to infants) will ap- point, unless there be grave objections, as such guardian, the guardian of the domicil. And where there is no application for a local guardian, the guardian of the domicil may sue for the lunatic's assets. ^ But no English procedure, based on spe- iNewton v. Manning, 1 Maen. & G. 362; Re Elias, 3 Macn. & G. 234; Re Baker, L. E. 13 Eq. 168, 41 L. J. Ch. N. S. 162, 25 L. T. N. S. 783, 20 Week. Rep. 325 ; though see Re Hous- toun, 1 Russ. Ch. 312. Compare Be (iarnier, L. R. 13 Eq. 532, 41 L. J. Ch. N. S. 419, 25 L. T. N. S. 928, 20 Week. Rep. 288. That a foreign guardian in lunacy will be sustained in his authority over the person of the ward, in acts in conformity with the law of Eng- land, see Re Sottomaior (1874) L. R. 9 Ch. 677; Westlake (1880), p. 48. See ante, § 265. As to practice in ancillary guardianships, see Com. use of Todd v. Rhoads, 37 Pa. 60. A remarkable case, cited by Sir E. Phillimore, shows that the French courts are not always ready to apply to the subjects of other lands the same rule of domicil which the French Code claims for Frenchmen when residing abroad. Mr. Dyce Sombre, after due examination under the direction of the lord chancellor, had been foimd a lunatic, and had been committed to the care of guard- ians. From these he escaped to France, and, having there declared himself to be sane, invoked the aid of the local authorities. "He was claimed by the agent of the commit- tee appointed by the English lord chancellor; but the French authori- ties refused to give him up; tried the case over again at Paris, causing him to be inspected by French physi- cians, and, on their verdict of his sanity, allowed him to live in France without restraint. The English court, of course, retained possession of his property." Phil. iv. 386. Sir R. Phillimore remarks that "it is cer- tainly difficult to defend this pro- ceeding at Paris upon the principles of international comity." It cer- tainly is difficult to defend it on the principles of the French law, which hold that the court of the domicil should, at least in all matters per- sonal, be the court of superior au- thority, as to any foreign wards it may find within its bounds. Ante, § 261. But not widely differing from the case just cited is a decision of the lord chancellor, in the case of a person who was declared a lunatic in Jamaica, the place of his domicil, and who, under the care of a com- mittee duly appointed by the proper court, was brought to England for his health. The lord chancellor, on the application of an illegitimate sis- ter of the lunatic, treated the Ja- maica committee as without author- ity, and issued a new commission to place the lunatic under English con- trol. Re Houstoun, 1 Russ. Ch. 312. The law with regard to the dom- icil of lunatics is discussed in a for- mer chapter, ante, § 52. The foreign committee of the prop- erty of an habitual drunkard ap- pointed in the state of the latter's domicil may maintain a suit in Mis- souri to recover rents of real prop- erty in that state. Glaser v. Priest, 29 Mo. App. 1. The court gave as a cogent reason for permitting the for- eign committee to maintain the suit that the Missouri statute provides no method for appointing a guardian for a nonresident who, by reason of habitual drunkenness, has been else- where adjudged incapable to take care of his property, and that, un- less the committee appointed else- where is recognized, the estate of such nonresident is liable to be wast- ed or destroyed. § 269] LinSTATICS AND SPENDTHRIFTS. 599 cial legislation, can be applied to a foreign committee or guard- ian of a lunatic, without express words giving such power. ^ 269a. Committee or guardian of lunatic. — The authority of the foreign committee or guardian of a lunatic with respect to the property of his ward is subject to the same general principles that apply to the foreign guardian of an infant. In other words, his authority by virtue of his appointment is strictly lo- cal to the jurisdiction of his appointment; and any authority which he exercises in another jurisdiction is by virtue of the comity of the latter.^ As in the case of foreign guardians of infants, however, there is a tendency to extend the principles of comity to foreign guardians or committees of lunatics, and dis- pense with the necessity of an ancillary appointment in the ju- risdiction in which the property is located. Thus, the foreign guardian of a nonresident insane person is permitted to sue in Louisiana for the recovery of property belonging to his ward,^ or to represent personally, or by an agent, the interests of his ward in a suit for the partition of land in that state.* So, it has been held that a court possessing chancery jurisdiction may sanction the removal of the property of a nonresident insane person to another state by a foreign guardian.* A voluntary payment of a debt to the foreign guardian of a nonresident in- sane person or to an agent appointed by the former is a good discharge. ^ 270. Decrees as to spendthrifts not extraterritorially binding. — Spendthrifts, under the rules of the Eoman jurisprudence, may be specially placed under guardians; and liis principle is in- 3 Westlake, ut supra. ^Taylor v. Nichols, 86 Tenn. 32, 6 S. W. 436. iRe Perkins, 2 Jolins. Ch. 124. sperneau v. Whitford, 39 Mo. App. 2JJe Parker, 39 La. Ann. 333, 1 So. 3ji_ 891. SFicfc V. Volz, 47 La. Ann. 42, 16 So. 568. 600 GUARDIANSHIP. [Chap. VI. corporated in several modern Codes. ^ According to the views of Foelix, a decision to this effect by the court of domicil should be binding in all other lands. ^ In the celebrated case of the Duke of Brunswick, however, this view was not taken by the French courts, who refused to give effect to the decrees of the court of domicil, placing the duke under a curator, on the grounds (1) that such decree was made without proof of the private prodigality required by the French law; and (2) that the proceeding, having a public and political aspect, could not have extraterritorial effect.^ So far as concerns the United States, decrees of this class cannot be regarded as extraterri- torially binding. They are made often on what we would con- sider absurd grounds;* and they conflict with a policy essential to our national growth, that business capacity should be subject to no foreign artificial restraints.® And what has been said as to lunatics applies still more strongly to spendthrifts. It by no means follows that a man who was a spendthrift a year ago in his European home will be a spendthrift after he emigTates to one of our Western states. Here, at least, with maturer years, and new surroundings, he should have a chance to reform. 1 See, as to France, Code Civil, xi. Simple residence by a party in a chap. ii. 489-492; Rogron, Code Na- place gives the courts of such place poleon explique, i. pp. 375-489. As jurisdiction, as a matter of police to Massachusetts and New Hamp- security, to appoint a guardian for shire, see Metealf, Contr. 95, 96. him in case of his incapacity. Jour. 2 Fcelix, §§ 33, 89. du droit int. privg, 1876, pp. 215, 3 Putter, § 63; Phil. iv. p. 386. 216. iAnte, § 122. That trustees under an English B See ante, § 101. marriage settlement are not reeog- Whether in Italy the courts are nized in Prance is ruled by a judg- held to have power to "interdict" ment of the Tribunal of Commerce foreigners, see Jour, du droit int. of the Seine, 1868. Lawrence sur priv6, 1876, p. 213. As to Switzer- Wheat, iii. 173. land, see Ibid. p. 231. The French law under which a As to France, the editor of the spendthrift's business capacity has Journal du droit int. priv6 states been interdicted in France, except that in such matters the French rule in cases where he acts with a is not settled, a great number of de- conseil judidaire, does not follow the cisions being based on reasons of party to England so as to limit his little solidity, and confusing ideas business capacity there. Worms v. essentially distinct, such as the ju- De Valdor, 41 L. T. N. S. 791, 28 risdiction of the court and the law Week. Rep. 346, 49 L. J. Ch. N. S. the court is to apply, or the enjoy- 261; Westlake (1880) errata, xxv. ments of civil rights and personal status. CHAPTEE VII. LAW OF THINGS. I. When things become the subject of peopeett. 272. Lex situs decides whether a thing is property. II. Immovables. a. Governed by the lex rei sitw. 273. Under Koman law immovables governed by lex situs. 274. So, by English common law as to real estate. 275. Bankrupt, insolvent, and lunatic assignments do not operate on foreign immovables. 275^. Prescription governed by lex situs. 275f . So, as to establishing of liens. 275f. So, of money representing land. 275^. So, as to succession. 275^. So, as to alienage. 275f. Local laws as to registry must be complied with. 276. Exception where all parties to collateral contract are boxmd by another law. 276J. Claims not affecting title governed by personal law. 276a. Limits of operation of the principle of lex situs; dis- tinction based upon nature of question. 276b. Questions directly and distinctively affecting title to, or interest in, real property. 276c. Questions indirectly and incidentally affecting real prop- erty. 27 6d. Questions affecting merely personal rights and obliga- tions. 276e. Matters pertaining to remedy; lex fori; penal laws. b. Reasons for rule. 277. Generally. 278. Tenure of land to be determined by national policy. 279. And so, as to the question of mortmain and of monopoly. 280. And so, as to the question of alien settlements. 281. Encumbrances adjudicated by lex rei sitw. 282. Lex rei sitw must, from nature of things, decide. 283. No other arbiter practicable. 284. Merchantable value depends on assertion of rule. 285. It alone can give title, e. What "immovables" include. 601 602 LAW OF THINGS. [Chap. VII. 286. They include all interest in land. 287. Distinguishable in this respect from real estate. d. Indirect extraterritorial jurisdiction asserted over immovdSles. 288. Chancellor may compel party to do equity as to foreign immovables. 289. Sale by administrator, trustee, or committee of lunatic, of foreign real estate inoperative. 289a. Scope and extent of jurisdiction of equity over suits affecting land beyond territorial jurisdiction. 290. Exception as to injury to land in another state. 290a. Actions arising out of contract or tort affecting real property in another jurisdiction. e. Liens on immovables. 291. Liens determinable by lex situs. 292. But law of contract may determine as to mere contract. 292J. When lien covers indivisible estate in two states. f. Limitations on alienation. 293. Limitations on alienation governed by lex rei sites. g. Immovables as affected by operation of law. 294. Realty passing by descent or marriage governed by same law. h. Forms of conveyance. 295. And so, of forms of conveyance. i. Capa^ty to acquire and convey; and herein of alienage. 296. Capacity to acquire so limited; alienage so determined. III. Movables. a. Governed by lew situs. 297. Inapplicability of old law that movables are governed by lex domicilii. 298. Modem authority tends to lex rei sitcB. 299. This a necessary tendency. 300. Savigny holds there is no difference between movables and immovables. 301. He concedes that goods in transit cannot be governed by the lex situs. 302. On the other hand, he holds fixtures and heirlooms to be immovables. 303. He maintains that wherever there is location, there the law of the location determines. b. Reasons for rule. 304. Generally. 305. The policy of sovereignty requires the application of this rule. 306. Purchase involves submission to local laws. 307. Situs the necessary arbiter. 308. To invoke the lex domicilii is a petitio principii. 309. Maintenance of values depends on ubiquity of rule. LAW OF THINGS. 603 310. Title Ml rem only acquired in situs. 311. Conclusion is that movables not in transit are governed by lex rei sites, except for succession and matrimonial estate. 311a. Lea) situs as opposed to lew loci contractus and lex domicilii, generally. 311b. Different aspects of contracts relating to personal prop- erty; personal aspect. 31 lo. Contract as an instrument creating a right or interest in property. 311d. Distinction between executory and executed contracts of sale. 31 le. Contract as affected by fraud. 312. In Roman law real rights governed by lex situs. c. Liens determined by situs. 313. And so, as to bailments. 314. So, as to pledges and pawns. 315. Prussian Code disallows secret pledges. 316. In Roman law hypothecation determined by lex situs. 317. In our law the situs determines lien for purchase money, and also fact of chattel mortgage. 317a. Lien for purchase money. 317b. Chattel mortgages. 318. When lien is extinguished by transfer to another place. 318a. Same; statutory lien. 319. Conflict as to whether liens can be established by transfer to another place. 320. Conflict in this respect among foreign jurists. 321. As to mechanics' liens, lex situs controls. 321a. Mechanics' liens. 322. Liens of materialmen on ships continue unless excluded by law of port. 322 J. State can create liens for labor and port dues. 323. Mortgage on ship postponed to port liens. 324. Lex situs generally controls. 325. Patent rights not extraterritorial. 326. Conflicting rules as to trademarks. 327. United States treaties and statutes. 328. Copyrights not extraterritorial. d. Capacity of persons to acquire cmd dispose of movables. 329. Capacity depends on place of transaction. 330. Distinction between capacity to hold and capacity to act unfounded. 331. Foreign incapacities inapplicable to this country. 332. Restrictions on natural capacity not extraterritoriaL 333. Alienage determined by lex situs. 604 LAW OF THINGS. [Chap. VII. e. Acquiring and passing title. 334. By Roman law lex sitiis prevails as to title. 335. So. in Louisiana. 335a. Necessity of delivery. 336. Rule questioned by Story. 337. Sustained by Savigny. 338. And by Guthrie. 339. And by Bar and Wachter. 340. And by Foelix and Fiore. 341. And by Westlake and Woolsey. 342. And by Phillimore. 343. Early English and American dicta indefinite, and based on misapprehension of terms. 344. Analogy from succession inapplicable. 345. In England the lex situs now alone determines title. 346. So, in the United States. 347. Maine, New Hampshire, and Vermont. 348. Massachusetts. 349. Connecticut. 350. Pennsylvania. 351. Kentucky and Alabama. 352. Louitiiana. 353. General rule is that an extraterritorial assignment passes no property in movables unless in conformity to leao situs. 353^. Foreign voluntary assignments with preferences may be inoperative by local policy. 363a. Extraterritorial effect of voluntary assignments for cred- itors; distinction between voluntary and involuntary assignments. 353b. Discrimination between residents and nonresidents, generally. 353c. When foreign assignment not opposed to lex rei sitcB et fori. 353d. As between law of place where assignor domiciled and that of place where assignment made. 353e. Assignment by corporation. 353f. As between leao loci of assignment and lex situs of per- sonal property, generally. 353g. Same; formal requisites; taking possession; notice; re- cording; assent of creditors. 353h. As between lex loci of assignment and lex situ^ of real property. 353i. Preferences and exemptions as affecting real or personal property. 353j. Right of assignee to avoid fraudulent transfers and con- veyances; effect of assignment on previous attach- ment. LAW OF THINGS. 605 354. Distinctive rule as to goods in transit. 355. Stoppage in transitu governed by leai domieilii. 355a. Questions arising under contracts of sale, affecting title to, or interest in, the property, generally. 355b. Conditional sales. 355c. As to rescission of sale for fraud, i. Ships at sea. 356. Ship part of territory of flag. 357. In the United States, ship belongs to state of r^istry. 358. Ship in port subject to port law. 358J. Exemption of foreign public vessels. g. Debts. 359. Theories as to seat of debts. 360. Lex loci contractus. 361. Debtor's domicil. 362. Place of payment. 363. Prevailing theory is that law of creditor's domicil de- termines. 363a. Situs of debts, and choses in action, generally. 363b. Assignment of debt or chose in action, generally. 363c. Assignment of shares of corporate stock. 364-367. These sections are omitted, as the subject-matter is fully covered by the new sections. 368. Situs of debt is not changed by the fact that it is se- cured by a mortgage in another state. 368a. Place where debt or chose in action may be subjected to attachment or garnishment. h. Situs of tangible property for purpose of proceeding in rem. 368b. Actual situs prevails. i. Where litigating parties are domiciled im the state of the as- signment. ' 369. A court of the situs may hold that an attaching cred- itor cannot contest an assignment good in his own domicil. 370. But a judgment between such parties does not affect third parties. 371. Such common domicil of foreign litigants cannot over- ride positive prescriptions as to registry by lex situs. j. Form of assignment. 372. Form of assignment of immovables must follow lew situs. 373. And so, as to movables whose assignment is regulated by local law. 374. Local law prevails as to local forms. 375. On this principle conflicting rulings can be explained. 376. Assignments on corporation books regulated by local law. 606 LAW OF THINGS. [Chap. VII. 377. Party to imperfect assignment may be liable for dam- IV. Pbbscbiption and limitation. 378. Prescription and limitation governed by the lew situs as to immovables. 379. Such prescription by Koman law must be adverse and definite. 380. Usucapion merged in prescription. 381. Even as to movables lex situs must determine. 382. Prescription cannot be extended by removal of goods after title vests. V. Confiscation and escheat. 383. Lex situs determines. 384. Rule applies to custom-house seizures. VI. By what law peocesses in bem abe to be qovebned. 383. Lex fori determines process. VII. BANKBrpT assignments. 386. Generally. a. On the continent of Europe. 387. Conflict as to nature of bankruptcy. 388. Conflict as to its extraterritorial effect. b. England. 389. Foreign bankrupt assignment does not convey immova- bles; doubt as to movables. c. United States. 390. Foreign bankrupt assignment not extraterritorial. 390J. So, as to state insolvent assignments. 390a. Same. 390§. Foreign receivers of insolvents subject to same rule. 390b. Rights and powers of receiver outside of jurisdiction of appointment. I. When things become the subject of peopeett. 272. Lex situs decides whether a thing is property. — Whether a thing is or is not the subject of property, as in the case of waifs, treasure trove, and animals found dead, and, if it be, who is the owner, is to be decided by the law of the place in which the thing is found. -^ When such things are claimed by a foreigner, having a domicil in another territory, it would be begging the question to assume that the law of his domicil, when such claim is in litigation, is to prevail. Assuming the law of his domicil, because he is owner, is assuming his owner- iBar, § 64; Savigny, viii. p. 183. ii. § 3; Wharton, Crim. Law, 8th ed. See Lawrence's Wheaton, pt. ii. chap. § 863. § 272] WHEN THINGS BE(X)ME THE SUBJECT OF PROPERTY. 607 ship, which is the point at issue. Consequently, the lex situs has in such cases been acknowledged, even by those who, in other matters, reject this law as inapplicable to things personaL II. Immovables. a. Governed by the lex rei sitae. 273. Under Roman law immovables governed by lex sitas. — Jurists of all schools, and courts of all nations, are agreed in holding that land is governed by the law of the place where it is situated. The ancient Roman jurists, it is true, did not rec- ognize this forum ; ^ but it gradually crept into recognition, and finally received settled acceptance. The plaintiff, according to the Roman practice, was entitled to bring suit either in the forum rei sitae, which was the special court, or in the forum domicilii, which was the one in which the defendant was gen- erally responsible. But the fluctuation and confusion which arose from the applicability of two distinct systems of law to one subject led ultimately, in all suits concerning immovables, to narrow the law to that of the forum rei sitcB. 'Not was the necessity, in matters so important, of having a single settled standard, the only cause which led to this exclusion, in such controversies, of any other law than that of the place where property in litigation was situated. Several persons, with as many domicils, would contest the title to such property; and if the law of domicil were to prevail, there would be as many laws to be applied as there were litigants. The only alterna- tive, therefore, would be to accept as a permanent rule the forum rei sitae. This is the view accepted as to immovables by the leading jurists of continental Europe, both ancient and modern.^ 274. So, by English common law as to real estate. — So far as concerns England and the United States, real estate, to adopt 1 Vatic. Fragm. § 326; Savigny, Schaeffner, pp. 65, 82; Wachter, ii. viii. § 366. pp. 199, 200; Mevius, in Jus. Lub. 2Masa6, p. 93; Foalix, i. p. iii. (No. prolog, qu. 6, § 10; P. Voet, De 61); Mailher de Chassat, No. 63; statut. lib. ix. chap. i. No. 2; Jo. a. Bouhier, chap. 24, No. 177, chap. 29, Sande Decis. iv. title 8, defin. 7; No. 2; Vattel, ii. chap. 8, §§ 103, Eichliorn, § 36; Thol, § 84; Flore, § 110; Merlin, R6p. Vo. Biens, § 20; 337. Vo. Loi. § 5; Argentrseus, No. 31; The Jour, du droit int. privg, 1874, Burgundus, i. 41, 42, iv. 26; Boulle- pp. 253, 256, cites two remarkable nois, i. p. 121 ; Pothier, Des choseg, § eases where this rule was enforced in 2, No. 3; Mittermaier, § 31; Savig- Spain and Mexico, ny, viii. p. 169; Bar, §§ 57, 59; 608 LAW OF THINGS. [Chap. VII. our distinctive phraseology, in all jurisdictions, and by an un- interrupted current of authority, is held to be subject to the lex rei sitce. To cite cases to this point would be superfluous. It is SLiificient to give a few illustrations. 275. Bankrupt, insolvent, and lunatic assignments do not op- erate on foreign immovables. — ^A bankrupt assignment in Eng- land does not pass the bankrupt's immovables in Scotland; nor, according to later authorities, will the court in any way compel the bankrupt to make an assignment of such immova- bles to his bankrupt assignee.'' It has also been repeatedly held that a general assignment, executed under the insolvent laws of one state, for the benefit of creditors, of all the assignor's estate, real and personal, does not, unless conforming to the lex situs, carry his real estate sit- uate in another state. ^ And a voluntary conveyance of land by an insolvent, though good in the place of execution, will not hold against creditors unless good by the lex situs.^ The guardian or committee of a foreign lunatic, also, has no author- ity over the lunatic's home real estate.* '^Cocherell v. Dickens, 3 Moore, P. day, made an assignment there to L., G. C. 98, 134, 1 Mont. D. &DeG. 45; reciting the first; this was recorded Selkrig v. Davies, 2 Rose, 97, 2 Dow, immediately; the first was not re- 230, in this respect qualified. See corded within thirty days. L. re- post, §§ 390a, 798. ceived the rents and sold the real es- ^Post, § 390J; Osborn v. Adams, tate in Pennsylvania. It was held 18 Pick. 247; Butcheson v. Peshine, that the deed to him passed nothing, 16 N. J. Eq. 167; Mosselman v. and that B. was entitled to the hal- €aen, 34 Barb. 66; McGuUough v. ance in his hands. It was also held Rodrick, 2 Ohio, 234; Badgers v. Air that the deed to B. passed all H.'s len, 3 Ohio, 489. But see Lamb v. real estate in Pennsylvania for the Pries, 2 Pa. 83. [See, however, post, benefit of creditors without preferen- § 353h.] ces, and that as to creditors both sPost, §§ 334 et seq., 391; Cutter assignments were void; so that the V. Davenport, 1 Pick. 81, 11 Am. Dec. land could be sold under judgments 149; Osborn v. Adams, 18 Pick. 245; against H., — B. claiming and receiv- Van Nest v. Yoe, 1 Sandf. Ch. 43; ing from L., validated, it was held, Houston v. Nowlamd, 7 Gill & J. 480; L.'s sale. It was further held that Wood V. Parsons, 27 Mich. 159; Lov- the money received by B. from L. was ing V. Pairo, 10 Iowa, 282, 77 Am. to be distributed according to the Dec. 108. [See post, § 276c.] laws of Pennsylvania. Now, in this Lewis V. Barry, 72 Pa. 18, may be case, so far as the Maryland assign- thought an exception to the rule. In mont was held good, this was be- that case H., domiciled in Pennsylva- cause it was validated by Pennsylva- nia, owning real estate there and in nia law. Maryland, executed in Maryland an ^GHmwood v. Bartels, 46 L. J. Ch. assignment for creditors to B., of all N. S. 788, 25 Week. Rep. 843; Re his estate, with preferences; but be- Perkins, 2 Johns. Ch. 124. ing advised that it was void as to See also post, § 276b. the Pennsylvania estate, he, the next % 275 1/7] IMMOVABLES. 609 275 1/7. Prescription governed by lex situs. — The terms of prescriptive title are settled by the lex situs. ^ 275 2/7. So, as to establishing of liens. — ISTo lien can be es- tablished on land except by the court of the situs. -^ 275 3/7. So, of money representing land. — Money into which immovables, by action of law, are converted, and which repre- sents such immovables, is governed by the lex situs.^ 275 4/7. So, as to succession.— In respect to succession, the same rule obtains.-^ In an English case, in 1846,^ it appeared that an estate in Sicily was granted to an English subject, which he disposed of by his will, upon certain trusts; it was held that, as he could not subject his successor to a course of succession different from that which accorded with the grant and the law of Sicily, so neither could he subject the successor, as such, to any duties or obligations different from the duties and obligations which by the grant and the law of Sicily were annexed to his holding. As we have already seen, the English laws of legitimacy have been ruled, in England and the United States, to exclude from the inheritance of real estate parties not born in mar- riage, though legitimated abroad.^ 275 5/7. So, as to alienage. — When the right of an alien to hold land is in question, the prevailing law is that of the situs, and not that of the alien's domicil. '^ 275 6/7. Local laws as to registry must be complied with. — It is scarcely necessary to say that when the lex situs makes the validity of a document to depend upon a certain mode of ac- knowledgment and registry, those conditions must be complied with. Their omission cannot be made good by the most solemn modes of attestation and registration adopted by the state from which the document emanates.^ iBeckford v. Wade, 17 Ves. Sr. 87, •''Nelson v. Bridport, 8 Beav. 547, 11 Revised Rep. 20; Pitt v. Dacre, L. 10 Jur. 871. E. 3 Ch. Div. 295, 45 L. J. Ch. N. S. iAnte, §§ 242 et seq. 796, 24 Week. Ebd. 943. Post, § 378. in orris V. Ghamires, 29 Beav. 246, gut see ante, § 250a, upon this point. 30 L. J. Ch. N. S. 285, 7 Jur. N. S. 59, Affirmed in 3 De G. F.& J. 583, 7 Jur. N. S. 689, 4 L. T. N. S. 345, 9 Week. Rep. 794; Boyce v. Grundy, 9 iAntc. §§ 17, 123. Pet. 275, 9 L. ed. 127. See post, § iKerr v. Moon, 9 Wheat. 565, 6 L. 291. ed. 161 ; United states v. Fox, 94 U. iVorles V. Adams, 9 Sim. 462; S. 315, 24 L. ed. 192; Goddard v. Lems v. Barry, 12 Fa.. IS. Saijoyer, 9 Allen, 78; Nicholson v. I Post, §§ 560, 576b. Leavitt, 4 Sandf. 252; Donaldson v. Vol. I. CONFL. of Lawh — 39. 810 LAW OF THINGS. [Chap. VII. 276. Exception where all parties to collateral contract are bound by another law. — To the proposition, however, of the ex- clusive authoritativeness of the lex situs, there has been intro- duced a modification which will be considered more fully here- after, when the law as to movables is reviewed.-^ This modi- fication rests on the position, ably maintained by Savigny, that jurisdiction is founded on consent. The consent of the owner, he argues, places his property in a particular state, and sub- jects that property to the law of such state. The consent of the individual, in electing a particular land as his domicil, sub- jects him to the sovereign of that land, whose laws he thus adopts as binding on himself. Now, when all the parties claiming a certain piece of real estate are of one domicil, they may be viewed, in accordance with this principle, as electing such domicil to govern them in relation to such real estate. In accordance with this view it was held, in 1868, in Missouri, that an assignment executed in New York, which was good in Wew York, but would have been bad in Missouri, was capable, after being duly executed and acknowledged in accordance with the Missouri laws, of passing real estate in Missouri, as against an execution creditor, who was a citizen of New York. The case was put on the gTound that the party contesting the New York assignment was himself subject to the New York jurisdiction. "It never could be endured," said Wagner, J., "that a foreign assignment, made directly in opposition to our legislation, should have the effect of giving an advantage to nonresident creditors to the injury of our own citizens. But as the case presents no such question, we think comity requires and justice will be subserved by holding the assignment good according to the law of the place where it was executed."^ A similar decision was given by the supreme court of Indiana in 1877. In this case a deed made between domiciled citizens of Phillips, 18 Pa. 170, 55 Am. Dec. iPos*, § 369. As to control over 614; Leujis v. Barry, 72 Pa. 18, and foreign real estate by compelling as- other cases cited in Wharton, Ev. § sent of owner, see post. § 283. 1052. As to assignments on corpora- ^Thurston v. Rosenfield, 42 Mo. tion books, see post, § 376. 474, 97 Am. Dec. 351. See Bryan v. The common-law rule prescribing Brishin, 26 Mo. 423, 72 Am. Dec. 219. that suits affecting title to real But here all that could have passed estate must be brought in a court of was the assignor's title in such land, the situs, being a principle of inter- simply as against the particular exe- national law, has not been affected cution creditor. The land would by the English judicature act. Foote, have still been open to attack by a Private International Jurisprudence, creditor domiciled in Missouri, not- p. 258. withstanding such assignment. S 276] IMMOVABLES. 611 Indiana, of land situated in Missouri, contained no covenant of seisin except the words "grant, bargain, sell, and convey," which, by the laws of Missouri, implied a covenant of seisin, but by the laws of Indiana did not so imply. It was ruled by the supreme court of Indiana that the meaning of the contro- verted words was governed by the laws of Indiana.^ And the verbal interpretation of an executory contract as to land in an- other state may depend on the law of the domicil to which both parties belong.* 2761/^. Claims not affecting title governed by personal law. — Whether a security given on immovables is governed by the lex sitit,s of the immovables is to be determined by that law. If that law says, "This security is an alienation of the immov- ables," then the security is governed by the lex situs.^ But where a claim may be sued on without affecting title, it is gov- erned by the law applicable to contracts,^ as is the case with an action for breach of covenant of quiet enjoyment.^ And, as a general rule, contracts relating to immovables are governed by their own distinctive law, unless it is necessary to act directly on the immovables, in which case the lex situs prevails.* The remedy against a mortgagor can be pursued in any state in which he may be served, though the land cannot be proceeded against except in the situs. ^ Yet, in England, when the par- ties are subject to the jurisdiction of the chancellor, bills to foreclose foreign mortgages have been entertained.® 276a. limits of operation of the principle of lex situs; dis- tinction based upon nature of question. — The broad proposition, stated in antej § 273, that land is governed by the law of the iBethell v. Bethell, 54 Ind. 428, 23 Madd. 16, and other cases; Watts v. Am. Eep. 650. See De Wolf v. John- Waddle, 6 Pet. 400, 8 L. ed. 442; son, 10 Wheat. 368, 6 L. ed. 343. Brine v. Hartford F. Ins. Go. 96 U. iJUd.; Glenn v. Thistle, 23 Miss. S. 627, 24 L. ed. 858; Goddard v. 42. Saioyer, 9 Allen, 78. That the law of the domicil of the 2De Wolf v. Johnson, 10 Wheat, parties is to determine the verbal in- 368, 6 L. ed. 343. Post, § 368. terpretation of a contract as to real ijachson v. Hanna, 53 N. C. (8 estate, while the lex situs determines Jones, L.) 188. Post, §§ 292, 368. the mode of its operation, see West- ^Post, §§ 292, 368; Camplell v. lake (1880) § 160; Holmes v. Dem*, 2 Moore, P. C. C. 292. Holmes, 1 Russ. & M. 660, 8 L. J. Ch. 5 Jones, Mortg. § 661. 157. iPaget v. Ede, L. R. 18 Eq. 118, 43 iPost, § 368; Westlake (1880) § L. J. Ch. N. S. 571, 30 L. T. N. S. 150, citing Johnstone v. Baker, 4 228, 22 Week. Rep. 625. Madd. 474 note; Elliott v. Minto, 6 612 LAW OF THINGS. [Chap. VII. place where it is situated; and the more specific propositions (which,, in substance, have been frequently repeated by the courts) that the disposition of real property, whether by deed, descent, or any other mode, is exclusively subject to the govern- ment within whose jurisdiction the property is situated;* and that the title to, or an interest in, land can only be acquired or lost agreeably to the law of the place where the same is situ- ated," — need no explanation or qualification when confined to the incidents of real property that depend wholly upon the oper- tition of law, without the intervention of a contract or other in- strument, or when the collateral efi'ect only of a contract or in- Wnited States v. Fox, 94 U. S. The alienation, transmission, and 315, 24 L. ed. ]'.)2; Arndt v. Griggs, descent of real estate is governed by 134 U. S. 316, 33 L. ed. 918, 10 Sup. the laws of the country or state in Vt. Rep. 557; Hutchinson Invest. Co. which it is situated. Apperson v. V. Caldwell, 152 U. S. 65, 38 L. ed. Bolton, 29 Ark. 418. 356, 14 Sup. Ct. Kep. 504; Eolhrook It is for each state to prescribe the V. Bowman, 62 N. H. 313; Breioer v. mode and manner of transferring <'ox (Md.) 18 Atl. 864. real estate situated within its limits, ^Bosford V. Nichols, 1 Paige, 220. and all deeds of conveyance must be The general proposition has as- made to conform to the laws thus suraed other forms. Thus: prescribed. Watson v. Atwood, 25 It is not within the power of one Conn. 319. state to prescribe the mode by which Nothing is better settled than that real property shall be conveyed in the law of the place where real and another. Watts v. Waddle, 6 Pet. immovable property is situated ex- 389, 8 Ij. ed. 437. clusively governs with respect to the The mode of transfer of real es- rights of the parties, and the modes tate is within the jurisdiction of a of transfer and distribution. When state legislature where tlie title has the property is real estate, the lex passed from the Federal government, rei sitw controls. Smith v. Smith, and is in controversy between pri- 174 111. 52, 43 L. R. A. 403, 50 N. E. vate citizens. Langdon v. Shenoood, 1083. 124 U. S. 74, 31 L. ed. 344, 8 Sup. The validity of a conveyance or Ct. Rep. 429. transfer of real estate must be de- Immovable, or real, property is termined by the law of the place governed by the law of the country wliere the property is situated. Lov- in which it is situated as to its title, ing v. Pairo, 10 Iowa, 282, 77 Am. descent, and the forms necessary to Dee. 108. be observed in its conveyance. Gas- The laws of the state in which tleman v Jeffries, 60 Ala. 380. lands are situated control in aequir- § 276a] IMMOVABLES. 613 strument affecting the property is involved. Thus, the acquisi- tion or loss of title by operation of law/ the tenure and nature of the estate by which the property is held^* the manner and ex- tent of its enjoyment,® and other incidents which are independ- ing and transferring title. Lucas v. title can pass from one person to an- Tucker, 17 Ind. 41. other. Keane v. Chamberlain, 14 A conveyance or encumbrance, exe- App. D. C. 84. cuted is. one state, of land situated 3 As to law determining effect of in another is governed by the law of marriage upon real property, see- the latter, and all questions relating ante, §§ 191, 192a. For intestate de- to the validity thereof are to be de- scent of real property, see post, §: termined according to that law, and 576b. not according to the law of the place The title to land acquired by ac- of the contract, or of the domicil of cretion is a title acquired under the- the contracting parties. Nathan v. operation of the law of the state,. Lee, 1.52 Ind. 232, 43 L. R. A. 820, 52 which each state determines for it- N. E. 987. self. St. Louis v. Rutz, 138 U. S> Land is held and alienated accord- 226, 34 L. ed. 941, 11 Sup. Ct. Rep^ ing to the law of the place where it 337. is situated, and it cannot be held or The law of the state in which the- appropriated otherwise than accord- lands lie determines the question ing to such law. Sneed'y. E icing, 5 whether the bed of waters belongs to- J. J. Marsh. 460, 22 Am. Dec. 41. the state or to the owners of ripa- The mode of transmitting or trans- rian lands, where these have been- ferring title to real property beyond granted by the United States with- the limits of the state is not within out reservation or restriction. Lamp- the scope of the legislature of New rey v. State, 52 Minn. 181, 18 L. R.. York. Neither can the courts of A. 670, 38 Am. St. Rep. 541, 53 N. that state, except as they may exer- W. 1139. cise Jurisdiction over persons by any The law of South Carolina deter- judgment or decree, affect the title mines who is the rightful owner of to such property. Elliott v. Wood, land in that state within the mean- 45 N. Y. 71. ing of the act of Congress giving- The law of the sovereignty in compensation for lands sold for di- which real property is situated gov- reet taxes. Olover v. United States,. ems as to the transfer of such prop- 29 Ct. CI. 236. erty, whether conveyed absolutely or * See post, § 276b, note 7. by way of mortgage. Commercial 6 The question of the right of an- Bank v. Jackson, 7 S. D. 135, 63 N. abutting owner to enjoin the con- W. 548. struction of an elevated railroad in The title and disposition of real u. street depends upon the la-w of the- property are exclusively subject to state in which such street and rail- the state wherein it lies, which can road are located, and not upon that alone prescribe the mode wherebv the of the residence of the owner. Lo- 614 LAW OF THINGS. [Chap. VII. ent of contract, depend exclusively upon the lex rei sitce. So, the lex rei sites determines the existence of a resulting trust in real property, even though the question involves the collateral and indirect effect of a contract * As applied to the direct and legitimate effect of a contract with respect to real property, however, the foregoing proposi- tions — and especially the more specific proposition frequently repeated by the courts, that a contract with reference to real property is governed by the law of the place where the property is situated — ^need qualification, or at least explanation ; for it is clear, upon principle and authority, that not every question that may arise with respect to such a contract is to be referred to the law of the place where the property is situated, to the ex- clusion of all other possible applicatory laws. In the first place, it is to be observed that, so far as the contract is execu- tory, it presents personal rights and obligations which do not affect the title to, or any interest in, the property itself. As subsequently shown, such rights and obligations are not neces- sarily to be referred to the lex rei sitce.'' !Not only may questions that affect only the personal rights and obligations of the parties under such a contract be referred to the law of a place other than that where the property is situ- ated, but an examination of the decisions discloses that even questions that ultimately affect the title to, or an interest in, the property itself, are frequently referred to another law. Thus, as benstine v. Union Elev. R. Co. 25 C. though the land in this case wa.s sit- C. A. 304, 53 U. S. App. 1, 80 Fed. 9. uated in Arkansas. It would ap- ^Seaman v. Cooh, 14 111. 501 ; pear, however, that the decisions in Acker v. Priest, 92 Iowa, 610, 61 N. Arkansas were to the same effect. W. 235. So, whether an equitable mortgage In Pickett v. Ferguson, 86 Tenn. is created by the delivery in New 642, 8 S. W. 386, the court apparent- York, to a creditor, of title deeds to ly relied upon Tennessee authorities real property in New York, is to bo for its decision that no resulting determined by the law of that state. trust arises upon the purchase of Griffin \. Griffin, 18 N. J. Eq. 104. land at a judicial sale by a tenant, 'Paul, § 276d. § 276a] IMMOVABLES. 615 will be shown more fully in a subsequent section,^ the question of usury, even as affecting the validity of a mortgage of real property, is frequently, in conformity to the presumed intention of the parties, referred to the law of a place other than that where the property is situated ; and is seldom, if ever, referred to the lex rei sitce as such. In other words, while the question of usury in such a case ultimately affects the title to, or an inter- est in, real property, such effect is only incidental, and the ques- tion does not relate distinctively to real property, but pertains to contracts in general, and is therefore governed by the princi- ples applicable to contracts in general. It is extremely difficult, if not impossible, to frame any ge- neric distinction by which questions that are necessarily and in- evitably to be referred to the lex rei sitce, as such, may be sepa- rated from those that may, under some circumstances, be re- ferred to the law of another place; but an examination of the decisions with reference to specific questions discloses that, while there is no doubt of the exclusive applicability of the lex rei sitae, as such, to questions that relate primarily and distinc- tively to real property, or real property contracts (e. g., the form or mode of execution of a deed of real property), some, at least, of the questions arising under such a contract, that do not relate primarily to real property, though they ultimately affect the same, do not fall within the exclusive operation of the lex rei sitae. To put it in another form: The general proposition that the disposition of real property by contract is governed by the lex rei sitce can be accepted without qualification or explana- tion only so far as it concerns laws that relate distinctively and primarily to real property. ' 'Post, § 510k. to the lex rei sitw is well illustrated 9 The point that not every matter by the opinion in Bentley v. Whitte- affeoting the ultimate validity of a more, 19 N. J. Eq. 462, 97 Am. Dec. deed and its effect to convey real 671. The court admitted the general property is necessarily to be referred principle that the validity of every 616 LAW OF THINGS. [Chap. VIT 276b. ftuestions directly and distinctively affecting title to, or interest in, real property. — Questions concerning the mode or manner of solemnization of an execiited contract, by which an interest in, or the title to, real property is created or transferred, clearly belong to the class of questions, alluded to in the last section, that relate distinctively and directly to real property; and they are, therefore, to be referred exclusively to the lex rei sites, without reference to the domicil of the parties, the place of the execution of the instrument or contract, or any other cir- cumstance whatsoever. ^ This rule covers the attestation by wit- disposition of real estate must de- the assignment was executed out of pend upon the law of the country in the state. The difference in the which the estate is situated, and said scope assigned to the respective stat- that, with regard to the mere mode utes is, therefore, obviously due to or form of conveyance and the capac- the fact that matter covered by the ity of parties, no question could be latter statute is one that relates pri- made ; but nevertheless held that the marily and distinctively to real prop- title to real property in New Jersey erty, and thus comes^within the prin- passed by an assignment for credit- ciple, Lesc rei sitw; while the mat- ors executed in New York in the ter covered by the former statute form required by the law of New only indirectly and incidentally af- Jersey to convey real property, not- fects real property, and comes with- withstanding that the assighment in the principles applicable to con- contained preferences which were per- tracts genersHy. mitted by the law of New York, but 1 The law of the place where the not allowed by the law of New Jer- land is situated governs as to the sey. It is true that the court for- formalities necessary to the transfer mally puts the decision upon the of real property, whether testamen- ground that the statute of New Jer- tary or inter vivos. Boiertson v. sey, while it forbids preferences in Pickrell, 109 U. S. 608, 27 L. ed. 1049, an assignment for creditors made in 3 Sup. Ct. Rep. 407. that state by a person domiciled In Barry v. Snoicden, 106 Fed. 571, therein, does not forbid such prefer- the court, while holding that the va- ences in an assignment made in an- lidity of a stipulation for attorney's other state by a person domiciled fees in a mortgage upon land in In- therein; but it will be observed that diana to a. building and loan associa- there was nothing more in the Ian- tion of Illinois was to be determined guage of the statute to confine its by the law of Illinois because the by- operation to assignments made in the laws of the association provided that state than there was in the statute all contracts made with it should be regulating conveyances, of real prop- deemed to have been ma.de at its erty, which concededly applied though home office in Illinois, said: "Of § 276b] IMMOVABLES. 611 nesses/ seal,* acknowledgment,* delivery,^ registration.^^ The lex rei sites may, of course, by an express statutory provision tc- that effect, be satisfied, in case the contract is executed in an- other jurisdiction, by compliance with the law of that jurisdic- tion in these respects ; ^ but that fact does not militate against the proposition that the lex rei sitce is the ultimate criterion. Again, the form, construction, essential validity and effect of a contract or instrument, so far as it affects the title to or an interest in the- property itself, is in general governed by the lex rei sitce'' though course, so far as the mere forms to ^a-Ante, § 275 6/7. be observed in the execution of a 6 xhe existence of such a local' mortgage are concerned, they must statute accounts for the decisions in conform to the law of the state the following cases, which applied where the real estate is situated." the test prescribed by the law of the- ^Clark V. Graham, 6 Wheat. 577, place where the instrument Was ex- 5 L. ed. 334; Atioaier v. Seely, 1 Mc- ecuted: Secrist v. Green, 3 Wall. 744, Crary, 264, 2 Fed. 133; Larendon's 18 L. ed. 153; Carpenter v. Dexter, 8- Succession, 39 La. Ann. 952, 3 So. Wall. 513, 19 L. ed. 426; Sewall v. 219. Haymaker, 127 U. S. 719, 32 L. ed. United States v. Croshy, 7 299, 8 Sup. Ct. Rep. 1348; Root v. Cranch, 115, 3 L. ed. 287; Gibls v. Brotherson, 4 McLean, 230, Fed. Cas. McGuire, 70 Miss. 646, 12 So. 829; No. 12,036; Morton v. Smith, 2 Dill. idams V. Clutterhuck, L. R. 10 Q. B. 316, Fed. Cas. No. 9,867; Garrick v., Div. 403, 52 L. J. Q. B. N. S. 607, Chamberlain, 97 111. 620; Stinson v.. 48 L. T. N. S. 614, 31 Week. Rep. Oeer, 42 Kan. 520, 22 Pac. 586; Green 723. So far, however, as the question v. Gross, 12 Neb. 117, 10 N. W. 459. affects the form of action, it is to " The form of conveyance adopted be referred to the lex fori. See post, by each state for the transfer of real § 747. property must be observed. Oakey v.. ^Richards v. Randolph, 5 Mason, Bennett, 11 How. 33, 13 L. ed. 593. 115 Fed. Cas. No. 11,772; Dawson v. In Goddard v. Saicyer, 9 Allen, 78, IJayden, 67 111. 52; Post v. First in which the validity of a mortgage- ifai. Barefc, 138 111. 559, 28 N. E. 978; on real property was attacked as Eaney v. Marshall, 9 Md. 194; Roode void for want of defmiteness in its V. State, 5 Neb. 174, 25 Am. Rep. condition, the court held that the 475; Morris v. Linton, 61 Neb. 537, question as to the validity was to be- 85 N. W. 565; Graham v. Whitely, decided by the law of Massachusetts, 20 N. J. L.' 254; Barmon ex dem. where the mortgaged premises were Fay V. Taft, 1 Tyler ( Vt. ) 6 ; Smith situated, and not by the law of New V. Ingram, 130 N. C. 100, 61 L. R. Hampshire, where it was executed) A. 8*78, 40 S. E. 984. and where the parties thereto re- ■ ^Freeland v. Charnley, 80 Ind. 132. sided. ei8 LAW OF THINGS. [Chap. VII. so far as it affects merely the personal rights and obligations of the parties it may be governed by another law. Under the law of Louisiana, however, declaring that "the form and effect of public and private written instruments are governed by the laws The estate of the mortgagor or effect according to the law of New mortgagee in mortgaged premises York. within the state of New York must The lex rei sites controls convey- follow the rules laid down by the ances of real estate, determining state tribunals. Be Kellogg, 113 their validity, operation, and con- Fed. 120. struction. Wheeler v. Walker, 64 The question whether a mortgage Ala. 560. It was held in this case conveys the title, or is merely a that, under the law of Alabama, pledge or security for the debt, de- where the deed was executed and the pends upon the law of the state in land was situated, the lands conveyed which the land was situated at the to a married woman became a part time the mortgage was executed, of her statutory separate estate, the Ghappell v. Jardine, 51 Conn. 66. estate granted not being otherwise The effect upon the title of a con- limited by the terms of the deed, tract whereby land is sold in pay- Whether a quitclaim deed conveys ment of a pre-existing debt, with a an estate of inheritance or an estate right of repureha.se on the part of merely for life depends upon the law the debtor, is determined by the law of the state in which the land is of the place where the land is situ- situated, although the effect of the ated. Baxter v. Wiley, 9 Vt. 276, 31 deed in that respect comes in ques- Am. Dec. 623. tion in a suit in Indiana in which While the nature and construction the deed is tendered as a condition of a contract of loan made in New of rescinding a contract. Robards v. York is to be determined by that Uarley, 80 Ind. 185. state, the effect of a deed of land in A deed of the comptroller of the California, executed as security for state of New York purporting to eon- the loan, must be determined by the vey land situated therein, which, by law of California, and the law of the statute of that state, is pre- the latter state must therefore gov- sumptive evidence that he had au- ern the right to foreclose and re- thority to sell and convey the land, deem. Allen v. Allen, 95 Cal. 184, and that all the proceedings required 16 L. K. A. 646, 30 Pac. 213. In this by law to be had prior to the execu- case it was held that the debt, to tion of such conveyance had been secure which the deed was made, had, is admissible for the same pur- being barred by the statute of limi- pose, and has the same effect, in the tation of New York, the right to re- courts of Connecticut as in those of deem the land was likewise barred New York. Watson v. Atwood, 25 in accordance with the rule in Cali- Conn. 319. fornia, although the fact that the Wines v. Woods, 109 Ind. 291, 10 debt was barred would not have such N. E. 399, applied the law of Wis- i 276b] IMMOVABLES. 619 and usages of the place where they are passed or executed, but the effect of acts passed in one country to have effect in another is regulated by the laws of the country where such acts are to have effect," it is held that the question whether an instrument affecting real property in Louisiana is in form and essence a mortgage is to be determined by the law of the place where it was executed, and if according to that law it is a mortgage it must be given effect as a mortgage in Louisiana, where it was intended to operate and have effect, although it is not in es- sence or in form a mortgage according to the law of the latter state. * Again, if the lex rei sitce upon the point in question is merely a rule of construction, and is not exclusive of a contrarv intention, the construction or effect of the instrument may, con- consin, by which a tax deed, regular strument on its face was designated upon its face, is presumptive evi- a "trust deed" and the grantees dence of the regularity of prior pro- "trustees," was, in conformity vfith ceedings, and is prima facie proof of the laws of Iowa, to be regarded as title in the grantee. an assignment for creditors and the And Bronson v. St. Croix Lumber grantees as assignees, so that a judg- Co. 44 Minn. 348, 46 N. W. 570, ap- ment rendered against them in Iowa plied another statutory provision of as assignees was as valid as though Wisconsin, by which such a deed be- it had been obtained against them comes conclusive evidence of title in as trustees. the grantee after lapse of the statu- ^ Gates v. Gaither, 46 La. Ann. 286, tory period of limitation. 15 So. 50. Schee v. La Grange, 78 Iowa, 101, So, Miller v. Shotwell, 38 La. Ann. 42 N. W. 616, held that the charac- 891, held that an instrument executed ter of a conveyance of real property in Alabama between a citizen of that made for the benefit of creditors, and state and a, citizen of Louisiana upon the legal stati's or relationship of real property in Louisiana, shown to the grantees to the parties for whom be a mortgage according to the law they act under the terms of the in- of Alabama, will be treated as such strument, are to be determined by by the courts of Louisiana; but that the law of the state where the land the law of Louisiana under which a is situated, rather than by the law mortgage does not of itself operate of the state where the instrument as a devestiture of title will be ap- was executed. It was accordingly plied to it. held that a conveyance made in So, a deed of trust executed in Pennsylvania of land in Iowa for the another state upon real property in benefit of creditors, though the in- Louisiana to secure the payment of 620 LAW OF THINGS. [Chap. VIL fonnably to the presumed intention of the parties, be referred to the lex loci contractus.^ The general capacity to convey the title to, or an interest in,, real property is clearly to be determined by the lex rei sitcej^'^ but, as elsewhere ^ ^ shoAvn, assuming a general capacity by the lex rei sitae, it is not so clear, either upon principle or authority,, that the capacity to convey, for a particular purpose, e. g., the- capacity of a married woman to mortgage her real property as security for a debt of her husband, is to be determined by the- lex rei sitae, to the exclusion of the lex loci contractus, when the- law of the place where the property is situated with reference to- such purpose, though broad enough to cover contracts relating to real property, does not relate distinctively or primarily to such contracts, but embraces generally all contracts executed for the- purpose in question. A voluntary power of attorney to convey land must be exe- cuted in the manner prescribed by the lex rei sitae ;^^ but when so executed it is effectual wherever the place of its execution may have been, unless it is contrary to some law of the situs of the promissory notes -will be enforced as the intention of the parties, and that a conventional mortgage. Pickett v. the use of the -words "mortgage and Foster, 36 Fed. 514. -warrant," in view of the provisions - In Brown v. National Bank, 44 of the Indiana statute and the execu- Ohio St. 269, 6 N. E. 648, it was held tion of the mortgage in that state, that a, mortgage upon land in Ohio, was illustrative of the intention of executed and delivered in Indiana, the parties that the fee simple should containing the operative words pass, "mortgage and warrant," which, by i" See ante, § llSc. the law of Indiana, are sufficient to n See ante, § 118c. pass ii fee simple estate in the lands i^Butterfield v. Beall, 3 Ind. 203; mortgaged without the use of the Morris v. Lititon, 61 Neb. 537, 85 N. v.'ord "heirs," was not defeated or W. 565; Lititon v. Moorhead (Pa.) extinguished by the death of the 59 Atl. 264. mortgagee. The decision was upon In Garrick v. Chamberlain, 97 111. the ground that the general rule that 020, where it was held that com- the use of the word "heirs" is es- pliance with the law of the state gential to a conveyance of a fee sim- where the power of attorney was pip was not absolute, but subject to executed was sufficient although the- I 276b] IMMOVABLES. 621 property. It is otherwise, however, when the person who under- takes to convey another's land does not derive his authority from the latter, but from a judgment or order of a court of a state or ■country other than that in which the property is situated, though, as elsewhere^* shown, such a court has jurisdiction, under some See Watson v. Atwood, 25 Conn. 636 LAW OF THINGS. [Cha.p. VH. A demand made upon a mortgagee in another state is insuf- ficient to subject him to the penalty prescribed by a statute of the state in which the mortgaged land is situated for refusal to discharge the same. * But it has been held that an act making it punishable to convey land without title applies as well to in- struments executed within the state purporting to convey land situated beyond the territorial limits of the state as to those purporting to convey lands within such limits.® b. Reasons for rule. 277. Generally. — The following reasons, which may be sug- gested for this conclusion, are here stated in brief, and will be further examined when we reach the subject of movables. 278. Tenure of land to be determined by national policy. — A sovereignty cannot safely permit the title to its land to be de- termined by a foreign power. Each state has its fundamental policy as to the tenure of land ; a policy wrought up in its his- tory, familiar to its population, incorporated with its institu- tions, suitable to its soil. Thus, in France, Switzerland, Nor- way, and Belgium, and the Rhine provinces of Prussia, the policy of the country encourages peasant proprietorship. ■"■ Un- der this policy large sections of these countries have been so ex- quisitely tilled as to become a garden, while a vast multitude of independent farmers have sprung up whose interests are coupled with the maintenance of stable government and the suppression of communism. To foster this system laws have been passed which prohibit primogeniture and entail, and pro- mote subdivision. In England, on the other hand, a contrary policy prevails ; and, on the assumption tliat the land is best tilled and its resources best brought out by large proprietor- 319 ; Wines v. Woods, 109 Ind. 291, Mr. Mill bases the right of proper- 10 N. E. 399: and Branson v. St. ty in land on a different ground than „ . r r. fH AA T^f oAo AB that in uiovables. The owner of land Cro^x Lumher Go. 44 Mmn. 348, 46 ^^^ ^ ^^^^^^y .^^^ ^^^^^ ^^,y j^ ^^ N. W. 570, ante, § 276c, note 9. far as he is an improver of the soil. ijones v. Fidelity Loan & T. Co. Land is, in its nature, a monopolized 7 S. D. 122 63 N. W. 553. article, and the possessor of it, ac- „ T^ ' '„r X oo ni ■ ai. aiA cordingly, owes certain duties to the ^Kerr v. State, 36 Ohio St. 614. eommunity. These duties the terri- torial legislature alone can deter- iSee Mill's Political Economy, vol. mine, i. book 2, chap. v. $ 278] IMMOVABLES. 637 ships, every facility is given to the massing of large estates, while, through the enormous expenses of conveyances, the mul- tiplication of tenant proprietorships is checked. In England, title to land by occupancy is unknown ; and if known would be discouraged. In the United States, so far as concerns our un- settled territory, it is stimulated, as tending at once to cultivate untilled land and to introduce a hardy population, whose in- terests, like those of the peasant proprietors of France, are con- servative and not communistic or revolutionary.^ 279. And so, as to questions of mortmain and of monopoly. — In Italy and Austria, until very recently, the absorption of land in ecclesiastical foundations was favored. In England and in the United States, on the contrary, such absorption is subjected to specific limitations. In France, in 1880, a policy of violent reaction set in, in accordance with which no ecclesi- astical corporation, unless licensed by the state, is permitted to hold land even when necessary for educational purposes. In the United States such proscription of specific religious bodies, if not unconstitutional, is hostile to the sanction on which our whole system rests. It would be impracticable to apply for- eign policies either of encouragement or of depression in this respect to the United States ; it might be impossible to establish in Europe our principle of equal rights to all religious bodies. Between resident proprietorship and absentee proprietorship, also, the difference is great. By the latter, if permitted in large blocks, the prosperity of a country may be checked and revolution precipitated. Hence, laws regulating alien propri- etorship^ and determining farmers' tenure are peculiarly with- in the province of territorial policy. Between real and per- sonal estate, also, there is this important distinction : The quan- tity of the former within any territory is limited; that of the latter is unlimited. The same antithesis exists between land and population. There can be only a certain quantity of land in a state, but the population can be indefinitely extended. The former, therefore, should be regarded as a trust for the latter. 280. And so, as to the question of alien settlements. — No sov- ereign, adopting a settled policy of this order, can permit it to be invaded from abroad. Such an invasion, however, would take place, if home property should be purchased by foreigners, 2The view of the text is adopted in ^Ante, § 17. Frierson v. WilUam^, 57 Miss. 451. 638 LAW OF THINGS. [Chap. VII. and then declared to be subject to the laws of the country in which such foreigners are domiciled. To prevent such an in- trusion, even in its inception, laws have been adopted in most civilized countries, limiting the right of foreigners to take real estate. In the United States, it is true, this limitation has been very much relaxed, partly from the importance of re- claiming, as soon as possible, untilled land, and partly because no mere prohibition as to legal title can reach fiduciary estates. But the mischief is cured by the adoption of the rule lex rei sitw regit; whoever may be the owner, or wherever the contract was made, the law of the land reigns. No other law, either as to the transfer or control of property, is to intrude. ^ 281. Encumbrances adjudicated by lex rei sitae. — A person, as is argued with great force by Savigny, when purchasing prop- erty whose situation is in a particular land, purchases it sub- ject to the charges, liens, duties, and other legal relations,, which the local law imposes. It is true that this involves a petitio principii in a controversy with a hostile claimant; for the plaintiff's case, in a suit for possession, would be that the lex rei sitae gave title because of the plaintiff's submission to it, and that the plaintiff had title because it was conferred on him by the lex rei sitw. But in a larger sense, viewing the land as an actor, the position seems unanswerable. Ever/ ar- ticle of property is subject to the law of the land where it abides. Whoever chooses to take it, chooses to take it subject to such law. 282. Lex rei sitae must, from nature of things, decide. — Situs must, from the very nature of property, be the arbiter. The mere continuance of a thing in a particular jurisdiction gives possessory title to it in that jurisdiction. The possessor can only be ejected by appealing to that jurisdiction. 283. No other arbiter practicable. — If the lex rei sitw be abandoned, there is no other law that can be invoked. The law of the owner's domieil cannot, because, first, the question gen- erally is, who the owner is, which must be discovered before the law of his domieil is applied ; and secondly, where there are two or more owners with different domicils, we must resort to an arbiter outside of the domieil of either to determine which domieil is to prevail. The lex loci contractios cannot avail; for, when a thing is contended for by parties claiming under hostile contracts executed in different countries, here, also, an iSee ante, § 17; post, § 305. § 283] IMMOVABLES. 639» umpire is required ; and to assume that the lex loci contractus of either contract is to prevail is to assume the very point in dispute. The lav? of the court of process, unless it be the lex rei sitcBj cannot; for in personal actions, such court can only sell a defendant's interest in the thing contended for, vyhich in- terest may be nothing ; and no proceedings in rem will lie, un- less the thing be within the jurisdiction of the court. ^ The- only alternative is the adoption of the lex rei sitce. 284. Merchantable value depends on assertion of rule. — Un- less the lex situs be enforced, property loses its merchantable- value. No two countries agree as to the way in which pur- chasers are to be notified of encumbrances or of prior sales. In England, until comparatively recent years, there was no of- fice for the registry of mortgages on realty; and even now,, there is none in which hypothecations of movables may be re- corded. In some of the states of the American Union, judg- iiients are not liens on real estate until execution issues, and then the lien is limited to thirty days ; in others, a judgment is a lien for six years from its entering; in one, at least (Mary- land), for twelve years. If the lex loci contractus or the lex- domicilii prevail, no person can purchase property with safety. Suppose the lex loci contractus be the test. It will be neces- sary, then, to search the records of every state in which any prior contract may have been executed ; nor even then will it be possible to guard against prior tacit or unrecorded encum- brances which any prior owner may have assumed on his trav- els. Or, if the lex domicilii, which is the alternative usually presented, be taken, the difficulties are even greater. Wher- ever any owner or part owner, present or past, may have been domiciled, there an encumbrance could have been validly cre- ated. The only relief is the adoption of the lex rei sitae. By this is prescribed a field of exploration which is easily defined and as easily examined. ISTo encumbrance exists on the land that the law of its situation does not indicate. A purchaser knows what is the law as to such encumbrances, and knows- where they are to be found. He knows that, subject to thi^ law, he can obtain a perfect title, which the law will defend to- the end.^ iPhil. iv. p. 542; post, § 308. in relation to immovables, says: iLaurent, in the second volume of "Undoubtedly this is true, but it is his treatise on le Droit civil interna- true also of movable property; it is tiorial (1880) p. 299, after criticizing true of right (droit) in general."' the general proposition in the text, "Je I'ai dit et repStfi," he continues,. 640 LAW OF THINGS. [Chap, VII. 285. It alone can give title. — An absolute title to a thing, whether movable or immovable, can only be made through a proceeding in rem.^ But a proceeding in rem can only be in- stituted in a court of the' situs. ^ c. What "immovables" include. 286. They include all interest in land. — Immovables, so far as concerns the applicability of the rule vyhich prescribes the exclusive authoritativeness of the lex rei sitae, include, not merely the land itself, but "all dismemberments of the prop- erty in land, and the right to their enjoyment: As, of servi- tudes; rent-charges; the property in the surface as severed from that of the subsoil, or vice versa; future estates, or par- ticular ones limited in duration ; rights of mortgage, pledge, or lien; the equitable ownership as severed from the legal, or vice versa; and if there be any other real right in any waj falling short of the entire dominion of the soil."^ This is substan- tially the view of the modern Roman law. ^ 287. Distinguishable in this respect from real estate. — It will "dans ees gtudes; le droit est I'ex- must subject such personal estate as prcssion de la vie nationale, comme is distinctively territorial to the lex la langue. Est ce une raison pour rei sitce. I should add that the dif- imposer a I'etranger une langue qui ferenee between my learned critic n'ost pas la sienne, et pour le sou- and myself may be only verbal. He mettre ft un droit qui ne rfipond pas says: "S'il a des lois qui sont r6el- a ses sentiments et 9, ses idfies? La lement fondamentales pour la police consequence logique serai, me semble- d'un 6tat, comme Wharton le sup- t-il, de laisser a I'gtranger sa langue pose, ces lois formeront, par cela et son droit." But we do not leave mfeme, un statut r6el, et par conse- toreigners, when they come to us, the quent I'etranger ne pourra pEis leur use of their language, so far as to opposer sa loi nationale. II est done make that language a legal instru- donne pleine satisfaction aux inter- ment. If they are naturalized, their ets vitaux de la societfi." The ques- deelaration and their oath have to be tion, then, is whether laws regulat- in English. If they acknowledge a ing the title to real estate are laws deed, the acknowledgment has to be of policy. Laurent admits that in English. If they sell property, mortmain laws, and laws forbidding either real or personal, by a docu- the massing of real estate for ecclesi- ment to be recorded, the formal parts astical purposes, are laws of policy, of the document, in order to be effect- Why, then, are not laws prohibiting ive, must be in English. That the perpetuities, and laws requiring the argument in the text applies to such registration of titles, laws of policy? "movables" as are connected with iPos*, § 664. the political interests of the estate zwheaton, i. p. 145; Story, Confl. (e. g., railroad and bank securities), L. §§ 551, 559; Bar, p. 2K I concede. But the consequence is, iWestlake, Private International not that we must subject real estate Law (1858), art. 65. to t'ue lex domioiUi, but that we ^Merlin, K6p. de Jur. p. 119. § 287] IMMOVABLES. 641 be seen that iBterests in land less than freehold, mortgages, and leases, which, by the English common law,^ are personalty, are immovables by the Roman law.^ Judge Story ^ gives a defi- nition of immovables which leaves very little in the way of movables, so far as value is concerned, to which the owner's lex domicilii can attach. After classing with immovables "servitudes and easements, and other charges on lands, as mort- gages and rents," he adds to the same category, "all other things, though movable in their nature, which, by the local ]aw, are deemed immovable." This, then, leaves the question to the lex rei siiw to decide.* Leaseholds, though personal estate by the English law, are yet regarded by English courts as im- movables in their international relations.^ d. Indirect extraterritorial jurisdiction asserted over immov- ables. 288. Chancellor may compel party to do equity as to foreign immovables. — Notwithstanding the rigor with which the Eng- lish courts have applied the lex rei sitw to immovables, the court of chancery has claimed the right to compel parties, sub- ject to its jurisdiction, to take specific action with regard to foreign real estate. Thus, an injunction has been granted to restrain the prosecution of claims for such foreign realty;^ ^Despard r. Churchill, 53 N. Y. tate acquires the character of per- ^92. sonal property in accordance with the 2See Dr. Briuis's excellent disser- , , , ' j. j. j. i.- i. -4. • tation in HoltzendorflEs Encyclo. ^^^ °f ^he state to which it is re- Leipzig, 1870 p. 240. moved. Minor v. Card-well, 37 Mo. sConfl. L. § 447. 350, 90 Am. Dec. 390. 4 The preliminary question whether iFrehe v. Garlery, L. R. 16 Eq. "«t ^^^ P^'^^""' - itor, within the jurisdiction of the resultmg or constructive trust in real court, to vacate a fraudulent pur- property in another state or country, chase of real estate in the West In- Massie v. Watts, 6 Cranch, 148 3 L dies, says: "To the extent of this „j loi r.? j n 7 nT . > decision: perhaps, there may not be «^- ^^^' ^'°P*°" ^- •S'"'^^'"' 27 Ark. any well-founded objection; and the 482; Whitney v. Frisbie, 6 D. C. 262; same doctrine has been repeatedly Moore v. Jaeger, 2 MacArth. 465; acted upon by the equity courts of sturdevant v. Pike, 1 Ind. 277 ; Mao- America." For this he cites Massie „ it, „ r. -, V. Watts, 6 Cranch, 148, 158, 3 L. ed. <^"^°'" ^- ^"-"Gregor, 9 Iowa, 65; 181, 185; Ward, v. Arredondo, Hopk. McQuerry v. GilUland, 11 Ky. L. Rep. Ch. 213, 14 Am. Dec. 543; Mead v. 056, 7 L. R. A. 454, 12 S. W 1037 i^^'l^o I ^'''fo/oo'A -'^'n'"'"««« 1038; Hawley v. James, 7 Paige, 213, Bunch, 2 Paige, 606, 22 Am. Dec. 669. „, , ^ „„„ „ 6 > > 32 Am. Dec. 623; Gardner v. Ogden, A court of one state having per- 22 N. Y. 327, 78 Am. Dec. 192; Mil- sonal jurisdiction of the trustee may ler v. Birdsong, 7 Baxt. 531. It is compel the execution of a trust with intimated, although not authorita- reference to real property in another tively decided, in Pickett v. Fergu- state by compelling him to pay over, son, 86 Tenn. 642, 8 S. W. 386, that or account for, the sum for which the the jurisdiction with respect to lands land was sold. Henderson v. McBee, in another state is limited to cases 70 N. C. 219; Dickinson v. Hoomes, of express contract, direct trust, and 8 Gratt. 353, 410. actual fraud. The decision, however. Or, in a proper case, by coinpelling which denied anv relief under a bill § 288] IMMOVABLES. 645 whom the decree acts, and the party asking for the decree.-"' And either the defendant must be domiciled within the juris- diction of the court granting the relief, or the contract must be performable within that jurisdiction.^^ When these condi- tions exist, and when there is no other way of compelling the execution of a trust, or the prevention of fraud, a court of equity will direct a party subject to it to execute a deed in an- other state ;'^ and such a decree will be regarded as binding to establish a resulting trust in the of international and interstate law, land in Arkansas by reason of its appear to be a condition of the exist- purchase by defendant at a judicial ence of jurisdiction, though it may sale, while holding it under a. lease influence the court in exercising its by claimant, was upon the ground discretion as to assuming jurisdic- that a resulting trust did not arise tion when the result of the suit will under the circumstances ; and the be to affect land beyond its territorial question of the jurisdiction of a court jurisdiction. So, the alternative of Tennessee to entertain the suit, may, by a local statute, be made a assuming the existence of a trust, condition of jurisdiction when plain- was not decided. tiff, also, is a nonresident. Some of ^oEarrison v. Harrison, L. R. 8 the cases which uphold the juris- Ch. 342. diction mention the fact that the de- While the existence of a fiduciary ^^'^^'^^ ^^'^'^"'^ ""^ ^^^ fo"-""' !>"* relation, e. g., that existing between ^"""^ statement, in most cases at . trustee and cestui que trust, is a '«^«*' ^PP^^''^ *° ^^ equivalent only ground of such jurisdiction, it is not *" ^ statement that he was personal- the exclusive ground thereof, as is ^^ «"''J^'=* *" ^^^ jurisdiction; and apparent from the cases cited in note "^^''^ ^o not appear to be any cases, 2, supra, in which jurisdiction has excluding those that turn upon a been assumed to decree the specific ^^"""^ ^^^^""^^ ^^^ ^^""^ ^^^^ '•^f^^^'i performance of contracts relating to ^°' '^^'^^ '^^"'^ ^he jurisdiction be- real property in other states, though ''^""^ *^^ defendant was a nonresi- the relation between the parties was •^'="<^' ^^ ^'^ ^^^ ''««" subjected to the contractual merely, and not fidu- J""sdiction by personal service with- ciary. See also post, § 289a, as to '" ^^^ ^^''^^- P'^actically, of course, the grounds of jurisdiction. *^<= residence or nonresidence of the defendant may be material as bearing "See Blake v. Blake, 18 Week, on the possibility of bringing him Eep. 944; Matthaei v. Galitzin, L. R. personally within the jurisdiction of 18 Eq. 340, 43 L. J. Ch. N. S. 536, 30 the court L. T. N. S. 455, 22 Week. Rep. 700; Norris v. Chamhres, 30 L. J. Ch. N. ..i, 77 r. ^a -rr o j^, „, S. 285, 29 Beav. 246 7 Jur. N. S. 59: ^ '''^""|;:/- ^T*'- ^* ^^ S^ tt*' ^f Rice v. Harheson, 63 N. Y. 493. ' ^- ^^^ ^f^' „^(«'''*'f 7' T^«**«4 « ' Craneh, 148, 3 L. ed. 181 ; Mead v. The alternative of the text does 1'"""'^**',^/?'^^' *?^'o/\*'"''^l ^• , , , ^ , . . , Bunch, 2 Paige, 606, 22 Am. Dec. not, at least upon general principles gOO; Vaughan v. Barclay, 6 Whart. 646 LAW OF THINGS. [Chap. VII. the person acted on by the courts of the situs. ^* But such an equity will not be enforced, if it conflicts with the prescriptions of the lex situs. ^ * We naust remember, at the same time, that the verbal interpretation of a contract for real estate may be governed by the place of the common domicil of the parties, and that they may be bound by the law of such domicil in re- spect to covenants not directly concerning the transfer of land.^^ And whenever jurisdiction is assumed over the owner of foreign immovables, on the ground that he is subject to equities imposed on him by parties under whom he takes, liability is to be determined by the lex situs. ^ ^ 289. Sale by administrator, trustee, or committee of lunatic, of foreign real estate inoperative. — But while a trustee, in order that equity may be done, will thus be ordered to make a sale in a foreign country, yet this sale is not regarded as a sale by the court, but a sale by the trustee, who proceeds according to the law of the situs. A direct jurisdiction over foreign immov- ables no court can assume. Thus, a court of probate has no jurisdiction to direct an administrator to sell foreign real es- tate. Such real estate must be sold, if belonging to a de- cedent's estate, by order of a court of the situs. A deed not so executed is inoperative.^ And a trustee appointed by the 392; McElrath v. Pittsburg & S. B. iWatlcins v. Holman, 16 Pet. 26, Co. 55 Pa. 189; McCurdy's Appeal, 10 L. ed. 874; McElrath v. Pittsburg 65 Pa. 291; Sturdevant v. Pike, 1 d 8. R. Co. 55 Pa. 189; Henry v. Ind. 277. See Wood v. Warner, 15 Doctor, 9 Ohio, 49; Blake v. Davis, N. J. Eq. 81 ; White v. White, 7 Gill 20 Ohio, 231 ; Price v. Johnston, 1 & J. 208. Ohio St. 390. See further, upon this subject. The chancery court of Tennessee post, § 289a. may not compel the heirs of a de- liBumley v. Stevenson, 24 Ohio cedent to convey land located in an- St. 474, 15 Am. Rep. 621. other state to a commissioner ap- KWestlake, Private International pointed by the court for the purpose Law, art. 64; Martin Y Mwrtin, 2 „j j^^^j ^^^ j^^^ j^ ^ Kuss. & M. 507; Waterhouse v. ..?,,,. ,„ , , ^ ^ Stansfield, 10 Hare, 259, 21 L. J. ™ent of the debts of the estate. Bob- Ch. N. S. 881, 16 Jur. 1006, 1 Week, inson v. Johnson (Tenn. Ch. App.) Rep- 11- 52 S. W. 704. i6We*stlakf^{i880) § 165; Martin ^«^' P'-°P^^j7 ''^""^^^ '° °"« '^^^ V. Martin, 2 Russ. & M. 507; Hicks cannot be subjected to the payment V. Povjell, L. R. 4 Ch. 741, 17 Week, of a widow's allowance, either by x Rep. 449; florton v. Florence Land & statute, or by a decree of a court, Publio Works Co. L. R. 7 Ch. Div. „. „„„+,„, /,„ „, ., . 332, 38 L. T. N. S. 377, 26 Week. Rep. °^ ^""^^^'^ ^*^*^' ^'^^^ *^^ "^^'^ "^ 123. the property was domiciled at the § 2R9] IMMOVABLES. 647 court of one state cannot pass title to real estate in another state. ^ 'Not can a committee of a lunatic appointed in one state con- vey land in another.* And a court of equity of one state can- not charge the land of a lunatic in another, or its proceeds in the hands of his heir, for his past support.* 289a. Scope and extent of jurisdiction of equity over suits af- fecting land beyond territorial jurisdiction. — It seems desirable, for the purpose of defining the scope and extent of the peculiar jurisdiction discussed in the last two sections, and of exhibiting additional subjects of its operation, to elaborate somewhat fur- ther upon the principles and distinctions upon which it rests. And, first, it may be premised that real property is subject to the exclusive jurisdiction of the courts of the state or country time of his death. Smith, v. Smith, 425; Olen v. Gibson, 9 Barb. 634; 174 111. 52, 43 L. E, A. 403, 50 N. E. Henry v. Doctor, 9 Ohio, 49. An ex- 1083. ception was made in Barger v. Buck- land, 28 Gratt. 850, however, it ap- 2WilUams v. Maus, 6 Watts, 278, pearing that, at the time of the 31 Am Deo. 465; Bingham's Appeal, ^^^^^^^ ^^ ^^^ ^^^ j^^^ ^^ 64 Pa. 345. The fact that mortgaged land be- within the limits of Virginia, but longing to a deceased person is situ- had subsequently become a, part of ate in a particular state does not ^gg^ Virginia. See Poindexter v. rcompVtrexltt r^^Z ^— «. «2 Va. 507, which distin- another state, to pay such mortgage guishea this case by reason of the out of personal property situate in peculiar circumstances. So, in Smith the latter state. Rice v. Earbeson, y Davis, 90 Cal. 25, 25 Am. St. Rep. oa IN. I. tvo. g2, 27 Pac. 26, it was held that a The statement of the text is also court of California had jurisdiction supported by the following cases, to appoint a new trustee, where the holding that a court of one juris- trustee named in a deed of trust, exe- diction cannot, by its decree appoint- cuted in that state by a person resid- ing a new trustee in the place of one ing there, upon land in another state, named in a will, deed, or other in- cannot act, and the deed expressly strument, affect the real property in stipulated that, in such event, a trus- another; and that a conveyance by tee might be appointed by a court of such substituted trustee is equally competent jurisdiction, ineffectual: Oorbett v. Nutt, 10 Wall. 3 See ante, § 276, note 14. 464, 19 L. ed. 976; Contee v. Lyons, iAllison v. Campbell, 21 N. C. (1 8 Mackey, 207; West v. Fitz, 109 111. Dev. & B. Eq.) 152. 648 LAW OF THINGS. [Chap. VH. m which, it is located. ^ No other courts may properly exercise any jurisdiction over it, and this is as true of courts of equity as of courts of law. Therefore, it is beyond the power of i court of one state or country to entertain a suit in rem in re- spect of land in another, or to render a decree, either in a suit in rem or a suit in personam, which shall, ex propria vigore, affect the title to real property beyond its territorial jurisdic- tion.^ When, however, a case, otherwise properly cognizable in equity, is presented, a court of equity, having personal juris- diction of the parties, may assume jurisdiction of the subject- matter, although land in another state or country may be af- fected, if it can grant effective relief by a decree acting solely upon the person whose title or interest in the land is to be af- fected. In other words, the court may, in a proper case for equitable interference, by virtue of its jurisdiction over such ^Hansel v. Chapman, 2 App. D. C. case, from creating a lien upon land 361; Davis v. Headley, 22 N. J. Eq. in another, indirectly and by means 115. of a decree operating upon the per- iCarpenter v. Strange, 141 U. S. son of the owner of the title, in the 87, 35 L. ed. 640, 11 Sup. Ct. Rep. same manner that it may indirectly 960; Clapton v. Booker, 27 Ark. 482; and by such means accomplish a WilUams v. Nichol, 47 Ark. 254, 1 transfer of the title, as in suits for S. W. 243; Winn v. Strickland, 34 specific performance. Fla. 610, 16 So. 606 ; Rodgers v. A decree of the court of the testa- Rodgers, 56 Kan. 483, 43 Pac. 779; tor's domicil in a suit brought by Lindley v. O'Reilly, 50 N. J. L. 636, the widow against the legatees and 1 L. E. A. 79, 7 Am. St. Kep. 802, others, reciting that the defendants 15 Atl. 379; Johnson v. Kimbro, 3 were heirs of the deceased, and en- Head, 557, 75 Am. Dec. 781 ; Poindex- titled to participate in the distribu- ter V. Burwell, 82 Va. 507; Qihson v. tion of his estate, can have no effect Burgess, 82 Va. 650. upon the real property of the de- So, a, court cannot directly, and by ceased in Kansas. Cooper v. Ives, virtue of its decree alone, create a 62 Kan. 395, 63 Pac. 434. lien upon land in another state. Man- So, a decree rendered in one state sel V. Chapman, 2 App. D. C. 361 ; revoking the probate of a will does Short V. Oalway, 83 Ky. 501, 4 Am. not conclusively affect the title to St. Rep. 168; Ainsley v. Mead, 3 land in another state. Pritchard v. Lana. 116. It is apparent, however, Henderson, 2 Penn. (Del.) 553, i'l that this rule does not prevent a Atl. 376. court of one jurisdiction, in a proper § 289a] IMMOVABLES. 649 person and its consequent power to enforce obedience to its de- crees in personam, compel him to do, with respect to land be- yond its territorial jurisdiction, what it could not itself, and without his intervention, accomplish. It will be observed that the existence of a proper case for equitable interference, as well as the power to grant effective relief by a decree operating solely against the person, is a necessary condition of the jurisdiction. It follows, therefore, that while a court of equity may, in a proper case, compel a person within its jurisdiction to convey land in another state or country, it may not grant such relief in a suit that, in its essence, involves merely the title or possession of the land, and presents no ground of equitable interference.* In other words, if the action is one which, if it related to real property within the territorial jurisdiction, would be at law and not in equity, a court of equity will not assume jurisdiction merely because a court of law cannot entertain an action for the recovery of the title or possession of land beyond its territorial jurisdiction. Chief Justice Marshall defined the jurisdiction as follows: "In a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable wherever the 3 Thus, an action of ejectment, or So, in Thomas v. Eukill, 131 Pa. an action to try the title, cannot be 298, 18 Atl. 875, the jurisdiction of a maintained with respect to land out- bill filed by a second lessee out of side of the territorial jurisdiction of possession of oil lands in another the court. Northern Indiana R. Co. state, alleging a forfeiture incurred V. Michigan G. R. Co. 15 How. 233, by a prior lessee in possession, and 14 L. ed. 674; Davis v. Eeadley, 22 praying for an injunction to restrain N. J. Eq. 115. further operations, and for a decree A court of one state has no juris- declaring the prior lease void, and diction of a suit which, in its es- for an accounting, was denied upon sence, involves the possession of real the ground that, while the proceed- property in another state, such pos- ing was in form a bill in equity, it session not being incidental to the was in substance a possessory action enforcement of a, contract, or trust, involving the title to real estate; or relief from fraud, but being in and that a decree, if rendered, could itself the foundation of the contro- only affect the person of the liti- versy. Lindsley v. Union Silver Star gants, and could not control the title Min. Co. 26 Wash. 301, 66 Pae. 382. to or possession of the land. 650 LAW OF THINGS. [Chap. VII. person he found, although lands not within the jurisdiction of that court may be affected by the decree."* This statement has been frequently quoted and approved by the courts ;° but its author probably meant nothing more than that the suit must, independently of the fact that the land is beyond the territorial jurisdiction, be reducible to some head of equitable jurisdiction. He certainly did not mean to extend the jurisdiction to every case arising out of contracts relating to foreign land, whether such as would otherwise be cognizable at law or in equity. For practical purposes, therefore, it may be said that a court of equity will not, by virtue of its jurisdiction over the person, compel him to take action with respect to real property beyond the territorial jurisdiction, unless a case is presented of which equity might take cognizance if the land were within its ter- ritorial jurisdiction. The converse of this proposition, how- ever, is not necessarily true, for the location of the land within the territorial jurisdiction of a court of equity may enable it to grant relief by a decree in rem which could not be effectively granted by a decree in personam.^ More specifically, a court of equity having personal jurisdic- tion of the parties may entertain any suit otherwise cognizable in equity, — or, at least, any such suit arising out of fraud, of trust, or of contract — in which effective relief may be granted by a decree requiring a conveyance of land in another state or country; and such conveyance, when duly executed pursuant to the decree and in the manner required by the lex rei sitae, is iMassie v. Watts, 6 Cranch, 148, tition of land beyond the territorial 3 L. ed. 181. jurisdiction, upon the ground that, 5 See Carpenter v. Strange, 141 U. in order to make partition, it would S. 87, Z^ L. ed. 640, 11 Sup. Ct. Eep. be necessary for the court, by its of- 960; Binney's Cvse, 2 Bland, Ch. 99; fleers, to invade the soil of another De Klyn v. TV atkins, 3 Sandf . Ch. jurisdiction. See cases cited ante, 185. § 288, note 5, especially Wimer v. 6 This is illustrated by the denial Wimer, 82 Va. 890, 3 Am. St. Rep. of jurisdiction of suits for the par- 126, 5 S. E. 536. § 289a] IMMOVABLES. 661 as effective, not only in the state or country where the decree is rendered, but in that where the land is located, as if it had been voluntarily executed.'' It is the conveyance pursuant to the decree, however, and not the decree itself, that passes the title; and the decree without the conveyance does not affect the legal title. * Nor will the courts of the state or country in which the land is located enforce the decree by compelling a conveyance. ' This must be done by the court which rendered the decree by means of attachment, or other process against the person. It has been held, however, that a decree, even without such con- veyance, is conclusive of all the rights and equities of the par- ties adjudicated therein when pleaded in the courts of the state in which the land is located, and may be relied upon as a de- fense to a suit in the latter state for the possession of the land under a statute of that state admitting equitable, as well as le- iMassie v. Watts, 6 Cranch, 148, iWathins v. Holmam, 16 Pet. 25, .S L. ed. 181; Corlett v. Nutt, 10 10 L. ed. 873; Gorlett v. Natt, 10 Wall. 464, 19 L. ed. 976; Tardy v. Wall. 464, 19 L. ed. 976; Carpenter v. Morgan, 3 McLean, 358, Fed. Gas. Strange, 141 U. S. 87, 35 L. ed. 640, No. 13,752; MoGee v. Sweeney, 84 11 Sup. Ct. Eep. 960; Tardy v. Mor- Cal. 100, 23 Pac. 1117; GilUland v. gan, 3 McLean, 358, Fed. Gas. No. Inabnit, 92 Iowa, 46, 60 N. W. 211; 13,752; Bullock v. Bullock, 52 N. J. Seixas v. King, 39 La. Ann. 510, 2 Eq. 561, 27 L. R. A. 213, 46 Am. St. So. 416; Treeland v. Vreeland, 49 Rep. 528, 30 Atl. 676; Lindley v. N. J. Eq. 322, 24 Atl. 551; Bullock O'Reilly, 50 N. J. L. 636, 1 L. R. A. V. Bullock, 52 N. J. Eq. 561, 27 L. 79, 7 Am. St. Eep. 802, 15 Atl. 379; R. A. 213, 46 Am. St. Rep. 528, 30 Johnson v. Kimbro, 3 Head, 557, 75 Atl. 676; Mead v. Merritt, 2 Paige, Am. Dec. 781; Morris v. Hand, 70 402; Mitchell v. Buneh, 2 Paige, 606, Tex. 481, 8 S. W. 210. 22 Am. Dec. 669; Moseby v. Burrow, Dam,iels v. Stevens, 19 Ohio, 222, 52 Tex. 396; Morris v. Hand, 70 Tex. held that a law of Ohio, by which 481, 8 S. W. 210; Farley v. Shippen, a decree for the conveyance of land Wythe, Ch. (Va.) 135. operates as a. conveyance, does not This principle is also applied by apply with respect to land out of the cases cited in ante, § 288, which the state. uphold the jurisdiction of suits for ^Dams v. Headley, 22 N. J. Eq. the specific performance of contracts, 115; Bullock v. Bullock, 52 N. J. Eq. and the enforcement of trusts, relat- 561, 27 L. R. A. 213, 46 Am. St. Rep. ing to real property beyond the ter- 528, 30 Atl. 676; Burnley v. Steven- ritorial jurisdiction. son, 24 Ohio St. 474, 15 Am. Rep. 621. 652 LAW OF THINGS. [Chap. VII, gal, defenses.**' Not only is tlie decree without a conveyance ineffectual to pass the title, but the conveyance must be executed by the very person vs^hose title or interest is to be affected. A conveyance by a master or commissioner, or other officer ap- pointed by the court for that purpose, is ineffectual. * * The ju- risdiction which a court of equity possesses over suits for the specific performance of contracts, and the enforcement of trusts,, relating to real property in another state or country, is refer- able to its power to grant effective relief by a decree in personam requiring a conveyance. And so, by virtue of the same power,^ such court may entertain a suit to remove a cloud upon title to,*^ or to cancel and discharge a void mortgage^* upon, land in another state. Tor the same reason a suit will lie for the strict foreclosure of a mortgage upon land beyond the terri- torial jurisdiction;'^* and a court of equity may entertain a suit to foreclose such a mortgage, even when a sale of the prop- erty is necessary, if it has personal jurisdiction of the parties sought to be foreclosed, so that they may be required, by a de- cree in personam, to release and convey to the purchaser at the But see contra, Bohlvn v. Long, 60 151, 28 L. ed. 101, 3 Sup. Ct. Hep. How. Pr. 200; Dunlap v. Byers, 110 586, to the effect that the decree in Mich. 109, 67 N. W. 1067, note 23, such a, case, unless otherwise pro- infra. vided by statute, is not a judgment ^0 Burnley v. Stevenson, 24 Ohio in rem establishing a title in land, St. 474, 15 Am. Rep. 621. but operates in personam only by re- iiWaffctws V. Holman, 16 Pet. 25, straining defendant from asserting 10 L. ed. 873; Corbett v. Nutt, 10 his claim and directing him to de- Wall. 464, 19 L. ed. 976; Farmers liver up his deed to be canceled, or Loan & T. Co. v. Postal Teleg. Co. 55 to execute a release to the plaintiff. Conn. 334, 3 Am. St. Rep. 53, 11 Atl. iiWilliams v. Pitzhugh, 37 N. Y. 184; Mchawrin v. Salmons, 11 B. 444; Williams v. Ayrault, 31 Barb. Mon. 96, 52 Am. Dec. 563 ; Burnley v. 368. Stevenson, 24 Ohio St. 474, 15 Am. ^Toiler v. Carteret, 2 Vern. 495; Rep. 621; Moseby v. Burrow, 52 Tex. House v. Lookwood, 40 Hun, 532; 396; Morris v. Band, 70 Tex. 481, 8 Paget v. JSde, L. R. 18 Eq. 118, 43 S. W. 210. L. J. Ch. N. S. 571, 30 L. T. N. S. i2iJemer v. Mackwy, 35 Fed. 86. 228, 22 Week. Rep. 625. See also Hart v. Samsom, 110 U. S. « 289a] IMMOVABLES. 653 sale. ^ ^ This jurisdiction has been frequently exercised in case ■of railroad mortgages covering property in two or more states. In such case it is, of course, the conveyance and release by the mortgagor or other holder of the legal title, rather than the deed executed by the officer of the court, that operates to pass the title to that part of the property beyond the territorial juris- diction. Likewise, a court of equity may entertain a suit to have a deed, absolute upon its face, of land in another state, de- UMuller v. Dows, 94 U. S. 444, 24 Rep. 53, 11 Atl. 184; Eaton & H. R. L. ed. 207; International Bridge & Co. v. Hunt, 20 Ind. 457; Farmers' Tramway Co. v. Holland, Trust Go. Loan & T. Co. v. Bankers & M. Teleg. 26 C. C. A. 469, 52 U. S. App. 240, 81 Go. 44 Hun, 400; Pittsburgh & State Fed. 422; McTighe v. Macon Gonstr. Line R. Co. v. Rothschild (Pa.) 4 Co. 94 Ga. 306, 32 L. E. A. 208, 47 Cent. Rep. 109, 4 Atl. 385, holding Am. St. Rep. 153, 21 S. E. 701 ; that a decree, foreclosing a mort- Eaton V. McCall, 86 Me. 346, 41 Am. gage upon property located in two St. Rep. 561, 29 Atl. 1103; Brown v. or more states and used as an en- Chesapeake £ 0. Canal Co. 73 Md. tirety, did not affect so much of the 567; Union Trust Co. v. Olmsted, 102 property as was outside of the state N. Y. 729, 7 N. E. 822; McElrath v. in which the decree was rendered, — Pittsburg d 8. R. Go. 55 Pa. 189. would be distinguishable upon the Guarantee Trust & 8. D. Co. v. Del- same ground, since, so far as appears, ta & Pine-Land Go. 43 C. C. A. 396, the decree in none of these cases 104 Fed. 5, held that a sale of lands, made any provision for a deed of owned by a railroad company in Mis- assurance by the mortgagor, siasippi, by a master or commissioner Grey v. Manitoba & N. W. R. Go. appointed by a decree rendered in the [1897] A. C. 254, 66 L. J. P. C. N. S. United States circuit court for the 66, however, holds, upon general western district of Tennessee in a principles, that a court of a province suit to foreclose a mortgage upon has no power to order a sale as an the property, did not affect the title, entirety of a division of a railway, since the court had no jurisdiction part of which is within, and part to decree the sale. This case, how- without, its territorial jurisdiction, ever, is expressly distinguished from Eaton v. McCall, 86 Me. 346, 41 Muller V. Dows, 94 U. S. 444, 24 L. Am. St. Rep. 561, 29 Atl. 1103, as- ed. 207, upon the ground that there serts the jurisdiction of the court was no provision in the decree re- in a proper case to foreclose a quiring a conveyance by the trustees mortgage upon land in another state named in the mortgage, or by the and make the decree effective by a mortgagor. deed requiring the mortgagor to con- It would seem that the decisions in vey ; but holds that the court will farmers' Loan d T. Co. v. Postal not exercise such jurisdiction where Teleg. Co. 55 Conn. 334, 3 Am. St. the entire property is situated with- 654 LAW OF THINGS. [Chap. VIL clared a mortgage, ^ * or a suit for the relief of a party who has been fraudulently deprived of the title to real property in an- other state or country, since the requisition of a reconveyance affords an adequate means of relief;^'' but the beter opinion seems to be that a creditor cannot, for the purpose of subjecting land in another jurisdiction to the exigencies of execution, maintain a bill to set aside a conveyance by the debtor upon out the state, and no reason is shown A court of equity of one state has why the mortgage cannot be fore- jurisdiction of a suit to set aside a closed, according to the laws of the conveyance of land in another upon place where the land is situated, the ground of fraud. DeKlyn v. Wat- without loss or great inconvenience. kins, 3 Sandf. Ch. 185. iiClwrk V. Seagrea/ves (Mass.) 71 A court of Texas has jurisdiction N. E. 813; Reed v. Reed, 75 Me. 264. of a suit to rescind a sale of land In lAndley v. O'Reilly, 50 N. J. L. therein on the ground of fraud and 636, 1 L. K. A. 79, 7 Am. St. Eep. lack of consideration, notwithstand- 802, i5 Atl. 379, it was held that a ing that the purported consideration decree rendered in Pennsylvania de- was the conveyance of land in Ten- claring that a deed of land in New nessee to which it is alleged the de- Jersey, absolute upon its face, was fendant had no title, and which intended as a mortgage, and that the therefore constituted no considera- debt secured had been paid, and di- tion for the conveyance of the Texas recting a reconveyance, did not af- land. Paul v. ChenauU (Tex. Civ. feet the title to the land in the ab- App.) 59 S. W. 579. sence of a conveyance pursuant to Fryer v. Meyers (Tex.) 13 S. W. the decree; but it seems to have been 1025, assumed that a, court of an- assumed that such a conveyance other state having jurisdiction of the would have been effective. parties had jurisdiction to declare Ounn V. Harper, 30 Ont. Rep. 650, an exchange of lands void and re- while intimating that such relief quire reconveyance, but held that might be granted as against the orig- such a decree did not, of itself, and inal grantee if he had not conveyed in the absence of a, conveyance pur- the land to others held that such suant to the decree, devest the title relief could not be granted as against to land in Texas, subsequent grantees. So, inGooley v. Scarlett, 38 111. 316, 17 A court of equity of Tennessee 87 Am. Dec. 298, the court said that having jurisdiction of the parties has it could not affirm a decree cancel- jurisdiction of a suit to compel one ing, upon the ground of fraud, deeds of them to execute a, deed to land to real property in another state; in Arkansas in lieu of one which but that the decree might be re- he had previously executed and modeled so as to bring it within the fraudulently destroyed. Pillow v. principles of chancery jurisdiction. King, 55 Ark. 633, 18 S. W. 764. by compelling the defendants to exe- § 289a,] IMMOVABLES. 655 the ground tliat it was fraudulent as against his creditors;*® and it has been held that a suit will not lie by a creditor in one jurisdiction to have a mortgagee of land in another declared a cute to the complainajit the release ed. 181, clearly covers cases of fraud of all claims acquired through the where the party seeking relief has deeds adjudged to be fraudulent, and been wrongfully deprived of his legal if the defendants refused to do so title to real property, they could be attached for contempt. isNicholson v. Leavitt, 4 Sandf. The decision in Cumberland Goal 252; Burns v. Davidson, 21 Ont. Rep. it I. Go. V. Hoffman Steam Coal Co. 547, Approved in Purdom v. Pavey, 30 Barb. 159, that a, court of New 26 Can. S. C. 412; and hide v. Par- York will not entertain a suit be- fcer, 60 Ala. 165, held that the Ala- tween two Maryland corporations to bama statute, enabling a creditor annul a, conveyance of land in the lat- without a lien to file a bill to sub- ter state on the ground of fraud, the jeet to the payment of his debt prop- conveyance having been executed and erty fraudulently conveyed by his acknowledged in Maryland and put debtor, did not apply to real prop- upon record there, is not referable to erty in another state. The distinc- general principles, but to a provision tion between such a case and the of the Code defining the rights of cases cited in the last note is brought nonresidents to bring actions against out by the following quotation from foreign corporations. Mussina v. Al- the opinion in Burns v. Davidson, 21 ling, 11 La. Ann. 568, held that a Ont. Rep. 547: "Where fraud exists court of Louisiana had no jurisdic- in respect to specific property out tion to compel a reconveyance of of the jurisdiction, whereby in con- land in Texas upon the ground of science it should be the property of fraud, although the defendant was the rightful claimant as against the personally within its jurisdiction, fraudulent holder, these being with- This decision is upon the ground that in the jurisdiction, a court of equity equity, as a distinctive branch of ju- can decree according to the equities risprudence, with its peculiar prin- and operate on the person of the de- ciples and rules relating to juris- fendant so that he shall convey the diction, had never been adopted in land to the one entitled. But where Louisiana. This decision, however, the manner of the relief is, as here, seems to have been in effect overruled not to order conveyances, inter by Seixas v. King, 39 La. Ann. 510, 2 partes, but to subject land to the So. 416, which clearly asserts the exigencies of execution, then no per- power of a court to grant relief with sonal judgment can touch the real respect to land beyond the territorial result to be accomplished." jurisdiction if it can do so by a de- Eirdahi v. Basha, 36 Misc. 715, 74 cree acting solely upon a person N. Y. Supp. 383, however, upheld the within its jurisdiction. jurisdiction of a court of New York It will be observed that this pe- of a suit in equity by a judgment culiar jurisdiction, as defined in creditor to have a mortgage, exe- Massie v. Watts, 6 Cranch, 148, 3 L. cuted by the debtor upon land in 656 LAW OF THINGS. [Chap. VII. trustee for the debtor, and the proceeds of the mortgage applied to the discharge of the debt upon the ground that the debtor was the real mortgagee, and that the other person was named as such for the purpose of defrauding the creditors.^* The jurisdic- tion of a court of equity, by virtue of its power to require a con- veyance of land beyond its territorial jurisdiction, doubtless extends to other cases for equitable relief in which the ultimate purpose is to affect the title to, or interest in, lands beyond the jurisdiction. ^ " It is not to be inferred that the jurisdiction is confined to eases in which the requisition of a conveyance affords an ade- quate means of granting relief. The existence of any other means of granting relief by a personal decree is sufficient to up- hold the jurisdiction if a case for equitable interference is oth- New Jersey, declared fraudulent and 20 A court of equity may enter- void, and to compel the mortgagee to tain a suit by a wife to obtain a set- execute and deliver a satisfaction of tlement out of her equitable estate it, and restraining both mortgagor if the husband is within its juris- and mortgagee from transferring or diction, notwithstanding that the assigning any interest in the land real property involved is in another pending an action in a New Jersey jurisdiction. Guild v. Guild, 16 Ala. court to obtain satisfaction of the 121. judgment out of the land in that A court having jurisdiction of the state. The decision, which rests upon parties may relieve against the fer- tile idea that a decree compelling a feiture of a lease of mining property release of the mortgage operates in in another state for nonpayment of personam, is of doubtful authority, rent, although it cannot restore the since such a release would extinguish property to the possession of the the mortgage, which, at the most, is lessee. Sunday Lake Min. Co. v. only invalid as against the judgment Wakefield, 72 Wis. 204, 39 N. W. 136. creditor, and is valid as between the If, as has been shown, a court has parties to it. jurisdiction in a proper case to com- Bailey v. Ryder, 10 N. Y. 363, held pel a conveyance by defendant of land that a court of chancery of New in another state, it is apparent that York has jurisdiction upon a cred- the fact that such a, conveyance by itor's bill to compel the debtor to complainant is a condition of the re- convey lands owned by him in an- lief sought by him is no objection to other state to a receiver. the jurisdiction. See Loaiza v. Supe- T-^Purdom v. Pavey, 26 Can. S. C. rior Court, 85 Cal. 11, 9 L. R. A. 376, 412. 20 Am. St. Rep. 197, 24 Pac. 707. § 289a,] IMMOVABLES. 657 erwise presented. ^ ^ Thus, as shown in ante, § 288, the court? have, under some circumstances, granted injunctions to restrain the prosecution of actions with reference to foreign real prop- erty; and they have assumed jurisdiction to enjoin other aits with reference to such property. ^^ And in one case the court, in exercise of its jurisdiction in personam, compelled a resi- dent creditor of an insolvent to turn over to a syndic or assignee the proceeds of real property of the insolvent in another state, 21 Thus, a court of one state has A citizen of the state may be en- jurisdiction of a suit to reform a joined by a mortgagee of real prop- deed of land in another by incorporat- erty located in another state, from ing therein a personal covenant of removing fixtures therefrom. Sch- seisin. Bethell v. Bethell, 92 Ind. maltz v. York Mfg. Co. 204 Pa. 1, 318. The decision is upon the ground 59 L. R. A. 907, 93 Am. St. Kep. 782, that a decree reforming a mistake 53 Atl. 522. operates upon the contract and par- It was held in Northern Indiana ties, and, where the contract is made R. Go. v. Michigan G. B. Co. 15 How. in the state where the parties re- 233, 14 L. ed. 674, however, that a side, a suit to reform is properly United States circuit court for the brought in that state. district of Michigan had no juris- 2 2 Thus, a person within the juris- diction of a suit by an Indiana cor- dietion may be enjoined from inter- poration, claiming an exclusive right fering with a right of way over land under its charter to build and main- in another state. Alexander v. Tol- tain a railroad in a certain part of leston Club, 110 III. 65. Indiana, to enjoin the defendant from A resident of the state may be constructing a road within such ter- enjoined from going into another ritory. slate, and committing acts injurious Willey v. Decker (Wyo.) 73 Pac. to the property of the complainant 210, held that a court of Wyoming there. Great Falls Mfg. Co. v. Wor- had jurisdiction, at the instance of ster, 23 N. H. 462. owners of land in Montana who had A court of equity having juris- acquired by prior appropriation the diction of the person of defendant right to use for irrigating their land may enjoin him from conveying real the water of a stream by means of property in another state to third a ditch and headgate in Wyoming, to persons, at the instance of a grantee restrain others from diverting the in a deed from him which was so water by means of ditches located defectively acknowledged that it in Wyoming or in Montana, cculd not be recorded so as to charge And Miller v. Mickey, 127 Fed. 573, third persons with notice, although held that a Federal court sitting in sufficient to pass the legal title. Nevada had jurisdiction, at the in- Frank v. Peyton, 82 Ky. 150. stance of the owners of land in that Vol.. I. CoNFL. OF Laws — 42. \ 658 LAW OF THINGS. [Chap. VII. which such creditor had procured to be sold under attachment in the latter state. ^* A court of equity has ample jurisdiction of a suit for an accounting of the proceeds and profits arising from real property in another state or country,^* though, if it is sought in such a suit to determine the respective rights of the parties in the real estate itself, the requisition of a convey ance is ordinarily necessary.^® It is obvious that the fact that the land which is to be af fected by the result of the suit is beyond the territorial juri- diction may vary somewhat the form of the relief.^* For ii state, to enjoin defendant from profits and for a partition of the wrongfully diverting, in California, land is good as to the profits which waters of a stream which flowed are in the personalty, but not as to through the complainants' land. the partition which is in the realty; ^iRayden v. Yale, 45 La. Ann. 362, for a, commission to make partition 40 Am. St. Rep. 232, 12 So. 633. cannot be awarded in Ireland. ^iPeninsular Trading & Fishing 2 6 Thus, in Gates v. Paul, 117 Wis. Co. V. Pacifio Steam Whaling Go. 123 170, 94 N. W. 55, which was an ac- Cal. 689, 56 Pac. 604; Wood v. War- tion for the dissolution of, and an ner, 15 N. J. Eq. 81 ; Reading v. Hag- accounting under, a partnership gin, 58 Hun, 450, 12 N. Y. Supp. 368. formed for the purpose of dealing In Be Hawthorne, L. R. 23 Ch. in land in other states, it was said Div. 743, 52 L. J. Ch. N. S. 750, 48 that the courts of Wisconsin have L. T. N. S. 701, 32 Week. Rep. 147, jurisdiction of an action in personam, however, the court dismissed, for though it may indirectly relate to want of jurisdiction, a suit for an lands in a foreign state or country accounting of the purchase money by seeking to compel the defendant arising from a sale of real property to convey such land, or some inter- in Saxony, notwithstanding that the est therein, to the plaintiff, parties were temporarily in England In Dunlap v. Byers, 110 Mich. 109, and within the jurisdiction of the 67 N. W. 1067, a court of Michigan court, it appearing that their rights gave effect to a decree rendered in depended primarily upon the law of Ohio in a suit for the dissolution of Saxony as to the devolution of prop- a partnership, and an accounting, erty in that country, and there being which directed a sale of land of the no contract, fraud, or trust, in the partnership in Michigan, the land case. having been purchased by one of the So, in Cartright v. Pettus, 2 Ch. parties to the suit, and the other Cas. 214, 1 Eq. Cas. Abr. 133, 2 party having been ordered by the de- Swanst. 324 note, it was said that eree to quitclaim, but never having a bill between joint tenants of land done so. in Ireland for an accounting of the 2 6 Thus, in Vreeland v. Treeland, IMMOVABLES. 659 stance, it is not ordinarily necessary to include a provision for a conveyance by the mortgagor or owner of the equity of re- demption, in a decree foreclosing a mortgage upon real property within the territorial jurisdiction; but, as has already been shown, such a provision is indispensable in case of a decree with reference to real property beyond the territorial jurisdiction. The powers of a court of equity, however, are adequate to ad- just the form of relief to the exigencies of the case arising from the location of the property beyond the territorial jurisdiction, so long as it does not undertake to grant, in the form of an equitable decree in personam, relief to which the parties are not entitled in any form of action, or which is only obtainable in an action at law. 290. Exception as to injury to land in another state. — An English court has no jurisdiction of injuries sustained by for- 49 N. J. Eq. 322, 24 Atl. 551, the International Bridge & Tramway court said that a decree of a court Go. v. Holland Trust Co. 26 C. C. A. of chancery is not erroneous, so far as 469, 52 U. S. App. 240, 81 Fed. 422, it adjudges that a deed of land in is an example of a case where the another state is inoperative and remedy is adjusted to the exigencies without legal force for want of de- of the case. That was a suit to livery, where it further directs that foreclose a mortgage on a bridge lo- either of the parties shall be at lib- eated partly in Texas, and partly in erty to apply for further aid and di- Mexico; and the decree directed a, rection as the occasion may require, sale of the bridge by a special mas- since the chancellor may render the ter, and the bridge company was re- decree effective by constraining the quired to execute to the purchaser grantee in the deed to execute a re- conveyances good and sufficient un- eonveyance. der the law of Texas, for such part So, in Union Trust Co. v. Olmsted, of the bridge as was situated in 102 N. Y. 729, 7 N. E. 822, the court that state; and good and sufficient held that an ordinary decree of fore- conveyances according to the law of closure of a mortgage directing a sale Mexico for such part of the bridge of a part of the mortgaged premises as was in Mexico. The requirement situated in another state could be of a conveyance as to the part of the amended, even after a sale, by a pro- bridge in Texas was, perhaps, un- vision requiring the mortgagor to necessary, but it was clearly neces- execute to the purchaser a deed of sary with respect to the part of tlie the mortgaged property lying outside bridge in Mexico, the state. 660 LAW OF THINGS. [Chap. VII. eign real estate, even if the aggressor be a domiciled English- man/ though it seems the parties may bind themselves by an agreement not to set up defect of jurisdiction.^ In this coun- try we have numerous rulings to the effect that an action for injuries to land must be brought in the state where the land is situated.^ Hence an action for cutting down telegraph poles (regarded as part of the land) can only be maintained in the state where the offense was committed.'* But it has been held that where a wrongful act is done in one state from which an injury to land accrues in another state, the defendant may be sued in either state. ^ And it has been also held that to exempt the defendant in an extraterritorial suit, the plaintiff's cause of action must rest on an injury to something attached to the realty, which is not the case when the thing injured is a mov- able fishing shanty.® 290a. Actions arising out of contract or tort affecting real property in another jurisdiction. — It is apparent from the last section that an action affecting the title to, or an interest in, real property, and presenting no ground of equitable intervention, is local, and cannot be maintained outside of the state or coun- try in which the property is located. ^ An action at law upon a contract, however, though it relates to real property, is, as a rule, transitory, and may be brought wherever personal juris- diction of the parties may be obtained, if the action itself does 1 1 Smith, Lead. Cas. 781 ; SUnner ^Livingston v. Jefferson, 1 Brock. V. East India Co. cited in 1 Cowp. 203, Fed. C.is. No. 8,411; McKenna v. 167; The M. Moxham, L. R. 1 Prob. Fisk, 1 How. 241, 11 L. ed. 117; Div. 112, 46 L. J. Prob. N. S. 17, 34 Watts v. Kinney, 23 Wend. 484, 6 L. T. N. S. 559, 24 Week. Rep. 650. Hill, 82; Champion v. Doughty, 18 2 The M. Moxham., L. R. 1 Prob. N. J. L. 3, 35 Am. Dec. 523. niv. 112, 46 L. J. Prob. N. S. 17, 34 < American V. Teleg. Co. v. Middle- L. T. N. S. 559, 24 Week. Rep. 650. ton, SO N. Y. 408. See, however, Foote, Private Inter- ^Bundle v. Delaware d R. Canal national Jur. p. 390, where it is said Co. 1 Wall. Jr. 275, Fed. Cas. No. that while hv the old law, before the 12,139. See, however, Worster v. Win- abolition of 'the rules in respect to '"piseogee Lake Co. 25 N. H. 525; venue, suits for injury to immov- and compare discussion post, § 711. able property could only be brought ^Rogers v. Woodbvr;/. 15 Pick. 15(1 In the jurisdiction within which such See post, § 711, and articles on this property was situate, since the aboli- t°Pi= i° 22 Alb. L. J. pp. 47, 219. tlon, by the judicature act, of the .. , , old rules 3 to venue, the question ^ ^^' particularly, ante, § 289a, may be held to be open, citing The notes 1, 2, and 3. M. Moxham, post, § 711. § 290a] IMMOVABLES. 661 not affect the title to, or any interest in, the property. Thus, an action at law for damages for breach of a contract to convey land will lie in the court of a state or country other than that in which the land is located if the defendant is personally sub- ject to the jurisdiction.^ And an action upon a judgment for a deficiency arising upon the foreclosure and sale of mortgaged premises may be maintained in a state other than that in which the mortgaged land is situated.^ So, an action by the orig- inal covenantee for breach of a covenant in a deed is transitory, and may be brought wherever the defendant may be found;* but such an action, when brought by an assignee of the cove- nantee, is local, and cannot be brought outside of the state in which the land is located,^ unless the distinction between local and transitory actions has been abolished at the forum.® The reason for the distinction is that an action between the original parties is based upon privity of contract, and the action be- tween the covenantor and a subsequent party,' upon privity of estate. 2 This is obvious from the eases ^Oliver v. Loye, 59 Miss. 320, was cited in ante, § 288, note 2, which a bill by a subsequent grantee,, uphold the jurisdiction of the courts against the original grantor with of one state over a suit for the spe- covenant of warranty to obtain re- eific performance of a contract re- imbursement for expenditures made lating to land in another. A fortiori, in resisting a suit, and in extinguish- the court has jurisdiction when the ing a paramount title. The fact action is for damages for breach of that the suit was in equity was suf- a contract. ficient to take it out of the commou- ^Reed v. Ghilson, 142 N. Y. 152, 36 law rule stated in the text, since a N. E. 884. suit in equity was never hampered ihienow v. Ellis, 6 Mass. 331; by distinctions between local and Phelps V. Decker, 10 Mass. 267; transitory causes of action; but the Jackson v. Eanna, 53 N. C. (8 Jones, court went further, and intimated L.) 188; Tillotson v. Priehwrd, 60 that, as such distinction had been Vt. 94, 6 Am. St. Eep. 95, 14 Atl. abolished in Mississippi, even as ap- 302. plied to courts of law, the action ^hienow v. Ellis, 6 Mass. 331; could have been maintained even i* Glarh v. Scudder, 6 Gray, 122; White it had been at law instead of equity. V. ftamhorn.. 6 N. H. 220. 662 LAW 0¥ THINGS. [Chap. VII. According to the vast majority of the English and American decisions, an action based upon a tort against real property is local, and cannot be maintained outside of the jurisdiction in which the land is located; and this is true, according to the "weight of authority, whether the action be for direct damages recoverable in trespass quare clausum f regit,'' or for indirect or consequential damages recoverable in an action on the case,* TEllenwood v. Marietta Chair Co. Sentenis v. Ladew, 140 N. Y. 463, 158 U. S. 105, 39 L. ed. 913, 15 Sup. 37 Am. St. Eep. 569, 35 N. E. 650, Ct. Rep. 771 ; Livingston v. Jefferson, conceded the general rule that an 1 Brock. 203, Fed. Cas. No. 8,411 action for injury to real estate must (see infra, note 13) ; Brown v. Ir- be brought in the forum rei sitce; mn, 47 Kan. 50, 27 Pac. 184; Mc- but held that a judgment rendered by Oonigle v. Atchison, 33 Kan. 726, 7 the supreme court of New York, in an Pae. 550 (ohiter) • Holderman v. action for trespass upon real prop- Pond, 45 Kan. 410, 11 L. E,. A. 542, erty in Tennessee, would be neither 23 Am. St. Eep. 734, 25 Pac. 872 void nor voidable for want of juris- (ohiter) ; Allin v. Connectiout River diction, but would be binding and Luniber Go. 150 Mass. 560, 6 L. E. A. conclusive on the parties, where no 416, 23 N. E. 581; Eill v. Nelson objection to the jurisdiction was (N. J. L.) 57 Atl. 411; American U. made until after the judgment had Teleg. Co. v. Middleion, 80 N. Y. been rendered. 408; Dodge v. Colby, 108 N. Y. 445, None of the foregoing cases ex- 15 N. E. 703; DeCourcy v. Stewart, pressly distinguishes between actions 20 Hun, 561 ; Sprague Nat. Bank v. of trespass quare clausum fregit and Erie R. Co. 40 App. Div. 69, 57 N. Y. actions on the case; and in Gragin v. Supp. 844; Hurd v. Miller, 2 Hilt. Lovell, 88 N. Y. 258, the statement 540; Niles v. Howe, 57 Vt. 388; Ty- of the court is that it is a general son V. MoGuineasi, 25 Wis. 656 rule of law that actions for injuries {obiter) ; Doulson v. Matthews, 4 to real property must be brought in T. E. 503, 2 Eevised Eep. 448; Brit- the forum rei sitm; but see infra, ish South Africa Co. v. Companhia note 9, with reference to a possible de Mogambique [1893] A. C. 602, 63 distinction between direct and conse- L. J. Q. B. N. S. 70, 6 Reports, 1, quential damages. 69 L. T. N. S. 604, Reversing Com- 8 Thus, the court, in Thayer v. panhia de Mogambique v. British Brooks, 17 Ohio, 489, 49 Am. Dec. South Africa Co. [1892] 2 Q. B. 358, 474, says that actions of trespass 367 (see infra, note 11). So, it was and trespass on the case for injuries held in Gragin v. Lovell, 88 N. Y. to land are local, and in all cases 258, that an action for waste on real where the act done and injuries sus- property is not transitory, and will tained are wholly in a foreign juris- not lie outside of the jurisdiction in diction the place of injury is the which the property is situated. place of trial. § 290a] IMMOVABLES. 663 though its applicability to the latter class of cases has been de- nied by some courts that concede that it applies to the former. ® The entire rule has, however, been frequently criticized as tech- nical, and without foundation in principle; and for this and So, an action for flooding lands otlier state, the gravamen of which with water is local, and cannot be was negligence. But see Cragin v. maintained out of the jurisdiction Lovell, 88 N. Y. 258. in which the land is situated if the Brereton v. Canadian P. R. Go. 29 act which ^caused the damage was Ont. Rep. 57, expressly repudiates also done in that jurisdiction, any distinction, bearing upon the Thayer v. Brooks, 17 Ohio, 489, 49 point in question, between trespass Am. Dec. 474; Baohus v. Illinois & quare clausum f regit and trespass on if. Canal, 17 111. 534; Howard v. the case for negligence; in other Ingersoll, 17 Ala. 780, 23 Ala. 673. words, between damages which are And the same rule applies with direct and damages which are indi- reference to damages to land by the rect and consequential; and see oth- diversion of water. Watts v. Kin- er eases cited in note 7, supra, ney, 6 Hill, 82. where the rule has been applied to So, an action for injury to real the latter class of cases. There is, property by fire is local and cannot however, some apparent basis, both be maintained outside of the state technical and substantial, for this or country in which the property is distinction. According to Marshall, situated if the negligence or omis- Ch. J. {Livingston v. Jefferson, 1 sion causing the injury occurred Brock. 203, Fed. Gas. No. 8,411), the there. Du Breuil v. Pennsylvania distinction upon which the rule rests Co. 130 Ind. 137, 29 N. E. 909 ; Mor- is that actions are deemed transitory ris v. Missouri P. B. Co. 78 Tex. 17, where the transactions on which they 9 L. E. A. 349, 22 Am. St. Rep. 17, are founded might have taken place 14 S. W. 228; Missouri P. B. Co. v. anywhere; but are local where their Cullers, 81 Tex. 382, 13 L. K. A. 542, cause is, in its nature, necessarily 17 S. W. 19; Brereton v. Canadian local. Generally, an act or omission P. R. Co. 29 Ont. Rep. 57. causing even indirect or consequen- 9 See Ducktown Sulphur, Copper tial damages to real property will £ I. Co. V. Barnes (Tenn.) 60 S. W. occur in the state or country in 593, infra, note 17. which the property is situated. It Barney v. Burstenbinder, 7 Lans. may, however, occur in a different 210, and Home Ins. Co. v. Pennsyl- state, as is apparent from the cases vania R. Co. 11 Hun, 182, held that cited in note 17, infra. Those cases the rule that an action for injury to seem to assume that such circum- real property must be brought in the stance merely takes the particular state or country where it is sit- case in which it exists out of the uated, and cannot be brought else- rule ; but it would seem that it ;night where, did not apply to an action be at least plausibly argued that the for injuries to real property in an- possibility that an act or omission 664 LAW OF THINGS. [Chap. VII. other reasons lias been expressly repudiated in Minnesota.'" It has sometimes been supposed that the rule rested, not upon an essential lack of jurisdiction, but upon the inability to lay the venue of the tort at the forum, and that the abolition of local venues would therefore remove the only objection to the exercise of the jurisdiction. This view was adopted by the ma- causing indirect or consequential departs from the state where the damages to real property may occur tort is committed, and refrains from outside of the state in which the returning. This hardship, resulting property is situated should take this from the operation of the rule, how- entire class of cases out of the rule, ever, did not apply to the case before since this possibility shows that the the court, since it was admitted that cause of the tort is not in its na- the defendant might have been sued ture necessarily local, and, therefore, in the state in which the property the cause of action is not local with- was situated. The court avoided the in the definition above given. A more objection to the jurisdiction, based substantial ground for the distinc- upon the statute of the forum mak- tion, however, is that, as applied ing actions for injuries to real prop- tc an action based upon negligence erty local, by holding that such stat- or nuisance inflicting indirect and ute had no application to causes of consequential damages only, the ob- action arising out of the state. Buck, jection that an action of trespass J., dissented from the majority opin- may involve an issue of title which ion, holding that the rule was es- can be better tried by a local court tablished both by reason and autlior- loses much of its force. ity. The decision in this case was '^'iLiitle v. Chicago, St. P. M. d followed in Peyton v. Desmond, 129 0. R. Co. 65 Minn. 48, 33 L. R. A. Fed. 1, upon the ground that the 423, 60 Am. St. Rep. 421, 67 N. W. question was a local one, and the de- 846. It is true that this action was cisions of the state court were there- not based upon an entry upon the fore binding upon the Federal courts, property, but was brought to recov- In Holmes v. Barclay, 4 La. Am. er damages for injuries to real es- 63, also, the court held that an ac- tate in Wisconsin caused by the neg- tion would lie in Louisiana for dam- ligence of the defendant. It is ap- ages, by a steamer, done to real prop- parent from the majority opinion erty in another state, though, by the however, that the court intended to laws of the latter, the action would repudiate the rule as to both classes be regarded as local. In this case the of cases. It concedes that the great act causing damage was done in the weight of authority is in favor of state in which the property was sit- the rule declared in the text, but uated, and the case, therefore, is not holds it is merely technical, and referable to the exception to the rule often operates to defeat justice by exemplified by the cases cited infra, reason of the fact that the owner note 11. is left remediless if the wrongdoer The actual decision in Armendiaz § 290a] IMMOVABLES. 665 jority of the English court of appeal, which accordingly held that the abolition of local venues under the rules of procedure adopted under the judicature acts destroyed the foundation of the rule, and enabled the English court to take jurisdiction of actions for trespass to land in a foreign country. -^^ This de- cision was, however, reversed by the House of Lords, who held that the rule rested upon an essential lack of jurisdiction, and that no new jurisdiction was conferred by the abolition of local venues. ^ ^ The rule, therefore, seems to have been put beyond question in England, and should, perhaps, be regarded as be- yond question in this country, even in those states which have abolished local venues. There is, however, much force in the argument of the Minnesota supreme court that adherence to the V. Stillmwn, 54 Tex. 627, is referable motive. The jurisdiction was up- to that exception, but the court went held, but the question of jurisdiction further, and expressed the opinion is discussed only in the judgment of that, under the Texas bill of rights, King, J., and he stated that the ac- deelaring that every person shall tion was for the recovery of dam- have remedy by due course of law ages for hay and other contents of for injuries done him in his lands, the barn, and his discussion of the goods, person, or reputation, the question of jurisdiction is upon the court may maintain an action for footing of a personal tort; and, ap- damages to real property, even parently, he was not asked to con- though the land is situated in an- sider the question whether an action other jurisdiction, and the act caus- for damages to real property is trail- ing the injury is committed there, sitory. The latter position was, however, ex- See also dictum of Lord Mansfield pressly repudiated by Morris v. Mis- in Mostyn v. Fabrigas, 1 Cowp. 161, souri P. R. Co. 7S Tex. 17, 9 L. R. A. infra, note 14. 349, 22 Am. St. Rep. 17, 14 S. W. i'i-Gompanhia de Moganibique v. 228; Missouri P. R. Go. v. Cullers, British South Africa Co. [1892] 2 Q. 81 Tex. 382, 13 L. R. A. 542, 17 S. B. 358. W. 19, supra, note 8. ^^British South Africa Co. v. Corn- According to the statement preeed- panhia de Mogarnbique [1893] A. C. ing the judgments in Campbell v. 602, 63 L. J. Q. B. N. S. 70, 6 Re- McGregor, 29 N. B. 644, the action ports, 1, 69 L. T. N. S. 604. was brought to recover damages for So, in Cragin v. Lovell, 88 N. Y. the burning of a barn in the province 258, supra, note 7, the court said that of Quebec, through the negligence of the rule was not changed by the pro- defendants in using a defective loco- vision of § 982 of the Code of Civil 666 LAW OF THINGS. [Chap. VII. rule ■will leave the owner of the land remediless if the one who commits the injury departs from the state where the tort was committed, and refrains from returning; and that every objec- tion founded on practical considerations against entertaining jurisdiction of actions for injuries to lands lying in other states can be urged as to actions on contracts respecting lands, which are concededly transitory. ^ ^ Lord Mansfield,-^* who took the view that the former, as well as the latter, class of actions are transitory, stated the true distinction to be between proceedings which are in rem, in which the effect of the judgment cannot be had unless the thing lies within the reach of the court, and proceedings against the person, where damages only are de- manded. Actions for injuries to land belong, of course, to the latter class, and, according to this distinction, would be transi- tory ; and it is to be observed that the weight of authority adopts this as the true distinction with respect to all actions relating to real property, except those by an assignee of a covenant, and those based upon tort^^ Chief Justice Marshall, who reluct- antly followed the rule because it had been established by the English decisions, was clearly of opinion that, upon principle. Procedure that, where the real prop- luctantly adopt it because Lord erty is situated out of the state, the Mansfield's dictum had been over- action may be tried in the county in ruled, and the rule established by which the party resides, or, if both the subsequent English decisions, are nonresidents, in any county des- HMostyn v. Fabrigas, 1 Cowp. 161. ignated by plaintiff, because such Lord Mansfield's opinion is, however, section did not define the jurisdie- obiter, so far as it relates to actions tion, but merely the venue. for torts to real property, since the 13 Marshall, Ch. J., in Livingston action before him was for a personal V. Jefferson, 1 Brock. 203, Fed. Cas. tort. He, however, referred to two No. 8,411, urged the same objection occasions upon which he had enter- to the rule, and stated that he was tained actions for damages ba r^d on unable to discern any reason, other torts against real property in foreign than a technical one, for the adop- countries, tion of the rule, though he did re- IB See first part of section. i 290a] IMMOVABLES. 667 the distinction above suggested should be applied also to actions based upon torts against real property.^® In any event, there is an exception to the rule when an act is done in one jurisdiction which causes injury to real property in another; in such a case, according to the weight of authority, the action may be brought in either jurisdiction. -^ '' It is ap- parent, also, that the distinction referred to in the last section between local and transitory actions, upon which the rule rests, restricts its operation to physical injuries to the property; and it has been held that an action for slander of title to real prop- erty is transitory, and may be brought in a state other than that in which the property is situated. ^ ^ So, an action for damages for wrongful execution of a power of sale in a mortgage is transitory. ^ ® The rule, moreover, does not prevent the maintenance of an ^iLwmgsion v. Jefferson, 1 Brock, nized in Morris v. Missouri P. R. Co. 203, Fed. Gas. No. 8,411, supra, 78 Tex. 17, 9 L. R. A. 349, 22 Am. St. note 9. Rep. 17, 14 S. W. 228, although the 1 7 This exception to the rule was circumstances calling for its applica- deelared by Bundle v. Delaware & B. tion did not exist in that case, and Canal, 1 Wall. Jr. 275, Fed. Gas. No. the rule itself was therefore applied. 12,139; Stillmam v. White Bock Mfg. Ducktown Sulphur, Copper & I. Co. 3 Woodb. & M. 538, Fed. Gas. No. Co. v. Barnes (Tenn.) 60 S. W. 593, 13,446; Buckman v. Green, 9 Hun, held that an action would lie in Teu- 225; and Armendiaz v. Stillman, 54 nessee by the owner of real property Tex. 627, — which upheld the juris- in Georgia, for the abatement of a diction of the court of the state in nuisance maintained in Tennessee, which the act inflicting the injury and for the recovery of damages was done, although the property was therefrom to the property in Geor- situated in another state. The ex- gia. The decision is not expressly ception was also recognized by Thay- referred to the exception to the gen- er T. Brooks, 17 Ohio, 489, 49 Am. eral rule; and the court would, per- Dee. 474; and St. Louis & S. F. B. haps, have entertained the action, Co. V. Craigo, 10 Tex. Giv. App. 238, even if the nuisance, as well as the 31 S. W. 207, although in those cases property, had had its situs in Geor- the actions were brought in the state gia. in which the land was situated, and isDodge v. Colhy, 108 N. Y. 445, not in the state in which the act in- 15 N. E. 703. flieting the damage was done. This ^^Bogers v. Barnes. 169 Mass. 179, exception to the rule is also recog- 38 L. R. A. 145, 47 N. E. 602. 668 LAW OF THINGS. [Chap. VII action for conversion in one state or country against a tres- passer upon land in another, who removed timber,^'* growing crops, ^^ or soil*^ from the land, since such property, upon its severance from the real estate, becomes personal property, which is the subject of a transitory cause of action for conversion. But in order to recover for conversion under such circumstances*, there must be a claim of damages for the conversion, distinct from that for the trespass ; and the action cannot be maintained in either aspect if there is but one allegation of a single cause of action, in which the trespass upon the land is the principal thing, and the conversion is incidental only. ^ * So, in order to maintain a transitory action for conversion, there must have been some act or assertion of title to the property alleged to have been converted, other than an act appropriate to the enforce- ment of defendant's claim to the possession of the land. ^ * An action for conversion of, or damages to, personal property is, of course, transitory, although such property was situated upon the real property, and the conversion occurred, or the damages were inflicted, at the time of the trespass. ^ ^ It has been held, iojailenwood v. Mwrietta Chair Go. ^^McGonigle v. Atchison, 33 Kan. 158 U. S. 105, 39 L. ed. 913, 15 Sup. 726, 7 Pac. 550. Ct. Rep. 771; Whidden v. Seelye, 40 '^Ellenwood v. Marietta Chair Co. Me. 247, 63 Am. Dec. 661 ; Greeley 158 U. S. 105, 39 L. ed. 913, 15 Sup. V. Stilson, 27 Mich. 153; Dodge v. Ct. Eep. 771; Dodge v. Colby, 108 Coliy, 108 N. Y. 450, 15 N. E. 703; N. Y. 450, 15 N. E. 703. Tyson v. MeGuineas, 25 Wis. 656. 2< Thus, Sprague Nat. Bank v. 21 Missouri P. R. Co. v. Cullers, Erie R. Co. 40 App. Div. 69, 57 N. Y. 81 Tex. 382, 13 L. R. A. 542, 17 S. W. Supp. 844, denied jurisdiction of an 19, and Eolderman v. Pond, 45 Kan. action for conversion of buildings 410, 11 L. R. A. 542, 23 Am. St. Rep. upon land in another state upon the 734, 25 Pac. 872, also recognize that ground that no acts asserting title a cause of action for conversion of to the buildings had been shown ex- growing crops is transitory, though eept such as were appropriate to the recovery was denied on the ground enforcement of the defendant's claim that it did not appear that the acts to the possession of the land. complained of amounted to conver- 2 5 An action for carrying away a sion according to the lex loci. small fish house or camp situated op § 290a] IMMOVABLES. 669 however, that, in order to recover for damages to the personal property in another jurisdiction, the claim for damages to the real property must be abandoned, since the plaintiff will not be allowed to split his cause of action. ^ " Although an action will not lie in one state for the recovery of land in another, yet an action may be maintained in one state for the recovery of proceeds of a sale of land in another. ^ ^ e. Liens on immovables. 291. Liens determinable by lex situs. — It has already been stated that all interests in land, whether consisting of equitable interests, charges, trusts, or servitudes, — all interests, in other words, that may fall under the term "lien" in its most general sense, — are controlled by the lex rei sitae even in the opinion of those who would confine that law within the narrowest limit. Thus, Judge Story declares that "not only lands and houses, but servitudes and easements, and other charges on lands, as mortgages and rents, and trust estates, are deemed to be in the sense of the law immovables, and governed by the lex rei s-ltcB."^ The only way by which title can be made to such liens, or the only process by which such liens can be enforced, is that of the situs. Thus, a Scotch heritable bond, charged on land, goes to the Scotch heir, and does not pass as personalty to the legatee by the creditor's English will.^ So, the validity land in another state is transitory, ^t Edwards v. Ballard, 14 La. Ann; in the absence of proof that it was 362. part of the real estate. Rogers v. So, it was held in Moss's Estate, Woodbury, 15 Pick. 156. 138 Pa. 646, 21 Atl. 206, that a court i^Brereton v. Canadian P. B. Go. of Pennsylvania had jurisdiction to 29 Ont. Rep. 57, was an action in the require the application of the pro- province of Ontario for damages to ceeds of a sale of land in West Vir- house and furniture on land situated ginia to the discharge of liens cov- in Manitoba. The court held that ering that land and land in Penn- the action, so far as the house was • sylvania, in order to protect subse- concerned, was local, and that, while quent encumbrancers having liens on an action for damage to the furni- the Pennsylvania land only, ture would itself be transitory, yet it could not be maintained for the iConfl. L. § 447. damage to the furniture without 'Johnstone v. Baker, i Madd. 474, abandoning the claim for damage to "f ^' •^^''^"^''«™, ^- Herbert 4 nuss. ,, , ^ ^ Ch. 388, Tamlyn, 103. See Ellwtt v. ^^^ lio^se. j^fi^fg^ 6 Madd. 16. 670 LAW OF THINGS. [Chap. VII. of a mortgage, as a lien on land, is to be determined by the laws of the place where the land is situate, although both the parties reside in another state. ^ ISTor can a lien be imposed on for- eign real estate.* 292. But law of contract may determine as to mere contract. — The law, however, is modified when the pledge or mortgage of land is merely collateral and subsidiary to a personal contract of loan. In such case, while the mortgage or pledge cannot be enforced, or the land touched, except in the court having local jurisdiction, it is otherwise with regard to the contract, which is governed by the law of the place in which such contract has its proper seat.^ This principle has been applied in two dis- tinct lines of adjudications. The first occurs when, by the lex loci contractus, a contract is illegal, or inoperative as to creditors, although it is secured by land in a country where the contract would have been legal ; and in such a state of facts it has been ruled that the lex loci contractus, as to the contract, prevails.^ So, also, the converse proposition may be accepted, 3 Ante, § 276J ; Goddard v. Sawyer, tract relating to real property may 9 Allen, 78. See post, § 317. As to be regarded as collateral to a per- '^: 'ztrsw tirt^wS — ^ -^-*- « -*«> -the. post § 292 note.i upon a distinction in the nature of 4Z)e Witt V. Burnett, 3 Barb. 89; the different questions relating to Ainsley v. Mead, 3 Lans. 116. Ante, real property contracts. It leaves S <2/5 2/7. those questions that relate primarily ,_- ,, i-x,,i.i a,nd distinctively to real property to 1 The statement of the text seems ,, , . .^ j, , ,, , , . , ,, j^ , ., i, , the ieo! rei stias, even though the real to imply that, while the personal , ... ,, , , , '■ f . , . , , property contract is collateral, and contract m auch case is governed by , . , ,, , . , . , , ,, , , ., ., ,, ,, , , subjects other questions, which only the law of its situs, the collateral . ,. ,, ^ , , ^ . ., ,.,',,, . indirectly affect real property, to the mortgage is subiect to the lex rei ... . , ., f , . ^ =« oTfl J pmciples governing personal con- site. As shown m ante, §§ 276a and ^ , . , i, , ,, «,,. J.,.. . 1- J.- • , i. tracts in general, even though the 276c, this implication is only true , ° ... , . , , ^. ,, , , , real property contract is not, in any with respect to questions that relate ^^ ± , t ., ., ,,.,.,., , , sense, collateral. In other words, primarily and distinctively to real ,, j- x. j.- . . „ ., '^ , ^,, ,. , tlie distinction in respect of the gov- property. Other questions may be . , . , , , . . , 1 J X j.^. 1 i i.1. -i. ^ ernmg law is not between principal referred to the law of the situs of , „ , , , , , . , , ^ ^ ^, , j^, ... and collateral contract, but between the contract, even though they indi- xi. j.™ . , . ,. ,, . ~ ', ^.j_, ^ ^, the different classes of questions that rectly affect the title to the prop- . ... j. j. l, . . , „, . . , . , , , 3.rise with respect to the contract, erty. This position does not rest , ., ... „ j , j_, ^, i. i i, ■ . , whether principal or collateral, upon the theory that the principal contract draws to itself the collat- iRieliards v. Goold, 1 Molloy, 22; eral contract, and subjects the latter P*"« v. Umith, 11 Gray, 38. See to its own governing law; nor is it " .so. confined to cases in which the con- See also ante, § 276c, notes 6 and 7. § 292] IMMOVABLES. 671 that if the contract is good hj the law of the country to which it is distinctively subject, it will not be invalidated by the fact that it carries with it a mortgage in a country where the trans- action would not have been good against creditors.^ The other line of adjudications, to which reference has been just made, arises when a loan, usurious by the law of the place to which the contract is subject, is good by the law of the place in which is situate land by which such loan is collaterally secured. In this case, it has been frequently determined that the law which rules the question of usury is that to which the contract is dis- tinctively subject, and not that of the place where the land is situate.* A bond secured by mortgage, as has also been held, is taxable at the creditor's domicil, the mortgage being a mere collateral. ® But a mortgage cannot be paid off or extinguished or assigned, except in conformity with the lex situs; and the lex situs must decide whether the contested act amounts to ex- tinguishment or assignment.* 2921/2. When lien covers indivisible estate in two states. — When an indivisible estate (e. g., the bed of a railroad), sit- uated in two or more states, is subjected to a single lien, the mode of sale, under process from a state court, is a matter in- volving serious difficulties. In South Carolina it has been held that under such circumstances the court in which a sale on tax procedure is ordered may direct a sale of the whole road, that part which is in the other state to be subject to the liens imposed in such state. ^ But although the franchise might be sold under such procedure, where the forum is the state char- tering the road, and where such a sale is good under the local iHoyt V. Thompson, 19 N. Y. 207. assignment, the parties there resid- ^IiJoj/d V. Scott, 4 Pet. 211, 7 L. ed. ing; and this was all that Judge 835; De Wolf v. Johnson, 10 Wheat. McLean ruled in Dundas v. Bowler, 383, 6 L. ed. 347; Pine v. Smith, 11 3 McLean, 397, Fed. Cas. No. 4,141. Gray, 38; Cope v. Alden, 53 Barb. Post, § 375. Whether a mortgage 350, 41 N. Y. 313; Dolman v. Cook, was validly assigned must in such, as 14 N. J. Eq. 56; Andrews v. Torrey, in all other, eases, he referred to the 14 N. J. Eq. 355; A ticoter V. TfaHcer, determination of the courts of the 16 N. J. Eq. 42; 'Newman v. Ker- situs; as by process from no other shaw, 10 Wis. 333; Story, Confl. L. § courts could such mortgage be fore- 287a. See post, § 368. closed. See ante, § 276J. See, as to collateral liability. Brown v. Knapp, See also post, § 510k 79 N. Y. 137. 1-Hand v. Savannah & O. R. Co. 12 SAnte, §§ 79i, 80. S. C. 316. ^Wilkinson v. Simson, 2 Moore, P. C. C. 275. A debt may be assigned See, upon this general subject, according to the law of the place of ante, § 289a, note 15. 672 LAW OF THINGS. [Chap. VII. law, yet the title to any extraterritorial real estate belonging to the railroad must be conveyed according to the lex situs.^ f. Limitations on alienation. 293. Limitations on alienation governed by lex rei sitae. — So far as this concerns the capacity of owners to alienate, the topic belongs to a subsequent division. At present it is sufficient to say that all limitations or charges which the lex situs imposes are to be applied according to the construction of the courts of the situs. ^ Thus, a Scotch will, executed for the beneiit of a Scotch charity, cannot carry English lands contrary to the English mortmain act;^ and immovables are liable for a de- ceased owner's debts in the way the lex situs prescribes.^ g. Immovables as affected by operation of law. 294. Realty passing by descent or marriage governed by same law. — The subjects that are here involved are distinctively con- sidered under other divisions.-^ It is enough at this place briefly to say that in England, on grounds of territorial policy, persons who, though legitimate by the general principles of in- ternational law, would, if born in England, have been illegiti- mate, cannot inherit land.^ On the continent of Europe, in general, a child legitimate by the law of his father's domicil at the time of birth is legitimate everywhere ; and this may be ac- cepted as the international rule.* Marriage, in its transfer of property, must act, so far as im- movables are concerned, in subordination to the lex situs.* h. Forms of conveyance. 295. And so, of forms of conveyance. — This topic is noticed in 2See Jones, Mortg. § 661. Ante, § 143 note. See also Chapman v. 276* ; Northern C. R. Co. v. Jackson, Robertson, 6 Paige, 630, 31 Am. Dee. 7 Wall. 262, 19 L. ed. 88; Cooper v. 264. Dismal Svamp Canal Co. 6 N. C. (2 lAs to legitimacy, see ante, §§ Murph.) 195; Morgan v. New Or- 240-250a; and as to the general ques- leans, M. & T. R. Co. 2 Woods, 244, tions arising under succession and Ffd. Cas. No. 9,804. marriage, see those heads. iSee McGoon v. Scales, 9 Wall. 23, ^Ante, §§ 241, 243a, 250, 250a. 19 L. ed. 545; Lucas v. Tvclcer, 17 sSee ante, §§ 240 et seq., 249. Ind. 41 ; Loving v. Pairo, 10 Iowa, tJephson v. Biera, 3 Knapp, P. C. 282, 77 Am. Dec. 108. 130, 149; Story, Confl. L. § 454; ^Curtis V. nation, 14 Ves. Jr. 537. Westlake, Private Internatioml See ante, § 1051; post, §§ 297, 517. Law, art. 94. See ante, §§ 190, 191. "Benatar v. Smith, 3 Knapp, P. C. § 295] IMMOVABLES. 673 its special relation in a future section of this chapter,^ and will be fully discussed in a subsequent chapter, under the head of Locus regit actum.'' It will be seen that where the law of the place prescribes certain forrds as requisite for transfer, such forms must be observed.* i. Capacity to acquire and convey; and herein of alienage. 296. Capacity to acquire so limited; alienage so determined. — There can be no question that, as to realty, capacity is deter- mined by the lex situs.^ By some continental jurists, it is true, the lex domicilii is applied to immovables in cases of suc- cession; but in England and America, even this exception is not recognized.^ No persons can acquire or convey real estate except those whom the lex rei sitae may recognize as capable for this purpose. Hence, the question whether a married woman, domiciled in Louisiana, can bind her Mississippi land by a note, is determined by the law of Mississippi, not that of Louis- iana. * Although the policy of laws limiting the right of aliens to hold real estate is open to exception, * it is conceded by Savigny that even as to matters of succession, positive territorial laws to this effect override the law of domicil. And he argues that of this character are local laws forbidding aliens to acquire real estate beyond a certain limit, or to engage in trade. So far as concerns real estate, this proposition has been univer- sally accepted in England and America. ^ A person, also, who is by the laws of his domicil of full age, and therefore capable of conveying real estate in such domicil, may execute a valid conveyance of such real estate when residing in a foreign state, in which he is a minor, and incapable of making such convey- ance. * iPost, § 372. § 17. 451. 'Sell V. Miller, 11 Ohio St. 33L See also ante, § 118e. Vol. I. Confl. of Iiaws — 43. 674 LAW OF THINGS. [Chap. VU. III. Movables. a. Governed by lex situs. 297. Inapplicability of old law that movables are governed by lex domicilii. — In considering recent conditions operating to change the character of private international law it is impor- tant, in the first place, to notice the growing political and eco- nomical value of personal, as distinguished from real, prop- erty. The maxims Mohilia personam sequuntur, and Mohilia ossibtis inhaerent, were originated by the mediaeval jurists at a time when movable property consisted mainly of gold or jew- els, which could easily be carried by the owner from place to place, or secreted by him in spots known only to himself. Even the terms "personalty" and "movables" speak the same thought: "Land is the only stable and independent element of property; the only thing that the territorial sovereign deems worthy of his care and protection; all other wealth is regarded as so insignificant as to be a mere incident of the owner's per- son, having no site of its own." Now, however, the relations of the two kinds of property are reversed. The taste for the accumulation of land is rare and comparatively harmless. The modern tendency is to create multitudes of small proprietors, who, acting without concert, are most unlikely to combine in such a way as to intimidate or corrupt the governing powers. But it is otherwise with personalty. It is capable of being col- lected, by corporations, into enormous masses, whose power, vast as it is, and directed by a policy which may be at once con- stant, skilful, single, persistent, and secret, there are few gov- ernments which may be able continuously to resist. The old rules, therefore, distinguishing in this respect between mohilia and immohilia, fall with the reversal of the conditions from which they emanated.^ iPos*, § 305. I have discussed and what are not, mohilia. It must this question more fully in 6 South- determine when a movable can he em Law Rev. Jan. 1881, p. 689. moved. It must decide between Fiore (Op. cit. § 199) unites in re- liens upon movables. It alone can jeeting the distinction between real issue an execution by which a, mov- and personal estate, so far as con- able can be attached. An exception cerns the applioatory law. There is recognized in cases in which the are no movables, he argues, notwith- place occupied by a movable is so ac- standing the maxim Mohilia ogsihus cidental and momentary as to com- inltaerent, which adhere so to the pletely exclude the operation of the person as to evade the lex rei sitw. territorial law. This obtains in cases That law has to determine what are, of baggage carried by a traveler in $ 298J MOVABLES. 675 298. Modern authority tends to lex rei sitae. — Among the early European jurists who held to this distinction may he mentioned Argentrseus/ Rodenhurg,* Paul Voet,* and John Voet,* who maintained as inviolable the subjection of mova- bles to the owner's domicil. Nor has this opinion been want- ing in distinguished defenders down to the present time.® It is asserted by Savigny, however, that the adhesion of these authors to this view is technical rather than real, and that the great weight of modern authority among the civilians is on the other side. As maintaining the latter view,- — that movables as well as immovables are to be subjected to the law of their locality,— Savigny cites Miihlenbruch, Meissner, and Wachter, to whom may be added Bar and Schmid.^ 299. This is a necessary tendency. — It is insisted, by the advo- cates of the latter opinion, that if it is the domicil of the owner which is to decide, it becomes a difficult and sometimes insol- uble question to determine who this owner is. An action is brought to decide as to the ownership of a chattel. The liti- gants have different domicils ; and if the article in dispute is to be subjected to the owner's domicil, the question as to who is the owner not being yet decided, the suit has to be stopped at the outset from inability to determine as to how it shall be tried. Then, again, if possession be the test, there may be sev- eral possessors, or persons claiming to be such, each with a dif- ferent domicil, from which confusion almost equally obstruc- tive would ensue. ^ 300. Savigny holds there is no difference between movables and immovables. — But it is further denied, and especially by Savigny,^ that there is any real difference between movables and immovables which should impress upon the one legal qual- ities utterly distinct from those of the other. In order to en- force his views on this point, this great jurist takes, by way of illustration, what he calls two cases at the opposite extremes. 301. He concedes that goods in transit cannot be governed by his transit over several territories, *§ 11. and of merchandise expressed by a epoelix, i. pp. 72-75, 80; Deman- merchant in a vessel belonging to geat, i. Ill; Schafifner, §§ 54-56, 65- him. In such cases the law is that 68; Story, Confl. L. chap. 9, 10, &e. of the owner's domicil, because such f'Savigny, viii. § 366; Bar, § 57. goods cannot be regaroed as in any Appx. A. to 1st ed. of this book, particular territory. iSee, particularly, Wachter, i. pp. iNum. 30. 292-298. 2Title i. chap. 2. iRom. Recht, viii. 366. 3i 4, chap. 2, § 8. 676 LAW OP THINGS. [Chap. VII. the lex situs. — Yhzt, he calls attention to sueli movables as oc- cupy so vague and shifting a status as to make their locality in- capable of positive definition, so that in this way the idea of a voluntary submission to the local law by their owner is ex- cluded. A traveler passes with his luggage through several countries in the course of a single day; and so it is with goods forwarded from country to country until they reach the dis- tributing market. Now it is admitted by him that in such cases the lex rei sitw cannot be applied. 302. On the other hand, he holds fixtures and heirlooms to be immovables. — At the opposite extreme are to be mentioned fix- tures, viewing the term in its largest sense. The library of a country seat, for instance, or the gallery of pictures vsdth which it is adorned, — these, in a cultivated community, attach them- selves permanently to the domain, and can only, by the most attenuated of fictions, be supposed to wander with the owner's person. So, also, in a farming community, is it with the tools and other machinery which have been prepared for the work- ing of a farm. Now, it is argued that there is no reason what- ever for viewing such things as otherwise than immovable. They are not, in the eyes of the owner or of third parties, mov- able; all engagements made in reference to them contemplate an opposite assumption. Hence, this class of goods is some- times treated as governed by the law of the territory by authors who are most strenuous in applying the law of domicil to mov- ables generally. ^ 303. He maintains that wherever there is location, there the law of the location determines. — Between these two extremes is a wide range, including many gradations. Savigny mentions as illustrations, merchandise which the owner stores tempora- rily away from his domicil, and luggage which a traveler car- ries with him on a visit of considerable length to a foreign land. Now, whether these articles are governed by the law of dom- icil, or by the law of the place where they are deposited, de- pends in a large measure on the general question which has just been mentioned. How, in other words, are such articles to be alienated, and by what forms of law? A very short resi- dence on the part of their owner, it is urged, is necessary to ap- ply the lex rei sites for this purpose, though it might be other- wise with the acquisition of title by prescription or occupancy. ij. Voet ad Pand. i. 8, § 14. See Wiichter, i. p. 296. § 303] ?,tOVABLES. 677 And as a general principle, lie urges that the only safe and con- sistent course is to apply to all goods, except such as clearly travel with the owner, the lex rei sitae. b. Reasons for rule. 304. Generally. — The reasons for the applicability of the lex rei sitcB to immovables have been already stated.^ Let us, to apply this question more closely, examine how far the same reasons apply to movables. 305. The policy of sovereignty requires the application of this rule. — It has been already shovsm-'^ that national preservation requires that no sovereignty should permit the dominaney on its soil of a foreign law. It can be well understood how, at a period of society when almost all wealth consisted in land, and the appurtenances of land, this maxim should be coupled with property in immovables, on which alone, practically, it could operate. It can be well understood, also, how, when most movable property consisted in jewels and bullion, which could be packed up, and either concealed or carried with the owner, the rule Mohilia sequuniur personam should spring up ; and as the owner was subject to the law of his domicil, such would also be the case with the movables which thus he held and moved as he moved himself. But now by far the greater wealth of a nation consists in its public loans and its railway and other securities. By the control of these a foreign sovereign could obtain at least as great political iniluence among us as by the control of land. By infusing foreign principles into the man- agement of such securities, such foreign principles would enter at least as deeply into the vitals of the nation as they would if they were infused into the management of land. 306. Purchase involves submission to local laws. — If a domi- ciled foreigner, in purchasing land, submits himself, so far as concerns tie land, to the sovereign of the country where the land is situate, equally is this the case with one who purchases the public loans or stocks of such state, for these contribute at least equally to the wealth of the state, and wield at least an equal influence on its polity. 307. Situs the necessary arbiter. — As to such movables, situs is as necessarily the arbiter as is the case with immovables. It is by the local, the municipal, or the corporate law alone that iAnte, § 297. i-Ante, § 278. 378 LAW OF THINGS. [Chap. VII. the registry title to such' movables can be made out. And on them the local statutes pf limitation operate, as to adverse pos- session, even more sharply, and with more rapid strokes, than on land. So, also, local prescription, when it attaches, cannot be unseated by the removal of the movable to another state. ^ 308. To invoke the lex domicilii is a petitio principii. — To movables as well as to immovables applies the position that if the lex rei siiw be not accepted, there is no available decisive law. To invoke for this purpose the lex domicilii of the plain- tiff is a petitio principii. The only ground on which such law can be adopted is that of the plaintiff's title, as to which it is the purpose of the litigation to inquire. A domiciled English- man, for instance, sues a domiciled Bostonian for chattels sit- uated in Illinois. To say that the law of England is to de- termine the suit, because the plaintiff is domiciled in England, is to beg the very question in litigation, which is whether the plaintiff has any title at all. The same observation applies to the assumption that the defendant's domicil is to supply the applicatory law. This, also, assumes that the defendant is the owner, which is the very question the plaintiff contests. There is, also, the additional objection that in this way the issue of the applicatory law is made dependent on the form of the suit, and the absurdity would arise, that if on proceedings in error, or after transfer of property through execution, the original defendant becomes plaintiff, then the applicatory law is re- versed. No less conspicuous is the failure of justice which would flow from the application of the lex domicilii to issues framed to determine which of several claimant is entitled to a particular article. Suppose, for instance, as to a bale of cot- ton stored in New York, there are two claimants, one domiciled in Louisiana, and the other in Massachusetts, states whose laws on the subject of hypothecation and of transfer are widely dis- tinct. If there be an issue framed to determine as to which of these claimants has title, and if the lex dom,icilii is the ex- clusive judge, there could be no decision on any point in which the laws of Massachusetts and of Louisiana differ, for we would have then a collision between two independent systems of law, each supreme, with no arbiter to decide which is to pre- vail. Because, therefore, the lex domicilii (1) involves a pe- titio principii, and (2) is from its very nature incapable of de- iSee Waters v. Barton, 1 Coldw. 450. Post, § 717. § 308] MOVABLES. 679 ciding an issue between two or more claimants of distinct dom- icils, we must reject it as insufficient for the purposes foi which it is here invoked. The lex loci contractus, as has been elsewhere shown, cannot decide, for, when a thing is contended for by parties claiming under hostile contracts executed in dif- ferent countries, an independent umpire is required to decide which law is to be preferred. The law of the place of process cannot ; for such law, unless it be the lex rei sitce, can only sell the defendant's interest in the litigated article. The remain- ing alternatives are to accept either the law of the domicil of the actual possessor of the thing in litigation, or the lex rei sites. But the possessor may be a mere wrongdoer, or a trustee, or a stakeholder; and if his domicil happen to be in a foreign land, this would introduce, on grounds purely arbitrary, a for- eign and often most inapplicable law. The only alternative, then, is the lex rei sitce; and this has the advantage of being the law to which the thing litigated is, by the very fact of its being deposited on the soil, at least tacitly committed by the parties. "■ 309. Maintenance of values depends on ubiquity of rule. — Unless the lex rei sitce be enforced, property loses its merchant- able value. If the fact that any prior owner of a share of rail- road stock, or of any certificate of loan, was a domiciled for- eigner, subjected such stock or loan to the law of the domicil of such foreigner, such stock or loan would cease to have a mer- chantable price. The same reasoning applies to all other mov- ables, with the exception of those which from their nature fol- low the person, and which, during such possession, are subject to his domiciliary law. 310. Title in rem only acquired in situs. — ^As to movables, as well as immovables, the English common law is explicit, that no absolute title can be given except by a proceeding in rem.^ But a proceeding in rem can only be instituted and executed in ' a court of the situs. Such court may, it is true, accept a for- eign law. But it does so by its own action, making such for- eign law pro hac vice domestic, subject to the positive enact- ments of the lex situs. ISTor, if the contrary view be main- iTliese considerations have already maxim, Vigilantibus et non dormien- been noticed in connection with real tibus jura subsermunt. Local claim- estate. They apply still more forei- ants cannot complain if by want of bly to personalty, from the fact that vigilance they permit property sub- personalty, as more easily transmit- ject to their local law to be carried ted from country to country, attracts away to another country where ;pre- to itself a greater variety of conflict- vails another jurisprudence, ing laws. In this view applies the ^Post, § 064. 680 LAW OF THINGS. [Chap. VII. tained, will there be any security to the officers of the courts of the situs. This is well put by Mr. Justice Miller, in a case in 1866, before the Supreme Court of the United States. "If the judgment in the state of Illinois [on an attachment on goods in Illinois], while it protects all such persons against a suit in that state, is no protection anywhere else, it follows that in every case where personal property has been seized under attachment or execution against a nonresident debtor, the of- ficer whose duty it was to seize it, and any other person having any of the relations above described to the proceeding, may be sued in any other state, and subjected to heavy damages by reason of secret transfers of whidi they could know nothing, and which were of no force in the jurisdiction where the pro- ceedings were had and where the property was located."^ If a judgment in rem determines title, the same reasoning applies to the law of the situs, since a judgment is only a formal ex- pression of the law of the situs.* As will be presently seen, this reasoning does not apply to movables when gathered in a group, as they are in cases of suc- cession and marriage, to which, from the necessity of the case, the law of domicil applies. It will also be seen that when all the claimants to a movable are domiciled in the same country, and may therefore be viewed as consenting to the same municipal law, then, so far as concerns their title to the movable, there is authority to the ef- fect that the law of this common domicil prevails.* 311. Conclusion is that movables not in transit are governed by lex rei sitae, except for succession and matrimonial estate. — The rule of international law, therefore, may be thus stated: Movables, when not massed for the purposes of succession or marriage transfer, and when not in transit, or following the owner's person, are governed by the lex situs; though in some jurisdictions an exception may be made in cases where all the parties, being subject to a common domicil, are held to be bound by the laws of that domicil. The extraterritorial effect of bankrupt assignments will be noticed under a future head. ^ It will be there seen that for- iGreen v. Tan Buahirk, 5 Wall. N. S. 143, 9 Week. Rep. 455, Affirmed 307, 18 L. ed. 599. in L. R. 4 H. L. 414, 39 L. J. C. P. 3 This is forcibly put by Westlake, N. S. 350, 23 L. T. N. S. 48, 19 Week. 1880, § 140, citing Gastrique v. Im- Rep. 1. See post, §§ 664 et seq. rie, 8 C. B. N. S. 405, 30 L. J. C. P. iSee post, § 369. N. S. 177. 7 Jur. IST. S. 1076, 4 L. T. iPos«, §§ 386 et seq. S 311] MOVABLES. 681 eign bankrupt assignments are not extraterritorial in their ef- fects, and that the same rule is applicable to compulsory insolvent assignments.* 311a. Lex situs as opposed to lex loci contractus and lex domi- cilii, generally. — As intimated in the foregoing sections, most of the courts, at least in the earlier cases, have expressed their view of the general principle to be applied in ascertaining the governing law of personal property by a statement substantially in the form that personal property has no situs of its own, but follows the person of the owner, ^ or that personal property has its situs at the domicil of the owner. * It will be observed tbat the latter form of statement subjects the property to the lex domicilii of the owner; and that law unquestionably governs with respect to the disposition of such property by will or by operation of law, as distinguished from the voluntary act of the parties, except so far as the property may be subject to the lex situs.^ The latter form of statement, however, does not ex- press the true rule with respect to voluntary transfers intei- vivos, even as applied by the cases that reject the lex situs; for an examination of those cases discloses that they really refer such transfers to the lex loci contractus, rather than the lex domicilii. This result is frequently obscured by the fact that the contract is made in the state or country where the ovnier is domiciled, in which case the courts do not often sharply dis- tinguish between the lex loci contractus and lex domicilii;^ but ^Post, §§ 390 et seq. So. 851; Ames Ironworks v. Warren, 76 Ind. 512, 40 Am. Rep. 258 ; Hansel Waoosta v. Davis, 24 N. J. L. 319. v. Chapman, 2 App. D. C. 361 ; Cas- iWMtney v. Dodge, 105 Cal. 192, tleman y. Jeffries, 60 Ala,. 3SQ; Marey 38 Pac. 636; People's Nat. Bank v. v. Howard, 91 Ala. 133, 8 So. 566. Cleveland, 117 Ga. 908, 44 S. E. 20; The same principle is expressed in Packwood's Succession, 9 Rob. (La.) many other cases, especially those re- 438, 41 Am. Dec. 341; Williams v. lating to wills of personal property. Pope Mfg. Co. 52 La. Ann. 1417, 50 3 See post, §§ 576a, 585. L. R. A. 816, 78 Am. St. Rep. 390, 27 * Frequently, in such cases, the 682 LAW OF THINGS. [Chap. VII. it emerges in a few instances in which the contract was made in a state or country other than, that of the owner's domicil. ^ The conclusion reached in the last section, that the lex situs is the general principle, and the lex domicilii (or its substitute, lex loci contractus) the exception, has considerable direct sup- port in the opinions of the courts in the more recent cases. Thus, the United States Supreme Court, in an opinion which cites the foregoing discussion of this subject, says: "In mod- em times, since the great increase in amount and variety of personal property not immediately connected with the person of the owner, that rule [that the lex domicilii governs] has yielded more and more to the lex situs, the law of the place where the property is kept and used."^ And another court, after assert- ing the power of a state to change the rule that the validity of a transfer of personal property is to be determined by the law of the owner's domicil, so far as it relates to property within its borders, and to make the transfer thereof subject to its own courts unconsciously pass from one N. S. 126, it is expressly stated that principle to the other. Thus, Van- the validity of a transfer of personal buskirk v. Hartford F. Ins. Go. 14 chattels — meaning a voluntary trans- Conn. 589, after stating the general fer inter vivos — depends, not upon principle that a voluntary transfer the law of the domicil of the owner, or alienation of personal property is but upon the law of the country in governed by the law of the domicil, which the transfer takes place. says that a conveyance of personal So, in Bulkley v. Honold, 19 How. property which is valid by the law of 390, 15 L. ed. 663, it was held that a the place where it is made is equally contract for the sale of a vessel was effectual elsewhere. In some cases governed by the law of Louisiana, (see Allen v. Bain, 2 Head, 107), the where it was made and to be per- principles are stated in the alterna- formed, although the vendors were tive, i. e., a transfer of personal prop- domiciled in New york. erty will be governed by the law of The validity of a gift of personal the owner's domicil, or plTace of trans- property cauSa mortis is to be de- fer, termined by the law of the place 5 See Ivey v. Lalland, 42 Miss. 444, where it is made, without reference 2 Am. Rep. 606, 97 Am. Dec. 475; to the domicil of the donor. Emery Partee v. SilUman, 44 Miss. 272. v. Clough, 63 N. H. 552, 56 Am. Rep. In Alcock V. Smith [1892] 1 Ch. 543, 4 Atl. 796. 238, 61 L. J. Ch. N. S. 161, 66 L. T. ^Pullman's Palace Car Co. v. 5 311a] MOVABLES. 683 laws, said : "Indeed, it may be said that the tendency of mod- em authorities, under the influence of European continental jurisprudence, is toward the recognition of the law of the situs to such an extent that what was an exception is tending to be- come the rule."'' The question, however, as to which is the rule and which the exception, is, to a large extent, academic; for, admitting that the lex domicilii (or its substitute, lex loci contractus) is the rule, it is clear that the legislative power of every state extends to all property, real or personal, within its borders; and that only so far as the comity of that state allows can such property be affected by the law of any other state ; * and it is clear from the decisions actually rendered upon specific questions (e. g., those in relation to the liability of personal property to attach- ment or taxation) that the governing law with respect to some of the legal incidents of personal property cannot be deduced from the maxim, Mohilia seqvMutur personam; and, upon the other hand, if the lex situs be regarded as the general rule, it is clear from the decisions that there are some legal incidents of personal property (e. g.^ its disposition by voluntary assign- Permsylvania, 141 U. S. 18, 35 L. ed. Rep. 340; Parker v. Broion, 29 C. C. 613, 3 Inters. Com. Rep. 595, 11 Sup. A. 357, 56 U. S. App. 341, 85 Fed. Ct. Rep. 876. The question in this 595; Smead v. Ghamdler (Ark.) 76 case was as to the situs of personal S. W. 1066; Gromell v. Skipper, 6 property for purposes of taxation. Fla. 580; Varnum v. Gcump, 13 N. J. ''Loftus V. Farmers' & M. Nat. L. 326, 25 Am. Dec. 476; State Bank Bank, 133 Pa. 97, 7 L. R. A. 313, 19 v. First Nat. Bank, 34 N. J. Eq. 450 ; Atl. 347. Graham v. First Nat. Bwnk, 84 N. 8 See, especially, Pullman's^ Palace Y. 393, 38 Am. Rep. 528 ; Ballgarten Gar Co. v. Pennsjylvania, 141 U. S. v. Oldham, 135 Mass. 1, 46 Am. Rep. 18, 35 li. ed. 613, 3 Inters. Com. Rep. 433; McGollum v. Smith, Meigs, 342, 595, 11 Supi Ct. Rep. 876; Green v. 33 Am. Dee. 147. This is also ex- Yan Bxiskirk, 7 Wall. 139, 19 L. ed. pressly recognized by many other 109; Eervey v. Rhode Island Loco- cases, and, indeed, is universially eon- motive Works, 93 U. S. 664, 23 L. ceded even by those courts that ad- ed. 1003; Walworth v. Harris, 129 here to the lex domicilii (or lex loci U. S. 355, 32 L. ed. 712, 9 Sup. Ct. contractus) as the general principle. 684 LAW OF THINGS. [Chap. VII. ment for creditors, by will, or intestacy) whose governing law cannot be deduced from that rule. In other words, a general statement upon this point can safely go only to the extent that the lex domicilii (or lex loci contractus) governs in certain re- spects, and the lex situs in other respects. Even from a practi- cal point of view, however, the maxim Mohilia sequuntur per- sonam, serves a useful purpose by calling attention to the fact that, for some purposes and to some extent, personal property is not controlled by the principle that operates to subject real property to the lex situs, y In the new sections upon this subject, no attempt will be made to determine whether the lex domicilii (or its substitute, lex loci contractus) or lex situs is the general principle with re- spect to personal property; but the effort will be to point out what specific incidents of, or questions concerning, personal property are to be referred to the one, and what to the other. In examining the cases for the purpose of deriving from them the rules to be applied to these specific questions, attention must be directed mainly to the actual decisions upon the facts involved, rather than to the statements in the opinions as to the general principles upon the subject. These statements often go beyond the necessities of the case, are frequently contradictory, and sometimes ignore a feature or element of the case upon which the actual decision turned. To illustrate: The ques- tion arose in a !New York case^ whether a chattel mortgage exe- cuted in Connecticut by a Connecticut corporation upon prop- erty then in that state was required to be filed in New York, upon the removal of the property to the latter state. The ac- tual decision that such filing was not necessary was expressly based upon, and qualified by, the assumption that the propertv at the time of the execution of the mortgage was in Connecticut (and, as elsewhere^" shown, the location of the mortgaged »mclu)ls v. Mase, 04 N. Y. 160. loPosi, § 317b. § 311a] MOVABLES. 685 property at the time of the execution of the mortgage is the true criterion of the governing law in this respect) ; but the court said, in support of its decision: "The principle is also well settled that a voluntary conveyance of personal property, good by the law of the place where it was made, passes title where- soever the property may be situated." In other words, the lex loci contractus governs. But, again, the court quotes with ap- proval the statement in a previous case : ' ^ "The law of the domicil of the OAvner of personal property, as a general rule, determines the validity of every transfer made of it by him." In other words, the lex domicilii governs. The case, therefore, presents a decision actually based upon, or at least conditioned upon, the lex situs of the property at the time of the mortgage, and two general statements which respectively refer the ques- tion to the lex loci contractus and lex domicilii. In this case all three laws concurred, so that the result was necessarily the same, whichever law was applied; but it is obvious that the court has here stated two general principles that are mutually contradictory, and neither of which is sustained by the actual decision. 311b. Different aspects of contracts relating to personal prop- erty; personal aspect. — It is important, in the discussion of this subject, to observe that contracts relating to personal property frequently present two distinct aspects: One, comprehend- ing the personal rights and obligations of the parties ; the other, involving the titie to, or an interest in, the property itself. In its former aspect such a contract is not fundajnentally different from a purely personal contract; and in this aspect seems to come within the operation of the general principles subsequent- ly* discussed, by which the governing law of personal contracts ii-Edgerly v. Bush, 81 N. Y. 203. contract in question was coincident It will be observed that, in this case with the lea domicilii. also, the lex situs at the time of the i-Post, §§ 427a-427q. 686 LAW OF THINGS. [Chap. VII. is determined. That is, in accordance with those principles, the choice of laws, so far as this aspect of the contract is con- cerned, will ordinarily lie between the lex loci contractus and lex loci solutionis; the choice with respect to some elements of the contract being determined by the expressed or presumed in- tention of the parties, and with respect to other elements by fixed and absolute rules. Occasionally, as pointed out in a sub- sequent section,^ it will be necessary to refer some element of, or question concerning, the contract to still another law. The fact that the subject of the contract is personal property may, to some extent, affect the application of those principles to it, even in its personal aspect. Thus, the location of the property fre- quently determines the place where an executed contract of sale is consummated, — ^necessarily so when delivery is essential to its consummation, — and, therefore, the place which furnishes the lex loci contractus of that contract; but the courts seldom, if ever, refer any question pertaining to the purely personal aspect of the contract to the lex situs, as such. The distinc- tion is important, for the lex situs is not always, nor necessa- rily, coincident with the lex loci contractus of even the executed, contract, and frequentiy differs from the lex loci contractus of the executory contract. The principles to be applied in ascer- taining the governing law as to the essential legality or validity of contracts of sale of personal property, so far as personal rights and obligations of the parties thereunder are concerned, are fully discussed in the sections^ devoted to the sales of in- toxicating liquors; and those principles have been applied to sales of other articles of commerce that are the subject of local prohibitory or regulative statutes.* It will be observed that while the decisions as to the applicatory law with respect to iPost, § 427f. Hanover Nat. Bank, 88 Ala. 271, 6 3 See post, §§ 486-486b. So. 909, 90 Ala. 549. 8 So. 42, holding * Thus, the decision in Johnson v. that notes given for the sale of fer- § 311b] MOVABLES. 687 such, sales have frequently turned upon the location of the prop- erty at the time the sale was completed, that was true because its location determined the place where the contract was made, not because the lex situs, as such, governed. The personal rights and obligations of the parties, as dis- tinguished from rights in the property itself, also frequently depend upon the construction of the language of the contract, or upon the existence of legal implications in addition to its terms (e. g., the existence of an implied warranty upon a sale tilizers were void if the requirements to recover the purchase price of oleo- of the Alabama statute with refer- margarine furnished under a contract ence to such sales Were not complied made in Illinois, and delivered to a with, was upon the ground that the carrier there to be shipped into contract, though dated in Georgia, Pennsylvania, the purchaser paying was made in Alabama, it having been the freight, notwithstanding the sell- signed there, and the notes for the er knew that the purchaser intended purchase price having also been to resell the goods contrary to the signed and being payable there, upon statute of Pennsylvania, declaring the delivery of the fertilizers in that contracts for the sale of oleomarga- state. Upon the other hand, the de- rine void. See also Price v. Burns, cision in Atlantio Phosphate Go. v. 101 111. App. 418. For the further Ely, 82 Ga. 438, 9 S. B. 170, holding discussion of the principfes bearing that the Georgia statute touching on the applicability of prohibitory the inspection of fertilizers "offered or regulative statutes, see post, §§ for sale or distribution in this state" 486-486b. did not affect notes given for the A contract made in New York by purchase price of fertilizers which a residents thereof for the sale, to res- farmer residing in Georgia ordered idents of another state, of coffee to by letter, written in that state, to be b? shipped from Rio Janeiro to New sent him from South Carolina by a York city by a designated steamer, dealer in the latter state, the goods the buyers to have free storage and to be shipped by railroad, — was upon fire insurance for the first month the ground that the contract of sale after the arrival of the steamer, and was a South Carolina contract, be- the storage of the coffee in New ing consummated by the acceptance York, is a New York contract, and of the order in that state and com- as such is governed by the prohibi- pliance therewith by putting the tion made by N. Y. Laws 1893, chap goods on board the cars in that state, 661, § 41, against the sale within the consigned to the purchaser in Geor- state of adulterated food products, gia. Martin v. Upshur Guano Co. Grossman v. Lurman, 192 U. S. 189, 77 Ga. 257, is to the same effect. 48 L. ed' 401, 24 Sup. Ct. Rep. 234, An action will lie in Pennsylvania 688 LAW OF THINGS. [Chap. VIl. of personal property) ; and while it may, in some cases, be diffi- cult to choose between the lex loci contractus and lex loci solu- tionis with respect to these questions, it is clear that they are not referable to the lex situs, as such. ^ Again, the right of the vendor, in a sale on credit, to maintain an action before the ex- piration of the term of credit, when the goods are obtained by false representations, pertains to the personal aspect of the con- tract, and comes within the operation of the principles relating to personal contracts. Assuming that that question relates to the substantive rights of the parties, and not to the remedy merely, it is clearly to be determined by the lex loci contractus, or, perhaps, by the lex loci solutionis, and not by the lex situs, 6 The merchantable quality of phis, and not according to that of goods is to be determined by the law the place where the seller resides, of the place where the goods are to and where, by the terms of the con- be delivered. Ladd v. Dulany, 1 tract, the meat was to be delivered Cranch, C. C. 583, Fed. Cas. No. on board the cars. Treadwell v. 7,971. The existence of an implied Anglo-American Packing Co. 13 Fed. warranty upon a sale of persona,l 22. property is to be determined by the The Indiana statute regulating law of the state where the sale was sales of patent rights applies to made and perfected. Snow v. Soho- sales, made in that state, of rights maclcer Mfg. Go. 69 Ala. Ill, 44 Am. to be exercised in another state. Bob- Eep. 509. ertson v. Cooper, 1 Ind. App. 78; 27 So, the decision in Bulkley v. Hon- N. E. 104. old, 19 Ho-i*. 390, 15 L. ed. 663, that The law of Massachusetts giving the existence of an implied warranty the vendee in a conditional sale of against hidden defects upon the sale personal property a right to redeem of a vessel in New Orleans was to be becomes a part of such a contract determined by the law of Louisiana, made in that state, and will be ap- rather than the law of New York, al- plied by a court of Maine in a con- though the vendors resided in the troversy between the vendor and latter state, was upon the ground creditors of the vendee who attach the that the contract was made and to property after its removal to Maine, be performed in Louisiana. Gross v. Jordan, 83 Me. 380, 22 Atl. The words "cured meat" in a con- 250. The decision is upon the broad tract of sale, made by a broker with ground that the law of a place where a merchant at Memphis, to which a contract is made determines its point the meat is to be shipped, are meaning and validity, to be interpreted according to the The rule of the text only applies understanding of the trade at Mem- to substantive rights. Matters that i 311b] MOVABLES. 689 as such.' With the exception of questions relating to the es- sential validity or legality of the contract, it would, perhaps, be difficult to derive any general principles for determining the choice between lex loci contractus and lex loci solutionis as the governing law of a contract of sale in its personal aspect, if only those cases which involve such contracts were to be consulted, since the question generally considered in those cases is whether the lex situ^ or the lex loci contractus et domicilii governs, and there is generally no conflict between the lex loci contractus and the lex loci soltiti-onis, or, at least, no express decision as be- tween them. The decisions with respect to this class of con- tracts are, however, sufficiently numerous and explicit to justify the elimination of the lex situs as such, so far as the personal rights and obligations of the parties, as distinguished from the title to, or rights in, the property itself, are concerned; and that law being eliminated, the conflict between the lex loci con- iractus and lex loci solutionis with respect to matters pertaining to the personal aspect of the contract may, as already pointed out, be determined by the application of the principles govern- ing purely personal contracts. relate to the remedy are, of course, the mail by a, person in Oklahoma to be determined by the lex fori, from a person in New York, and the Thus, the requirement of the Mis- goods are delivered to a carrier in souri statute, as a condition prece- New York and transported to Okla- ■dent to the right of a vendor of per- homa, the purchaser paying the sonal property who reserves title to freight at the latter place, the eon- sue for the recovery of the purchased tract must be regarded as having property, that he shall pay the pur- been made in New York, and is there- ■chase money already received, less 25 fore governed by the rule prevailing per cent, pertains to the remedy, and in that state, whereby the seller may is therefore inapplicable in an action sue to recover the purchase price be- for such purpose in Arkansas found- fore the expiration of the period of «d on a sale in Missouri. Public credit when the goods are obtained Parks Amusement Co. v. Ernbree- by false representation. Jaffray v. McLean Carriage Co. 64 Ark. 29, 40 Wolf, 4 Okla. 303, 47 Pac. 496; Qal- S. W. 582. loivay v. Holmes, 1 Dougl. (Mich.) 6Where goods are ordered through 330, held that this question related Vol.. I. CoNFL. OF Laws — 44. 690 LAW OF THINGS. [Cha!-. VII. 311c. Contract as an instrument creating a right or interest in property. — While many conflicting statements upon the sub- ject are to be found in the opinions of the courts, an examina- tion and comparison of the actual decisions, in the light of the facts involved, disclose that the principles, elsewhere discussed, by which the governing law of personal contracts in general is determined, have been applied, not only to questions affecting the personal rights and obligations of the parties imder con- tracts relating to personal property, but also to questions affect- ing the title to, or an interest in, the property, so far as those questions, whether arising between the parties themselves or be- tween one of them and a third person, depend upon the validity, construction, or effect of the contract itself. In other words, the validity, effect, construction, and nature of the contract it- selif, even viewed as an instrument creating a right to, or an in- terest in, the property are, in general, and subject to the ex- ceptions pointed out in the last section, to be determined by the law of the place where the contract is made (the lex loci corir tractus and lex loci solutionis of the contract in this aspect being necessarily the same), rather than the law of the place where the property is situated. ^ And this rule is, in general, applied wherever the question may arise, even if in the jurisdiction in to the remedy, and was therefore North Carolina; and such limitation governed by the lex fori. over being void according to the law 1 The main support for this propo- of South Carolina will be held void sition is to be found in the cases in North Carolina. Morrow v. Alex- cited post, §§ 317a, 317b, 355b, 355e, ander, 24 N. C. (2 Ired. L.) 388. and 363b. It is also supported by The validity of a provision for ae- the following cases: cumulations in a deed of trust of Where a, deed to a person for life personal property executed by a resi- ■with a limitation over was executed dent of New Jersey will be deter- in South Carolina by a person domi- mined by the law of that state, upon ciled in that state for a slave who an attack by an executor of thegrant- was then in North Carolina, the va- or in New Jersey, notwithstanding lidity of the limitation over must be that the property was in New York determined according to the law of at the time of the execution of the South Carolina, rather than that of deed. Townsend v. Allen, 36 N. Y. I 311c] MOVABLES. 691 which the property was situated at the time the contract was made. It may, however, be defeated by an express statutory provision in the latter jurisdiction not in harmony with it,^ and is also subject to the general exception that a court will not rec- ognize or give effect to a contract if contrary to the public pol- icy of the forum. Assuming, however, that the contract itself is valid and ef- fectual to create a right to, or an interest in, the property it- self, it will be found that the validity of the contract, and th© steps necessary to protect the right or interest thereby acquired, as against third persons whose rights are not purely derivative, or necessarily dependent upon the validity or invalidity of the contract as between the immediate parties, are generally re- ferred to the law of the place where the property is situated at the time of the contract, at least when the question arises before a court of that jurisdiction.* It will be observed that the ap- S. E.. 523, 13 N. Y. Supp. 73, Af- was domiciled at the time of her firmed in 126 N. Y. 646, 27 N. E. death. 853. 2 By way of illustration, see post, Where the grantor, in a, declara- § 317b, note 11. tion of trust of personal property, s The distinction between the va- the trustee, the life tenant, and the lidity of the instrument itself and remaindermen, whose "heirs at law" the steps necessary to protect the in- are to take their shares in a certain terest acquired thereby as against contingency, are all domiciled in creditors is suggested in Parks Bros. Massachusetts at the time of its exe- v. Branch Crookes Sam Co. 104 Tenn. eution in Massachusetts, and provi- 23, 55 S. W. 305, where the court siou is therein made for the appoint- said that, a deed of trust for the ben- ment by a Massachusetts court of a efit of certain creditors being valid successor in case of the trustee's by the law of the state where it was death, such heirs at law are, purau- executed and where the grantors ant to the presumed intention of the were domiciled, it was valid as parties, to be determined by the law against a creditor who attached per- of Massachusetts. Oodman v. Erell, sonal property in Tennessee covered 152 Mass. 214, 25 N. E. 90. The con- by the trust deed after the deed had diet here was between the law of been registered in the county in Massachusetts and the law of Eng- which the property was situated. See land, where one of the remainder- further, in support of the rule of the men whose heirs at law were to take text, post, §§ 317b, 335a, and 355b. 692 LAW OF THINGS. [Chap. VII. plicatory law is that of the place where the prope.rty is situated at the time of the contract, not necessarily that of the place where it is situated at the time of the subsequent dealings with reference to it* The question nearly always arises originally in the jurisdiction in which the property was located at the time of the contract;^ and it is therefore difficult to determine from the cases whether the rule just stated is universal, to be applied without reference to the jurisdiction in which the ques- tion arises, or is merely a rule of local policy, to be applied only by the courts of the jurisdiction in which the property was lo- cated at the time of the contract. There are some intimations in the cases that the latter is the true view ; * but the courts gen- erally state the rule as though it were based upon the lex situs. '' The authority for, and the exempliiication of, the rules here stated are to be found in the cases cited in connection with sub- sequent sections devoted to the discussion of the governing law with respect to specific questions arising under such contracts. Slid. Distinction between executory and executed contracts «f sale. — It is important, not only for the purpose of ascertain- 4 See post, §§ 317b, note 9, 335a, Lumber Co. v. Leiois, 121 Ala. 94, note 4, 355b, note 3. 25 So. 729, post, § 355b, note 3. 5 It will be observed that in Green ^ Thus, the court in Ames Iron V. Van BusJcirk, 7 Wall. 139, 19 L. Works v. Warren, 76 Ind. 512, 40 ed. 109 (post, § 317b, note 7), the de- Am. Rep. 258, says that an assign- cision reversing the judgment of the ment of personal property, by way of New York court was upon the ground mortgage, is an exception to the gen- that the latter court had not given eral rule; and that such mortgages due effect to the judgment in attach- are governed by the law of the situs, ment which was rendered in Illinois, and not the lece domicilii. and not upon the ground that it re- So, Green v. Van Buskirk, 7 Wall, fused to apply directly, and as an 139, 19 L. ed. 109, refers the rule to •original proposition, the rule in II- the principle that the fiction of la-w, linois requiring chattel mortgages that personal property has its situs upon property at the time in that at the owner's domicil, yields when- state to be recorded therein, though ever it is necessary for the purposes executed in another state. of justice that the actual situs of 6 See Runyon v. Groshon, 12 N. J. the thing should be examined. Eq. 86, post, § 317b, note 9; Ensley § Slid] MOVABLES. 693 ing the governing law with respect to the personal rights and obligations of the parties under a contract of sale of personal property, but also for the purpose of determining the governing law with respect to the rights in the property itself, to distin- guish between the executory contract and the executed contract. When the subject of the sale is specific property, identified and appropriated at the time the executory contract is made, the distinction is immaterial, since both contracts are consummated by the same act, at the same time, and at the same place. When, however, the executory contract relates merely to property of a particular species or class, without identifying or appropriating to the contract any particular property of that species or class, it remains executory until there has been such an identification and appropriation ; and in such case the executory contract may be made in one state, and the executed contract in another. When the parties meet and personally make the contract, there is ordinarily no difficulty in determining the locus contractus of the executory contract. The difficulty arises when the contract is made by correspondence, or through the intervention of an agent of one of the parties. WThen a definite proposition to buy or sell is sent through the mail from one state or country to an- other, the executory contract is completed as soon as a definite, unconditional acceptance of the proposition is deposited in the mail in the latter state or country; and the executory contract is therefore deemed to have been made in that state ; and if the contract is with reference to specific property already identified, that will ordinarily be the place of the executed contract, al- though this result is, of course, controlled by the intention of the parties. ^ The question also arises as to the place where the ^Emerson Co. v. Proctor, 97 Me. cases with reference to other classes 360, 54 Atl. 849; Shelly Steel Tube of contracts (see post, § 486lx) ; and Co. V. Burgess Gun Co. 8 App. Div. also by cases which do not involve 444, 40 N. Y. Supp. 871. This prin- any question as to conflict of laws, ciple is also supported by many ti94 LAW OF THINGS. [Chap. VH. executory contract is deemed to have been made when an order for goods, not specifically identified and appropriated, is taken in one state by the agent of the vendor, and filled in another where the vendor does business. If the vendor's agent was merely authorized to solicit and receive orders, subject to ac- ceptance or rejection by the principal, and did not, in fact, un- dertake to make a binding contract of sale, it is clear that the executory contract is made in the state in which the order is finally accepted by the vendor.^ Upon the other hand, if the agent had authority to make a binding contract of sale, and undertook to do so, it is clear that the place of the executory contract is the place where he exercised such authority, notwith- standing that the vendor does business in another state, and that the stock from which the contract is to be filled is in that state.* It has been held, however, that, even if the agent exceeded his authority in undertaking to make a binding contract of sale, the ratification thereof by the principal in another state relates back to the time of the making of the contract by the agent, and therefore makes the state in which the agent acted the locus contractus of the executory contract.* Other applications and limitations of the foregoing rules are shown in the sections de- voted to the sales of intoxicating liquors.* Delivery of the property is generally, though not iiecessarily, the act by which the executory contract, when the particular property has not been previously identified an.d appropriated, becomes an executed contract; and therefore, in such case, the place of delivery is generally the place where the executed con- tract is deemed to have been made. When there is no provision ^Aultma/n, M. d Go. v. Holder, 68 *McLane v. His Creditors, 47 La. Fed. 467. See also cases cited post, Ann. 134, 16 So. 764; Erman v. Leh- § 486b, note 5. man, 47 La. Ann. 1651, 18 So. 650. iPenninghaus v. Jacobs, 12 Lano. See also Golson v. Bbert, 52 Mo. 260. L. Rev. 203. See also cases cited B See post, §§ 486-486b. post, § 486b, notes 8 and 9. % 31 Id] MOVABLES. 695 in the executory contract as to the place of delivery, and the property, pursuant to the express or implied understanding of the parties, is delivered by the seller to a common carrier in one state to be transported to another and there turned over to the buyer, the weight of authority holds that the former, rather than the latter, state is to be regarded as the place where the executed contract is made, in the absence of circumstances re- butting the presumption of the carrier's implied authority to receive the goods for the buyer.* The last rule, however, pre- supposes a valid executory contract; for, in the absence of such ■contract, there is no foundation for the carrier's implied agency, upon which the rule rests. ^ , Of course, if the terms of the con- tract, or the circumstances of the transaction, are such as to show that the parties did not intend the title to pass until actual delivery to the purchaser by the carrier, the executed contract is consummated in the state in which that act is done, and not in the state in which the property is delivered to the carrier. * ^Brandon Printing Co. v. BosticJc, jeet to the Michigan statute of 126 Ala. 247j 28 So. 705; Atlantic frauds by the right of the buyer to Phosphate Co. v. Ely, 82 Ga. 438, 9 reject the goods after examination S. E. 170; MoCullough v. Armstrong, in Michigan if not like the samples, 118 Ga. 424, 45 S. E. 379; Frohlich v. but the sale is complete and the title Alexander, 36 111. App. 428; Brinker passes upon delivery to the carrier "V. Scheunemann, 43 111. App. 659; in Illinois. Kuppenheimer v. Werth- Krulder v. ElUson, 47 N. Y. 36, 7 eimer, 107 Mich. 77, 61 Am. St. Rep. Am. Rep. 402; Braurm v. Really, 146 317, 64 N. W. 952. And a contract Pa. 519, 28 Am. St. Rep. 811, 23 Atl. for the conditional sale of machin- 389; Perlman v. Sartorius, 162 Pa. ery, negotiated in a foreign state by 320, 42 Am. St. Rep. 834, 29 Atl. citizens thereof and contemplating a 852; City Bank v. Eastern Boot £ delivery within such state, is made Shoe Co. 187 Pa. 30, 40 Atl. 1026. within the foreign state and gov- See also cases cited post, § 486b, note erned by the law thereof, although ■5. This point is also sustained by the seller agrees to send a man to many cases involving no question as set up the machinery at a place with- to conflict of laws. in New Hampshire. Cleveland Mach. t See post, § 486a, note 9. Works v. Lang, 67 N. H. 348, 68 Am. 8 But a sale of goods by sample to St. Rep. 675, 31 Atl. 20. See fur- be shipped from Illinois to Michigan ther, on this subject, post, § 486a, is not made a Michigan contract sub- notes 3-8. 696 LAW OF THINGS. [Chap. VII. Slle. Contract as affected by fraud. — A sale or mortgage of personal property, though valid by the lex loci contractus, both as between the parties and as against creditors of the seller or mortgagor, will not be upheld as against such creditors, at least if they are residents of the state in which the property was located at the time of the sale or mortgage, if, by the law of that state, it would be invalid as against creditors because of its tendency to hinder, delay, and defraud them.-' The subse- 1 A transfer in Illinois, by a, resi- state to uphold a mortgage made un- dent of that state, of a policy of der such circumstances, insurance upon his life in a New It was held in yanderpoel v. Gor- York company, which policy was, at man, 140 N. Y. 563, 24 L. R. A. 548, the time, in California, though valid 37 Am. St. Rep. 601, 35 N. E. 932, by the law of Illinois, will be held however, that the prohibition of the invalid in accordance with the law New York statute against assign- of California if made with the intent ments by domestic corporations of to delay or defraud creditors. Smith property in contemplation of insol- V. New York L. Ins. Co. 57 Fed. 133. veney does not evince any public The court relied upon New England policy of the state, forbidding the ex- Mut. L. Ins. Co. V. Woodworth, 111 ercise, by a foreign corporation hav- V. S. 138, 28 L. ed. 379, 4 Sup. Ct. ing property in the state, of its in- Rep. 364, as authority for the as- herent common-law right to make sumption that the property repre- such an assignment. The decision in sented by the policy was to be re- this case was distinguished in Fowler garded as in California, where the v. Bell upon the ground that the in- policy was found. strument in the former case was of The validity of a chattel mortgage, a character which the laws of New executed by an insolvent foreign cor- York permitted to be made, and poration in the state which created which the courts of that state held it, to secure a creditor residing in all corporations had the inherent that state must be determined by power to make, unless restrained the laws of the state in which the therefrom; whereas, in the latter property is situated. Fowler v. Bell, case, the instrument was one Avhich 90 Tex. 150, 39 L. R. A. 254, 59 Am. the court of Texas held that no cor- St. Rep. 788, 37 S. W. 1058. The poration had the power to make, un- mortgage was valid by the law of leas authorized by local statute. It Iowa, where it was executed and was further pointed out that, in the where the corporation was domiciled, former case, the instrument was a but it was nevertheless held invalid general assignment, distributing all as to personal property in Texas, of the assets equally among the cred- upon the ground that it was con- itors; while, in the latter case, the trary to the public policy of that instrument, if enforced, would give § 31 le] MOVABLES. 697 quent removal of the property to another state, howes^er, will not subject the sale or mortgage to the law of the latter state- a preference not allowed by the laws parties. Levy v. Kentucky Distill- of Texas. ing Co. 9 Ky. L. Rep. 103. A chattel mortgage, even though Wliile the court, in Smead v. valid by the mortgagor's domicil Chandler , {Ark.) 76 S. W. 1066, held where it was executed, will not be that the statute of Arkansas as tO' upheld as against a. subsequent at- the necessity of filing chattel mort- tachment by a New York creditor of gages applied so far as an indebted- property covered by the mortgage ness due from a resident of that which was in New York at the time state was affected, although the it was executed, where such mort- mortgage was executed in Missouri gage would be invalid under the New by a corporation of that state, it did York statute because of its tendency not undertake to decide whether the to hinder and delay creditors. Dear- validity of the mortgage, as affected ing V. McKinnon Dash & Hardware by the insolvency of the corporation Co. 165 N. Y. 78, 80 Am. St. Rep. at the time of its execution, was to- 708, 58 N. E. 773, Affirming 33 App. be determined, even relatively ta Div. 31, 53 N. Y. Supp. 513. such indebtedness, by the law of Mis- Where an insolvent merchant of souri or that of Arkansas. Minnesota agreed in that state to AuUman & T. Co. v. Syme, 23 App- transfer goods of a certain amount Div. 344, 48 N. Y. Supp. 231, Modi- lo a creditor who knew of his insol- fied, upon another point, in 163 N. vent condition, the transaction is a Y. 54, 79 Am. St. Rep. 565, 57 N. E. Minnesota transaction, and is there- 168, held that the validity of an as- fore governed by the law of Minne- signment of a benefit under a will sota prohibiting preferences, under must, as against the assignor's cred- such circumstances, where the goods itors, be determined by reference to were separated from the stock and the laws of the state in which the put upon board the cars in Minne- parties reside and the assignment sota, notwithstanding that the title was made, although the administra- did not pass until the goods were re- tion of the estate is pending in an- eeived by the creditor in Wisconsin, other state. Re Eahn, 55 Minn. 509, 57 N. W. In Black v. Moore, 36 Can. L. J. 154. 724, it was held that the validity of Fraudulent transfers of warehouse an assignment, made in Massachu- receipts for liquor stored in Ken- setts by a person domiciled in that tucky will not be upheld by the state, of a share in the annual in- courts thereof, whatever may be the come of an estate in Ireland, pay- law of the state where the transfer able under a will through the hand was made, as the courts will not up- of an executor living in New Bruns- hold a contract in regard to prop- wick, which assignment was attacked erty situated in Kentucky which is by a judgment creditor as fraudulent contrary to good morals and an ac- and void under the statute of Eliza- tual fraud upon the rights of other beth, should be determined by the 698 LAW OF THINGS. [Chap. VII. in this respect.^ Conversely, the sale or mortgage will not be held invalid as against creditors, if not so by the law of the place where the property was situated at the time, though it would be according to the law of the place where it was made. ^ The last proposition, of course, assumes that the sale or mort- gage is valid as between the parties tested by the lex loci con- tractus. It will be observed that the domicil of the seller o-r mortgagor, as such, does not furnish the governing law in this law of Massachusetts, as the lex tacked by residents of Kentucky who domicilii of the assignor. claim that it was invalid because 2 A sale of personal property, giving an unlawful preference. Falh/ which was valid by the law of the v. Steinfteld, 10 Ky. L. Eep. 982. state where the vendor was domi- Walp v. Lamkin, 76 Conn. 515, 57 «iled, where the sale was made, and Atl. 277, is not opposed to the state- the property was then situated, will ment of the text, but makes an ex- not be held invalid as against a cred- ception in case the property is, for itor of the vendor who attaches it the purpose of evading the law of a after it is brought to West Virginia, state with reference to fraudulent notv/ithstanding that the sale, if sales, removed to another state, the governed by the law of West Vir- sale there made, and the property ginia, would be invalid as a fraud immediately returned to the first upon creditors. Kurner v. O'Neil, state. 39 W. Va. 515, 20 S. E. 589. 3 The law of New York making Transfer by one to his wife while transfers by corporations in contem- residents of another state, of prop- plation of insolvency utterly void erty situated therein, does not be- does not govern with respect to a come subject to Miss. Code, § 4234, chattel mortgage executed and deliv- requiring such transfers to be re- ered in New York by a New York corded to be valid as against credit- corporation upon personal property ors, by the subsequent removal of the situated in Connecticut in the fac- property into the state. Willis v. tory of the mortgagor, the mortgage Memphis Grocery Go. (Miss.) 19 So. being executed, acknowledged, and 101. recorded as required by the Connecti- The validity of a chattel mortgage cut statutes. GMlUngworth v. East- «xecuted in Indiana, in contempla- em Tinware Go. 66 Conn. 306, 33 Atl. tion of insolvency and with design 1009. to prefer the mortgagee to the exclu- In Gardner v. Lewis, 7 Gill. 378, siou of other creditors, by a resident however, the court refused to uphold of Indiana upon property then in In- a transfer of personal property be- diana, is to be determined by the law tween residents of Maryland which of Indiana, notwithstanding the was fraudulent according to the law property is brought into Kentucky of Maryland, notwithstanding that and the chattel mortgage is there at- the property at the time was situ- § 3 lie] MOVABLES. 699 Tespect.* A provision on the subject in the charter of a cor- poration may apply although the contract is executed, and the property is situated, in another state; but it has been held that a provision of the general incorporation law of the corporation's domicil, forbidding preferences and transfers in contemplation of insolvency, will not govern under such circumstances.' 312. In Roman law real rights governed by lex situs. — As a general rule, claims which are described by the modern Koman law as real rights, or Jura in Be, are subject to the law of the place where they territorially exist. This is peculiarly the «ase with Emphyteusis and Superficies, which from their na- ture are confined to things immovable. ^ c. Liens determined hy situs. 313. And so, as to bailments. — Leases and bailments. — By the Prussian law, heirs or lessees or other bailees of goods have a real (or possessory) right to what is thus leased or contracted for, with an action in rem against strangers who may happen to be in possession, provided there has been a prior delivery to such bailees. ^ But as by the Roman law there is no such real right, a collision may arise when goods which have been thus leased have been moved. According to Savigny, the real right applies when the thing, be it movable or immovable, is in Prus- sia at the time of delivery ; but it is otherwise when this deliv- ery is in a country where the Roman law prevails. But there is another case more diificult of solution. If mov- ated out of the state, and the par- nonresident of Minnesota, who ties, for the purpose of evading the sought to garnish the proceeds of a law of Maryland, executed the con- sale of the property in the hands of tract out of the state. a bank, where the partnership had * The validity of a bill of sale exe- an office in Minnesota and the bill of ■cuted to a Minnesota bank as secu- sale was executed there. Dyson v. rity for an indebtedness by an in- St. Paul Nat. Bank, 74 Minn. 439, 73 solvent firm doing business in Wis- Am. St. Rep. 358, 77 N. W. 236. consin, the partners residing in the See also cases cited supra, notes latter state, will be determined by 1 and 3. "the law of Minnesota, as against an 5 See ante, § 105a, note 4. attack upon it as an unlawful pref- igavigny, Rom. Recht, viii. § 368. ■(irence by a creditor of the firm, a iSavigny, viii. § 363. 706 LAW OF THINGS. [Chap. VU. ables be leased and delivery effected in Prussia, and the lessee carries the articles into a country where the Roman law pre- vails, the question arises whether the lessee has an action in rem. against a third party in possession. This is denied by Sa- vigny, on the ground that the claim rests upon a peculiar sanc- tion foreign to the Roman law.^ The contrary view is held by Bar,'* on the ground that the common Roman law, supposed to be in force in the latter country, recognizes servitutal custom- ary rights (servitutische Gehrauchsrechte) in particular things,, which may be enforced against third parties in possession ; but he admits that the position holds good in lands where the rule- is "possession vaut titre." Reasoning by analogy from the cases with respect to chattel mortgages and conditional sales, it would seem that any ques- tion relating to the original existence and validity of a bailment as between the parties should be referred to the lex loci con- tractus or lex loci solutionis, and not to the lex situs, as such,, whether the question arises between the parties, or between the bailor and a creditor of, or purchaser from, the bailee. * Assum- ing, however, the original existence and validity of the bail- ment, the rights of such third persons, if not purely derivative,, should be referred to the law of the place where the property was situated at the time of the bailment; and, if the analogy holds good, that law should prevail over that of the place to which the property is subsequently removed.^ 2lhid. sion seems to be referred to the leaf- '§ 65. loci contractus. 5 It was held, in Fightmaster v. iWaters v. Coo;, 2 III. App. 129, Beasly, 7 J. J. Marsh, 413, however, applied the law of Michigan, by that, even if the bailee had held pes which certain contracts are esteemed session of the property in Virginia, bailments and not sales, to a con- where the bailment was made, for tract made in that state upon prop- such a, time as would have subjected erty subsequently brought to Illinois it to process against him according by the bailee, who executed a, chattel to the law of that state, it would not mortgage upon it in the latter state, have been subject to such process The property was in Michigan at the after its removal to Kentucky, time of the bailment, but the deci- Culver v. Benedict, 13 Gray, 7,, ■§ 314] MOVABLES. 701 314. So, as to pledges and pawns. — A pledge or pawn {PfandrecM) in the modern Koman law, according to Bar's definition,-^ is a real or possessory right to follow a thing in the hands of third parties, for the satisfaction of a personal claim. The old Roman law of pledge has the following peculiari- ties: When goods are pledged, even though there be no deliv- ery, a real right may be maintained against third parties in possession. The pledge may be implied and silent. In fact, in several classes of obligation, a pledge is feigned to exist as a sort of collateral security. Immovable as well as movable things may be pledged. A whole estate may be thus pledged, and in such cases the pledge covers, not only what is on the estate at the time, but what may afterwards be added to it, even though the parties have, at the time, no knowledge of such addition. ^ Among those European nations who accept the Roman ju- risprudence as the basis of their common law, there are several new features introduced into this system. These new features principally concern the implied or silent pledge which is above referred to. Take, for illustration, the case of a country where the rule of the Roman law obtains, that an engagement to give a dos is accompanied by an implied though silent hypotheca- tion of the covenantor's whole estate. Suppose that a person domiciled in this country enters at home into a contract of this nature with another person domiciled in the same country. If the debtor holds real (landed) estate in a second country, where the rule is not recognized, the point to be determined is whether this estate is subject to the lien above mentioned. Ac- cording to Savigny, this is a question of fact, to be decided by the law to which the contract is subject. Since, however, by that law, the debtor's whole estate, including that in the sec- ond country, has been hypothecated, the latter is included in the lien.^ On the other hand, if the dotal contract had been executed in the second country by persons domiciled in it, the hypothecation would not attach. lield that the validity of a transfer principles applicable to negotiable of negotiable bonds in Massachusetts, paper. by a broker to whom they had been intrusted in New York, was to be ^§ 65. determined by the law of Massaehu- fr^!i'™?l •"*''";/ -^^^^ ,r o,.-,, ,, , , :, . , . . ^Ibid., citing Moissner, Vora Still- setts; but this decision was upon schweigenden Pfandrecht, §§ 23, 24. 702 LAW OF THINGS. [Chap. VII. The validity of a pledge has been referred to the law of the place of performance ; * and so it has been held that the sale of bonds pledged to secure notes is governed by the law of the state where the pledge is made and the notes are payable, rather than the law of the pledgor's residence.^ When the pledge is effected by the delivery of instruments or documents, e. g., warehouse receipts or bills of lading, which represent the prop- erty, withoiit a transfer of possession of the property itself, the law of the actual situs of the property may affect the right of the parties to the pledge. Thus the law of the place where a warehouse is situated, rather than the law of the place where a pledge of warehouse receipts is made, governs as to the necessity of notifying the warehouse-keeper of the pledge in order to make it effective as a constructive delivery of the goods.® 315. Prussian Code disallows secret pledges. — But the Prus- sian Code, on this question of hypothecation, takes a position This "Pfandrecht," giving as it does ^Morris v. East Side B. Co. 43 C. a lien on real estate, is an important q j^ gQ5 jgi Fed 410 branch of modern Roman law. 'elnglis' v. Robertson' [1898-\ A. C. 4 The validity of pledges which a 616, 67 L. J. P. C. N. S. 108. But in Minnesota warehouse corporation at- *'orth Western Bank v. Poynter tempted to make by the issuance of [1895] A. C. 56, where a Liverpool warehouse receipts designating grain, bank, to which a bill of lading of a some of which was stored in its cargo destined to the port of Glas- warehouses in Minnesota, and the gow had been indorsed as security rest in warehouses in Iowa, Ne- for advances made to the consignor, braska, and South Dakota, is to be returned the bill, without indorsing determined, relatively to the grain it, to the pledgors in Liverpool in in a particular state, by the law of order that they might act as the that state. Bwe&ish- American Nat. bank's agent in selling the cargo and Bank v. First Nat. Bank, 89 Minn, receiving and accounting for the 98, 94 N. W. 218. This decision is price,— it was held that the law of not referred to the lex rei sitae, as England rather than the law of Soot- such, but is put upon the ground laJid governed as to the effect of the that the contract of pledge, relative- redelivery of the bill of lading by ly to the grain in any particular the pledgor to the pledgee, as state, was presumably intended to be against a creditor of pledgors who governed by the law of that state as arrested the price in the hands of a the place of performa,nce. purchaser of the cargo in Scotland. § 315] MOVABLES. . 703 miich in advance of the Roman law, and similar, in its dis- countenancing secret and implied liens, to the laws existing in the United States. A naked contract cannot, by the Prussian law, create a lien. To constitute a valid lien on immovables, there must be not only an express grant, but a registry in the mortgage records {Hypoihehenbuch) of the appropriate of- fice.-^ ISTow, an agreement for the hypothecation of a specified piece of land is a title on which registration may be claimed; but this is not so with regard to a contract of hypothecation of a whole estate. And so, also, there can be no lien on movables, according to the Prussian law, unless accompanied with de- livery.^ 316. In Eoman law, hypothecation determined by lex situs. — Supposing, then, an hypothecation is consummated, in a coun- try where the Roman law obtains, by contract alone, this can- not cover with lien the debtor's property in Prussia; the fur- thest claim that it can give rise to is an equitable right to com- pel the delivery of an hypothecation duly executed. If, on the other hand, a contract of pledge of specific assets or of an en- tire estate is executed in Prussia, and parts of the debtor's property are in a country where the Roman law controls, then such property in the latter country may be treated as duly hy- pothecated, for by the Roman law such hypothecation is con- ditioned neither by the place of contract nor by the domicil of the debtor.-' The lex rei sitw in such case must decide. By the same reasoning a general assignment of the debtor's effects, executed as collateral security in the United States, would hy- pothecate the debtor's estate situated in countries subject to the Roman law, if the assignment be locally registered in such lands, so as to make it technically valid. ^ 317. In our law the situs determines lien for purchase money, and also fact of chattel mortgage. — By the English common law, while the enforcement of a lien for unpaid purchase money of goods must be in accordance with the law to which the goods are subject, the question whether a lien is intended depends upon the law governing the contract. As to what this is, however, a further question arises, between the place of final assent and that of delivery, which is that, in the eye of the law, of performance. In most cases these coincide. The order comes from the purchaser; and, as will be seen, the lA. L. E. i. 20, §§ 402, 403, 411, iSavigny, viii. § 368. 412. 2See post, § 334. 2A. L. R. i. 20, § 111. '704 LAW OF THINGS. [Chap. VU. courts, even when this order is given to a traveling agent of the vendor, regard this agent, prima facie, as clothed with the principal's domicil, or, at all events, as reserving the final de- cision to the principal in person. The place of final assent, therefore, is the vendor's domicil; and the place of perform- ance is the same, for the delivery of the goods to a common carrier is a delivery to the vendee's agent, and hence a per- formance of the contract.^ The law in reference to a chattel mortgage is determined by the situs. ^ 317a. Lien for purchase money. — It is clear, from the author- ities, that a vendor is not entitled to a vendor's lien for the pur- chase price allowed by the statute of a particular state, if neither the executory nor executed contract was completed in that state, though the purchaser was a resident thereof, and it was contem- plated at the time that the property would be taken to that , state. -^ Upon the other hand, if the executed contract is con- , summated in the state which allows the lien by the delivery of the property there, the vendor is entitled to the lien, although iSee Orcutt v. Nelson, 1 Gray, 536. ford, 2 La. Ann. 335, 46 Am. Dee. That a lien is determined by the law 548- colt v. O'Gallaghan, 2 La. Ann. • of the place where a thing is deliv- „„. „,, 1. ■ ■^^ r. ered, and not by that of the place ^^^- "^^'^'^ ^" ^^S^"*^ in New Or- where the contract for delivery is leans for dealers m New York has made, is ruled in Culver v. Benedict, authority only to exhibit samples 13 Gray, 7. See post, § 317a. ^nd receive orders which he commu- 2Wattson V. Campbell, 38 N. Y. . , . ,• . . , . 153; UacGahe v. Blymyre, 9 Phila. °"=^*«^ *» '^'^ principal for accept- •615; M'Kaig v. Jones, 2 Clark (Pa.) ance or rejection, the contract and 123. Liens on personalty are deter- sale are deemed to be made in New mined in Germany by the lex rei York when the order is accepted and Slice. Jour, du droit mt. prive, 1874, ,, jji- j^.^, . noi the goods delivered to the carrier in See, however, Mumford v. Canty, that state, in th& absence of any 50 111. 370. 99 Am. Dee. 525, cited stipulation for delivery in New Or- lK>st § 318; ReidY.Gray,Zl Pa. 508 le^ng and the seller is not entitled 78 Am. Dec. 444, where it was held , , , ,. , ,, ^ . that, if a trust of personal property *° ^ ^^^'^"'^ « ^^""^ "»der the Louisi- be valid by the law of the domicil, it ana statute. Claflin v. Mayer, 41 will be protected, on a subsequent re- La. Ann. 1048, 7 So. 139. So, the moyal of the parties into another ^^^^^^ ^^ „„<. entitled to a lien un- state. See post, ^ 317b. 1 i, 4. ■ 4. i. der that statute where an Ohio cor- iW7itsto» V. Stodder, 8 Mart. ( La. ) poration sells a machine to a resi- • 95, 13 Am. Dec. 281 ; Copley v. San- dent of Louisiana to be forwarded % 317a] MOVABLES. 705 the executory contract was consummated in another state. ^ It will be observed, however, that it is the lex loci contractus, as such, and not the lex situs, as such, that determines the right to the lien.^ The question, therefore, remains, whether the vendor is entitled to the lien when the executory contract is consummated in the state which allows the same, but the executed contract is consummated by the delivery of the prop- erty in ano'ther state. This question has been answered in the affirmative in Louisiana.* Assuming the existence of a lien, which, as already shown, is to be determined by the lex loci contractus, the steps necessary to preserve it as against third persons dealing with the property may depend upon the lex situs j^ though, in conformity to "by quickest route making best rate," is allowed, but becomes apparent since the contract is an Ohio, and when, as in the case of Brent v. not u, Louisiana, contract, notwith- Shouse, 16 La. Ann. 158, 79 Am. Dec. standing that a representative of the 573, it is held that a vendor's lien seller goes to Louisiana to be present does not attach to contracts made in at the starting of the machine, and the state where the parties are domi- the seller accepts a time draft in ciled, by the law of which no such lieu of cash payment provided for. privilege exists, even if a portion of G. A. Gray Go. v. Taylor Bros. Iron- the goods were in that state at Works Co. 66 Fed. 686, 14 C. C. A. the time of the contract. The deci- 56, 23 U. S. App. 671. sion is upon the ground that mov- ^Overend v. Robinson, 10 La. Ann. ables have no situs as a general rule. 728; Mcllvaine v. Legate, 36 La. ^McLane v. His Creditors, 47 La. Ann. 359; De La Vergne Refrigerat- Ann. 134, 16 So. 764; Ermam, v. Leh- ing Mach. Co. v. Neu> Orleans £ W. man, 47 La. Ann. 1651, 18 So. 650. R. Co. 51 La. Ann. 1733, 26 So. 455. 5 Thus, in Barney & S. Mfg. Co. In Newman v. Gannon, 43 La. Ann. v. Hart, 8 Ky. L. Rep. 223, I S. W. 712, 9 So. 439, both executory and 414, the court said that there may executed contracts were consummat- have been a valid vendor's lien by ed in Louisiana, but the decision the law of Ohio, where the sale was would doubtless have been the same made, but it had no effect in Ken- if only the executed contract had tuclcy as against a subsequent at- been consummated in that state. taching creditor of the vendee in 3 The distinction is not so appar- that state, because there was no rec- ent when the executed contract is ord of the lien as required by the consummated by delivery of the law of the latter state. But a vend- goods in the state in which the lien or's lien created by an Alabama Vol. I. CoNFL. or Laws — 45. 706 LAW OF THINGS. [Chap. VII.. the rule established with respect to chattel mortgages and reser- vations of title, the applicatory law would seem to be the law of the place where the property was situated at the time of the sale, rather than that of the place where it was situated at a subsequent time, unless the law of the latter place expressly covers such a case. 317b. Chattel mortgages.— A chattel mortgage, viewed either as a contract creating personal rights and obligations, or as an instrument creating a lien upon property, is, in general, gov- erned by the lex loci contractus, rather than the lex situs, with respect to the substantive rights, not only of the immediate parties,^ but of third persons, so far as the rights of the latter depend upon the validity, construction, or effect of the contract or instrument itself.^ This principle is frequently obscured statute which provides that, when a claim the specific chattel he has pur- contract is made for the sale of cot- chased, but never paid for, as exempt ton in Mobile and by the general from seizure and sale by the vendor, usage of trade in that city it is con- to an action for the purchase price sidered a sale for cash, but the of property which was sold by credit broker or agent is allowed a reason- in another state, but subsequently able time to examine, reweigh, and removed to Arkansas, — is upon the re-examine the cotton before paying ground that the effect of the statute for it, the seller shall have a, lien was not to give a lien, but a remedy upon the cotton for fifteen days from merely. the time when the cotton, or an or- i The validity of a chattel mort- der for its delivery on a warehouse- gage inter partes is to be determined man, shall be delivered, — ^will be en- by the law of the state where it was forced in Louisiana as against a, executed and where the parties were, bank advancing money upon the at the time, domiciled, notwithstand- faith of the purchaser's title, where ing the subsequent removal of the all the parties to the controversy are property to another state. Ramsey residents of Mobile and the seizure v. Glenn, 33 Kan. 271, 6 Pac. 265. was made within the five days dur- 2 Thus, in Brown v. Koenig, 99 ing which a lien is allowed by a sim- Mo. App. 653, 74 S. W. 407, where a ilar statute of Louisiana. Tyree v. third person sought to defeat the Sands, 24 La. Ann. 363. The deci- mortgagee's recovery of the property sion in Swanger v. Goodivin, 49 Ark. upon the ground that the mortgage 287, 5 S. W. 319, applying the Ar- itself was invalid, the court held kansas statute, which provides that that, the mortgage being valid in the debtor shall not be allowed to Iowa where it was executed, where § 317b] , MOVABLES. 707 by the coincidence of the lex loci contractus and lex situs, but emerges plainly in a few eases in which the coincidence did not exist ^ Of course, the lex loci contractus is displaced by the mortgagor resided at the time of provides that a sale of the property its execution, and where the mort- vmder execution against the mortga- gaged property was then situated, it gor carries the right of possession would be regarded as valid also in with equity of redemption. Roach Missouri, to which state the property v. St. Louis Type Foundry, 21 Mo. was subsequently removed by the App. 118. The property was in mortgagor. So, a description of Texas at the time the mortgage was property in a chattel mortgage, suf- executed and at the time of its pur- ficient under the laws of the state chase under the execution sale, and where it was made and registered, was subsequently removed to Mis- and where the property was then sit- souri. uated, will be held suflBcient in Ten- In Fisher v. Friedman, 47 Iowa, nessee even as against a commission 443, holding that the law of Ne- merchant in the latter state who is braska would be applied to a chat- sued for the conversion of the prop- tel mortgage made in that state by erty, although the description would parties domiciled there, upon prop- have been inadequate in a domestic erty there situated, the action was mortgage. brought in Iowa by the mortgagee Hughes r. Aiston, 105 Tenn. 70, for conversion against one who pur- 58 S. W. 296. Whether the interest chased a part of the mortgaged prop- of a mortgagor in a chattel mort- erty in Nebraska with knowledge of gage may itself be the subject of a the mortgage. second mortgage, after default has 3 Thus, the court in Aultman & T. been made under the first mortgage Mach. Co. v. Kennedy, 114 Iowa, 444, and the mortgagee has taken pos- 86 Am. St. Eep. 373, 87 N. W. 435, session thereunder is to be deter- while holding that the law of the mined by the law of the state where state where the property was located the mortgagor was domiciled, the at the time the mortgage was exe- mortgages were executed, and, the cuted, rather than the law of the property was then situated, notwith- state where the mortgagor was then standing the mortgagees in the first domiciled and the mortgage was exe- mortgage are residents of another cuted, governed as to the necessity state, and are garnished in another of filing in order to protect the state by a creditor seeking to reach mortgagee, conceded that, so far as the surplus above the amount of the the effect of the mortgage^ even , as first mo;rtgage. Beckham v. Carter, against third persons, depended upon Ifl Mo. App. 596, its validity as between the parties, — The respective rights lOf a. chattel i. e., its validity as an instrument mortgagee and of a purchaser from creating a lien, — it would be gov- the mortgagor, under a chattel mort- erned by the law of the place where gage executed, in. Te^as, are, to be de- the mortgage was executed as the termined by the Texas statute, which lex lod contractus. 708 LAW OF THINGS. [Chap. VII. the lex fori with respect to matters pertaining to the remedy, as distinguished from the substantive contract.* Nor does the lex loci contractus necessarily exclude the lex loci solutionis in a ease in which the latter would be applicable according to the principles elsewhere stated with reference to personal con- tracts. ' Assuming, however, the validity of the mortgage, according to the lex loci contractus, as an instrument creating a lien on the property, the question as to the preservation of that lien and its priority over rights and interests, not purely derivative, subsequently acquired by third persons, is, in general, to be de- termined by the law of the place where the property was situ- ated at the time the mortgage was executed.® This principle, also, is often obscured by the coincidence of the lex domicilii, lex loci contractus, and lex situs, having reference to the situa- tion at the time the mortgage is executed ; and in such cases the decisions are sometimes formally referred to the lex domicilii of the mortgagor, or the lex loci contractus; but it becomes apparent that the lex situs is really the governing law in these respects when it is found that the great weight of authority applies the lex situs, even when the property, at the time of the mortgage, was located in a state other than that in which So, in Whitman v. Conner, 8 Jones of a mortgagee who takes possession & S. 339j while the question as to the of and sells, or otherwise disposes of, necessity of filing the mortgage was the property after its removal to referred to the lex rei sitw, the ques- Kansas, is governed by the law of tion as to the validity of the mort- Kansas, rather than by the law of gage, even as against third persons, the state where the mortgage was so far as it depended upon usury, executed and in which the property was referred to the law of the place was situated at the time of its exe- where the contract was executed and cution, since the matter relates to where the obligation secured was the remedy, and not to the substan- payable. And the same position was tive rights of the parties. Denny i. taken in Trower Bros. Co. v. Bamil- Faulkner, 22 Kan. 89. ton (Mo.) 77 S. W. 1081. spost, §§ 427a-427q. i The liability, to the mortgagor, 6 gee infra, notes 7-10. § 317b] MOVABLES. 709 the mortgagor was domiciled, and in which the mortgage was executed. Thus, it is well established that the filing or record- ing of a chattel mortgage according to the law of the domieil of the mortgagor, where the mortgage was executed, will not pro- tect the mortgagee against bona fide purchasers or creditors without notice in another state in which the property was lo- cated at the time the mortgage was executed, unless the same is refiled or rerecorded in the latter state pursuant to its laws, even when such laws do not expressly, or in terms, cover mort- gages executed out of the state by nonresidents upon property within the state. ^ So, the necessity and form of an oath as to iQreen v. Van Buskirlc, 7 Wall, ment levied in West Virginia upon 139, 19 L. ed. 109; Re Soldiers' Biisi- personal property was prior to a ness Messenger & Despatch Go. 3 deed of trust which had never been Ben. 204, Fed. Cas. No. 13,163; Re recorded in the county in which the Brannock, 131 Fed. 819; Bardaway property was situated, but which V. Semmes, 38 Ala. 657; Ames Iron had been recorded in another state. Works V. Warren, 76 Ind. 512, 40 It does not appear where the prop- Am. Rep. 258; McFadden v. Blocker, erty was at the time the mortgage 2 Ind. Terr. 260, 58 L. R. A. 878, 48 was executed. S. W. 1043; Aultman £ T. Mach. Co. In some of the foregoing eases the V. Kennedy, 114 Iowa, 444, 86 Am. local statute provided that the mort- St. Rep. 373, 87 N. W. 435; Arkansas gage should be filed or recorded in City Bank v. Gassidy, 71 Mo. App. the county in which the property 186; Clark v. Tarbell, 58 N. H. 88; was located. It is, of course, per- Keller v. Paine, 107 N. Y. 83, 13 N. feetly feasible to comply with such E. 635; Whitman v. Conner, 8 Jones a statute, though the mortgagor be & S. 339. a nonresident and the mortgage be Smead v. Chandler (Ark.) 76 S. executed out of the state. W. 1066, is to the same effect, but in McFadden v. Blocker and Arkan- Arkansas the statute expressly pro- sas City Bank v. Cassidy, stupra. Tides that, if the mortgagor be a however, applied the rule of the text, nonresident of the state, the mort- notwithstanding that the local stat- gage shall be recorded in the county ute required the mortgage to be re- in which the property is situated at corded in the county of the mortga- the time the mortgage is executed, gor's residence, and held that, since But see contra, Lally v. Holland, 1 compliance with such statute was Swan, 399. impossible where the mortgagor was Ballard v. Or eat Western Min. £ a nonresident, nothing but a, change Mfg. Co. 39 W. Va. 394, 19 S. E. 510, of possession would protect the lien. also held that the lien of an attach- And Golden v. Cockril, i Kan. 259, 710 LAW OF THINGS. [Chap. VII. the consideration in order to uphold the mortgage as against third persons is to be determined by the lex situs, rather than the lex loci contractus.^ As already intimated, however, the question as to the preservation and priority of the lien as against third persons is to be referred to the lex situs as of the time the mortgage was executed, and not of the time of the subsequent dealings with the property. Hence, the rule, supported by the weight of authority, that the lien of a chattel mortgage which is valid, without a change of possession, by the law of the place where executed and where the property was then situated, is not defeated by the subsequent removal of tlie property by the mortgagor (at least if it is without the knowledge or consent of the mortgagee) to another state where a different rule prevails, 81 Am. Dee. 510, held that the regis- made such a distinction, holding that tration in Missouri, pursuant to its a mortgage of personal property then laws, of a chattel mortgage executed in Massachusetts, made in another between residents of that state upon state between citizens of that state, property at the time in Kansas, did executed and recorded according to not obviate the necessity of a change the laws thereof, was valid without of possession as required by the law delivery of the property or recording of Kansas in order to protect the of the mortgage in Massachusetts as mortgagee against a, subsequent at- against a subsequent attachment in tachment by a creditor of the mort- the latter state by a citizen of the gagor, there being, at the time the state in which the mortgage was exe- mortgage was executed, no provision cuted. The court intimated that the in the Kansas statute for registra- rule would be different as against an tion of mortgages in lieu of a change attaching creditor who was a resi- of possession. dent of Massachusetts. Green v. Yon Buslcirk and Keller Smead v. Chandler, supra,, applied V. Pmne, supra, applied the rule, not- the rule of the text to a mortgage withstanding that the attaching cred- covering an indebtedness due frorii a itor who attacked the mortgage was resident of Arkansas, the court hold- a resident of the state where the ing that the situs of the debt, for the mortgagor was domiciled and the purposes of the statute with refer- mortgage was executed; and the ence to the filing of mortgages, was other cases above cited do not refer in the state where the debtor resided to any distinction based upon the ar.d did business and where he might residence of the party attacking the be sued, mortgage. ^Pleasamion v. Johnson, 91 Md. Rhode Island Central Bank y. 673, 47 Atl. 1025 ; Sherman v. Estetf Danforth, 14 Gray, 123, however. Organ Co. 69 Vt. 355, 38 Atl. 70. ■§ 317b] MOVABLES. 711 •and its sale to a bona fide purchaser, or seizure under process :against the mortgagor, in the latter state. ^ So, according to the great weight of authority, if the mortgage is duly filed or recorded in accordance with the law of the place where it was •executed, and where the property was then situated, it is not necessary to refile or rerecord it, in order to protect the mort- gagee against bona fide purchasers or encumbrancers of the property after its removal to another state, at least if the mort- gagee did not know of, or consent to, such removal.^" Of ^Ballard v. Winter, 39 Conn. 179 ; void as against creditors. Bender- Jones V. Taylor, 30 Vt. 42 (Overrul- son v. Thayer, 5 Ohio Dec. Reprint, ing Skiff V. Solace, 23 Vt. 279) ; Nor- 115, is to the same effect. ■ris V. Sowles, 57 Vt. 360; Oohh v. Runyon v. Groshon, 12 N. J. Eq. Buswell, 37 Vt. 337 (notwithstand- 86 (at a time when, by the law of ing that the mortgagee knew of and New Jersey, the retention of posses- iconsented to such removal) ; Martin sion by the mortgagor was merely V. Bill, 12 Barb. 631; Edgerly v. prima facie evidence of fraud), held Bush, 81 N. Y. 199; Michigan G. R. that a, chattel mortgage, executed in ■Co. V. Chicago & M. L. 8. R. Go. 1 that state between parties thero 111. App. 399. But see contra, Mac- domiciled, upon property at the time 'Oa5e V. Blymyre, 9 Phila. 615; Ar- in New York, prevailed over the title mitage v. Spahn, 4 Pa. Dist. R. 270; of one who, in good faith, purchased .State Bank v. Garr, 15 Pa. Super, the property in New York from the Ot. 346. mortgagor, notwithstanding that the Mumford v. Ganty, 50 111. 370, 99 mortgage had not been filed in New Am. Dee. 525, held that the law of York as required by its laws. This Missouri, under which the possession was an action by the mortgagee ■of property by the mortgagor after against the vendee to foreclose the maturity of the debt is not, per se, mortgage; and the decision is upon fraudulent as to his creditors, but the ground that the courts of New may be shown to be bona fide, gov- Jersey would apply their own law ■erns a chattel mortgage made in to the situation. It was conceded that state by a resident thereof upon that, if the property had remained property at the time in that state in New York and the suit had been but subsequently taken by the mort- brought in that state, the law of gagor to Illinois and seized there un- New York would have been applied, •der attachment by a bona fide cred- ^''Shapard v. Bynes, 52 L. R. A. itor after maturity of the debt, not- 675, 45 C. C. A. 271, 104 Fed. 449, withstanding that, by the law of II- v/hich stated the rule, expressly sairt linois, the retention of possession that it applies whether the removal ^fter maturity is conclusive of is with or without the mortgngto's iraud, and renders the mortgage consent; and the followmg oases. 712 LAW OF THINGS. [Chap. VII. ;Course, the latter rule yields when the registration statute of the state to which the property is removed expressly applies to which also support the rule, do not iide purchasers or attaching cred- qualify it by any condition as to the itors are not involved; and it inortgagee's consent: is held in the latter case that GosUne v. Dunbar, 32 N. B. 325; a chattel mortgage executed and re- Ilall V. Pillow, 31 Ark. 32; Blystone corded in another state, upon prop- V Burgett, 10 Ind. 28, 68 Am. Dec. erty subsequently transferred to Ten- 6.58; Ames Iron Works v. Warren, nessee, is not entitled to priority 76 Ind. 512j 40 Am. Rep. 258; Ord over the liens of attaching creditors Nat. Bank v. Massey, 48 Kan. 762, in the latter state. The rule of the 17 L. E. A. 127, 30 Pac. 124; Lang- text is denied by the following eases, worthy v. Little, 12 Gush. 109; Kee- without reference to the consent or nan v. Stimson, 32 Minn. 377, 20 N. nonconsent of the mortgagee to the W. 364; Hundley v. Mount, 8 Smedes removal of the property: Miles v. & M. 387; Prewett v. DoUs, 13 Ode», 8 Mart. N. S. 214, 19 Am. Dec. Smedes & M. 431; Barker v. Stacy, 177; Frelson v.Tiner, 6 La. Ann. 18; 25 Miss. 471; Davis v. Williams, 73 Verdier v. Leprete, 4 La. 41; Zolli- Miss. 708, 19 So. 352; Lafayette koffer \. Brig gs, 19 l,a,. 521; Tillman County Bank v. Metcalf, 29 Mo. App. v. Drake, 4 La. Ann. 16; Delop v. SSi; Smith Y. Hutchings, 30 Mo. 380; Windsor, 26 La. Ann. 185; Mont- Feurt v. Rowell, 62 Mo. 524; Offutt gomery v. Wight, 8 Mich. 143; Boyd- V. Flagg, 10 N. H. 46; Ferguson v. son v. Goodrich, 49 Mich. 65, 12 N. Clifford, 37 N. H. 87; Cushman v. W. 913; Corbett v. Littlefield, 84 Luther, 53 N. H. 562; Parr v. Brady, Mich. 30, 11 L. E,. A. 95, 22 Am. St. 37 N. J. L. 201 ; Nichols v. Mase, 94 Eep. 681, 47 N. W. 581 ; Vining v. N. Y. 160 ; Hornthall v. Burwell, 109 Millar, 109 Mich. 205, 32 L. R. A. N. C. 10, 13 L. E. A. 740, 26 Am. St. 442, 67 N. W. 126; Buffalo Goal Co. Eep. 556, 13 S. E. 721; Wilson v. v. Rochester d State Une R. Co. 8 Rustad, 7 N. D. 330, 66 Am. St. W. N. C. 126; Crosby v. Huston, 1 Eep. 649, 75 N. W. 260; Greenville Tex. 203. See also Rosenbaum v. Nat. Bank v. Evans-Snyder-Buel Co. Dawes, 77 111. App. 295, Affirmed in 9 Okla. ,353, 60 Pac. 249; Craig v. 179 111. 112, 53 N. E. 585; and Her- Williams, 90 Va. 500, 44 Am. St. nandez v. Aaron, 73 Miss. 434, 16 So. Eep. 934, 18 S. E. 899. 910. The language used in the opinions The rule of the text was applied in Bank of Louisville v. Hill, 99 in Langworthy v. Little, 12 Gush. Tenn. 42, 41 S. W. 349, and Hughes 109, and Craig v. Williams, 90 Va. V. Abston, 105 Tenn. 70, 58 S. W. 500, 44 Am. St. Eep. 934, 18 S. E. 296, is broad enough to support the 899, supra, although the mortgagor doctrine of the text upon this point; was, at the time of the execution of but the effect of these decisions is the mortgage, domiciled in the state limited by Snyder v. Yates (Tenn.) to which the property was subse- 64 L. E. A. 353, 79 S. W. 796, quently removed, which was also the to cases where the rights of bona forum. § 317b] MOVABLES. 71» In Parr v. Brady, 37 N. J. L. 201, 29 Pac. 1145, applied the rule, not- supra, however, the fact is empha- withstanding that the mortgagee sized that, at the time of the execu- knew of the removal of the property tion of the mortgage, the mortgagor to Kansas, and permitted it to re- was not a resident of New Jersey, main there for several months with- and the mortgage was therefore not out claiming the same, within the New Jersey statute re- And Blythe v. Crump Bros. 28 quiring a chattel mortgage to be filed Tex. Civ. App. 327, 66 S. W. 885, in the county wherein the mortgagor, applied the rule where sufiBcient time if a resident of the state, shall re- had not elapsed between the removal, side at the time of the execution which was without the mortgagee's thereof. See also, in this connection, consent, and the subsequent sale, to the decision in Cooper v. Philadel- enable him to give notice by regis- phia Worsted Co. (N. J. Eq.) 57 Atl. tration in the latter state. 733, post, § 355b, note 3. Greene v. Bentley, 52 C. C. A. 60, In Smith v. McLean, 24 Iowa, 322, 114 Fed. 112, however, held that the and Simms v. McKee, 25 Iowa, 341, mortgagee had lost his lien acquired which apply the rule of the text, it under a mortgage executed in Texas appeared that the removal was with- as against a subsequent purchaser of out the knowledge or consent of the the property, under attachment mortgagee, though no distinction is against the mortgagor, after its re- based on that fact. moval to Louisiana, by his failure to The rule of the text is supported exercise due diligence to give notice by the following cases, with the of his lien, notwithstanding that qualification that the mortgagee did there was no provision for recording not consent to the removal: Armit- the mortgage in Louisiana. age-Herschell Co. v. Potter, 93 111. Assuming that the local statute App. 602; Kanaga v. Taylor, 7 Ohio with reference to filing or recording St. 134, 70 Am. Dec. 62; Anderson v. chattel mortgages makes no distinc- Doak, 32 N. C. (10 Ired. L.) 295; tion between subsequent bona fide 'National Bank of Commerce v. Mor- purchasers and creditors without no- ris, 114 Mo. 255, 19 L. R. A. 463, 35 tice, there is no ground for making Am. St. Rep. 754, 21 S. W. 511. any distinction between them in ap- The majority opinion in F. E. plying the rule dispensing with the Greelman & Co. v. hesh (Ark.) 83 necessity of refiling or rerecording. S. W. 320, follows the rule of the The local statute may, however, dis- text upon the assumption that the tinguish between such parties, and mortgagee did not consent to the re- in that case the distinction may moval, and expressly refrains from modify the effect of the rule. See expressing any opinion as to the ef- Beall v. Williamson, 14 Ala. 55; feet upon the rule of the mortga- Wyse v. Dandridge, 35 Miss. 672, 72 gee's consent. In a concurring opin- Am. Dec. 149. ion, however, the position is taken A rule analogous to that of the that the mortgagee's consent does text has also been applied to the not affect the rule. necessity of filing an instrument by Handley v. Harris, 48 Kan. 606, 17 which personal property is trans- L. R. A. 703, 30 Am. St. Rep. 322, ferred by a husband to, or for the ■714 LAW OF THINGS. [Chap. VII. mortgages executed by nonresidents out of the state upon prop- erty subsequently brought into the state. ' ^ By the converse of the rule that dispenses with a change of possession or refiling or rerecording in accordance with the law ■of the state to which the property is removed, it would seem that the law of the state where the mortgagor was domiciled, the mortgage was executed, and the mortgaged property was then situated, requiring a change of possession, or filing or re- cording, must be complied with in order to protect the lien of the mortgage as against subsequent creditors or purchasers, even after the removal of the property to the other state. ^ ^ Upon ■benefit of, his wife, in order to pro- 731, 748; Lyde v. Taylor, 17 tect the wife against the husband's Ala. 270; Turner v. Fenner, 19 creditors after the removal of the Ala. 355. property to another state. Bank of See also post, § 355b, where the United States v. Lee, 13 Pet. 107, same principle is applied to contracts 10 L. ed. 81; DeLane v. Moore, 14 of sale with reservation of title. How. 253, 14 L. ed. 409; Palmer v. n In some states the statute ex- iGross, 1 Smedes & M. 48; Davis v. pressly provides that a mortgage un- Williams, 73 Miss. 708, 19 So. 352; der such circumstances must be re- Parks V. Willard, 1 Tex. 350, 46 Am. corded within a specified time after Dec. 100. the removal of the property into the And the same rule has been ap- state; but it has been held in such plied to the necessity of registering states, in accordance with the gen- a. deed of trust in order to protect eral rule, that the lien of the mort- the rights of the cestui que trust, gage is protected during the interval Presley v. Rodgers, 24 Miss. 520. allowed by the statute for filing or But see Wyse v. Dandridge, 35 Miss, recording within the state. Johnson ■672, 72 Am. Dec. 149. v. Hughes, 89 Ala. 588, 8 So. 147 ; So the provision of the Alabama Peterson v. Kaigler, 78 Ga. 464, 3 S. statute, requiring a transfer of a re- E. 655; Huibard v. Andrews, 76 Ga. mainder interest in personal property 177. limited upon a life estate, to be re- '^^ Arnold v. Eastin, 25 ICy. L. Rep. ■corded in order to protect the re- 895, 76 S. W. 855; Carroll v. Nisbet, mainder-man as against the creditors 9 S. D. 497, 70 N. W. 034; Stirk v. ■of, or purchasers from, the life ten- Hamilton, 83 Me. 524, 22 Atl. 391. ant, does not apply to a transfer Herrick v. King, 19 N. J. Eq. 80, and made in another state where the Richardson v. Shelby, 3 Okla. 68, 41 property was then situated, although Pac. 378, held that the failure to file it is subsequently removed to Ala- the renewal affidavit, as required by ibama. Catterlin v. Hardy, 10 Ala. the law of the state where the mort- al 2; Adams v. Broughton, 13 Ala. gage was executed and v/here the § 317b] MOVABLES. 715 the other hand, hj the converse of the rule that requires a change of possession, or filing or recording in, and pursuant to the laws of, the state where the property is situated at the time the mort- gage is executed even when the same is executed in another state by a person domiciled therein, it would seem that the failure to comply with the law of the latter state in this respect would not defeat the mortgage as against a subsequent purchaser or cred- itor, assuming compliance vnth the law of tbe former state, and assuming, also, the validity of the mortgage as between the par- ties thereto, according to tbe law of the latter state. ^ * 318. When lien is extinguished by transfer to another place. — Supposing that by the law to which the contract of sale is sub- ject the vendor has a lien on the goods, is this lien extin- guished on the arrival of the goods at their place of destina- tion, in which place the law recognizes no such lien or right ?^ Judge Story argues in the negative, on the ground that "upon jjroperty was then situated, was fatal mortgage was executed and at the to the lien, notwithstanding the sub- time of the attachment. The decision sequent removal of the property to is upon the express assumption that another state. But see contra, Goo- the failure to record did not, even by kin V. Graham,, 5 Humph. 484; Gait the law of the state where the mort- V. Dibrell, 10 Yerg. 153; Walker v. gage was executed, invalidate the Marseilles, 70 Miss. 283, 12 So. 211. same as between the parties thereto. And see also Cronan v. Fox, 50 N. J. See also Fishburne v. Kunhardt, 2 I.. 417, 14 Atl. 119. Speers, L. 556, holding it unneces- 13 It was expressly held in Ault- sary to file a mortgage in Alabama, man rf T. Mach. Go. v. Kennedy, 114 where the same was executed, the Iowa, 444, 86 Am. St. Rep. 373, 87 property being at the time in South jST. W. 435, that the failure to record Carolina, where the mortgagor was the mortgage in the state where it domiciled; and Pyeatt v. Powell, 2 was executed and the mortgagor was C. C. A. 367, 10 U. S. App. 200, 51 ■domiciled, as required by the laws of Fed. 551, holding that a chattel mort- that state to protect it against at- gage of property in the Indian Terri- tachment creditors with or without tory by a resident there, though ex- actual notice, did not defeat the ecuted in Kansas, is not affected by mortgage as against an attaching the Kansas laws requiring filing and creditor with actual notice, where it registration, did not have such effect according to the law of the place where the prop- iSee post, § 354. •erty was situated at the time the 716 LAW OF THINGS. [Chap. VII. the general principles . . . as to the operation of contracts, and the rule that movables have no locality" (which is admit- ted on all sides as to movables in transit) , "it would seem that these privileges, hypothecations, and liens ought to prevail over the rights of subsequent purchasers and creditors in every other country. That having once attached rightfully in rem, they ought not to be displaced by the mere change of local situ- ation of the property."^ In conflict with this view is a case decided in Alabama in 1860, in which it was held that a lien given in Mississippi, on a chattel then in that state, for a minor's interests, under a sale in the probate court, could not be enforced in Alabama, when the chattel was moved into that state, against a bona fide purchaser.* If we follow the line of Savigny,* we must hold that a lien rightfully imposed in one state, where the goods at the time are, cannot be maintained, when the goods are moved into another state not recogniz- ing such lien, as against bona fide purchasers without notice.^ It is true that Bar, as we have seen, qualifies this by the state- ment that in countries subject to the common Roman law for- eign liens will be recognized, because such liens are in har- mony with the local law. But when the local law is based on the rule "Possession vaut titre," then, when the goods arrive at their permanent destination in such place, the liens in ques- tion yield to the claims of creditors and purchasers. So we come back again, in this view, to the position as to liens on movables, that the lex rei sitw prevails.® 2 Story, Confl. L. § 402, citing Liv- Illinois, where it was levied on by a ermore. Dissert, on Laws, p. 159, § bona fide creditor, that the Missouri 240. Inglis v. Vsherwood, 1 East, mortgage was not devested by the 515, is also cited to this point by sale, though bad by Illinois laws. Judge Story; but Mr. Westlake, on But this supposes notice. If there International Law (1st ed. art. 272), was no notice, and the lien was se- remarks that the "conflict here im- eret, then the Illinois attachment agined did not arise in Inglis v. should have been held good. Ante, Vsherwood, for there the vendors re- § .317. See post, § 354. See also possessed the goods while still in ante, §§ 317a, 317b. Russia, under the right given by the ^Marsh v. Elsworth, 37 Ala. 85. law of that country, which was also *Ante, § 313. the place of sale." ^Shif v. Solace, 23 Vt. 279, and It was held in 1869 in Illinois cases post, § 324. (Mumford v. {Janty, 50 111. 370, 99 Am. Dec. 525), when, after personal Skif v. Solace has been overruled, property was mortgaged in Missouri, See ante, § 317b, note 9. where it then was, and permitted to remain with the mortgagor after the ein New Hampshire it has been maturity of the debt the mortgage held that a. lien for attorneys' fees, was to secure, which was valid in in accordance with Vermont law, ap- Missouri, the property was moved to plies to money collected in New § 318a] MOVABLES. 717 318a. Same; statutory lien. — As already shown/ a lien cre- ated by contract is not lost by tbe subsequent removal of the property to anotlier state, although the requirements of the law of the latter state with reference to the preservation of such liens are not complied with. And the later authorities support the same rule with respect to liens created by statute,^ though a court of one state may, by reason of the lack of the proper mode of procedure, refuse to enforce a lien created by a statute of another state. ^ Hampshire on a Vermont judgment, company, which is instructed not to Citizens Nat. Bank v. Culver, 54 N. deliver it until the claim for board H. 327, 20 Am. Eep. 134. . -j r •,,. . • „ ' '^ is paid. Jaqmth v. American Exp. See, however, upon this general Go. 60 N. H. 61. subject, ante, §§ 317a, 317b, and A statutory lien may be enforced post § 318a. ill ^ court of another state having i§ 317b. jurisdiction of the subject-matter So, an equitable lien upon animals, and parties, unless there is a pre- created by contract in Arkansas, may scribed procedure for its enforcement be, enforced in the Indian Territory which attaches as a part of the lia- upon the removal of the cattle there- bility, or unless its enforcement to. Riddle v. Eudgins, 7 C. C. A. would be against good morals or nat- 335, 19 U. S. App. 144, 58 Fed. 490. ural justice, or prejudicial to the 2 Wliere, by the law of the country general interest of the citizens of the in which a corporation is domiciled, forum. North Pacific Lumber Co. v. it may, by the amendment of its Lang, 28 Or. 246, 52 Am. St. Rep. by-laws, acquire a lien upon stock 780, 42 Pac. 7r3. for the amount of the indebtedness When a lieu has attached on per- due to it from the stodcholder para- sonal property by the delivery of a mount to the lien acquired by a prior fieri facias to the sheriff, which, dur- pledge of the stock by the holder, the ing the continuance of the lien, is priority of such lien will be recog- removed by the defendant in execu- nized by a court of the United States, tion to another state and there sold, notwithstanding that the stockholder it may be levied on and sold by an was a citizen of the United States, alias execution if brought back to Hudson River Pulp & Paper Go. v. Alabama. McMahan v. Green, 12 H. H. Warner & Co. 39 C. C. A. 452, Ala. 71, 46 Am. Dec. 242. But see 09 Fed. 187. Marsh v. Elsworth, 37 Ala. 85, ante, A boarding-house keeper's lien aris- § 318. ing under a statute of Massachusetts ^ See North Pacific Lumber Go. v. 13 not lost by sending the property Lang, 28 Or. 246, 52 Am. St. Rep. to New Hampshire by an express 780, 42 Pac. 799. 718 LAW OF THINGS. [Chap. VII. 319. Conflict as to -whether liens can be established by trans- fer to another place. — Can a lien, not given by the law of the place in which the goods are sold, be asserted by a vendor or creditor when the thing reaches a country where, on such a contract, a lien is given ? In Louisiana the rule seems to be that no such lien is acquired by a vendor.^ To the same effect is Mr. Burge's reasoning, so far as concerns the vendee, on the ground that between the vendor and vendee the contract is to be construed by the law of the place where it is made.^ Sa- vigny^ negatives the right to the lien on the general principle that the lien is part of the contract, and only arises when the lex rei and the law of the contract both confer it. In Xew York, however, it was ruled, in 1861, that where an Ohio stat- ute gave a lien for articles furnished in equipping a ship, a New York creditor, who furnished such articles in ISTew York, on a New York contract, to a New York ship, could avail him- self of the Ohio lien when the ship reached an Ohio port "Of course," said Johnson, J., in giving the opinion of the court, "the statute of Ohio could not create a lien upon a vessel lying in the waters of this state, for a debt created here, while the vessel was thus situated. But I do not see why the state of Ohio may not by statute give the creditor residing here, when he comes into that state, a right to attach such vessel whenever it may come there, to enforce the payment of such debt. The action in such a case is not to enforce a lien existing previously, but to create one by the ser\'ice of the process upon the prop- erty."* It will be observed upon referring to anie, § 317a, that the later cases support the Louisiana rule. iWMstoTO V. Stodder, 8 Mart, has a lien upon the slaves for the (La.) 95, 13 Am. Dec. 281. Where money advanced, is to be determined consignees have no lien on cotton in , ^ ,, „ , „* t„ • - j j. i. the state where they have advanced ^^ *^« ^^^ °^ Louisiana, and not by supplies to raise it, they do not ac- the law of the state where the pur- quire a lien by being afterwards chase was made. Gcmse v. BuUard, moved into a state where such lien jg l^. Ann. 107. The decision is re- exists in transactions subject to its , , , a j.- i i« ^ iu ^- ■^ law. Delop v. Windsor, 26 La. Ann. ^'"'^ *° ^^*"<=1« 10 °^ ^^^ Civil 185. Code. But the question whether a person, 2III. p. 770. who advances money for the pur- ^§ ^''S- 1 - 1 . ,1 i i i. ^Stedmam, v. Patchin, 34 Barl>. chase of slaves m another state to „,„ ■-..■^-■.•■'.■j ^-x jja±u. be imported and sold in Louisiana, § 320] MOVABLES. Tl* 320. Conflict in this respect among foreign jurists. — By the common Roman law a person can hypothecate his entire estate as an aggregate, i. e., all things which he has in bonis at the particular time, and those which he will possess in future. This law prevails in Hanover. A person domiciled in Han- over hypothecates in Hanover his entire estate, present and future. He possesses a collection of pictures in Berlin, which,, by the lex situs, is not subject to this law. This collection is brought to Hanover, and the moment it arrives there, accord- ing to Bar, is subject to the hypothecation.^ As to tacit liens, however, there are several questions open still to doubt. Thus,, in some countries, the law gives a tacit lien for purchase money; and so, also, particular local laws give liens to mate- rial men and others, for things furnished to houses or ships, without any agreement being entered into to this effect by the ship or houseowner. First, do such liens attach whenever they are given solely by the lex rei sitcef Or, secondly, do they attach, irrespective of the question of the situs when they are part of the remedies which are afforded by the law to which the contract of sale is subject? Or, to constitute them, is it necessary, thirdly, that they should be given both by the lex rei sitae, and by the law of the place to which the contract is. subject? The first view is sustained by Bodenburg,^ and by J. Voet,* and, inferentially, by a case already mentioned as occurring in New York.* This view is contested by Bar,^ and with him Foelix coincides.^ But when such an hypothe- cation is given by the law to which the contract is subject, as well as by the lex rei sitae, then the lien attaches. Thus, in some countries subject to the Roman law, the wife has a lien on her husband's property for the money furnished by her to their joint estate. Does a wife, who is a foreigner, enjoy this lien ? The better opinion seems to be that she does, when it is given, not only by the lex rei sitae, but by the law of the matri- monial domicil.'^ But in France the point has been much doubted. The prevalent practice has been to refuse such liens to a foreign wife, or, in case of the parents' death, to foreign iBar, § 65. But the New York sTI. part i. chap. 5, § 6. case goes much beyond this; for in ^Uig. 20, 2, No. 34. tlie case put by Bar the contract was *8tedman v. Patchin, 34 Barb. Hanoverian, and implied a lien; 218. Ante, § 319. whereas in Stedman v. Patchin, 34 6§ 65. Barb. 218, the contract was subject 61. p. 1,37. to the law of New York, by which no 'Bar, § 65. such lien was given. 720 LAW OF THINGS. [Chap. VII. minor children,* on the ground that the hypotheque legale helongs to the droits civils; which no foreigners can acquire. This, however, has been much deplored by recent eminent French jurists,® and, when the law of the matrimonial domicil concurs with the lex rei sitw in giving such lien, is inconsistent with sound international law. 321. As to mechanics' liens, lex situs controls. — It is difficult to see how this question can arise on mechanics' liens on build- ings, because it is hard to conceive of a case where the lex rei sitw is not also the law to which the contract of sale is subject. Mechanics' liens on goods, however, when allowed by the local law, are subject to the rules laid down above. The lex situs must control. And such lien is lost if the goods are removed into another state (not recognizing such liens), so far as con- 'Cems bona fide purchasers without notice.-' 321a. Mechanics' liens. — It is clear that neither the residence of the parties, nor the place of the making of a contract — i. e., an executory contract — for labor or material employed in the improvement of real property, is material for the purposes of a mechanic's lien under the lex situs of such property, if the contract is performable in the state where that property is lo- cated. ^ That will ordinarily be the case so far as contracts for sSirey, 34, pt. ii. p. 482, giving a So, in PulUs Bros. Iron Go. v. decision to this effect of the Cour Natchitoches, 51 La. Ann. 1377, 26 Tov. d'Amiens: Massg, No. 331. „„ .„„ ., , ,, ., , ,. ,, »Den,angeat; in note to Foelix, i. S°- ^^^' '*- ^«« ^'^^^ ^^^^ ^ I'^n would p. 137; Merlin's Repertoire, cited by attach under the Louisiana statute TVIasse, as above. for material furnished in the con- iSee ante, § 318. struction of a building in tliat state, iDahlonega Gold Mm. Go. v. "'°"gl» ^^^ contract to furnish the Purdy, 65 Ga. 496; Thurman v. Kyle, ™i^terial was made in another state; 71 Ga. 628; Gaty v. Gasey, 15 III. ^"^^ " ^'^^ "^"^ ^PPea-'' ^^ this case 189; United States Invest. Go. v. '° ^*''<=^ ^^^^e the title to the ma- Phelps d B. Windmill Go. 54 Kan. *^"^1 V^^^^' ^he court said, how- 144, 37 Pac. 982; Atkins v. Little, ^^'<"'' t*^^* ^he lien attaches by reason 17 Minn. 342, Gil. 320; Gampbell v. "^ ^^^ "^« °^ ^^^ material in the ■Goon, 38 L. R. A. 410 (and note), construction of the building, and 149 N. Y. 556, 44 N. E. 300; ffree«- '^°^^ "°* "^^P^"'! "Pon any contract wood v. Tennessee Mfg. Co. & Agri. between him and the owner. School, 2 Swan, 130. ■S 321a] MOVABLES. 721 labor are concerned;^ but it is obvious that an executory con- :tract for the sale of material to be used in the improvement of real property may be performed by the delivery of the material and the transfer of title thereto in a state other than that in which that property is located. It is clear that the mechanic's lien statute of the state in which the material is to be delivered cannot impress a lien therefor upon real property in another state.* The question, however, arises whether, in such a case,. a lien will attach under the statute of the state in which the property to be improved is located. Of course, if that statute is explicit on the subject, it will prevail over any general prin- ciples that may be formulated upon the subject. There is, iowever, a decided conflict of authority upon the question, when the statute is not explicit in this respect, but provides, in general terms, for a lien in favor of persons furnishing material. The weight of authority seems to be in favor of maintaining the lien under such circumstances, * but there are a number of cases .that expressly hold the contrary.® The latter decisions rest 2 In St. Louis Bridge & Gonstr. Go. & N. W. R. Go. 72 Mo. 664; Great ■V. Memphis, G. & N. W. B. Go. 72 Western Mfg. Go. v. Hunter Bros. \b Mo. 664, however, a, lien was allowed Neb. 33, 16 N. W. 759; Genest v. Las ;under the Missouri statute upon the Ves-gas Masonic Bldg. Asso. (N. M.) part of a, railroad lying within tha,t 67 Pac. 743; Mack v. Degraff & li. «tate, for work done and material Quarries, 57 Ohio St. 463, 63 Am. St. -furnished for that part of the road Eep. 729, 49 N. E. 697; Fagan v. which lay without the state; and Boyle Ice Mach. Go. 65 Tex. 324; "that ruling was recognized in Ireland Mallory v. LaGrosse Abattoir Go. 80 -V. Atohison, T. & S. F. B. Go. 79 Mo. Wis. 170, 49 N. w. 1071. It appears .572. in Oaty v. Gasey, 15 111. 189, that 3 This proposition scarcely needs the contract for the material was authority; but a statement to that made in another state, but it does effect will be found in Mach v. De- not expressly appear that the ma- M^aff & R. Quarries, 57 Ohio St. 463, terial was delivered in tlie other 63 Am. St. Hep. 729, 49 N. E. 697. state, though that was probably the ^Mehan v. Thompson, 71 Me. 492; case. Thompson, v. St. Paul Gity R. Co. 45 ^Willey v. St. Charles Eotel, 52 Minn. 13, 47 N. W. 259; St. Louis La. Ann. 1581, 28 So. 182; Birming- JBridge & Gonstr. Go. v. Memphis, C. ham Iron Foundry v. Glen Cova Vol. I. CoNFi,. of Laws — 46 722 LAW OF THINGS. [Chap. VII, upon the ground that the extension of the local statute to such a case gives it an extraterritorial effect. Upon the assumption that the statute makes the lien dependent upon the actual use of the material in the improvement of the property, tiie courts that uphold the lien meet the extraterritoriality objection by insist- ing that the lien is consummated by an act — i. e., the use of the material upon the improved property — that takes place within the territorial jurisdiction of the state which enacted the statute. The objection is more serious when, under the statute, the lien attaches upon the delivery of the material to be used in making the improvement, and is not dependent upon, or postponed un- til, its actual use for that purpose. One of the courts which uphold the lien even under such circumstances has said in reply to the objection : "That one or all of the facts from which the law evolves the lien transpired beyond the limits of the state cannot affect the validity of the law, which 'spends its force' (Cooley, Const. Lim. 128) entirely within its territory. The effect of the law is wholly in the state, and we can see no ob- jection to that effect being conditioned on a fact, wherever it starch Mfg. Go. 78 N. Y. 31; Camp- placed upon the land by the person hell V. Goon, 149 N. Y. 556, 38 L. K. claiming the lien. A. 410, 44 N. E. 300 (oUter) . It Tyler y. Currier, 13 Gia-j, lM,'heW was held in Stout v. Sawyer, 37 that no lien would attach under the Mich. 315, that to entitle one to a Massachusetts statute for timber lien under the Michigan statute, sold and delivered in another state which gives a lien upon land to one and brought by the purchaser into v/ho constructs or puts up machinery the commonwealth and there used in on land, the contract must relate to, building a ship, if there was no ex- and be performed upon, the land; press agreement that there should be and it was accordingly held that one a lien, or that the timber should be ■who furnished machinery in another so applied. The court said that such state under a contract having no re- an agreement would not be necessary lation to the land was not entitled if the contract had been made and to a lien; but the decision would the timber had been delivered in eventually have been the same if the Massachusetts, because the law would machinery had been delivered in then create the lien and cause it to Michigan, but had not actually been attach as an incident to the con- § 321a] MOVABLES. 723 occurs, whicli transpires locally, but exists ubiquitously."® In another ease which upholds the lien, the decision seems to be upon the ground that the mechanic's lien statute is remedial, and does not relate to the substantive rights of the parties. ^ Although it would be competent for the legislature of a state to give a lien upon the part of a railroad within the state for work and labor or materials, done or furnished in the improve- ment of the part of the road in another state, nothing short of . a clear, positive, unequivocal enactment to that effect should be so construed by the courts. * The place of the making of a contract for material or labor to be employed on personal property is also immaterial for the purposes of a lien under the lex situs of that property, at least if the contract is performed in the state where the property is located.* Upon the other hand, it is clear that, when the law tract; but that no such law was in part of the road out of the state, is operation where the contract was not entitled to a lien upon the part made and performed. of the road in the state, under Mo. ^Fagan v. Boyle Ice Mach. Co. 65 Rev. Stat. 1889, § 4239, which pro- Tex. 324. This case discusses and vides that all persons who shall do disapproves of the decision in Bir- any work, or furnish any material, in mingkam Iron Foundry v. Glen Gove the construction or improvement of Starch Mfg. Go 78 N. Y. 31. the roadbed of any railroad company iMaok V. Degrwff & B. Quarries, 57 incorporated under the laws of the Ohio St. 463, 63 Am. St. Rep. 729, state, or owning or operating a rail- 49 N. E. 697. The court, however, road within the state, shall have a seems to assume that the decision lien upon the roadbed, station houses, must be the same even if the statute etc. Bagnell Tiniber Go. v. Missouri, were regarded as substantive, rather K. <& T. R. Go. (Mo.) 79 S. W. than remedial. The actual question 1]30, Overruling 8t. Louis Bridge <& in this case was as to the right of Constr.Co.v. Memphis, G. & N. W. R. a material-man to share in the dis- GO. 72 Mo. 664, so far as that deci- tribution of a fund arising from a sion construed the statute to apply paving contract; but the court as- to such a case, but conceding its cor- sumed that the same rule would ap- rectness so far as concerns the queia- ply as if it had been a, question of tion of constitutional power, a lien on real property. ^Baeder v. Garnie, 44 N. J. L. 208 : 8 Thus, a, person furnishing ties McDonald v. The Nimbus, 137 Mass. out of the state to a railroad com- 360. In the latter case the lien was pany, used in the improvement of the denied, notwithstanding the material ;24 LAW OF THINGS. [Chap. VII. of the state in which personal property was located at the time the labor or material was expended upon it does not allow a lien, none will attach under the statute of another state to which the property is removed, except upon the theory that such statute relates to the remedy merely, and not to the substantive rights of the parties. ^ ° The position taken at the close of the last sec- tion, however (viz., that a mechanic's lien which has already attached to personal property by the law of the place where the property was situated at the time the material was furnished or the labor was performed will be defeated by the subsequent re- moval of the property to a state which does not allow the lien), is contrary to the weight of authority of the later decisions in analogous cases, which, as has already been shown, ^^ preserves a lien which has attached according to the law of the place where the property was situated at the time, notwithstanding a subsequent removal of the property to a state where a different rule prevails, though this result may, of course, be avoided by a statute of the latter state expressly applicable to such a case. 322. Liens of materialmen on ships continue unless excluded by law of port. — Liens on ships will be more fully discussed hereafter.^ At present the following questions arise: Do liens of materialmen on ships continue thereon in ports where the local law establishes no such liens ? This point is involved in that last stated; and it is only necessary, in addition, to give the solution of Bar,^ which harmonizes with both the rule and the exception which are here laid down. He argues that euch lien should be sustained in such foreign ports, for the lien, having attached to the ship, continues to adhere wherever she goes ; but that when there is a positive local law to the con- trary (e. g.. Possession vaut titre), or there are conflicting local titles, then the lien is postponed.* ■was furnished in Massachusetts, the iPost, § 356. vessel at the time being at » port in \\^^' ,. , , . ° 3See particularly post, § 358. another state. t^^ elaborate exposition of the law 10 That was the theory of Stedman in reference to maritime liypotheca- V. Patchin, 34 Barb. 218. tions will be found in the Jour. di. iiAnte, §§ 317b, 318a. <^i"°i* '"*• P"^^' f°'' 1^75, pp. 93 et § 322i] MOVABLES. 725 3221/2. State can create liens for labor and port dues. — Al- thougli under the Federal Constitution a state cannot create a maritime lien to be enforced by remedies not existing at com- mon law,^ a ship, when Avithin the territorial jurisdiction of a state, is not exempted from the operation of state laws for the collection of claims, or the creation of liens, not founded on maritime contracts or torts. ^ A claim for labor on the hull of a ship, before launching, is not a maritime lien, of which a state court cannot take cognizance;^ nor does the furnishing of needful supplies to a vessel at her home port create such a lien.* And the rule excluding state legislation from imposing liens, enforceable in state courts, does not apply to vessels en- gaged exclusively in the internal commerce of a state. ^ Nor seq. Compare Billette's L'Hypo- to a vessel at her home port, but that thSque maritime et ses consequences, sugji ijen jg nevertheless maritime and criticisms thereon in the Gazette ^^^ . ^^^^^^^^^^^ jg within the ex- des Tnbunaux, Ap. 1 & 2, 18/5; Du- . . ,. ^. ^ ^, , . ,, four's Traitg de droit maritime, ii. elusive jurisdiction of the admiralty pp. 290 et seq. courts. The Glide, 167 U. S. 606, 42 According to the French law, a l. ed. 296, 17 Sup. Ct. Rep. 930 ; The French court will not enforce amari- ^^^^^^ ^ Parsons, 191 U. S. 17, sui time hen which by a foreign law is ' ,„ ^ ' „ attached to a vessel at the time in »<""■■ P«'<->-y ^- Sames, 48 L. ed. 73, French territory. Jour, du droit int. 24 Sup. Ct. Rep. 8. priv6, 1875, p. 270. But see post, § 358. iTJie Montauh v. Walher, 47 111. Although by British law masters' 335; Marshall v. Curtis, 5 Bush, 607. wages may have priority, yet on a British ship, when refitted in our The statement of the text, how- ports the lien of material-men for j^ ^^^ ^.^^^ ^^ ^o vessels plying suoplies IS preferred to the master s , . , , , j, ^ lien for wages. The Selah, 4 Sawy. exclusively upon a, body of water 40, Fed. Cas. No. 12,636. which is wholly within a state, but ^Ed^oards v. Elliott, 21 Wall. 532, which is a highway of commerce be- 7t,'^--^^^^n'' ''^f ^l'o^',^^^'f""- tween ports in different states or 451, Fed. Cas. No. 4,283; Poole y. , . ^ ^ . „, Kermit, 5 Jones & S. 114; Dever v. foreign countries. Thus, it was held The Hope, 42 Miss. 715, 2 Am. Rep. in The Rolert W. Parsons, 191 U. S. ^'- 17, sub nom. Perry v. Haines, 48 L. JBrookma^ Y Hamill, 43 N. Y. ^^ 73 g^ g ^^ ^ ^ 554, 3 Am. Rep. 731. ^^ ' , ^^ , ., , , „ iSheppard v. Steele, 43 N. Y. 52, 3 attempt by the legislature of New Am. Rep. 660. York to provide for the enforcement *Th.e General Smith, 4 Wheat. 438, in a state court, by proceeding in 4 L. ed. 609; The Lottawamna, 21 „„ „, ,. , . , . Wall. 558, 22 L. ed. 654. '^^"' "^ ^ l'«° ^"'^ "^fP^^" ™^<1'= '° dry dock to a canal Boat engaged in It has now been definitely deter- navigating the Erie canal and Hud- mined by the United States Supreme son river was an unconstitutional in- Gourt that a state may provide liens fringement upon the exclusive juris- ior necessaries or repairs furnished diction of the Federal courts over 726 LAW OF THINGS. [Chap. VII. does the rule extend to contracts for ship-building, as to which a state may create a lien.' On the other hand, the admiralty courts have no jurisdiction to enforce a contract for building a ship,'' 323. Mortgage on ship postponed to port liens. — Does a mort- Igage given on a ship, without transfer of possession to the mortgagee, bind the ship in a port where such transfer of pos- session is required to constitute a valid mortgage ? It has been held by Savigny that it does not; and a practice in accordance with this view has been adopted in Louisiana,^ in cases on admiralty and maritime eases. The court said, however, that it was not intended to intimate that if the waters, though navigable, are wholly territorial and used only for local traffic, — such, for instance, as the in- terior lakes of the state of New York, — they are to be considered as navigable waters of the United States. f Mitchell V. The Magnolia, 45 Mo. 67 ; Edwards v. Elliott, 21 Wall. 532, 22 L. ed. 487; The Bolert W. Par- sons, 191 U. S. 17, sub nom. Perry v. Haines, 48 L. ed. 73, 24 Sup. Ct. Rep. 8. ^ Young v. The Orpheus, 2 Cliif. 29, Fed. Cas. No. 18,169; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 345, 13 Sup. Ct. Rep. 498; Boach v. Chap- man, 22 How. 132, 16 L. ed. 295; People's Ferry Go. v. Beers, 20 How. 393, 15 L. ed. 961. The Michigan state lien law ap- plies to vessels on voyages from ports outside the state. The City of Erie V. Canfield, 27 Mich. 479. Our admiraltyuSp.ourts may enforce a lien given by a. foreign jurisdiction, notwithstanding the parties are for- 'Uggie Hammond, 9 ""■ 772. eignors. The Wall. 435, 19 There can New York sti nished to a vei Moores v. Lu; 1 Hun, 650. lien, under the for goods fur- a foreign state, 'omp. & C. 154, In The Lottawanna, 21 Wall. 558, 22 L. ed. 654, will be found an in- structive opinion on this point by Bradley, J. In Pelham v. The Woolsey, 3 Fed. 457, Choate, J., ruled as follows: A contract for the repair of a domestic vessel is a maritime contract. Bird V. The Josephine, 39 N. Y. 19; Broohman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731 ; Poole v. Eermit, 59 N. Y. 554^.556; The General Smith, 4 Wheat. 438, 4 L. ed. 609. A suit to enforce a maritime contract is with- in the exclusive jurisdiction of thtf admiralty, "saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it." 1 Stat, at L. 77, chap. 20, § 9, U. S. Comp. Stat. 1901, p. 457; Vose v. Goclccroft, 44 N. Y. 415. The reservation of the act of Congress relates to well kno-svn forms of actions and remedies, dis- tinguished alike from those prosecut- ed m rem in courts of admiralty, and from those that are peculiar to courts of equity. A statutory rem- edy in the nature of a bill in equity to foreclose a mortgage, for the en- forcement of a common-law lien founded upon a maritime contract, is not within the reservation of the act of Congress limiting the admiralty jurisdiction. A lien is not a collat- eral contract; it is a right in, or claim against, some interest in the subject of the contract, created by the law as an incident of the con- tract itself. See The Belfast, 7 Wall. 624, 19 L. ed. 266; The Hine v. Tre- vor, 4 Wall. 55.5, 18 L. ed. 451. iPost, §§ 345, 357. S 323] MOVABLES. 72T which the English courts have animadverted with unnecessary- harshness, and which Judge Story, though in much milder terms, unequivocally condemns. Bar^ strikes out a middle course. He argues, as in the last instance, that the two modes of mortgage are so similar that they should be recognized as reciprocally valid. The courts in New Orleans, therefore, ought, in the cases in issue, so far as concerned the mortgagor and the mortgagee, to have recognized the foreign morl^age. But it is otherwise when attaching creditors, or innocent pur- ■chasers, spring up in New Orleans. Over these the foreign mortgage can assert no claim. And so, in a case in Hanover, in 1861, it was authoritatively settled, so far as concerns the ■German law.^ But under our Federal system a duly recorded mortgage on a vessel has priority over a lien under a state law, for materials and supplies furnished, in a state court.* 324, Lex situs generally controls. — Not merely as to mari- time liens, but as to liens of all kinds, it should be kept in mind that as to priority of conflicting liens the lex rei sitce prevails. ^'The right of priority," said Chief Justice Marshall,^ "forms no part of the contract itself. It is extrinsic, and is rather a personal privilege, dependent on the law of the place where the property lies, and where the court sits which is to decide the cause." ^ So, Judge Story ^ declares that "the recognition of the existence and validity of such liens by foreign countries is not to be confounded with the giving them a superiority or priority over all other liens and rights, justly acquired in such foreign countries under their own laws, merely because the former liens in the countries where they first attached had there, by law or by custom, such a superiority or priority. Such a case would present a very different question, arising 2§ 65. eign port, under the general maritime 3Bar, § 65. laws, notwithstanding that the mort- ^The Kate Hinchman, 7 Biss. 238, . , , -j j u tt Ted Oaf No 7 621 S^^" ^^ recorded as provided by U. This case is in effect overruled by Stat. 1901, p. 2837. To same effect. The J. E. Bumbell, 148 U. S. 1, 37 see The Guiding Star, 18 Fed. 263; L. ed. 345, 13 Sup. Ct. Rep. 498, The Madrid, 40 Fed. 677; The Cres- Tiolding that the lien created by a cent, 88 Fed. 298. state statute for repairs or supplies furnished to a vessel in her home ^Harrison v. Sterry, 5 Cranch, port has the like precedence over a 289 298, 3 L. ed. 104, 106 ^ . . ,, i . , , X 'See also Donald v. Hewitt, 33 prior mortgage that is accorded to a ^j^^ g^g^ 73 ^^ t^^^ 431 lien for repairs or supplies in a for- sConfl. L. § 323. 728 LAW OF THINGS. [Chap VII.. from a conflict of rights equally well founded in the respective- countries." Here again we have one of those embarrassing ex- ceptions which expand to proportions as large as the rule. Suppose, for instance, in Vermont, where a mortgage of chat- tels is not good -without transfer, a chattel is attached by a Vermont creditor of the owner. Here is a right justly ac- quired under the Vermont law. Can this right be crowded out by a prior mortgage of the chattel, without transfer, in New York, where such mortgage would have been good, when the chattel at the time of the mortgage was there situate, and where, therefore, a valid lien was acquired? This has been decided in the negative in Vermont;* and also in a case at Hamburg, in 1851;^ though it is hard to reconcile this with the position already given by Judge Story, that liens on mov- ables once validly acquired in the land where the movables at the time are, "ought to prevail over the rights of subsequent creditors and purchasers in every country." And ordinarily the lex situs determines the validity of a chattel mortgage, na matter through what states the chattel may have been carried.* Where, however, the lien creditor, the owner, and the attach- ing creditors or vendees belong to the same domicil, there is authority to hold that the law of such domicil internationally binds the parties.'' 325. Patent rights not extraterritorial. — A patent right {brevet d' invention), according to the general principles of international law, does not extend beyond the territorial limits of the sovereign by whom it is granted.^ iSlciff V. Solace, 23 Vt. 279. This Fleming, 13 Md. 392. See also Wa- case was subsequently overruled in ters v. Cox, 2 111. App. 129. But see Vermont. See ante, § 317b, note 9. ante, § 318. So, also, in Louisiana, in reference to ''Ante, § 276; post, § 369. ships mortgaged without delivery in England, and then attached in New gee generally, as to liens of chattel Orleans, where the local law recog- ,„<„t „„t § 317b. nizes no such lien, though this rul- & s > i « ing has been much censured in Eng- land. Simpson v. Fogo, 1 Hem. & iPhillimore, p. 398; Foelix, i. ii.. M. 195, 32 L. J. Ch. N. S. 249, 9 Jur. title ix. chap, vi.; Renouard, des N. S. 40.3, 8 L. T. N. S. 61, 11 Week. Brevets d'Invention; Code Interna- Rep. 418; Liverpool Marine Credit tionale de la propri6t6 industrielle- Go. V. Hunter (1868) L. R. 3 Ch. 484, artistique et litfiraire, par Pataille 37 L. J. Cn. N. S. 386, 18 L. T. N. S. et Huguet, Paris, 1855; Bar, p. 319. 749, 16 Week. Rep. 1090. See criti- See also Bluntschli, Staatsworter- eisms post, §§ 345, 647, 664. See bueh, i. p. 615; Curtis, Patents, p. also Taylor v. Boardman, 25 Vt. 581. 98. For an interesting article on: BBar, § 65, note 27a. Swiss patents, see Revue de droit in- ijones V. Taylor, 30 Vt. 42; Jeter ternational (1869), vol. i. p. 617^ v, Fellowes, 32 Pa. 465; Fouke v. Compare Curtis, Patents, d. 564. § 326J MOVABLES. 729- 326. Conflicting rules as to trademarks. — In England and the United States, the counterfeiting of any trademark, with in- tent to defraud a vendee, is indictable as a cheat at common law. The distinction between the intent to defraud the ven- dee, and that to defraud the manufacturer, seems overlooked by both Bar and Fcelix. "When a vendee is defrauded, by im- posing on him an inferior article with a forged brand or stamp,, he can prosecute criminally the offender, though no civil action- may lie in favor of the foreign manufacturer whose trademark is counterfeited. In England a foreign manufacturer has a. remedy by suit for an injunction and account of profits against a manufacturer who has in England committed a fraud upon, him by using his trademark for the purpose of inducing the public to believe that the goods so marked are manufactured by the foreigner, -"^ and he may thus restrain the fraudulent appropriation of his trademark, although the goods on which such trademark is afiixed are not usually sold by him in Eng- land.^ But the Cour de Paris, in 1850, went so far as to hold that unless there is a statute forbidding the sale of such wares,, the home manufacturer has no protection, even at home,, against foreign imitations.^ It was afterwards, on the same legislation, decided that it is lawfiil for a Frenchman to make or counterfeit the subjects of a patent granted by a foreign state; and the extraordinary position was taken that a French- man, in France, without any liability, civil or criminal, may counterfeit, and place on his own manufactures, the stamp or trademark of a foreign manufacturer.* "Whether a foreigner can protect his trademarks in France now depends, by statute^ upon the question of reciprocity.^ ^Collins Go. V. Brown, 3 Kay & J. rights of property in trademarks;. 423, 3 Jur. N. S. 929, 5 Week. Rep. and it was accordingly held that an ./■< 17- /-I Ti A -x -a a act, general in its terms, designed to '■Oolhns Go. V. Reeves, 4 Jut. N. S. ' ^ , . ' ° 865, 28 L. J. Ch. N. S. 56, 6 Week, protect merchants against counterfeit Rep. 717. The recent English legis- trademarks, extended to foreign, aa lation in respect to trademarks is ex- .^yell as domestic, trademarks, and amined in the Jour, du droit int. priv6 for 1876, pp. 23 et seq. could be invoked by citizens of other states and countries. Derringer v. Plate, 29 Cal. 292, 87 Am. Dec. 170, made a similar deci- ^^^^Eemangeat, note to Eoelix, ii. p. sion with reference to a trademark 4piiil. iy. 399- Bar p. 319. owned by a manufacturer in another BJour. du droit int. priv6, 1879, state. So, in State v. Gibbs, 56 Mo. P- 358. iQQ ;+ ,„„„ „„;j +!,„+ „;+;„™„ «* t^^ If a trademark, used by an Eng- ioi, It was said that citizens oi tor- v , . i, u 4. uv lish nouse, has become open to public- eign states will be protected m their ugg in England, it will not be pro- 730 LAW OF THINGS. [Chap. VII. 327. United States treaties and statutes. — By the treaty of December 20, 1868, between the United States and Belgium, the counterfeiting of trademarks is made the subject of action for damages, provided the trademark be lodged at the Patent Office in Washington, or the Tribunal of Commerce in Brus- sels. The same provision, with limitations, is ingrafted in the convention of April 16, 1869,^ between the United States and France. Statutes protecting trademarks, and carrying into effect these treaties, were passed July 8, 1870, and August 14, 1876.^ As an indication of the amount of business embarked under the protection of this legislation it may be mentfoned that between 1870 and 1878, 8,000 trademarks were deposited at Washington, as required by the statute of 1870. In 1879 it was decided by the Supreme Court of the United States* that the statutes just noticed are unconstitutional, falling neither under the power to give copyrights and patents, nor Tinder the power to regulate commerce. This ruling does not, it is scarcely necessary to say, touch the right of the states to legislate on the topic, nor does it in any way conflict with the tected in France. Jour, du droit int. to be understood as leaving un- priv6, 1875, p. 190. An article on touched the whole question of the the rights of strangers in France in , , , . r ^ ii. . relation to trademarks will be found t'-^aty-making power [of the general in the Jour, du droit int. privg, 1875, government] over trademarks, and of p. 257. The forger may be punished the duty of Congress to pass any for the cheat. Hid. 1880, p. 193. laws necessary to carry treaties into 1 On March 29, 1887, the President, ^^«''*-" Congress subsequently passed by ajid with the advice and consent ^^^ ^^ °^ ^^''^ ^' ^^^^' "l^^P- 138, of the Senate, declared the adhesion P'^oviding for the registration and of the United States to the Conven- P'-°te°tio" ol trademarks used in tion and Final Protocol concluded <=o™i"erce with foreign nations, or March 20, 1883, by the International ^'^'^ ^""^'^ *"''e^' provided that the Union for the Protection of Indus- °^^" ^^^^^ ^« domiciled in the trial Property. Article 6 of such United States, or located in any for- Convention declares: Every trade, or "§" """"^''^ °"^ *"b«s, which by commercial, mark regularly deposit- ^'^^^^^' «°"^ention, or law, aflFord ed in the country of origin shall be ^^'"'1^'^ privileges to citizens of the admitted to deposit and so protected United States. This act, by the lim- in all other countries of the Union. '*^*f ?^ °* ^*^ .^«°Pe *» trademarks used in connection with foreign com- 2Eev. Stat. §§ 4937-4947. meroe, avoided the constitutional ob- Wnited States v. Stefens, 100 U. jeotion which proved fatal to the act S. 82, 2o L. ed. 550. ^^ j^j^ g^ jg^^ j^ ^^ ^^^ general- It was said in this case, however: ly assumed that the act of March 3, "In what we have here said, we wish 1881, is valid and open to no consti- S 327 J MOVABLES 731 position above taken that counterfeiting trademarks may be the subject of state procedure either at common law or equity. * 328. Copyrights not extraterritorial. — Copyrights, being the exclusive right which the law allows an author of reprinting and republishing his own original work,^ have no extraterri- torial force. ^ Treaties, however, for international copyright have been established by the great European states. The Ger- man Diet adopted a convention to this effect in 183Y. Eng- land, in 1846, incorporated the principle in a treaty with Prussia; in 1851, with Erance; and in 1843, with Belgium. Statutes of reciprocity, in reference to extraterritorial copy- right, have been passed by England, France, and Belgium.* An alien friend, who, during his temporary residence in a British colony, publishes in the United Kingdom a book of which he is the author, is entitled to the benefit of English copyright* And it was further held in the House of Lords, Iby Lords Cairns and Westbury (Lords Cran worth and Chelmsford doubting), that where the book is first published in the United Kingdom, the author has this right, wheresoever he may be then resident. ^ On the assumption that an author's right in his productions tutional objection. See Saxlehner v. to citizens and subjects of other Eisner & M. Go. 179 U. S. 19, 45 L. countries. «d. 60, 21 Sup. Ct. Rep. 7; United States V. Koch, 5 L. E.. A. 130, 40 ^See Bar, p. 319; Bluntschli, Wort PW Staatsworterbuch, i. p. 615. iRoutledge v. Low (1868) L. R. 3 H. L. 100, 37 L. J. Ch. N. S. 454, 18 420 Alb. L. J. November, 1879, p. L. T. N. S. 874, 16 Week. Rep. 1081. 402; N. Y. Times, November 19, 1879. f'Routledge v. Low, L. R. 3 H. L. A pamphlet entitled, De I'Etat inter- 100, 37 L. J. Ch. N. S. 454, 18 L. T. nationales avec les Etats-Unis en ma- N. S. 874, 16 Week. Rep. 1081 ; Low v. tiere de marques de commerce, par Routledge, 10 Jur. N. S. 922, 33 L. J. M. Edouard Clunet, was published in Ch. N. S. 717, 12 Week. Rep. 1069, 10 Paris in 1880. This pamphlet con- L- T. N. S. 838. tains a learned argument from M. Drone, Copyright (1879) pp. 92, Clunet, and opinions of Mr. Kelly, of 93, gives the reports of Mr. Clay and N. Y., and MM. Huard, Pouillet, and Mr. Baldwin m favor of an intcrna- Lyon Caen, of Paris. tional copyright, and the provisinns iPhil iv p 400 "f English statutes are detailed. Pp. 214-220. Under these statutes, a „ , ,, , translation, to be protected, must be 2 By act of Congress of March 3, ^f a whole work, and bona fide. P. 1891 (26 Stat, at L. 1110, chap. 565, 218. Protection is extended to for- 5 13), U. S. Comp. Stat. 1901, p. eign dramatists, so far as concerns •0/117 4.V, • • 1 J! ■ -i representing as well as publishing 3417, the principle of reciprocity was ^ gj,,^ ^^^ ^,^^ ^ ^^J.^^ ^^^8 applied to the granting of copyrights papers and periodicals. P. 219. 732 LAW OF THINGS. [Chat. VII. is a literary mechanics lien, it would be governed, on the prin- ciples above stated, by the lex situs of each book.* d. Capacity of persons to acquire and dispose of movables. 329. Capacity depends upon place of transaction. — The capac- ity of the person (in this respect to be distinguished from the character of the thing) is held by Savigny to be determined by the law of his domicil, and not by the place where the thing to be disposed of is situate; while by jurists of the Italian and Belgian schools nationality is held to be the test. But, as we have already seen,-"^ the ubiquity of personal restrictions in this respect cannot be maintained when in conflict with national policy. A foreign minor, for instance, brings an article to Massachusetts for sale, he being of full age in Massachusetts. In this case it could not with any show of reason be maintained that the sale is void because he is incapable of selling. It is agreed on all sides that in respect to real estate, or things im- movable, the lex rei sites is to determine capacity to sell. If this view be true, then, on the reasoning hereinbefore given, the same rule must be applied to personalty. As has already been shown, every reason which justifies a state in reserving to itself the decision as to who shall hold land within its bor- ders applies with equal force to the question as tO' who shall own its railroads, its banks, and its public lands. Those who control great corporations have at least as much power in the body politic as those who control land; and if to the latter public safety requires that the lex rei sitae should apply, a for- tiori to the former. And, in addition, if personal incapacities are ubiquitous, fraud may be perpetrated by vendors of goods, at least as readily as by vendors of real estate. It is not often that we hear of vendors of real estate whose past history can- not be traced. But of the itinerant vendors of goods by whom our country districts are permeated, there is scarcely one whose prior history his customers have the opportunity of knowing.^ If the lex rei sitce determines the capacity of the vendor of real estate, there are still stronger reasons why this should be the case vsrith the vendor of personal estate. 6 An article on the French law as lAnte, §§ 101 et seq. to literary and artistic property, 2See fully ante, §§ 87-104. viewed internationally, will be found in the Jour, du droit int. priv6 for 1878, p. 117. ^ 329] MOVABLES. 733 It will be observed, by referring to ante, §§ 115a and 118c, that, as a general rule, the capacity of an infant or married woman to contract with reference to personal property is re- ferred to the lex loci contractus, rather than the lex situs, though doubtless the latter will govern if it expressly covers contracts made in another place, or if it embodies such a distinctive pub- lic policy as to require its extension to such contracts. It is obvious that the objections, pointed out in the next section, to making the lex domicilii the test of capacity to contract witli respect to personal property do not apply to the lex loci con- iractus, since, ordinarily, the lex loci contractus and lex situs will coincide. 330. Distinction between capacity to hold and capacity to act unfounded. — We have already had occasion to notice the dis- tinction taken by foreign jurists between a capacity to hold property and a capacity to do business. The first, if the dis- tinction were to be applied to the present issue, would be de- termined by the lex situs; the second by the lex domicilii.^ So far, however, as this distinction concedes the ubiquity of domiciliary business disability, it cannot, in conformity with the reason already given, ^ be sustained. 331. Foreign Incapacities inapplicable to this country. — The rule heretofore laid down,^ that in matters of national policy the distinctively local law must be maintained, applies with peculiar force to the United States. In, a new country, such as that which comprises our western states, business is conducted by new men. Many of these aro Germans, coming from coun- tries imposing various limitations on business capacity; some of them are Jews, who by their domiciliary law may be inca- pable of negotiating commercial paper. Many are at that in- termediate period of life which falls between the majority in the country of their personal law and majority in the country of their residence. If the disabilities of old countries are ubi- quitous, the business of new countries would be beset with many disturbing complications. It would be impossible to know, in a country where the whole population is of recent arrival, and lAnte, § 98. lAnte, § 104§. 'Ante, §§ 101 et seq. 734 LAW OF THINGS. [Chap. VII. is largely made up of foreigners, who is capable of making a contract and who is not. Selling goods would be a sort of lot- tery; and the chances of loss would be so great as to lead to exorbitant prices and a gambling temper productive of in- solvencies by which business stability would be destroyed. Criminal prosecutions, based on the allegation that the party buying held himself out to be responsible when he really was not, would take the place of civil suits. No country is called upon to admit as operative a foreign law productive of such consequences as these. And least of all can the states of the American Union be expected to carry into effect laws of this class, — laws as hostile to our traditions as they are detrimental to our interests. 332. Restrictions on natural capacity not extraterritorial. — We must also hold, in reference to sales of personal property, that on principles of general policy, for reasons heretofore fully stated, restrictions of capacity, unless based on natural disqualifications, have no extraterritorial force.-' 333. Alienage determined by lex situs. — So far as alienage can be involved in questions of purchase and sales of movables, it is determined by the lex situs.^ 8. Acquiring and passing title. 334. By Roman law lex situs prevails as to title. — By the Eo- man law as has been seen, to make a valid sale there must be delivery; and the modern Prussian law is the same.'' In France the thing may be alienated by contract without deliv- ery.^ If the lex rei sitae prevails, where a Frenchman in Paris sells furniture in Berlin to a Prussian, the sale must be con- iSee ante, §§ 99 et seq. lex situs, though an assignment in Mr. Bicey, Domieil, gives the fol- accordance with the owner's lex dom- lowing conclusions (Op. cit. p. 248) : idlii may also be valid. ''First. The capacity to assign "Lastly. General assignments of movables depends in general upon movables in which property is trans- the law of the country where the ferred as a whole, as in consequence owner is domiciled" {sed gucere) . of bankruptcy, marriage, or death, "When, however, movables are as- are governed almost entirely by the signed individually, as by sale or leco domioilii of the person whose gift, a person's capacity to make, e. rights are assigned." g., a valid sale, constantly depends That this is not the rule as to on the law of the place where the bankruptcy is argued post, §§ 389 et movable sold is situated {lex situs), seq. "Secondly. Individual assignments ^Ante, § 17. of movables, c. g., by gift or sale, lA. L. R. 10, § 1 ; Koch, Preusa. are, as regards modes or forms of Reoht, i. §§ 252, 255. alienation, mainly governed by the 2Code Civil, art. 1138. § 334] MOVABLES. 735 summated by tradition. On the other hand, where a Prussian in Berlin sells his furniture in Paris to a Frenchman, then tradition is not necessary, but the sale is effected by mere con- tract. The modern Roman law declares that this question is to be determined by the lex rei sitce. 335. So, in Louisiana. — Then, again, by the common law of England, a sale of goods on payment of price, without deliv- ery, is good as to all parties. ^ By the Roman law, in force in Louisiana, delivery is necessary. Hence, the supreme court of that state has held that, to pass the title as against bona fide attachments, of goods there situate, there must be a delivery in conformity with the laws of Louisiana; and this though the goods were sold by the owner in his own domicil, by the laws of which delivery is not necessary.^ And this court, while giving a general assent to the principle that the alienation of movable property must be governed by the law of the owner's domicil, declared that when a state, on grounds of public pol- icy, places restraints on alienation, those restraints must be maintained as to property situate in such state so far as is necessary to protect citizens of such state.* 335a. Necessity of delivery. — When the decisions upon the specific question as to what law determines the necessity of a transfer of possession in order to protect the vendee against sub- sequent bona fide purchasers from, or creditors of, the vendor are considered together, and it is noted that in most, at least, of those cases that formally refer the question to the lex loci contractus the property involved was at the time of the sale located in the state where the sale was made, they seem to apply a principle analogous to that which, as already shown, has been applied to chattel mortgages; namely, that the necessity of a transfer of possession for such purpose is to be determined neither by the lex domicilii nor lex loci contractus, as such, but by the law of the place where the property is located at the time iBl. Com. i. 446; Kent, Com. ii. Chandler, 7 Mart. (La.) 24; Olivier 492. V. Townes, 2 Mart. N. S. 93. Ante, ^N orris v. Mumford, 4 Mart. (La.) §§317, 325; post, § 342. 20; Ramsey v. Stevenson, 5 Mart. ^Olivier v. Tovmes, 2 Mart. N. S. (La.) 23, 12 Am. Dee. 468; Fisk v. 93. 736 LAW OF THINGS. [Chap. VII. ■of the original sale. ' There is, however, an apparent exception to this principle when the property at the time of the sale is in transit, in which case the lex loci contractus seems to be the ap- 1 The rule in New York, by which for a debt of the vendor), the court the retention of posaesaion of person- implies that the decision would have al property by the vendor after the been different if the vessel had been sale is only prima facie evidence of in Louisiana at the time of the sale, fraud and does not per se render the And Fell v. Darden, 17 La. Ann. sale fraudulent and void, governs in 236, expressly held that a sale of determining the validity of a sale of goods, without delivery, while in a ship made in that state by vendors transitu from Tennessee to Louis- domiciled in Connecticut, notwith- iana, being valid by the law of Ten- standing that the vessel was subae- nessee where it was made and where quently attached by a creditor of the the parties resided, the goods were vendor while in his possession in the not subject to attachment by a cred- latter state. Koster v. Merritt, 32 itor of the vendor after reaching ■Conn. 246. Born v. Shaw, 29 Pa. Louisiana, although if the goods had 288, 72 Am. Dec. 633, is to the same been in the latter state at the time •effect. of the sale an attachment would So, a sale of personal property, have been sustained, since, by the being valid, without a change of pos- law of Louisiana, a sale without de- session, according to the law of New livery is invalid as against creditors. Hampshire where the sale was made M'Kaig v. Jones, 2 Clark (Pa.) and where the property then was, is 123, holding that, when property is not subject to attachment while in brought into Pennsylvania by the possession of the vendor while in vendor, it is liable to executions of Vermont, although u, change of pos- its creditors in that state, notwith- session is required by the law of the standing that the sale was made in latter state. French v. Hall, 9 N. H. Maryland, by the law of which sueli 137, 32 Am. Dec. 341. These deci- a sale duly recorded is valid, al- sions might, upon their face, per- though the vendor retains possession haps, be as easily referred to the — seems to be overruled in effect by law of the place where the contract Born v. Shaw, 29 Pa. 288, 72 Am. was made as to that where the prop- Dec. 633, supra. ■erty was situated at the time of the Smith v. Jones, 63 Ark. 232, 37 S. contract, since the two were coinci- W. 1052, which holds that the rule dent. (assuming it to be such) that an But in Thuret v. Jenkins, 7 Mart, assignment for creditors made in one (La.) 318, 12 Am. Dec. 508 (where state of property situated in another it was held that a vessel sold, while is invalid as to creditors residing in at sea, in New York where the par- the latter does not apply to an ab- ties were domiciled, and by the law solute sale of property — ia not op- of which delivery is not necessary to posed to the rule of the text; and transfer the title, could not, upon the necessity and sufficiency of de- arrival at New Orleans, be attached livery were determined in accordance § 335a] MOVABLES. 737 plicatory law.^ The principle is obscured when the sale is made in the state where the property is then, located; but emerges clearly from those cases in which the contract of sale was consummated in one state, and the property was at the time located in another. In such case, according to the principle, the law of the latter state should be applied, and that seems to be the effect of the actual decisions upon the point. * It is well settled, however, that the law of the place where the property is located at the time of the sale, at least if coincident with the place where the sale is made, will prevail in this respect over the law of the place to which the property is subsequently re- moved, and where it is at the time of the subsequent sale or 336. Rule questioned by Story. — This decision Judge Story gravely questions.^ His reasoning, however, is based on the assumption that personal property has no locality. This, however, as we have seen, is only exceptionally true.^ 337. Sustained by Savigny. — On the other hand, Savigny re- views the whole topic with his usual masterly sagacity, -"^ show- ing, as has already been seen, that the lex rei sitce controls transfers of movables as well as of immovables; and this with- out recognizing any such distinction as that between codes and judgments to which Judge Story appeals. 338. And by Guthrie. — In Mr. Guthrie's edition of Savigny's 8th volume it is declared:'- "The doctrine of certain cases in Louisiana, . . . applying the lex rei sitm, which required tradition in order to the transfer of property in movables, and rejecting the lex loci contractus, which was the law of the with the general rule as held in Ar- s See Louisiana cases cited in last kansas, where the property was situ- section. ated at the time of the sale ; and < See cases cited supra, note 1. there was no intimation that the question should be referred to the iConfl. L. § 390. law of Tennessee, where the sale was _ ^Westlake (1880), § 139, p. 162, , gives a qualified assent to the Louis- ™^°^^- iana ruling. ^Thuret v. Jenkins, 7 Mart. (La.) IVIII. § 367. 318, 12 Am. Dec. 508; and Fell v. i2d ed. p. 184 note; 1st ed. p. 138. Dwrden, 17 La. Ann. 236, supra. Vol. I. CoNFL. of Laws — 47. 738 LAW OF THINGS. [Chap. VII. owner's domicil, has been strongly controverted by Story, . . . and others, but no authority is cited against it except the cases which establish the lex domicilii as the law regulating succession. On the contrary, the application of the lex rei sitce appears to be assumed in all the numerous cases in which conflicts have arisen in regard to the transmission by sale of property in movables, between the law of Scotland, which re- quires delivery, and that of England, which does not." 339. And by Bar and Waehter. — Bar, the latest and one of the ablest German writers on this topic, after a review of the whole tenor of authorities down to 1860, reaffirms Sa- vigny's position, declaring that property in things, whether movable or immovable, situate in a country subject to the mod- ern Roman law, cannot be transferred by a contract which does not observe the requirements of this law.-' Should, he de- clares, taking up the question of the conflict just noticed be- tween Germany and France, as to the necessity of delivery to- sale, the thing, in pursuance of the contract of sale, have been brought into France, where delivery is not necessary, the property vests at once in the vendee, unless the rights of creditors have intermediately intervened. So, also, holds Waehter, canvassing the same question in 1841.^ To the same effect may be cited the present business practice of Germany. ^ 340. And by Foelix and Fiore. — Foelix, who is appealed to by those who hold to the law of domicil as controlling movables, is far from taking the broad view which is maintained by Judge Story, and holds substantially the distinction of the text. ' Fiore adds his high authority to the same view. ^ i§ 64. dition is necessary. If we hold to- 2Wilchter, CoUis. der Privatge- the fiction that movables are at- setze, ii. pp. 388, 389. tached to the owner's domicil, a quo sThol, Handelsrecht, §§ 79, 80. legem situmque accipiunt, the first iFoelix, Op. cit. p. 78. sale would hold good against the ^Suppose, he says (Op. cit. § 338), a second. But since the lex situs con- merchant domiciled in one land sells trols, and as by this law delivery ia certain merchandise in another land, necessary to sale, the first purchaser and that a partner in that land, be- would be restricted to an action ea;- fore hearing of this sale, sells the empto against the vendor. He same goods to a third party, deliver- could not recover possession of the ing them. Suppose, also, that by the goods, since they were never de- law of the land where the first sale livered to him, and he could not oom- 18 made, property may be passed by pel the execution of the contract, such a sale without delivery, and since that execution has become im- suppose that by the lex situs tra- possible. § 341] MOVABLES. 739 341. And by Westlake and Woolsey. — Mr. Westlake^ argues that practically the lex situs is to determine title to movables; and this same position is maintained by President Woolsey, ■who, in his International Law,^ adopts, in this respect, the reasoning of Savigny. 342. And by PMUimore. — Sir R Phillimore, after stating that the abstract opinions of accredited authors and jurists tended towards the older view, goes on to say: "In practice, and especially in recent practice, a great approach has been made to Savigny's doctrine of the lex situs." ^ 343. Early English and American dicta indefinite, and based on misapprehension of terms. — If we examine closely the cases on this point in English and American courts, we will find that, whatever may be their dicta, their results do not in the main vary from that of the supreme court of Louisiana, in the much contested case before us. Dicta enough, indeed, are to be fotmd, declaring that all personalty follows its owner, and is to be judged by the law of his domicil. ^ But when we scru- tinize these dicta, two features will be observed, which in a great measure destroy their effect. One is that they appear often with qualifications which leave them without any practi- cal efficiency, as is the case with the general expressions to the same effect in the opinion of the supreme court of Louisiana, which has been already quoted. The other feature is that these dicta are founded on a misapprehension of the Roman law. If we view that law as now applied, we must admit that the ten- dency of present authority, as has already been shown, is to deny the proposition in toto; and to hold, on the contrary, that all property, movable and immovable, is to be judged of and determined by the lex rei sitce. This, as has been seen, is ex- ilst ed. art. 287; 2(1 ed. (1880) § proceeds to make an exception almost 139. See post, § 345. as large as the rule, by declaring 2§ 71. that "every country has the right of iPhillimore, iv. 396, 417. See regulating the transfer of all person- Leivis V. Barry, 72 Pa. 18. al property within its territory;" ^Sill V. Worswick, 1 H. Bl. 690; and that "of these circumstances" Doe ex dem. BirtwHstle v. Vardill, 5 (those of situation, etc.) "the most Barn. & C. 438, 8 Dowl. & R. 185, 9 liberal nations have taken advantage Bligh, N. R. 32, 2 Clark & F. 571. by making such property subject to So, also, Tilghman, Ch. J., in Milne regulations which suit their own con- v. Moreton, 6 Binn. 361, 6 Am. Deo. venience." And see a number of 466, who declares that the proposi- other cases, cited by Judge Story, tion that personal property is gov- Confl. L. §§ 380 et seq., where the emed by the law of the owner's same general dicta are thrown out, domicil "is true in general, but not often, however, with similar excep- to its utmost extent, nor without tions. Compare 6 Southern Law Rev. several exceptions;" and he then 686. 740 LAW OF THINGS. [Chap. VII. pressly declared by Savigny and Bar, and by recent French jurists, among whom Eoelix (1847), Demangeat, in his edi- tion of Foelix (1856), and Pradier-Fodere, in his translation of Fiore (1877), while they repeat generally the old doctrine, hold that it has no practical application to particular things.^ And if we examine the opinions of the old jurists, so copiously cited by Judge Story, we will see that the weight attached to them in England and in America arose from a misapprehen- sion of what they really declared. For, by mobilia, when they pronounced the rule that movables follow the owner, they were far, as has been seen, from meaning personalty. In the largest sense, mohilia do not include charges on real estate, or leases of any length or nature, or fixtures of any kind, or even the stock on farms. And when we recollect the time when lived those who originated this famous maxim, we may question whether mohilia included anything except what was attachable to the person, and capable of being carried about with it. It was before the age of railway transportation in. bulk. It was at a time when such transportation was mostly by sea, to which the lex rei sites does not reach. It was before the age of gov- ernment and other loans for the transfer of which minute mu- nicipal regulations have been imposed. It was at a time, how- ever, when travelers were apt to carry their valuables about their person, and when it was proper that, for such valuables, the law of personal domicil should be invoked. In such cases the maxims, "Mohilia ossibus inhcererd" and "Mohilia se- quunhir personam," have proper application. It is doubtful whether they were originally meant to include much more.* 344. Analogy from succession inapplicable. — One other ob- servation is to be made before a search for the actual points decided by the courts in this connection. It is conceded that succession is subject to the law of domicil, and hence is gov- erned by principles distinct from those that are here main- tained. The law of succession will be discussed hereafter; it is enough now to say that when succession takes hold of prop- erty, it takes hold of it as a mass, enveloping it in its owner's personality, and viewing it as a whole, even after his legal con- nection with it is closed, as in some way his representative. This conception arose from the universitas juris of the old Roman law ; but, as will hereafter be seen, this idea of a universitas or zFoelix, Droit, int. privat, p. 78; sAnte, §§ 297, 305. Demang. i. 120; Fiore, Prel. c. vi. § 344] MOVABLES. 741 corporate and continuous aggregation of an estate, both in its debts and in its possessions, was not a mere fiction. It was based on the conviction that were an estate, when it passed from its owner by death, to be stripped of its cohesive power, and each of its component parts left to the law of the place where it existed, intolerable confusion would ensue. It was neces- sary, to prevent this, that some common center of legal unity should exist, round which these fragments should be grouped until the period of their final distribution; and if so, what center could be found so suitable as that of the late owner's person, continued, in the eye of the law, after his decease? Each estate becomes in this sense an agglomeration, to which the legal character of its owner adheres even after his actual death, until it goes to its new depositaries. It receives in its parts as well as in its aggregate his domicil ; by the laws of that domicil its evolution, its transfer, its distribution, are con- trolled. Hence, the laws which regulate succession are gov- erned by principles which do not apply to transfers inter vivos of single movables, which it is the owner's intention to detach from the body of his estate.-^ The primary object of juris- prudence is the preservation of family. To this object all oth- er objects yield. Hence it is that the lex situs ^ when it ap- proaches the cradle, the place where marriage is solemnized, and the deathbed, drops its claims, and recognizes as supreme the lex domicilii. This may be so because the lex situs wills it. It may be so in obedience to the common sentiment of hu- manity that property, when to be moulded by family condi- tions, should, be governed by the law of family. But all this is consistent with the firm maintenance of the rule that prop- erty when not so conditioned should be governed by the lex situs. 345. In England the lex situs now alone determines title. — In England, notwithstanding the earlier dicta, the weight of au- thority is that if personal property be disposed of inter vivos in a manner binding by the law of the country where it is, that disposition is binding everywhere;^ and the converse is also iSee post, §§ 548-565. seem hard that the goods of foreign- iln Gammell v. Sewell, 5 Hurlst. ers should be dealt with according to & N. 728, 29 L. J. Exch. N. S. 350, 6 the laws of our own or of other .Tur. N. S. 916, 2 L. T. N. S. 799, 8 countries. Amongst others our law Week. Rep. 639, Crompton, J., said: as to the seizure of a foreigner's "Many eases were mentioned in the goods for rent due from a tenant, or course of the argument, and more as to the title gained in them, if might be collected, in which it might stolen, by a sale in market overt, 742 LAW OF THINGS. [Chap. VII. true, that when the law of a foreign country places a restraint upon the alienation of property there situate, a contract re- specting that property cannot be enforced against the foreign law.^ It is true that we meet with occasionally conflicting de- cisions. Of this we have an illustration in a case decided in 1860, where it appeared that several English ships mortgaged in England, without transfer of possession (which in England is valid), were attached in the port of ITew Orleans by the cred- itors of the mortgagor. The Louisiana courts, in accordance with the Roman common law, as adopted in that state, held that such mortgage, without delivery to the mortgagee, gave no title as against creditors. This has been strongly condemned in England, as a violation of the comity of nations;* though as the law of Louisiana in this respect is well known in England, parties who choose to put their goods under Louisiana control do so with full notice ; and though it is now admitted that had the proceedings been in admiralty they would have given a good title.* It was ruled, however, that the English courts would not regard the title in the ships as affected by the Louisiana decree.^ But, in apparent inconsistency with such ruling, it was held, where a vessel was attached in ISTew Orleans, and according to the Louisiana law such attachment preceded pri- or mortgages on the ship, the mortgagees, not being in posses- sion, and where, to release the ship, the mortgagees gave bond to the plaintiffs for their debt, that in England these bonds could be enforced.® And in 1870, in the House of Lords, in a case of great interest and authority, the general principle, aside from questions of maritime law, was declared to be that the control of the lex rei sitce, as to movables as well as im- might appear harsh. But we cannot 422, 32 L. J. Ch. N. S. 249, 9 Jur. N. think that the goods of foreigners S. 403, 8 L. T. N. S. 61, 11 Weelc. would be protected against such Eep. 418. See Liverpool Marine laws, or that if the property once Credit Go. v. Hunter, L. R. 3 Ch. 484, passed by virtue of them it would 37 L. J. Ch. N. S. 386, 18 L. T. N. S. again be changed by being taken 749, 16 Week. Rep. 1090. by the new owner into the foreigner's 4 See post, § 664. own country." ^Ibid. See particularly post, § ^Waterhouse r. Stwnsfield, 10 358. Hare, 254, 16 Jur. 1006, 21 L. J. Ch. ^Liverpool Marvne Credit Co. v. N. S. 881, 1 Week. Rep. 11. Hunter, L. R. 4 Eq. 62. See Hooper ^Simpson v. Fogo, 1 Johns. & H. v. Gumm, L. R. 2 Ch. 282, 36 L. J. 18, 29 L. J. Ch. N. S. 657, 6 Jur. N. Ch. N. S. 605, 16 L. T. N. S. 107, 15 S. 949. 2 L. T. N. S. 594, 8 Week. Rep. Week. Rep. 464. 407. 1 Hem. & M. 195, 1 New Reports, ^ 345] MOVABLES. 743 movables, is absolute.'' Mr. Westlake (1880)® declares that it will be found that the weight of later English authorities is in favor of this rule. 346. So, in the United States. — Undoubtedly, we have innum- ■erable opinions of American judges in which the same obei- sance is paid to the lex domicilii.^ But this obeisance is only titular. There is scarcely a case to be found in which, no mat- ter how emphatic may be the nominal recognition of the lex domicilii, the lex situs, when the question is inter vivos, is not held to be the arbiter. Thus, in New York, in 1865, it was declared in the court of appeals, by Judge Potter, to be "The settled law in this court that, as a general rule, a voluntary conveyance upon a good and valid consideration, made by a party according to the law of his domicil, will pass his per- sonal estate, whatever may be its locality — abroad as well as at home." And then comes a limitation which reduces the propo- sition to a small compass : "If I am right in this view of the law, then, in an action in this state between citizens of this ■ state, in regard to a contract made in this state, conveying the title to personal property, it must be determined by the law •of New York."^ If the exception last stated be kept in view, the New York law is consistent with the proposition already laid down, that movables, as a general rule, are subject to the lex situs, except when the parties, by consent, submit them to some other law. But even as to this exception, the ruling in New York was reversed, in 1868, by the Supreme Court of the United States, which expressly decided that though the own- er, the mortgagee, and the attaching creditor of chattels were •domiciled in New York, yet a subsequent attachment by such attaching creditor in Illinois, where the goods were seized, was ^ood as against the prior mortgagee.^ On the other hand, so powerful is the effect of the lex situs deemed in some cases in iGastrique v. Imrie, L. E. 4 li. L. Bank v. Danforth, 14 Gray, 123; 414, 39 L. J. C. P. N. S. 350, 23 L. T. Wilson v. Carson, 12 Md. 54; Balti- N. S. 48, 19 Week. Rep. 1. To same more & 0. R. Co. v. Glenn, 28 Md. ■effect, see Van Grutten v. Digby, 31 287, 92 Am. Dee. 688. Beav. 561, 32 L. J. Ch. N. S. 179, 9 2 Ton Bvskirk v. Warren, 2 Keyes, Jur. N. S. Ill, 7 L. T. N. S. 455, 11 119. See Hoyt v. Thompson, 5 N. Week. Rep. 230. Post, §§ 829, 830. Y. 352; Parsons v. Lyman, 20 N. Y. 8§ 139, p. 163. 112. See, to this point, post, §§ iNoUe V. Smith, 6 R. I. 446 ; Van 307-369. Buskirk v. Warren, 34 Barb. 457; 'Green v. Van Buskirk, 7 Wa!J. Moore v. Willett, 35 Barb. 663; Ban- 139, 19 L. ed. 109, 5 Wall. 307, 18 L. ford V. Paine, 32 Vt. 442, 78 Am. ed. 599. See also Smith v. Snnlh, m Bee. 586. See Rhode Island Central Gratt. 545. See ante, § 317b. 744 LAW OF THINGS. [Chap. VII. New York, tliat it has been ruled in that state that while a state statute cannot give a lien on a vessel in another state, to secure a debt created in that state, yet if afterwards the vessel appears in the jurisdiction of the first state, the creditor may follow, and enforce the lien.* And now, in New York, the rule as adopted by the Supreme Court of the United States is accepted as final. ^ 347. Maine, New Hampshire, and Vermont. — The law of Mas- sachusetts provides that an attachment shall be dissolved if the debtor make an assignment under the insolvent laws for the benefit of all his creditors. It was held in Maine, in 1863, that where an insolvent debtor was domiciled in Massachusetts, this iStedman v. Patchin, 34 Barb. 218. force, and where they are permitted Ante, § 319. to operate in another state through '■•McDonald v. Mallory, 77 N. Y. comity, they will not be so allowed 547, 33 Am. Rep. 664. Post, § 357. to the inconvenience of the citizen. In Edgerly v. Bush, 81 N. Y. 199, as or against the policy of the state. It reported in 22 Alb. L. J. 15, we have would be to the contravention of that the following: policy and to the inconvenience of "Personal property belonging to the citizens of this state if its courts A., a citizen of New York, who had should give effect to the statutes of acquired title here, and situated here. Lower Canada, in respect to pur- was taken without the consent of A. chases from traders to the devesting to Lower Canada, where it was pur- of titles to movable property, ac- chased by B. for value, and without quired and held under the law of notice of the rights of A., from a New York, without the assent or in- trader in property of like kind, who tervention, and against the will, of had it in his possession. By the the owner under that law. . . . law of Lower Canada the purchaser The case of Gammell v. Sewell, 5 of personal property from a trader Hurlst. & N. 728, 29 L. J. Exch. N. in like property confers good title. S. 350, 6 Jur. N. S. 916, 2 L. T. N. S. B. conveyed the property to defend- 799, 8 Week. Rep. 639, was concern- ant, who brought it again into New ing property sold in Norway, which York, where his domicil was. In an had not been in England until after action by A. against defendant for a that sale, and had never been in pos- eonversion of the property in the session of the English owners. See, courts of New York, held that the as sustaining the case at bar. Green- title of A. was superior to that of v:ood v. Curtis, 6 Mass. 358, 4 Am. defendant, and the title of B., ac- Dec. 145; Taylor v. Boardman, 25 Vt. quired under the law of Lower 581 ; Martin v. Hill, 12 Barb. 631 ; Canada, would not be recognized. French v. Hall, 9 N. H. 137, 32 Am. Though a transfer of personal Dec. 341 ; Langworthy v. Little, 12 property valid by the law of the Cush. 109. Such cases as Grant v. domicil is valid everywhere, as a M'Lachlin, 4 Johns. 34, and The He- general principle, there is to be ex- lena, 4 C. Rob. 3, do not conflict. In cepted that territory in which the them there were, in the foreign coun- property is situated, and where a try, legal proceedings in rem, or different law has been set up, when analogous thereto, so that the ques- it is necessary for the purposes of tion was as to respect for the ju- justice that the actual situs of the dieial proceedings of another coun- thing be examined. Green v. Van try. Order of general term reversed, Buskirk, 7 Wall. 139, 19 L. ed. 109. and judgments on report of referee Yet statutes have no extraterritorial ordered." § 347] MOVABLES. 745 statute did not affect his personal effects in Maine, which were governed by the Maine law.^ In the supreme court of New Hampshire, in 1867, Judge Sargent, referring to Judge Story's position, that movables are governed by the law of domicil, proceeded to say : "But what- ever weight the English or early New York authorities might otherwise have been entitled to, the great weight of American authorities is now the other way; and it may now be consid- ered as a part of the settled jurisprudence of this country, that personal property, as against creditors, has locality, and the lex loci rei sitoe prevails over the law of domicil, with regard to the rule of preferences in the case of insolvents' estates. The laws of other governments have no force beyond their ter- ritorial limits; and if permitted to operate in other states, it is upon a principle of comity, and only when neither the state nor its citizens would suffer any inconvenience from the ap- plication of the foreign law."^ In Vermont, it was ruled in 1851^ that a prior New York mortgage, without change of possession, would not protect against a Vermont attachment, though the goods were brought into Vermont, where they were attached, merely for a tempo- rary purpose.* 348. Massachusetts. — In an early case in the supreme court of Massachusetts, it was held that a voluntary assignment by a debtor of all his property, made in Pennsylvania for the benefit of creditors generally, does not override a subsequent attachment of Massachusetts funds of the debtor, such an as- i-Boston Iron Go. v. Boston Loco- Vermont law adopted, as against a motive Works, 51 Me. 585. See subsequent attaching creditor. In Felch V. Bugbee, 48 Me. 9, 77 Am. a still later case, the defendants, who Dec. 203; X7pton Y. Huibard, 28 were citizens of New York, assigned Conn. 274, 73 Am. Dec. 670, cited their property for the benefit of post, § 364. [See also post, § 353J.] creditors, and among the claims so ^Dunlap V. Rogers, 47 N. H. 287, assigned was a debt due them from 93 Am. Dec. 433. See Kidder v. the trustees, who were citizens of Titfts, 48 N. H. 125. Vermont. Before notice to the trus- ^Skiff V. Solace, 23 Vt. 280. See tees of the assignment, the debt due ante, § 317b, note 9. by them to the defendants was at- T -iv/r i /T 1 °^^ own law, as the law of the place Jhuret V. Jenkins. 7 Mart. (La.) . ., 318 12 Am. Dec. 508. °* the contract, as well as of the The following cases are cited to forum, should prevail. The Olga, 32 the proposition that the place of the pg,} 329 owner's residence determines the . ,■ , ,. , ■ 1 j character of the vessel: Dudley y. A lien for supplies furnished a The Superior, Newberry, Adm. 176, foreign vessel depends wholly upon § 35S] MOVABLES. 787 entitled to precedence as against a foreign vendee on an as- signment bad in such port.^ By the same practice, a prior mortgage creditor, without transfer of possession, is postponed to attachments and liens which attach at the port at which the vessel may at the time lie.'' jSTor, severely as this posi- tion has been criticized, is it without powerful support. It coincides, as has been seen, with the opinion of Savigny, so far as concerns a conflict of liens.* In the latter respect it is not distinguishable from what is seen, as to conflicting liens, to be an acknowledged principle of international law. So, if we can judge from a decision of the Hanover supreme court, at Celle, on April 17, 1861,' the practice of the courts of the Xorth German Confederacy is to hold that liens or possessory claims (Pfandrechte), which by the lex rci sitce attach, de- vest, pro tarda J prior encumbrances. IsTor can this be justly denounced, as it has been in English courts, as barbarous, or as destructive of international comity. It may promote, at first glance, the interests of ship-building nations, to hold that encumbrances on the ship, attaching at her home port, are to override all liens for loans or supplies which may attach at ports which she may subsequently visit. But there are two answers to this. First, the advantage is illusory; for to a ship in distress in a foreign port, where the character and credit of the owners are not known, no relief will be furnished, if the the law of the place, not upon the though the obligation given therefor vessel's flag; and the general marl- is payable in England. Moore v. time law gives such liens for supplies The Robilant, 42 Fed. 162. furnished the foreign vessel on the On a libel of an English vessel for order of the master. The Scotia, 35 advances received in an English port. Fed. 907. which constitute a lien upon the ves- The fact that the English law sel, the Federal court will administer gives no lien for supplies furnished the English law in regard to such foreign vessels does not abridge the liens, without regard to the question authority of English masters to ob- whether such advances would create tain necessary supplies by simple a lien under the American law. The contract in foreign ports, where the Maud Carter, 29 Fed. 156. law creates a lien, nor prevent the lien from attaching. IMd. sPrice v. Morgan. 7 Mart. (La.) A lien for necessary supplies fur- 707; Hosier v. Merritt, 32 Conn. 246. nished a foreign vessel in a port of An/e, § 323. the United States is controlled in ,, , j^ i,. TT -4. J di i 1, ^See ante, §§ 323, 345. the courts of the United States by > so " "j the general maritime law, and not iAntc 55 317-323 by the laws of Great Britain, al- 6Bar § 65. 788 LAW OF THINGS. [Chap. VII. lien which the law of the port gives is to be overridden by se- cret encumbrances which the parties relieving the ship have no means of gauging. The only way in which maritime credit, in such circumstances, can be maintained, is by accepting the position, "Plere is the ship; at least between you and all per- sons dealing at home with the owner, on his own credit, you have the preference." In the second place, in marshalling as- sets, as between those who had the opportunity, at the home port, of testing the owner's responsibility, and have the double security of his liability and the mortgage on the ship, and those who, in a foreign port, supply the ship in her distress, solely on the credit of her bottom, a priority, on general equity, is due to the latter. These views have been applied, in Alabama, with much good sense, to steamboats navigating our great in- land rivers. "A sound public policy," said Judge Walker, "does not require that liens, such as those springing up under the Kentiicky statute, upon boats navigating our inland rivers, should have conceded to them a pri(?rity over other liens, which may be acquired in other states to which they may be carried. Steamboats might be covered up, if such priority was allowed, by antecedent liens, of which there was no notice ; and great injustice might be done to those who trusted the boat, upon the assumption of its liability; and there would be great room for collusive arrangements, to shelter the boat, by virtue of such liens, from just debts."" But such liens, when not strictly mar- itime, have been held, under the United States bankrupt laws, to be postponed to mortgages previously recorded.'' And when there is no question of priority, the practice in the United States bankrupt courts is to determine the question of the liens of materialmen for goods furnished to a vessel in a for- eign port by the lex loci contractus.^ ^Donald v. Bewitt, 33 Ala. 546, 73 on his request, to pay for necessary Am. Dec. 431 ; and see I'he Antelope, repairs or supplies, so that his ves- 2 Ben. 405, Fed. Cas. No. 482; Calkin sel may proceed on her voyage, the V. United States, 3 Ct. CI. 297 ; Kel- presumption of law is that they were logg V. Brenvan, 14 Ohio, 72; Pro- made on the credit of the vessel; and vast V. JVilcox, 17 Ohio, 359. See it is not necessary that there should ante, § 322; post, § 440. be any express hypothecation of the TEx parte Scott, 18 Am. L. R. 349, vessel, or stipulation that the credit 3 Nat. .Bankr. Reg. 742. was given on that account. The pre- ijjatton v. The Melita, 3 Hughes, sumption, however, may be rebutted 494, Fed. Cas. No. 6,218. See other by proof that the person advancing eases cited 2 Brightley's Federal tlie goods had notice, such as, on the Digest, p. 127. exorcise of due diligence, ought to When advances are made to the have enabled him to discover that captain of a vessel in a foreign port, the master had funds or credit suf- § 358i] MOVABLES. 789 358^8. Exemption of foreign public vessels. — In 1879, two cases involving the liability to process of foreign public ves- sels came tip before Sir R. Phillimore, sitting in admiralty. fieient to enable him to meet the ex- penses in question. The Emily Souder, 17 Wall. 666, 21 L. ed. 683; The Eclipse, 3 Bias. 99, Fed. Gas. No. 4,268; The ■/. F. Spencer, 5 Ben. 151, Fed. Gas. No. 7,316. Post, §§ 440, 441. Liens for advances of funds for the necessities of vessels in foreign ports have a priority over existing mort!;ai9;es to home creditors. The Emily Souder, 17 Wall. 666, 21 L. ed. 683. The lien for advances to a ship for purchase of necessities in a foreign port is not defeated by proof that the owner resided at the port where a part of the supplies were furnished. The Walkyricn, 11 Blatchf. 241, Fed. Gas. No. 17,092. It was held in France, in 1872, that when an English ship is mort- gaged in England, and then pro- ceeds to France, where she is taken in execution, if the mortgage is not valid by French law (though valid in England), it will not be sustained in France as against subsequent French creditors. From this ruling Fiore dissents. Op. cit. App. p. 671. He argues that if mortgages legiti- mately placed on ships are thus dis- regarded in foreign poi Ls, commerce will receive a serious shock, and the nation which permits such procedure will share in the common ruin. • To say that an English mortgage on a ship must be placed according to French law is preposterous, since no English morti;iige could be so placed. It might, indeed, be objected that a mortgage imposed secretly tends to fraud. But this objertion does not apply to mortgages imposed under the English statute which are regis- tered in the proper custom house, ;>nd as to which all persons inquiring can obtain information. A note is added by M. Pradier-Fodfire, to the effect that since the above decision a statute was passed by the national ap-sembly declaring ships to be sus- ceptible of hypothecation. A title to goods given by the de- cree of a foreign court having con- trol over the goods is valid against the claim of an English owner. Gastrique v. Imrie, L. R. 4 H. L. 414, 39 L. J. C. P. N. S. 350, 23 L. T. N. S. 48, 19 Week. Rep. 1; Liverpool Marine Credit Co. v. Hunter, L. R. 4 PJq. 62. See Simpson v. Foqo, 1 Hem. & M. 195, 32 L. J. Ch. N. S. 249, 9 Jur. N. S. 403, 8 L. T. N. S. 61, 11 Week. Rep. 418, discussed post, § 664; ante, § 345. "These decisions," says Mr. Dicey, Domieil (Op. cit. p. 257), "are not conclusive, since they may be ex- plained as depending on the weight to be given to a foreign judgment, but they are far more naturally re- garded as applications of the princi- ple enunciated in Gammell v. Sewell, 5 Hurlst. &, N. 728, 29 L. J. Exch. N. S. 350, 6 Jur. N. S. 916, 2 L. T. N. S. 799, 8 Week. Rep. 639, and stated in the rule under consideration. When it is noticed that the principle of this rule is approved by almost all jurists, is adopted, to a great extent, by the courts of continental nations, is supported by some American cases, and is not opposed to any reported English decision, the conjecture may be hazarded with some confidence that it will ultimately be adopted in its full extent by our courts." See ante, § 345; post, § 441. In Hooper v. (himm. L. R. 2 Ch. 282, 36 L. J. Ch. N. S.'605, 16 L. T. N. S. 107. 15 Week. Rep. 464. it was held that a mortgage of an American ship, duly ext'cuted in America, would not be sustained in England, when the fact of the mortgage was suppressed by the x\merican parties, to the injury of subsequent English purcliasers. "Contracts of affreightment may be made in half-savage or barbarous ports, or even, to take a more famil- iar 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 790 LAW OF THINGS. [Chap. VII. In the first (January, 1879)* it appeared that the Constitu- tion, a United States ship of war, while on a voyage from Havre to ISFew York, and having on board a large quantity of empty cases, and also of goods returned from the Exhibi- tion at Paris, got ashore on Bollard Point, near Swanage, and while in that position salvage services were rendered to her by the steam tug Admiral and other vessels. Sir R. Phillimore refused to allow a warrant to issue for the arrest of a foreign vessel of war, or of private property on board of her, and of which the government to which she belongs has the care, at the suit of salvors.^ In March, 1879, it was held by the same judge that a steamship belonging to or chartered by a foreign government, and regularly employed for the purposes of car- rying mails and passengers and some cargo, is not entitled to the privileges of a man-of-war as to extraterritoriality, but is liable to an action for damage done by her to the vessel of a British subject. It was further held that the English Crown has not power, by treaty with a foreign government, to give to vessels of, or employed by, that government, other than ves- sels of war, the privilege of freedom from civil process extend- local maritime law of the place of sert a. fixer les formalitgs de pub- affreightment. . . . The choice of licite requise pour la translation de the law of the flag of the vesselj i. b., la proprigtg, m?me qviand Ic navire the law of her owner, appears, there- se trouve dans un pays gtranger." fore, as was said in that case [Lloyd The law governing ships navigat- V. (liiibert, L. B,. 1 Q. B. 115, 6 Best ing rivers, as well as ships at sea, & S; 100, 35 L. J. Q. B. N. S. 74, 13 is that of the state to which they L. T. N. S. 602], 'not only in accord- belong. Jour, du droit int. privfe, ance with the probable intention of 1874, p. 131. the parties, but also most consistent Valuable articles on private mari- and intelligible, and therefore most time international law will be found convenient to those engaged in com- in the Jour, du droit int. prive, 1877, merce.' " Foote, Private Interna- pp.' 479 et seq. See post, § 440. tional Jur. p. 325. Post, § 440. To ^The Constitution, 40 L. T. N. S. same effect Is Machlachlan Merch. 219, 48 L. J. Prob. N. S. 13, L. E. Ship. 3d ed. (1880) pp. 64 et seq. 4 Prob. Div. 39, 27 Week. Hep. 739, Post, § 441. 4 Asp. Mar. L. Cas. 79. Professor Lyon Caen, in an article 2 "It is clear," he said, "upon all in the Jour, du droit int. privS, 1877, the authorities, which are to be p. 487, argues that we cannot apply found in the case of The Gharkieh, to the sale of ships the rule applica- L. R. 4 Adm. & Ecel. Rep. 59. 28 ble to other movables, that the law of L. T. N. S. 513, 42 L. J. Prob. N. S. the port of sale is to prescribe the 17, 1 Asp. Mar. L. Cas. 581, that formalities of sale. The law of the there is no doubt as to the general flag, i. e., that of the country to proposition that ships of war belong- which the ship belongs, he maintains, ing to another nation with whom is to govern, and for this he cites this coiuitry is at peace are exempt high French authority. He concludes from the civil jurisdiction of the with the following summary of the coimtry. I have listened in vain for law: "La loi du pavilion du navire any peculiar circumstances to take § 35Sil MOVABLES. 791 ed by international law to vessels of war.^ The judgment of Sir E. Phillimore, however, was reversed in February, 1880, in the court of appeal, James, Baggallay, and Brett, JJ., con- curring.* It was held that an unarmed vessel belonging to a foreign sovereign, employed by such sovereign in what he con- siders a national service, is free from arrest; nor is this privi- lege forfeited by the partial employment of the vessel in carry- ing merchandise and passengers.^ g. Debts. 359. Theories as to seat of debts. — ISTo more embarrassing question arises than that which concerns the situs of debts. The question is important chiefly in two relations. First, where is a debt taxable ? This is a question elsewhere discussed. ^ The Second, which we have now to consider, is, what debts does a general assignment carry? Supposing such an assign- ment is good in Massachusetts but bad in Rhode Island, does it carry a debt due from a domiciled citizen of Rhode Island to the assignor, a domiciled citizen of Massachusetts ? To solve questions of this class several theories have been proposed. 360. Lex loci contractus. — The first theory to be noticed is that of the lex loci contractiis. ^ The inadequacy of this theory will be hereafter fully shown. It is sufficient now to say that the place where a contract is solemnized is often fortuitously determined. This place may be on the high seas. It may be in a state which the parties are casually visiting, whose laws, of which they know nothing, would give their engagement a mean- ing iitterly inconsistent with that which they intended. It may be in a state where the parties meet for the purpose of interchanging signatures, not because they have anything to do with the place, but because it may be a half-way spot which thia case out of the general propo- lien could not be enforced against sition." United States light-boats. Further ^The Parlement Beige, 40 L. T. N. references were made to The Santis- S. 222. sima Trinidad, 7 Wheat. 283, 5 L. ed. i 42 L. T. N. S. 273, L. R. 5 Prob. 454, and United States v. Wilder, 3 Div. 197, 28 Week. Rep. 642, 4 Asp. Sumn. 308, Fed. Cas. No. 16,694. Mar. L. Cas. 234. The analogous case of extraterri- 5 The judgment of Brett, J., relied toriality of diplomatic residences is largely on The Exchange v. M'Fad- discussed ante, § 16. That a foreign d^m, 7 Cranch, 116. 3 L. ed. 287; The sovereign is privilegad from suit, see Prins Frederik, 2 Dodson, Adm. 451, ante, § 124%. and Briggs v. The Upper Cedar lAnte, §§ 79 et seq. Point, 11 Allen, 157, in which it was i See Burrill, Assignm. § 309. held that a, Massachvisetts statutory 792 LAW OF THINGS. [Cjiap. VII. they find more accessible than woiild be the pi sice of business of either of them. To subject a debt to such a law would be unreasonable, as conditioning the validity of the debt on acci- dent, or exposing it to fraud. 361. Debtor's domicil. — Unless the debtor's domicil is the place of payment, it has no necessary connection with the terms of the debt. It may be that in jurisdictions where debt- ors are only suable in their domicils, this domicil may be sup- posed to give the applicatory law. ^ But it is not so where debt- ors are suable wherever they can be found. 362. Place of payment. — That the place of payment is the place whose law determines the seat of an obligation has been zealously urged.' That the law of the place of payment de- termines the mode of performing an obligation we will here- after see. ^ This, however, is a different question from that which arises when we inquire what is the place in which the fruits of an obligation are ultimately to fall. T may be dom- iciled, for instance, in ISTew Jersey, and I may hold note? pay- able to me in ISTew York. The law as to the mode of paying may be ISTew York law. Yet as the money ultimately reaches me in Now Jersey, it is by ISTew Jersey that the value repre- sented by the notes is finally controlled. 363. Prevailing theory is that law of creditor's domicil deter- mines. — The remaining theory to be considered is that of the lex domicilii of the creditor. This theory is now generally ac- cepted in England and the United States, though it is some- times urged on grounds which have prevented its universal adoption. Mohilia sequvnlur persona?n is a maxim, we are told, peculiarly applicable to debts, which have no local site, and which therefore follow the owner. The difficulty about this position is that if it is good, it subjects debts, not to a fixed jurisprudence, ;'. e., the creditor's domicil, but to a fluc- tuating jurisprudence, and one that could be changed any day in fraud of third parties, i. &., the creditor's residence. The true reason for adopting the creditor's domicil, as distin- guished from his residence, and as distinguished from the for- mal place of payment, is that it is into the creditor's domicil 1 Rop Phillimorc. iv. 544; Mwooi with the creditor's domicil. Olark V. Protection Ins. Co. 14 Conn. 5.5.5; v. Connecticut Peat Cr,. 35 Conn. Clarh V. Connecticut Peat Co. .35 303; Pond v. Cooke, 45 Conn. 132, 29 Conn. .303. But compare anie, § 347. Am. Eep. 668. 1 This, however, is mostly when '^Post, §§ 399 et seq. the place of payment is coincident 363] MOVABLES. 793 that the fund which the obligation represents is ultiniiitely passed. ^ 363a. Situs of debts, and choses in action, generally. — Assum- ing the truth of the statement referred to in the last section, that the maxim Mobilia sequuntur personam, is peculiarly applic.'able to debts, it must be admitted that there are some incidents or properties of debts whose governing law cannot be deduced from that maxim. Therefore, instead of discussing the general and abstract question as to the situs of debts, the attempt in the sub- sequent sections will be to show the governing law with respect 1 To the conclusion that the law of the creditor's domicil determines the law in a conflict in another state be- tween the creditor's assignee and an attaching creditor may be cited i^mitli V. Buchanan, 1 East, 6, 5 Re- vised Rep. 499; Gaskie v. Wehster, 2 Wall. Jr. 131, Fed. Cas. No. 2,500; Braynard v. Marshall, 8 Pick. 194; Mead v. Dayton, 28 Conn. 33; Clark V. Connecticut Peat Co. 35 Conn. 303, Affirmed in Pond v. Cooke, 45 Conn. 132, 29 Am. Rep. 668; Ooodmin v. Holbrook, 4 Wend. 377 ; Ouillander V. Howell, 35 N. Y. 657; Speed \. May, 17 Pa. 91, 55 Am. Dec. 540; Poe V. Duck, 5 Md. 1 ; Keyser v. Rice, 47 Md. 203, 28 Am. Rep. 448; Klein V. French, 57 Miss. 602 ; though see Warren v. Copelin, 4 Met. 594; War- den V. yourse, 36 Vt. 750. In Kirtland v. Hotchkiss, 100 U. S. 491, 25 L. ed. 558, Harlan, J., speak- ing of a debt due from a person dom- iciled in one state to a person dom- iciled in another, said: "That debt, although a species of intangible prop- erty, may, for purposes of taxation, if not for all others, be regarded as situated at the domicil of the cred- itor." In England this principle has been affirmed under the following circum- stances : Tly the Roman common law, as adopted in Scotland, an assign- ment of a debt does not operate until notice is given to the debtor; and hence, under such law, an attach- ment or "arrest" laid on such debt. the debtor being garnishee withovit notice in such attachment, overrides the assignment. By the English common law, the assignment works an equitable transfer of the debt, without notice; though, if the debtor should innocently pay the debt to the assignor, w'ithout notice, the assignee has lost his claim as against the debtor. Notice, by such law, pen- dente lite, — e. q., subsequent to at- tachment laid, iDut before execution, — is sufficient to work such equitable assignment. Now the question is whether, if a debt due by a, Scotch debtor to an English creditor be as- signed in England, the debt is equita- bly transferred to the assignee, as against a subsequent Scotch attach- ing creditor, though the notice of the assignment to the debtor was not given until after attachment laid. In England it seems to be held that such an assignment operates as an equitable transfer under such circum- stances. Solomons v. Ross, cited in 4 T. R. 182; Sill v. Worstoick, 1 H. Bl. 691; Sell-rig v. Davis, 2 Rose, 315. 2 Dow, P. C. 230. See other cases cited by Judge Story, Confl. L. § 395 note, § 396. The suits in ques- 1;ion, it should be remembered, were brought in an English court in a pro- ceeding to compel the attaching cred- itor to refund. Whether the state where an attachment is levied will re- spect a conflicting foreign assignment of a character which it holds invalid is considered vost. § 365. 794 LAW OF THINGS. [Chap. VII to various specific incidents and properties of debts, though, an a matter of convenience, the discussion will sometimes assume the form of a question as to the situs of a debt for a particular specific purpose. The situs of debts for the purposes of taxa- tion has already been discussed, and their situs for the purposes of testate and intestate succession and administration will be discussed in a subsequent chapter. 363b. Assignment of debt or chose in action, generally, — The distinctions, previoxisly^ pointed out in connection with con- tracts relating to tangible personal property, between questions that relate to the personal rights and obligations of the parties and those that relate to rights or interests in the property itself, and between questions that relate to the validity of the contract itself as an instrument creating or transferring a right to, or an interest in, the property, and those that relate to the preserva- tion of such right or interest, or the means of making it effectual aa against third persons,-^apply to assignments of debts oi choses in action. Such an assignment, viewed either as a con- tract creating personal rights and obligations, or as an instru- ment transferring the property right in the debt or chose in action, is, in general, governed by the law of the place where it is made, with respect to the substantive rights, not only of the immediate parties, but of third persons also, so far as the right? of the latter depend upon validity, construction, or effect of the instrument of assignment itself.^ The rule, however, has a lAnte, §§ 311a, 311b. but the remedy for the enforceraenl. 2 This iiile lias been frequently ap- of such right must be sought accord- plied to voluntary general assign- ing to the la-ws of the forum. Jack- mcnts for creditors. See ante, §§ son v. Tiernan, 15 La. 485. 353f et seq. It is also illustrated by Whether a pre-existing indebted- the following cases: ness is a valid consideration for an Whether or not the assignment of assignment of a debt, which will sup- a part of an indebtedness creates an port it as against a subsequent at- cquitable right in the Mssigiiee is to tachment, is to be determined by thn be determined by the law of the law of the state where the assign- stntewherethenssinnment was made; ment was made, though the attach- § 363b] MOVABLES. 795 necessary limitation arising from the fact that the assignability or nonassignability of a chose in action is one of its inherent qualities which is determined by the law of its creation. * Thus, the assignability of a cause of action for personal injuries is governed by the law of the place where the cause of action arose, rather than by the law of the place where the assignment was made.* The rule is also subject to an exception when it would be contrary to the public policy of the forum to enforce the law of the place where the assignment was made; and this exception, as elsewhere^ shown, has been extensively applied to voluntary general assignments for creditors. So, of course, the law of ment is levied in another state. Glo- where the liability arose and in which rer v. Wells, 40 111. App. 350. the assignor and assignee are domi- The general rule is that credits and oiled, and the courts of another state chosos in action have no situs apart in which the action is brought will from the domicil of their owner, and recognize and follow the law of that nn assignment made in the place of state. Damis v. Mills, 99 Fed. 39. such domicil, which is valid there, is So, a disposition or pledge by a valid everywhere. Bloomingdale v. cestui que trust, of an interest in a Maas, 30 Misc. 672, 64 N. Y. Supp. trust created in and governed by the 266. laws of another state, is not subject An instrument executed in Texas to the provisions of N. Y. Eev. Stat, by partners, one of whom resides in § 63 (1 Rev. Stat. p. 729), prohibit- Texas and the other in the Indian ing the alienation of their interests territory, transferring personal prop- by cestuis que trust. First Nat. Bank erty situated in Texas only, will be v. Xaiional Broadicay Bank, 156 N. interpreted according to the laws of Y. 459, 42 L. K. A. 139, 51 N. E. 398, the latter state, and if valid in such Modifying 22 App. Div. 24, 47 N. Y. state as a chattel mortgage will not Supp. 880. be affected by the execution on the An assignment of a chose in action following day of an assignment for made in another state by a citizen creditors by the firm of their prop- thereof will be upheld by the courts erty in the Indian territory. Dun- of Wisconsin if it. is not contrary to ham v. McNatt. 15 Tex. Civ. App. good morals or the policy of the 552, 39 S. W. 1016. state. Smith v. Chicago & N. R. Co. 3 The validity of an assignment of 23 Wis. 267. a chose in action, consisting of the *Yimont v. Chicago N. W. R. Co. right to enforce the personal liabil- 69 Iowa, 296, 22 N. W. 906, 28 N. W. ity of a trustee of a corporation for 612. failure to file an annual report, is to ^Ante, § 353f. be determined by the law of the state 708 LAW OF THINGS. [Chap. VII. the place where the assignment was made is displaced by the law of the forum, with respect to matters that pertain to the remedy, as distinguished from the substantive rights of the parties. ® Assuming the validity of the assignment itself, the steps nec- essary to perfect it as against the debtor or obligor, or the cred- itors or subsequent assignees of the assignor, are to be deter- mined by the law of the domicil of the debtor or obligor, at least when the question arises in that jurisdiction.'^ It will.be observed that this rule is analogous to that applied to sales and mortgages of tangible personal property. * The principles and rules stated in this section find their fullest exemplification in the eases relating to voluntary genera) assignments for creditors.® 363c. Assignment of shares of corporate stock. — The princi- ples discussed in the last section apply to the transfer or assign- ment of shares of corporate stock. The assignability of such shares is doubtless to be determined by the law of the domicil of the corporation, though the assignability of a special or qualified interest therein, as distinguished from the assignabil- - If an assignment of a chose in ac- in accordance with the law of Seot- tion made in fraud of creditors is land, that an arrestment in Scotland voidable in some form of judicial of calls on the shares of the company process by the law of the state where held by residents of that country was the assignment was made and by the equivalent to an assignment with in- law of the state where the remedy timation or notice to the holders, and is sought, the question as to the form took priority over an earlier assign- of the remedy is to be determined by ment without intimation to the hold- the lex fori. Drake v. Rice, 130 era, even though the earlier assign- Mass. 410. ment by the law of Queensland and iLewis V. Bush, 30 Minn. 244, 15 also by the law of England was valid N. W. 113; Moore v. Robertson, 43 without such intimation. N. Y. S. R. 245, 17 N. Y. Supp. 554; See also post, S 353g, notes 4 and Flickey v. Loney, 4 Baxt. 169. 5. But see contra, Clark v. Gonnecti- In Re Queensland Mercantile d cut Peat Co. 35 Conn. 303. Agency Co. [1891] 1 Ch. 536 (a pro- s See ante, §§ 317b, 335b. ceeding for the winding up of a 9 See ante, §§ 353a et seq. Queensland company), it was held « 363c] MOVABLES. 797 ity of the shares themselves, is to be determined by the law of the place where such interest was created. ^ Assuming the assign- ability of the shares, the validity and effect of the assignment as between the parties is to be determined by the law of the place where the assignment is made;^ biit the steps requisite to perfect the assignment as against the corporation or the cred- itors of the assignor are to be determined by the law of the domi' cil of the corporation ; * and so the right of a corporation to a lien upon shares of stock as against the assignee is to be deter- mined by the law of its domicil, although the assig-nment is made in another state.* 364-367. These sections are omitted, as the subject-matter is fully covered by the new sections. 368. Situs of debt is not changed by the fact that it is secured by a mortgage in another state.— Is the situs of a debt changed by the fact that it is secured by a mortgage on real property in another state? Undoubtedly the law governing the mortgage, as such, is the law of the situs of the land the mortgage cov- ers. But the situs of the debt is not lost in the situs of its security. The debt is governed by the law of the domicil of 1 The right of a cestui que trust, the domicil, so that there was no con- under a trust of personal property, fiict between the tex domicilii and lea: to alien her interest is to be deter- loci contractus. mined by the law of the place where A transfer of stock in a national the trust was created, and where the bank of another state, made in Mary- person by whom it was created was land to a married woman, who is domiciled, notwithstanding the sub- competent Ijy the law of that state to ject of the trust is shares of stock in be a stockholder, is valid, irrespective a New York corporation. First Nat. of the law of the state in which the Bank v. National Broadioay Bank, bank is situated. Kerr v. Urie, 86 156 N. y. 459, 42 L. R. A. 139, 51 N. Md. 72, 38 L. R. A. 119, 63 Am. St. E. 398. Rep. 493, 37 Atl. 789. 2 See Black v. Zacharie, 3 How. ^Blaclc v. Zacharie, 3 How. 483, 11 483, ] 1 L. ed. 690. It is true that the L. ed. 690 ; Masury v. Arkansas Nat. court formally refers the effect of the Bank, 87 Fed. 381. assignment of the stock to transfer ^Hammond v. Hastings, 134 U. S. an equitable title thereto to the law 401, 33 L. ed. 960, 10 Sup. Ct. Rep. of the assignor's domicil: but the as- 727; Bishop v. fllobe Co. 135 Mass. signment in this case was made at 132. 798 LAW OP THINGS. [Chap. VII. the party to whom it is due, no matter where its security may be situated.^ The same rule is held when the question arises whether a debt secured by a foreign mortgage can be taxed in the domicil of the creditor. ^ 368a. Place where debt or chose in action may be subjected to attachment or garnishment. — The question as to where a debt or chose in action may be subjected to attachment or garnish- ment has been much discussed, and is the subject of a great con- trariety of views. It is obvious that this question becomes one of constitutional law, as well as statutory construction, when the attachment or garnishment of the debt or chose in action is relied upon to confer jurisdiction to proceed in rem, and mth- out jurisdiction of the person of the principal defendant {i. &., the person to whom the debt attached or garnished is owing) . ^ lArete, §§ 276%, 292, and cases there cited; post, § 510; 3 Kent, Com. 460; Campbell v. Dent, 2 Moore, P. C. C. 292; Townsend v. Riley, 46 N". H. 300; Williams v. FitzhugK, 37 N. Y. 444; Gope v. Alden, 53 Barb. 350, Affirmed in 41 N. Y. 313; Jiew- man v. Kershaw, 10 Wis. 333; Ken- nedy V. Kniglit, 21 Wis. 340, 94 Am. Dec. 543. The point of the text is illustrated by the cases cited post, § 510k, upon the question as to the governing law with respect to usury. The implica- tion, however, that the mortgage is subject to the lex rei sites is only true as applied to questions that relate distinctively and primarily to real property. See ante, §§ 276a-276c. 24»*e, § 80; Kirtland v. Eotch- Mss, 100 U. S. 491, 25 L. ed. 558. 1 Thus, the court in Plimpton v. Bigelow, 93 N. Y. 592, 601, says: "Manifestly, the res cannot be with- in the jurisdiction, as a, mere conse- quence of a legislative declaration, when the actual locality is undeni- ably elsewhere." This seems opposed to the position taken by the same court in Williams v. Ingersoll, 89 N. Y. 508, where the court, speaking of an award made in New York in favor of a resident of New York against u resident of Connecticut, said: "The award was made in this state, and was at that time held in this state, and hence the debt in no sense had its situs in that state [Connecticut]. A debt, always, under general juris- prudence, has its situs either at the domicil of the creditor, or where the written obligation upon which it is due is held, and not at the situs of the debtor. Hence, under general public law, recognized by all courts, there was nothing in Connecticut to attach. But local laws may fix the situs of the debt at the domicil of the debtor, and under such laws it may be effectually attached against a nonresident creditor, and compulsory payment under the attachment will protect the debtor everywhere against a suit for the recovery of the same § 368a] MOVABLES. 799 The discussion of the subject has generally turned upon the question as to the situs of a debt for the purposes of attachment or garnishment; but the tendency of the later cases is to reject situs as the criterion of jurisdiction, and to regard the jurisdic- tion as dependent upon the control which is obtained over the debtor.^ Proceeding upon this theory, the United States Su- preme Court has held that a debt due to a nonresident creditor who is served constructively only may, consistently with due process of law, be subjected to garnishment at the domicil of the debtor, at least if the debt is payable generally, or is not debt by the creditor." The court arrest the payment of what is due here seems to lose sight of the princi- and might be paid to a nonresident pie which it declares in the case first to the defeat of his creditors. To do cited, that a situs, other than its true it, he must go to the domicil of his situs, cannot be arbitrarily assigned debtor, and can only do it under the to a debt; by legislative enactment, be- laws and procedure in force there." sause a statute which undertakes to The idea that jurisdiction depends, base jurisdiction upon a res not with- not upon the situs of the debt, but iu the territorial limits offends the upon the control which is obtained provision of the Federal Constitution over the debtor, is still further em- against the deprivation of property phasized in Mooney v. Buford & G. without due process of law. It fol- Mto- Go. 18 C. C. A. 421, 34 U. S. lows, therefore, that, in order to up- App. 581, 72 Fed. 32. And in Lan- hold the jurisdiction of the court of cashire Ins. Co. v. Corbetts, 165 111. the debtor's domicil to garnish a debt 592, 36 L. R. A. 640, 56 Am. St. Rep. due a nonresident not personally sub- 275, 46 N. E. 631, the court says: ject to the jurisdiction, it is neces- "To hold that the situs of the debt sary to establish the proposition that determines the question of jurisdic- a debt has its situs at the debtor's tion is practically to hold that a debt domicil, when tested by correct prin- cannot be gainished at all in foreign ciples of private international law, or, attachments, for the very ground of if the debt eancaot be said to have a a foreign attachment is the nonresi- situs there, that the control of the dence of the principal defendant, court over the person of the debtor who, in cases of garnishment, is the is, for the purposes of garnishment, creditor of the garnishee, and if the a, sufficient substitute for a local debt which the garnishee owes to his situs. creditor can be reached only by pro- 2 Thus, the court in Chicago, R. I. ceedings had where such creditor re- ef P. R. Co. V. Sturm, 174 U. S. 710, sides, — that is, where the debt had its 43 L. ed. 1144, 19 Sup. Ct. Rep. 797, situs, — it cannot be reached in for- says: "The essential service of for- eign attachment at all." eign attachment laws is to reach and 800 LAW OF THINGS. [CliAP. VII. expressly made payable in another jurisdiction.^ The decisions of that court, upholding the jurisdiction under such circum- stances, are conclusive upon the state courts to the extent that a court of one state is bound, under the full faith and credit provision of the Federal Constitution, to recognize and give ■effect to a judgment in attachment or garnishment proceedings rendered under such circumstances in another. While they are not necessarily conclusive upon the state courts in respect to their own jurisdiction in domestic proceedings, yet they lend strong support to the general proposition that the attachment or garnishment of a debt under such circumstances is sufficient to confer jurisdiction in rem, and, since the state courts are bound in any event to concede that such a proceeding constitutes due process of law when instituted in another state, they will not be inclined to deny it that character when instituted in their own state, even if they ijreviously took a contrary view of the jurisdictional question. "* The doctrine, however, does not apply to the garnishment of a debt evidenced by a judgment rendered ^Chicago, B. I. & P. B. Go. v. to which he was entitled undei- tlie Sturm, 174 U. S. 710, 43 L. ed. 1144, law of Kansas. 19 Sup. Ct. Rep. 797 ; King v. Cross, The second ease is to the same 175 U. S. 396, 44 L. ed. 211, 20 Sup. effect. Ct. Rep. 131. In the first case it was * The jurisdiction of tlie court of held that %\ages, due from a railroad the debtor's domicil to garnish a debt Company incorporated in Iowa to a duo a nonresident is also uplield by resident of Kansas for services per- tlie following decisions of the state formed in the latter state, were sub- courts, whieli make no express dis- ject to garnishment in Iowa; and tinction between debts payable gen- that the courts of Kansas were erally and debts expressly payable bound, under tlie full faith and credit outside the jurisdiction, though in provision of the Federal Constitution, most of them tliere was no express to recognize and give effect to the provision as to the place of payment: judgment in such proceedings, not- flaniiibal d St. J. It. Co. v. Crane, withstanding that the principal de- 102 111. 249, 40 Am. Rep. 581; Roche fendant (the creditor of the gar- \. Rhode Island Ins. Asso. 2 111. -\pp. nishee) was served constructively 3G0; Clover v. JVelU, 40 111. App. only. This rule was applied, not- 350; Moore v. Chicago, R. 1. & P. R. withstanding that the result was to Co. 43 Iowa, 3S5; Mooney v. Union deprive the creditor of the exemption P. R. Go. (iO Iowa, 340, 14 N. W. 343; § 368a] MOVABLES. 801 in another state, ** since it is a general principle, whicli applies without reference to the domicil of the parties, that a judgment is not the subject of garnishment in a state other than that in which it was rendered.® The assumption by the Supreme Burlington ds M. River R. Co. v. to garnishment in Iowa, in wbich Thompson, 31 Kan. 180, 47 Am. Rep. state the corporation was separately 497, 1 Pao. 622; Williams v. St. organized; aflBrming, in this respect, Louis & 8. TV. R. Co. 109 La. 90, 33 the decision of the Missouri supreme So. 94; Morgan v. 'Neville, 74 Pa. 52; court in Tourville v. Wabash R. Co. Mobile & 0. R. Co. v. Barnhill, 91 148 Mo. 614, 71 Am. St. Hep. 650, 50 Tenn. 395, 30 Am. St. Rep. 889, 19 S. W. 300. Renier v. Hurlbut, 81 S. W. 21 ; Berry Bros. v. Davis, 77 Wis. 28, 14 L. R. A. 562, 29 Am. St. Tex. 191, 19 Am. St. Rep. 748, 13 S. Rep. 850, 50 N. W. 783, is to the same W. 978; Ward v. Morrison, 25 Vt. effect. So, it was held in Boyle v. 593; Nichols v. Hooper, 61 Vt. 295, Musser-Sauntry Land, Logging & 17 Atl. 134. Mfg. Co. 88 Minn. 456, 97 Am. St. Ward V. Boyce, 152 N. Y. 191, 36 Rep. 538, 93 N. W. 520, that a judg- L. R. A. 549, 46 N. E. 180, held that ment obtained in, and by a citizen of, a wife, a resident of New York, to Minnesota, against a corporation or- whom a note made by a resident of ganized in Iowa, but doing business Vermont was payable, was not con- and having an agent and an office in eluded by a judgment rendered in a Minnesota, cannot be impounded or trustee's process instituted in Ver- condemned in either by a corporation mont by a creditor of the husband, of that state against the judgment whereby the note was adjudged to be- creditor, who was served construct- long to the husband, and the maker ively only. But see contra, Fithian was directed to pay the same to the v. New York & E. R. Co. 31 Pa. 114. latter's creditors, it appearing that 6 Crake, Attachm. § 625; 14 Am. & there was no personal service upon Eng. Enc. Law, pp. 775, 776. either husband or wife within Ver- In Renier v. Hurlbut, 81 Wis. 24, mont, and that the wife was not 14 L. R. A. 562, 29 Am. St. Rep. 850, made a. party to the proceedings un- 50 N. W. 783, the court held that a til after the rendition of the judg- judgment rendered in Wisconsin in ment by which the indebtedness of favor of a resident of that state the husband to the creditor institut- against a Massachusetts corporation ing the proceeding was established, has no situs for purpose of garnish- 5 Thus, it was held in Wabash R. ment in a third state in which the Go. V. Tourville, 179 U. S. 322, 45 L. corporation did business and had an ed. 210, 21 Sup. Ct. Rep. 113 (a case agent upon whom process could be substantially like the Sturm Case, served. The court, however, did not supra, except that the indebtedness distinguish a judgment from any had been reduced to judgment), that other indebtedness contracted and a judgment rendered against a cor- payable in a state other than that in poration in Missouri was not subject which it is sought to be garnished. Vol, I. CoNFL. op Laws — 51. 802 LAW OF THINGS. [Chap. VII. Court, in the case in which the doctrine was first declared by it, that there was "no special limitation or provision in respect to payment," but the debt was payable generally introduces a qualification, and suggests a distinction which it is difficult to follow through the cases. The difficulty arises from the fact that it is not always clear, when the court states that the debt was payable in a certain state, whether it is meant that it was expressly payable there, or by legal, implication payable there. For instance, some of the cases, upon substantially the same state of facts that were involved in the case above referred to, state that the debt was payable at the principal defendant's domieil; whereas, the Supreme Court in that case assumed that the debt was payable generally. '^ It is difficult to perceive how 'Thus, in the opinion in Missouri creditor's domieil seems to have been P. B. Co. V. Sharitt, 43 Kan. 375, 8 based upon a legal implication, L. R. A. 385, 19 Am. St. Rep. 143, 23 rather than an express provision in Pac. 430 (referred to in the Sturm the contract; therefore, while these Case, supra), the court, upon sub- cases, upon their face, apparently stantially the same state of facts come within the qualification of the that were involved in that case, said doctrine of the Sturm Case, supra, that the debt was payable in Kan- they are, upo«i the facts involved, op- sas, the creditor's domieil; whereas, posed to the decision in that case> in the Sturm Case, the court assumed The qualification, within the limits that the debt was payable generally, to which it is confined by the Sturm So, in Mason v. Beebee, 44 Fed. 556; Case, supra (i. e., when limited to a Louisville <& N. B. Co, v. Dooley, 78 debt expressly payable in another Ala. 524; Louisville d N. B. Co. v. jurisdiction), has been recognized by Vash, 118 Ala. 477, 41 L. R. A. some of the cases. Thus, a debt hav- 331, 72 Am. St. Rep. 181, 23 ing no special provision in regard to So. 825 ; Wells v. East Tennes- payment is payable at any place, and. see, V. d G. B. Go. 74 Ga. 548; hence, may be attached at the domi- Central B. Co. v. Brinson, 109 Ga. eil of the debtor, although the crtd- 354, 77 Am. St. Rep. 382, 34 S. E. iter's domieil may be elsewhere. 597 ; BeOrSley v. Lennom-Haldeman Co. Barbour v. Boyce, 7 Ohio, N. P. 504. 116 Ga. 13j 42 S. E. 385; and Illi- And, conversely, it was held in nois G. B. Co. v. Smith, 19 L. R. A. Drake v. Lake Shore & M. S. B. Co. 577 (see note to this case), holding 69 Mich. 168, 13 Am. St. Rep. 382, 37 that a debt payable at the creditor's N. W. 70, and Bullard v. Chaffee, 61 domieil is not subject to garnishment Neb. 83, 51 L. R. A. 715, 84 N. W. at the debtor's domieil — the assump- 604, that a debt expressly payable tion that the debt was payable at the at the domieil of the creditor was § 368a] MOVABLES. 803 the question whether the debt is payable generally or is ex- pressly payable at some particular place outside of the state in which the garnishment proceeding is instituted can properly affect the jurisdiction, since, in either case, suit may be main- tained thereon (by the creditor to whom it is owing, at least), at the debtor's domieil. There is a tendency upon the part of the later cases to ignore the distinction, and apply the doctrine to debts expressly payable in another jurisdiction;® and, in view of the broad ground upon which the decisions of the Supreme Court rest, it is doubtful if that court will adhere to the qualifi- cation when a case involving a debt expressly payable out of the jurisdiction in which it is garnished is presented. The Supreme Court also expressly left the question of jurisdiction open when not subject to attachment at the 383; High v. Padrosa (Ga.) 46 S. E. domieil of the debtor. 859. The doctrine that a debt is subject So, McBee v. Purcell Nat. Bank, 1 to garnishment at the domieil of the Ind. Terr. 288, 37 S. W. 55, holding debtor was also previously stated by that, where money deposited in a the Missouri courts of appeals, with bank by a nonresident is payable the qualification that the debts were over the counter, the situs of the not payable elsewhere (see Todd v. debt for the purpose of garnishment Missouri P. R. Co. 33 Mo. App. 110; is the place of deposit, — seems to as- Keating v. American Refrigerator sume that, in order to confer juris- Go. 32 Mo. App. 293; Walker v. N. diction upon a court of the debtor's K. Fairbanks & Go. 55 Mo. App. domieil, it is not sufficient that the 478) ; but these cases were expressly debt be payable generally, but that it overruled by the Missouri supreme must, either by contract or by im- court in Wyeth Hardware d Mfg. Go. plication of law, be payable at the V. Lang, 127 Mo. 242, 27 L. E; A. debtor's domieil. 651, 48 Am. St. Rep. 626, 29 S. W. ^Tootle v. Goleman, 57 L. R. A. 1010, so far as they thus qualified 120, 46 C. C. A. 132, 107 Fed. 41; the doctrine. Pomeroy v. Rand, McN. & Go. 157 In Georgia the general rule is that 111. 176, 41 N. E. 636; Wyeth Bard- the situs of a debt for the purposes ware & Mfg. Go. v. Lang, 127 Mo. of garnishment is at the residence 242, 27 L. R. A. 651, 48 Am. St. Rep. of the creditor if there is no agree- 626, 29 S. W. 1010; Dinkins v. Gru- ment as to the place of payment, but den-Martin Woodenware Go. 99 Mo. it is intimated that it may have a App. 310, 73 S. W. 246; Hamley v. situs at the residence of the debtor Hurd, T2. Vt. 122, 52 L. R. A. 195, if payable there. Henry v. Lennox- 82 Am. St. Rep. 922, 47 Atl. 401. Haldeman Go. 116 Ga. 9, 42 S. E. The following cases also declare 804 LAW OP THINGS. [Chap. VII. the debtor is not domiciled in the state in which the proceedings are instituted, but is served with process while temporarily there. Many of the cases hold, under such circumstances, that the debt must be expressly payable in the state in which the garnishment proceeding is instituted, in order to uphold the jurisdiction if the creditor is also a nonresident, and is served constructively.* It will be observed that, in this view, the ju- risdiction in case of a nonresident is confined within narrower limits than those imposed by the doctrine of the United States Supreme Court with respect to resident debtors, even if that doctrine be qualified by the condition that the debt shall not be the rule that a debt is subject to gar- ers, 52 W. Va. 450, 62 L. R. A. 178, nishment at the domicil of the debt- 44 S. E. 300. or, without referring to any quallfi- In the following eases the right to cation based on the place of pay- garnish a nonresident debtor seems ment: Reimers v. Seatoo Mfg. Co. to be denied without reference to the 30 L. E. A. 365, 17 C. C. A. 228, 37 place of payment; but these deci- U. S. App. 426, 70 Fed. 573; Roths- sions turned upon the construction child V. Knight, 176 Mass. 48, 57 N. of local statutes (though such con- E. 337 ; Sexton v. Phosnix Ins. Go. struction was doubtless influenced by 132 N. C. 1, 43 S. E. 479; Bragg v. general principles), and it does not Gaynor, 85 Wis. 468, 21 L. R. A. 164, appear that in any of these cases the 55 N. W. 919. debt was expressly payable in the ^Reimers v. Seatco Mfg. Co. 30 L. state where it was sought to be gar- R. A. 364, 17 C. C. A. 228, 37 U. S. nished: Tingley v. Bateman, 10 App. 426, 70 Fed. 573; Green v. Mass. 343; Nye v. Liscombe, 21 Pick. Farmers' & G. Bank, 25 Conn. 452; 263; Baxter v. Vincent, 6 Vt. 614. McKinney v. Mills, 80 Minn. 478, 81 Garr v. Corcoran, 44 App. Div. 97, Am. St. Rep. 278, 83 N. W. 452 60 N. Y. Supp. 763, and National ( overruling dictum to contrary in Broadway Bank v. Sampson ( N. Y. ) Harvey v. Great Northern R. Co. 50 71 N. E. 766, deny that a debt due Minn. 405, 17 L. R. A. 84, 52 N. W. from one nonresident to another has, 905) ; Bush v. Nanoe, 61 Miss. 237; or can be given by local legislation, a Sawyer v. Thompson, 24 N. H. 510; situs for the purposes of attachment Laxorence v. Smith, 45 N. H. 533, 86 or garnishment in a, state in which Am. Dec. 183; Lancaster v. Spots- the debtor is temporarily present wood, 41 Misc. 19, 83 N. Y. Supp. and is served with process. The 572; Balk v. Harris, 124 N. C. 467, principle, as stated in these cases, 45 L. R. A. 258, 70 Am. St. Rep. 606, is not qualified by any reference to 32 S. E. 799; Gronin v. Foster, 13 R. the place where the debt was con- I. 196; Pennsylvania R. Go. v. Rag- tracted or payable, though, as a mat- § 368a] MOVABLES. 805 expressly payable out of the jui-isdiction. The question with respect to nonresidents arises most frequently when the debtor is a foreign corporation which does business within the state in which the proceeding is instituted, and has, pursuant to the laws thereof, appointed an agent upon whom service of process may be made. When the debt in such case arises out of busi- ness transacted within the state and is payable therein, there seems to be no doubt as to the right of the state to subject it to garnishment, even if the creditor be a nonresident, and be served constructively only. ^ " There is a decided conflict among the decisions, however, upon the question whether a debt due from a foreign corporation to a nonresident who is served con- structively only is subject to garnishment in a state in which such corporation does business, when the debt is not payable in ter of fact, the debt in both instances Supp. 572; Holt v. Ladd, 71 Vt. 204, was contracted and payable in an- 44 Atl. 69. other state; this fact should, per- Goodwin v. Clayton (N. C.) 67 L. haps, be regarded as limiting the de- E. A. 33, 49 S. E. 173, held that a, cisions. New Jersey corporation which had The last case also held that, while its principal place of business in the indebtedness due from a resident North Carolina and had complied of New York to a nonresident, upon with the laws of the latter state account of an indebtedness due from with reference to foreign corpora- it foreign partnership of which he tions, was subject to garnishment in was formerly a member, had its situs North Carolina by n. resident of Vir- in New York, so that he could be ginia in respect of an indebtedness made liable therefor in an attach- to another resident of Virginia, un- ment proceeding in that state, the der a contract for services (none of service of the warrant of attach- which were rendered in North Caro- ment upon him did not operate as an lina), which was technically consum- attachment of the debt due from a mated in Virginia, but was the re- nonresident partner, or make him li- suit of preliminary arrangements able therefor in the attachment pro- made in North Carolina, there being ceedings, since the indebtedness of no place of payment expressly named the latter had no situs in New in the contract. The court expressly York. distinguishes Balk v. Harris, supra, toKansas City, P. d G. B. Co. v. note 9, and Strause Bros. v. Mtna F. Parker, 69 Ark. 401, 86 Am. St. Rep. Ins. Co. infra, note 11, by reason of 205, 63 S. W. 996; Lancaster v. the difference in the facts. See note Spotswood, 41 Mise; 19, 83 N. Y. to this case in 67 L. R. A. 33. 806 LAW OF THINGS. [Chap. VII. that state, and did not arise out of business transacted therein. ^ ^ There is a tendency among the later cases to make the ability or disability of the principal defendant (the nonresident creditor 11 The following cases hold that £ O. B. Go. v. Barnhill, 91 Tenn. 395, the debt may be subjected to gar- 30 Am. St. Rep. 889, 19 S. W. 21, nishment under such circumstances: which also upheld the jurisdiction, Mooney v. Buford & Q. Mfg. Go. 18 though the debt was payable else- C. C. A. 421, 34 U. S. App. 581, 72 where, the garnishee, though orig- Fed. 32; National F. Ins. Go. v. inally incorporated elsewhere, was Ming (Ariz.) 60 Pac. 720; Lan- also incorporated within the state in cashire Ins. Go. v. Gorbetts, 165 111. which the garnishment proeeedinp; 592, 36 L. R. A. 640, 56 Am. St. Rep. was instituted. 275, 46 N. E. 631 ; Missouri P. B. Go. It has been frequently held, how- V. Flannigan, 47 111. App. 322; Ger- ever, even by those courts whicli man Bank v. American F. Ins. Go. concede the jurisdiction of the court 83 Iowa, 491, 32 Am. St. Rep. 316, 50 of the debtor's domicil to garnish an N. W. 53; Pittsburg, G. C. & St. L. indebtedness due to a nonresident, B. Go. V. Bartels, 108 Ky. 216, 56 S. that the jurisdiction of the courts of W. 152; Eomlamd v. Ghicago, B. I. & a, state in which a foreign corpora- P. B. Go. 134 Mo. 474, 36 S. W. 29; tion is doing business is limited, so National F. Ins. Go. v. Ghambers, 53 far as debts due from the corpora- N. J. Eq. 468, 32 Atl. 663 (the opin- tion to a, nonresident not personally ion in this case discusses the ques- within the jurisdiction are concerned, tion at length) ; Fifhiwn v. New to those which arise out of business York d F. B. Go. 31 Pa. 114; Data transacted within the state, or which V. Ghambers, 3 Pa. Dist. R. 353; are payable within the state. Gen- Neufelder v. German American Ins. tral Trust Go. v. Ghattanooga, B. d Go. 6 Wash. 336, 22 L. R. A. 287, 36 G. B. Go. 68 Fed. 685; Beimers v. Am. St. Rep. 166, 33 Pac. 870. The Seatco Mfg. Co. 30 L. R. A. 364, 17 decision in Stewart v. Northern 0. C. A. 228, 37 U. S. App. 426, 70 Assur. Go. 45 W. Va. 734, 44 L. R. Fed. 573; Everett v. Gonnecticui A. 101, 32 S. E. 218, is not opposed Mut. L. Ins. Go. 4 Colo. App. 509, to the foregoing cases, since it was 36 Pac. 616; Atchison, T. & S. F. B. not upon the ground that the court Goi v. Maggard, 6 Colo. App. 85, 39 which rendered the judgment in gar- Pac. 985; National Bank v. Furtick, nishment had no jurisdiction, but 2 Marv. (Del.) 35, 44 L. R. A. 115, upon the ground that the garnishee 69 Am. St. Rep. 99, 42 Atl. 479; wholly failed to notify, or attempt to Swedish-American Nat. Bank v. notify, the principal defendant of the Bleecker, 72 Minn. 383, 42 L. R. A. proceeding against her. In Georgia 283, 71 Am. St. Rep. 492, 75 N. W. d A. B. Go. V. StoUenwerck, 122 Ala. 740; Wright v. Ghicago, B. & Q. B. 539, 25 So. 258; Wabash B. Go. v. Go. 19 Neb. 175, 56 Am. Rep. 747, 27 Dougan, 142 111.248, 34 Am. St. Rep. N. W. 90; American Gent. Ins. Go. 74, 31 N. E. 594; Hollamd v. Mobile v. Hettler, 37 Neb. 849, 40 Am. St. d 0. B. Go. 16 Lea, 414; and Mobile Rep. 522, 56 N. W. 711; Wood v. § 368a] MOVABLES. 807 to whom the debt sought to he garnished is due), under the local statute, to maintain an action against the garnishee (the for- eign corporation debtor) in the state, for the recovery of the debt sought to be garnished, the criterion of jurisdiction to garnish the debt. "^^ According to this criterion, the question whether a debt, not payable in the state and arising out of busi- ness not transacted therein, due from a foreign corporation to a nonresident not personally within the jurisdiction, is the subject of garnishment depends upon the question whether the local Furtick, 17 Misc. 561, 40 N. Y. Supp. A. 640, 56 Am. St. Rep. 275, 46 N. E. 687; Douglass v. Plienix Ins. Go. 138 631; National F. Ins. Co. v. Ming N. Y. 209, 20 L. R. A. 118, 34 Am. (Ariz.) 60 Pao. 720, supra, note 11, St. Kep. 448, 33 N. E. 938; Straus v. which held the debt garnishable un- Chicago Glycerine Go. 46 Hun, 216, der such circumstances, clearly Affirmed in 108 S. Y. 654, 15 adopted this criterion. N. E. 444; Allen v. United Gigar So, the decision in Morawetz v. Stores Co. 39 Misc. 500, 80 N. Y. Sun Ins. Office, 96 Wis. 175, 65 Am. Supp. 401 ; Strause Bros. v. Mtna F. St. Rep. 43, 71 N. W. 109, which de- Ins. Co. 126 N. C. 223, 48 L. R. A. nied that the debt was subject to 452, 35 S. E. 471; R. A. Kelley Go. garnishment, expressly puts the de- V. Oarvin Mach. Go. 4 Ohio S. & C. cision upon the ground that, under P. Dec. 374; Towle v. Wilder, 57 Vt. the Wisconsin statute, a foreign cor- 622 ; Bolt V. Ladd, 71 Vt. 204, 44 Atl. poration can be sued only when it 69; Benier v. Swrlbut (Wis.) 14 L. has property within the state, or the R. A. 562; Morawetz v. Sv/n Ins. Of- cause of action arises therein, or ex- fice, 96 Wis. 175, 65 Am. St. Rep. ists in favor of a resident of the 43, 71 N. W. 109; Braun v. Davis, 9 state. The court pointed out that, Manitoba L. Rep. 534; Goodhue v. while the garnishing creditor was a O'Leary, Rap. Jud. Quebec, 17 C. S. resident of Wisconsin, he must, for 201. the purpose in hand, stand in the Northwestern Life & Sav. Go. v. position of the principal defendant, Gippe (Minn.) 99 N. W. 364 (where who was a, nonresident, the garnishee was a foreign corpora- This also seems to be the ground tion), declared generally that, when of the decision in Pennsylvania R. all the parties to the proceeding are Co. v. Rogers, 52 W. Va. 450, 62 L. nonresidents, the garnishee being R. A. 178, 44 S. E. 300, where it was temporarily therein, the court cannot held that an indebtedness due from acquire jurisdiction by service on the a foreign railroad corporation to a garnishee alone. nonresident, and payable out of the 12 Thus, Mooney v. Buford d O. state, was not subject to garnish- Mfg. Go. 18 0. C. A. 421, 34 U. S. ment within the state, it appearing App. 581, 72 Fed. 32; Lancashire Ins. that the company operated no road Co. V. Corbetts, 165 111. 592, 32 L. R. within the state, and did no business 808 LAW OF THINGS. [Chap. VII. statute would permit the nonresident principal defendant to maintain an action in the state against the foreign corporation upon the indebtedness in question. This criterion appears to be applied, not merely to the construction of local garnishment statutes as affecting indebtedness due from a foreign corpora- tion, but also to the constitutional right to subject such indebted- ness to garnishment. In other words, the ability of the prin- cipal defendant under the local statute to have maintained an action in the state in respect to the indebtedness sought to be garnished seems to be regarded as necessary to give the debt a local situs in the state for the purposes of garnishment, if it is not payable therein, and arose out of business not transacted therein. It has been urged that the admission of the principle that a foreign corporation is subject to be garnished in respect to a particular debt, in any state in which it may do business, even though the debt did not arise out of business transacted in that state and is not payable therein, exposes the debtor to the danger of being compelled to pay the indebtedness more than once. It will be observed, however, that this danger is not inherent in the adoption of that principle as a universal rule, but in its adoption in some states, and its rejection in others. Assiiming the jurisdiction, a judgment in garnishment rendered in one state will protect the garnishee in any other state in which suit may be brought against it on the indebtedness, whether by the principal defendant or by another creditor of the latter. ^ * As- suming, however, that the judgment is rendered without juris- therein other than maintaining, Baltimore £ 0. 8. W. R. Go. v. jointly with other roads, an agency Adams, 159 Ind. 688, 60 L. R. A. 396, for the solicitation of freight. 66 N. E. 43; Virginia F. & M. Ins. i^Mooney v. Buford & G. Mfg. Co. Go. v. New York Garousal Mfg. Co. 18 C. C. A. 421, 34 U. S. App. 581, 95 Va. 515, 40 L. R. A. 237, 28 S. E. 72 Fed. 32; Lancashire Ins. Co. v. 888; Union P. B. Co. v. Baker, 5 Gorheits, 165 111. 592, 36 L. R. A. 640, Kan. App. 253, 47 Pac. 563. 56 Am. St. Rep. 275, 46 N. E. 631; § 368a] MOVABLES. 809 diction, it affords no protection to the gamisliee;^* and, until the United States Supreme Court has rendered a binding de- cision upon this point, as it has already done in the case when the debtor is a resident, there is danger that the garnishee may be involved in a double liability, by reason of the conflicting views of the courts of different states with respect to the right to subject to garnishment an indebtedness due from a foreign corporation to a nonresident, served constructively only, when the debt did not arise out of business transacted within the state, and is not payable therein. Whatever may be the true rule with respect to ordinary in- debtedness due from a foreign corporation, it is well established that the situs of shares of corporate stock, for the purposes of attachment or garnishment, is at the domicil of the corporation (i. &., the state where it was incorporated), or possibly at the domicil of the creditor ; and shares of stock owned by a nonresi- dent in a foreign corporation are, therefore, not subject to gar- nishment in a state in which the corporation is doing business, and in which it has an agent upon whom service of process may be made, at least unless the corporation has, under the local statute, become, to all intents and purposes, a domestic corpora- tion. -^ ° Upon the other hand, shares of stock owned by a non- i4J/0Misi»?Ze & N. B. Co. v. Nash, Simpson v. Jersey Gity Contracting 118 Ala. 477, 41 L. R. A. 331, 72 Am. Co. 55 L. E. A. 796. St. Eep. 181, 23 So. 825. Young v. South Tredegar Iron Co. ispinney v. Nevills. 86 Fed. 97; 85 Tenn. 189, 2 S. W. 202, concedes Ashley v. Quintard, 90 Fed. 84; Reid the general principle that the situs Ice Cream Go. v. Stephens, 62 111. of the corporation determines the App. 334; Armour Bros. Bkg. Go. y. situs of the stock; but holds that a St. Louis Nat. Bank, 113 Mo. 12, 35 corporation originally created in an- Am. St. Eep. 691, 20 S. W. 690; other state has its situs in Tennessee Plimpton V. Bigelow, 93 N. Y. 592; so as to subject stock therein owned Ireland v. Globe Mill. & Reduction by a nonresident to attachment there- Co. 19 R. I. 180, 29 L. E. A. 429, 61 in, where the corporation has corn- Am. St. Eep. 756, 32 Atl. 921 ; Dan- plied with the Tennessee statute pre- iel V. Gold Sill Min. Go. 28 Wash, scribing the conditions upon which 411, 68 Pac. 884. See also note to foreign corporations may do busi- 810 LAW OF THINGS. [Chap. VII. resident in a domestic corporation are subject to garnishment.^* It is also well established, as a general principle, that the place ■where stock certificates are held does not determine the situs of the stock itself for the purposes of attachment or garnish- ment ; and, therefore, stock owned by a nonresident in a foreign corporation is not subject to garnishment in a state in which the certificates are found in possession of a third person,^'' though nesa within the state, which statute for the purpose of subjecting such declares that "such corporations stock to attachment and execution, shall be deemed, and taken to be and for the purpose of jurisdiction corporations of this state, and shall of the court to remove a cloud on be subject to the jurisdiction of the title thereto, its situs was fixed by courts of this state, and may sue and the local statutes at the domicil of be sued therein in the mode and man- the corporation by which it was is- ner that is, or may be, by law di- sued. rected in the case of corporations ^TWinslow v. Fletcher, 53 Conn, created or organized under the laws 390, 55 Am. Rep. 122, 4 Atl. 250; of this state." The court regarded Smith v. Downey, 8 Ind. App. 179, the case as coming within the con- 52 Am. St. Hep. 467, 34 N. E. 823, cession made by the language below. Rehearing Denied in 8 Ind. App. 186, quoted from the opinion in Plimp- 52 Am. St. Rep. 472, 35 N. E. 568; ton V. Bigelow, 93 N. Y. 592: "If Christmas v. Biddle, 13 Pa. 223; the corporation, by having its ofiBcers Young v. South Tredegar Iron Co. and by transacting business in a 85 Tenn. 189, 2 S. W. 202. state other than its domicil of origin. It was held in Puget Sound Nat. is deemed to be itself present as an Bank v. Mather, 60 Minn. 362, 62 entity in such foreign state to the N. W. 396, however, that certificates same extent, and in the same sense, of stock in a foreign corporation are as it is present in the state which personal property, and when in the created it, it may be conceded that hands of third persons in Minnesota its shares might be properly attached are subject to garnishment proceed- in such foreign jurisdiction." ings under its statutes. The deci- i^National Bank v. Lake Shore d sion turned upon a statutory provi- M. S. B. Co. 21 Ohio St. 231 ; Norton sion declaring that service of sum v. Norton, 43 Ohio St. 509, 3 N. E. mons on the garnishee shall bind "all 348; Chesapeake d 0. B. Co. v. property" in his hands, in connection Paine, 29 Gratt. 502. with another provision declaring People's Nat. Bank v. Cleveland, stock in domestic corporations per- 117 Ga. 918, 44 S. E. 20, recognized sonal property. The court expressly the general principle that the situs disapproved of the decision in Wins- of the stock of a domestic corpora- low v. Fletcher, 53 Conn. 390, 55 Am. tion is at the domicil of the owner Rep. 122, 4 Atl. 250, supra, and dis- of the stock in another state. But tinguished Plimpton v. Bigelow, 93 § 368a] MOVABLES. 811 his intangible interest under a pledge of such certificates may be.^* It may, perhaps, be competent for the legislature of a state to change the rule in this respect, though, as a matter of fact, most of the local statutes providing for the attachment of corporate stock have been framed in harmony with it; and the principle has doubtless sufficient vitality to control the con- struction of general statutory provisions vrhich are not explicit upon the point. The doctrine that a debt due a nonresident is subject to gar- nishment at the debtor's domicil, in connection with the princi- ple, elsewhere^* discussed, that exemptions relate to the remedy and not to the substantive right, may operate to deprive the nonresident creditor of the exemption to which he is entitled under the law of his domicil ; ^ ° and, at the same time, he may N. Y. 592, presumably upon, the serving a warrant and notice upon ground that the certificates of stock the pledgee of the stock, and not involved in the latter state were not upon an ofiicer of the corporation within the state where the attach- which issued the stock, as is required ment proceedings were instituted, by the Code in case of a levy upon It is also intimated in the majority the stock itself. opinion in Simpson v. Jersey City is See Simpson v. Jersey City Con- Contracting Co. 165 N. Y. 193, 55 L. trading Co. 165 N. Y. 193, 55 L. R. R. A. 796, 58 N. E. 896, that the cer- A. 796, 58 N. E. 896, supra, note 17. tificates themselves may be the sub- So, it was held in Thum v. Pin- jeot of attachment; but the actual gree, 21 Utah, 348, 61 Pac. 18, that decision in this case seems to have a. pledgeor's interest in Idaho county been merely that the intangible right warrants, payable to bearer, and ca- of a nonresident owner of stock in a pable of transfer without indorse- foreign corporation, to redeem the ment, was subject to attachment in same from a resident of New York New York while the warrants were with whom they were pledged, was in that state in possession of the subject to attachment in the latter pledgee, although the court had no state. It will be observed that the personal jurisdiction of the pledgeor. attachment in this ease was made in 19 See post, § 792a. the manner prescribed by the Code 20 This was the result of the de- fer the attachment of demands gen- cision in Chicago, B. I. & P. R. Go. erally, and not in the manner pre- v. Sturm, 174 U. S. 710, 43 L. ed. scribed for the attachment of shares 1144, 19 Sup. Ct. Rep. 797, where the of stock in a, corporation. In other court not only held that a, debt is words, the attachment was made by subject to garnishment at the domi- 812 LAW OF THINGS. [Chap. VII. be unable to avail himself of the exemption allowed by the law of the state in which the garnishment proceeding is instituted because that law is expressly or impliedly confined to resi- dents.^^ Some of the state legislatures have undertaken to obviate this hardship by the enactment of statutes forbidding the sending of claims out of the state for collection in order to evade the exemption laws;^^ and it has been held, even in the absence of such a statute, that a court of the state in which a creditor and debtor are domiciled may enjoin the former from prosecuting an attachment or garnishment proceeding in another state to reach credits due the debtor which would be exempt by the law of the domicil, but not by the law of the other state. ^ * It has also been held that a principal defendant, who cil of the debtor, but also that ex- of Kansas would apply in a garnish- emption laws are not a part of the ment proceeding in that state, al- eontract, but of the remedy, and though the principal defendant was a therefore subject to the law of the nonresident. The decision, however, forum. was merely that the debt was exempt 21 Thus, Atchison, T. & 8. F. B. from garnishment process in Kansas, Go. V. Maggard, 6 Colo. App. 85, 39 and was not expressly referred to the Pae. 985, held that, assuming the ju- law of Kansas as distinguished from risdietion of a court of Colorado to the law of the principal defendant's garnish an indebtedness due a, resi- domicil (the law of the two states dent of Kansas for services per- being substantially the same). And, formed in the latter state, neither in such a situation, the court, in the exemption law of Kansas, nor Kansas City, Ft. 8. & M. B. Go. v. that of Colorado, could be applied. Gunningham, 7 Kan. App. 47, 51 Pac. Wabash B. Go. v. Dougan, 142 111. 972, held that the exemption law of 248, .34 Am. St. Rep. 74, 31 N. E. the principal defendant's domicil 594 (a case not governed by the stat- would be applied by the courts of ute referred to in the text) , and Kansas as a matter of comity. Wright V. Ghicago, B. & Q. B. Go. 22 The constitutionality of such 19 ISTeb. 175, 56 Am. Rep. 747, 27 N. statutes has been upheld. See W. 90, however, extended the protee- 8inger Mfg. Go. v. Fleming, 39 Neb. tion of the local exemption law to 679, 23 L. R. A. 210, 42 Am. St. Rep. a resident of another state in a pro- 613, 58 N. W. 226; Bishop v. Middle- ceedlng to garnish an indebtedness ton, 43 Neb. 10, 26 L. R. A. 445, 61 due the latter. Missouri P. B. Co. N. W. 129; Sweeny v. Hunter, 145 V. Maltly, 34 Kan. 125, 8 Pac. 235, Pa. 363, 14 L. R. A. 594, 22 Atl. 653. also intimates that the exemption law ^^Margarum v. Moon, 63 N. J. Eq. i 3t)8a] MOVABLES. 813 has been deprived of his exemptions to which he is entitled •under the law of his domicil, may maintain an action against the garnishing creditors to recover the damages sustained.^* In Illinois the rights of residents of the state to the exemption allowed by the laws thereof have been protected by the enact- ment of a statutory provision of the kind above referred to; and the rights of nonresidents, by a provision allowing them the exemption to which they are entitled by the law of their domicil, thus practically abrogating, to this extent, the rule that the exemption is to be determined by the law of the forum. h. Situs of tangible property for purpose of proceeding in rem. 368b. Actual situs prevails. — Whatever may be the general principle as to the situs of personal property, it is clear that the situs of tangible personal property for the purpose of a proceed- ing in rem is in the state or country where it is actually located. Thus, it is generally subject to attachment there, though the owner is domiciled elsewhere;'' and, conversely, it is not subject to attachment at the owner's domicil, nor gamishable at the 586, 53 Atl. 179. See also note to merce. Thus, the right to attach or Illinois C. B. Co. v. Smith, 19 L. E.. garnish a ear of a foreign railroad A. 577. company, which has been sent into 2 4 See note to Stewart v. Thorn- the state loaded with freight, and is son, 36 L. R. A. 582. to be returned within a reasonable 1 The legislature of a state or ter- time, has been denied upon the ritory may pass such laws as will ground that such attachment or gar- subject property within its territory, nishment would be an unlawful in- held or owned by nonresidents, to the terference with interstate commerce, payment of the debts of such own- See note to Wall v. Norfolk & W. B. ers; and the manner of doing so is Co. 64 L. R. A. 501; Connery v. entirely within the legislative con- Quincy, 0. & K. C. R. Co. (Minn.) trol, provided it does not violate 64 L. R. A. 624, 99 N. W. 365. some of the provisions of the Fed- So, it has been held, without ref- eral or state Constitutions. McOoon erence to the interstate commerce v. Scales, 9 Wall. 23, 19 L. ed. 545. clause of the Federal Constitution, The rule of the text will, of course, that public policy forbids the gar- be defeated when its application nishment of a railroad company for would interfere with interstate com- freight cars in its possession belong- 814 LAW OF THINGS. [Chap. VII. gamisliee's domicil, if actually located elsewhere.^ The pro- ceeds of the sale of such property, however, are subject to the rules stated in the preceding sections with reference to indebt- edness generally. ^ The principle that proceedings in rem with respect to tangible personal property cannot be maintained out- side of the jurisdiction in which the property is found does not necessarily defeat the jurisdiction of an action in personam, though the ultimate object is to affect personal property out- side of the jurisdiction.* The expression "tangible personal property," as used in this section, is exclusive of mere evidences of debt. It is assumed, in most of the cases cited in the last section, that the location of the instrument or paper evidencing the debt is not material upon the question of the situs of the debt for purposes of at- tachment or garnishment.® It may be remarked, however, that some of the local statutes provide for the attachment of debts evidenced by negotiable paper, by the seizure of the instru- ment itself. Still, it does not follow that the mere seizure of such an instrument will support the jurisdiction in a proceed- ing to a foreign railroad company, pointed out ante, § 290a, -with re- Michigan C. B. Co. v. Chicago d M. spect to actions affecting real prop- L. 8. R. Co. 1 111. App. 399. erty, is doubtless applicable to ac- ^Montrose Pickle Go. v. Dodson £ tions affecting tangible personal H. Mfg. Go. 76 Iowa, 172, 2 L. R. A. property. 417, 14 Am. St. Rep. 213, 40 N. W. 6 A somewhat analogous point is 705; Buckeye Pipe Line Go. v. Fee, made by the decision in Hildreth v. 62 Ohio St. 543, 78 Am. St. Rep. 743, Thibodeau, 186 Mass. 83, 71 N. E. 57 N. E. 446, and cases cited in 111, that letters patent issued by the opinion. United States are not visible, tan- 3 A court has jurisdiction to ren- gible property, which has of itself a der judgment against a garnishee for local character, and of which the any surplus arising from the sale of court can take jurisdiction apart tangible personal property previously from the apparent ownership of it. held by him as collateral security in So far as the property has any situs, another state. Merchants' & M. Nat. it follows the person of the owner, Bank v. William A. Baeder Glue Co. and ordinarily belongs at the place 164 Pa. 1, 30 Atl. 290. of his residence. < A distinction analogous to that § 36Rb] , MOVABLES. 815 ing in rem where neither the maker nor holder is personally subject to the jurisdiction ; and the contrary has been expressly held. * Upon the other hand, it has been held that a party can- not be charged as garnishee in respect to promissory notes exe- cuted by third persons and belonging to the defendant in attach- ment, which, at the time of the service of the garnishment process, and during the pendency of the suit, are in another state.'' i. Where litigating parties are domiciled in the state of the as- signmerd. 369. A court of the situs may hold that an attaching creditor cannot contest an assignment good in his own domicil. — We have already noticed that an attaching creditor of a debt may be pre- cluded, by the fact that he is domiciled in the same state with the assignor, from contesting the validity of an assignment good by the law of that state. Whether this principle is of general application to all cases in which movables are in litigation is a point of great interest. It is generally conceded that a per- son who becomes domiciled in a state accepts its law as binding his person. Whether this implied acceptance may be extended to include the implied adoption, by two or more litigants, of the law of their common domicil, as determining their title to a thing in another territory, is a question of much more dif- ficulty.'^ There is a strong current of opinion in the United States that such an agreement will be so far assumed as to prevent an attaching creditor, whose domicil is the same ay that of the assignor, from setting up against an assignment the ^Owen V. Miller, 10 Ohio St. 136, petent for the legislature, as a, mere 75 Am. Dec. 502. matter of procedure, to authorize the So, the court in national F. Ins. attachment of the debt by the seizure Co. V. Chambers, 53 N. J. Eq. 468, of the notes themselves, but merely 32 Atl. 663, said, oUter, that promis- that jurisdiction in a proceeding in sory notes are not capable of seizure rem could not be based upon such a and levy, and that the only mode of seizure. reaching the debt which they prove TBowen v. Pope, 125 111. 28, 8 Am. is by garnishment of the maker, St. Rep. 330, 17 N. E. 64. and not of the mere custodian of the ,, ^. „ ^. ,. ^ __ . , „, , , , , ,.j iSee Martm v. Potter, 11 Gray, 37, paper scripts. The court probably did ^^ ^^ j^^ ggg_ j> > not mean that it would not be com- 816 liAW OF THINGS. [Chap. VII. law of a foreign country wtere the goods claimed to pass under such assignment are situate. In other words, it has been held that where questions as to extraterritorial property arise be- tween foreign assignees and foreign creditors, domiciled in tlui same state, the foreign law to which such parties are subject will be upheld.^ Thus, in 1859, it was held by the supreme court of Massachusetts, that a mortgage in. Rhode Island of personal property in Massachusetts, by a Rhode Is- land mortgagor, to a Rhode Island mortgagee, which mortgago was good by the laws of Rhode Island, would be sustained in Massachusetts, as against a Rhode Island creditor, who sued out an attachment in Massachusetts. "An exception," said Judge Dewey, "has sometimes been made in favor of cred- itors residing in Massachusetts, and who had made attach- ments here which were sought to be avoided by an assignment ■or transfer in another state to secure creditors. But this is not such a case; all the parties are citizens of Rhode Island, and a valid mortgage there may transfer the property in Massachu- setts."^ 370. But a judgment between such parties does not affect third parties. — But this exception, if it be accepted at all (and it is rejected by the Supreme Court of the United States),^ is sub- ject to two marked qualifications. First, no title in rem can pass in such proceedings; all that can pass is the interest of the particular parties. "Where a tribunal, no matter whether in England or a foreign country, has to determine between two parties and between them only, the decision of that tribunal, though in general binding between the parties and privies, does not affect the rights of third parties, and if, in execution of the judgment of such a tribunal, process issues against the property of one of the litigants, and some particular thing is sold as being his property, there is nothing to prevent any iHall V. Boardman, 14 N. H. 38; 31 N. J. L. 90; Richardson v. Leavitt, Hoag V. Hunt, 21 N. H. 106; Smith 1 La. Ann. 430^ 45 Am. Dec. 90; V. Brown, 43 N. H. 44; Dunlap v. Einer v. Deynoodt, 39 Mo. 69; Thurs- Bogers, 47 N. H. 287, 93 Am. Dec. ton v. Eosenfield, 42 Mo. 474, 97 Am. 433; Kidder v. Tufts, 48 N. H. 125; Dec. 351; Van Bushirk v. Warren, 13 Whipple V. Thayer, 16 Pick. 25, 26 Abb. Pr. 145; ChuilUmder v. Howell, Am. Dec. 626; Richardson v. Fore- 35 N. Y. 658. paugh, 7 Gray, 546; May v. Wanne- ^Rhode Island Central Bamk ^ macher. 111 Mass. 202; Atwood v. Danforth, 14 Gray, 123. Protection Ins. Co. 14 Conn. 555; ^Ch-een v. Van Buskirk, 5 Wall Plestoro V. Abraham, 1 Paige, 236; 307, 18 L. cd. 599, 7 Wall. 139, 19 L. Abraham v. Plestoro, 3 Wend. 540, ed. 109, cited post, § 371. 20 Am. Dec. 738; Moore v. Bonnell, § 370] MOVABLES. 817 iJiird person setting up his claim to that thing, for the tribunal neither had jurisdiction to determine, nor did determine, any- thing more than that the litigant's property should be sold, and did not do more than sell the litigant's interest, if any, in the thing. "^ And a decision rendered on the above principles, in a suit between two foreign litigants, would not bar a proce- dure to recover the goods by a domestic attaching creditor. 371. Such common domicil of foreign litigants cannot over- ride positive prescriptions as to registry by lex situs. — Then, secondly, even the express agreement of litigants domiciled in a foreign land cannot overcome such registry and other pos- itive laws as are distinctively politic and coercive. If a state provide that no title shall pass to property within its borders except on certain conditions, such provision cannot be overrid- den by any foreign law, which parties domiciled abroad may choose to interpolate. Otherwise the whole system of public, notice of sales and mortgages which laws of this kind, for the maintenance of fair dealing, have established, would be over- thrown in favor of parties whose domicil is foreign. If this were allowed, registry laws, in such cases, would be mere traps ; for a party who, on the record, might appear to be the owner of large unencumbered assets, would be able to set up, as against such record, the law of his domicil, which validated foreign encumbrances, irrespective of the question of local reg- istry. ^ On such a general course of reasoning may be vindicated the decision of the Supreme Court of the United States, al- ready quoted, in which, in 1868, reversing a contrary ruling in l^ew York, it was held that though the owner, the mort- gagee, and the attaching creditor of certain iron safes were all domiciled in New York, yet an attachment laid by such at- taching creditor in Illinois, where the' safes were, was good against the mortgagee.^ It should be observed, however, that where property has vested in an assignee, by a deed valid in the state of the assignment, and where both parties are dom- iciled, the title cannot be disturbed in another state, to which the parties subsequently removed.^ 2 Blackburn, J., in giving the opin- ^Oreen v. Van Bushirh, 7 Wall, ion of the judges of the House of 139, 19 L. ed. 109. Ante, § 347. See Lords in Oastrique v. Imrie, L. E. 4 Green v. Van Buskirk, 5 Wall. 307, H. L. 428j 39 L. J. C. P. N. S. 350, 18 L. ed. 599; and see also Smith v. 23 L. T. N. S. 48, 19 Week. Rep. 1. Smith, 19 Gratt. 545. See post, §§ 647, 654, 664, 671. iBamk of United States v. Lee, 13 iPost, § 374. Pet. 107, 10 L. ed. 81, 5 Cranch, 0. C. Vol. I. CoNFL. of Laws — 52. 818 LAW OF THINGS. [Chap. VIL j. Form of assignment. 372. Form of assignment of immovables must follow lex situs. — This question has been necessarily anticipated in the pages immediately preceding, and will hereafter be again adverted to when we proceed to consider the maxim of locus regit ac- tum.^ Generally speakings the same reasoning which has been already invoked as showing the subjection of the mode of trans- fer to the lex situs operates as to the form. So far as concerns immovables, this has been received everywhere without ques- tion. The very technicalities of transfer, according to both feudal and Roman law, required that the transfer should ei- ther be on the spot, accompanied by an actual delivery of pos- session, or that it should be executed before the judex rei sitoB. And the policy of modern times, which seeks to promote fair dealing and to stimulate public improvement by a system of registration by which clean titles can be secured, prescribes with equal emphasis the same rule. This rule is that all con- veyances of immovables must be in formal conformity with the law of the place where such immovables are situate.^ 373. And so, as to movables whose assignment is regulated by local law. — Savigny^ extends the rule to movables "whose transfer is impossible except at the place where they are sit- uate;" and this applies to all cases where stocks or loans, etc., must be transferred by formalities prescribed by local or eor- 319, Fed. Cas. No. 922: Grapo v. WeUch, 24 N. Y. 157; Sell v. Mil- Kelly, 16 Wall. 610, 21 L. ed. 430; ler, 11 Ohio St. 331; Lucas y. Tucker, Pond V. Cooke, 45 Conn. 132, 29 Am. 17 Ind. 41 ; Loving v. Pairo, 10 Rep. 668. Ante, § 353. Iowa, 282, 77 Am. Dee. 108; Whar- T-Post, § 676. ton, Bv. § 643. Judge Story cites 2 Argentraeus, No. 3 ; P. Voet, chap, a number of the older jurists to the i. § 9, No. 2; Boullenois, i. pp. 501- contrary; but each citation, as Bar 503; Mittermaier, § 32; 2 Burge, observes, is on the question of uni- Colonial & Foreign Laws, pp. 843, versal succession, and hence does not 871; 2 Wachter, p. 383; Story, touch that of transfer inter vivos. Confl. L. §§ 363, 435; Savigny, In Philson v. Barnes, 50 Pa. 230, the pp. 183, 184; Bar, § 61; Westlake, property attached was claimed under Private International Law, art. 84; a Maryland assignment, not recorded Dundas v. Dundas, 2 Dow & C. 349; in conformity with Pennsylvania Coppin V. Coppin, 2 P. Wms. 291 ; laws. The attachment was sustained. United States v. Crosby, 7 Cranoh, On the other hand, when assignees 115, 3 L. ed. 287; Kerr v. Moon, 9 obtain possession of goods, under an Wlieat. 506, 6 L. ed. 162; M'Cormick assignment defective by the lex situs V. Sullivant, 10 Wheat. 192, 6 L. ed. from nonregistry, their title will not 300; Darby v. Mayer, 10 Wheat. 465, be disturbed. Forbes v. Scannell, 13 6 L. ed. 367; Gutter v. Davenport, 1 Cal. 242. Pick. 81, 11 Am. Dec. 149; Bonati v. l VIII. 381. § 373] MOVABLES. 81» porate law. In this class Sir K. Phillimore* enumerates "many transactions of mere form, such as the act connected with hankruptcy or insolvency, termed the judicial cession (cession judiciaire, gerichtliche Auflassung) enrolment, or registration of mortgages or deeds, and others of a like char- acter, which can only he duly executed hefore a particular public functionary, and at a particular place." And Bar, the latest authoritative German jurist on this topic, goes still fur- ther, and excepts from the rule Zocus regit actum the acquisi- tion and loss of possessory rights, not merely in immovables, but in movables (der Erwerb und Verlust dinglicher Bechte an Mobilien) ;' and he argues with much force, and without res- ervation, that the forms of the voluntary transfer of property are to be determined solely by the lex situs.*" 374. Local law prevails as to local forms. — The rule that the lex situs determines the mode of conveyance may, in fact, tak- ing it in a large sense, be applied to all movables. ^ "In every disposition or contract," according to the comprehensive re- capitulation of Lord Mansfield, "where the subject-matter re- lates 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 upon in England; and the local nature of the thing re- quires them to be carried into execution according to the law here."^ It is no reply to this position that in reference to many movables the lex sitv^ recognizes the rule locus regit actum. The rule Iocils regit actum, can only act on things when permitted to do so by the lex situs. It is the lex situs that in such cases controls.* 375. On this principle conflicting rulings can be explained. — In apparent conflict with these views is a case decided by Judge McLean,^ which has been frequently referred to as de- ciding that the assignment of a mortgage is to be governed by the law of the state where the assignment is made. But a closer examination will show how little warrant there is for so broad a statement. A mortgage was executed by E. B. et al in Cincinnati, on July 17, 1839, to the Bank of the United States, of certain lots in Cincinnati, to secure payment of a 2 IV 456. iRohinson v. Bland, 2 Burr. 1079, 3 34. 1 W. Bl. 234, 259. 4 64. -^As to registry, see ante, § 275 6/7. T-Ante, §§ 343 et seq. Sea post, Wundas v. Bowler, 3 McLean, 397, §§ 674 et seq. Fed. Gas. No. 4,14L 820 LAW OF THINGS. [Chap. VII. loan by that bank. On May 1, 1841, the bank, by an assign- ment in Philadelphia, assigned the mortgage to D. and others as trustees. A bill was brought to foreclose the mortgage in tlie circuit court of the United States at Cincinnati, in 1844; and to this the defendants set up as a defense that under the Ohio law they had a right to pay the mortgage in the depreci- ated notes of the Bank of the United States, and rested their case on an Ohio act of 1842, to the effect that "every debtor of a bank or banker" is entitled "to pay such debt in the notes of the bank or banker, ... or the assignee of either, whether such bank or banker retains an interest in the same, or has parted with all interest therein." The case came up for decision in 1844, before Judge McLean, and he very properly held the act in question not only inapplicable, but unconsti- tutional, as impairing the obligation of contracts. This is the only point actually decided in the case. There was no conflict of liens, or claims of innocent purchasers. With the princi- ples of international law, as hereinbefore expressed, the case is in perfect harmony. The defendants, by borrowing from a Pennsylvania corporation, became bound, as to the general mode of payment, by Pennsylvania law. But Judge McLean does not even go this far, in rejecting the lex situs. He con- cedes that the Ohio law binds the land, so far as concerns all questions of title; but he declares that the statute of 1842 is not law in Ohio, and thus does not touch the title. ^ 376. Assignments on corporation books regulated by locallaw. — Hence, assignments on books of corporations are to be regu- lated by the laws of the state by which such corporations are created.-^ This, as no state can give a corporation extraterri- torial powers, coincides with the lex situs. ^ 377. Party to imperfect assignment may be liable for damages. — It should be remembered, however, that while no title in rem can be transferred except in accordance with the lex situs, a party, by a contract executed abroad, in submission to the principle locus regit actum, may make himself personally lia- ble for damages, should he afterwards refuse to convey the property according to the lex situs, or may be compelled to make such conveyance by the decree of a chancellor having ju- risdiction. iAnte, § 292. 2 See ante, § 275 6/7. iDoio V. Gould & G. Silver Min. Co. 31 Cal. 630. As to capacity of cor- porations, see ante, §§ 105 et seq. § 378] PRESCRIPTION AND LIMITATION. 821 IV. Pbescbiption and limitation. 378. Prescription and limitation governed by the lex sitns as to immovables. — As to things immovable, there is a general har-. mony of opinion to the effect that the law of the place con- trols. ^ This, by the English common law, is necessarily the case with regard to all suits testing the title of real estate.* With regard to movables, there can be no doubt as to the wis- dom of Savigny's opinion, that prescription as to these, too, should be judged by the place in which they exist. The great question in such cases is the adverse possession; and this can be properly determined only according to the local law. When there is a continuous adverse possession in a series of distinct countries, then, it is maintained by this great jurist, the whole is to be considered as an aggregate, but the title is to be determined by the law of the place in which the article is last found, because time is essential to make such title, and it is at the place where the property is at the time of the be- ginning of litigation that the question of time is fixed.* 379. Such prescription by Roman law must be adverse and def- inite. — On this subject Sir H. Maine vraites: "It was a posi- tive rule of the oldest Roman law, a rule older than the Twelve Tables, that commodities which had been uninterruptedly pos- sessed for a certain period became the property of the posses- sor. The period of possession was exceedingly short, — one or 1 J. Voet, Comment, in Dig. 43, 44, found. Title cannot be permitted to § 12; Bouliier, chap. 35, Nos. 3, 4; remain in perpetual incertitude. A Boullenois, i. p. 364; Merlin, R6p. prolonged possession suggests itself Prescription, sec. i. § 3^ No. 7; as a test the most satisfactory in Pothier, Obligations, No. 247, 248; quieting such doubts. Prescription, Masse, p. 102; Burge, iii. p. 221; as is said by a celebrated Spanish Bar, § 63; Schseffner, p. 75; Foelix, jurist, is as much of a necessity to i. No. 63; Demangeat, note to same; society as is Inheritance to the fam- Pasquale Fiore, Droit int. priv6, No. ily. We cannot conceive of the sec- 202; Jour, du droit int. privg, 1878, ond without the first. Without such p. 44. When there is an exception a sanction nothing would be secure. in the law in favor of. minors, it is Under such circumstances individual held by Bar that this extends to for- right must yield to the needs of so- eioTi minors, measuring their minor- ciety in the aggregate. Brocher, ity by the law of their domicil. Bar, Droit int. privg, p. 321. § 64. Gand, however, seems to think ^Ante, § 275 1/7 ; Pitt v. Dacre, that such minority is to be tested by L. R. 3 Ch. Div. 295, 45 L. J. Ch. the lex rei sitw. Nos. 731-733. N. S. 796, 24 Week. Rep. 943; Mosely Prescription, argues Brocher, finds v. Williwms, 5 How. (Miss.) 523; its chief reason in considerations of Fears v. %7i:es, 35 Miss. 633. [See public order, based on the imperious also post, 540a.] necessities of society. It is here that ' See Brocher, Priv. Int. law, p. its principal characteristics are to be 331. [See also post, § 540a.] 822 LAW OF THINGS. [Chap. VII. two years, according to the nature of the commodities, — and in historical times usucapion was only allowed to operate when possession had commenced in a particular way; but I think it likely that at a less advanced epoch possession was converted into ownership under conditions even less severe than we read of in our authorities."'' It is an incident to title of this char- acter that it should he adverse and definite, — adjectio dominii per continuationem possessionis temporis lege definiti.^ 380. Usucapion merged in prescription. — Prescription oper- ates on incorporeal hereditaments, which was not the case with usucapion; and gradually in the Roman law usucapion, as a title, has merged in prescription, which has a more comprehen- sive and more definite effect. 381. Even as to movables lex situs must determine. — Title by prescription has been likened to the ordinary right to a chose in action based on the expiration of the legal period of bring- ing a suit for the same; and, in fact, the two are often mingled, as in many countries the only statutory title by pre- scription is that which is caused by the enactment that no suit shall be brought for the restitution of property after a speci- fied lapse of time. Hence it is that we have a strong current of authority to the effect that in all questions of prescription the law of the court of process applies. Burge,^ Story, ^ Mit- termaier,^ together with a series of German decisions reported by Seuffert,* maintain this opinion. It is true that on the general question of statutes of limitations this has been strong- ly contested. By some, as will hereafter be seen, the law of the place of contract, by others, that of the place of fulfilment, has been held decisive in this issue; by at least one great au- thor, Pothier, the plaintiff's domicil is declared the test,^ while a series of others, regarding statutes of limitations as statutes of peace, pronounce for the domicil of the defendant.® But when the question of prescription to things comes up, these difficulties disappear. The proceeding to recover the litigated thing can only be one in rem; and hence the lex situs, which on the principles heretofore announced would have a predom- inating claim, coincides with the law of the court of process. The defendant, by setting up title to the thing in that law, 1 Maine, Ancient Law, ed. of 1870, 2 Confl. L. § 576. p. 284. 3 § 31. 2 Heinec. Elem. Jur. Civ. i. 2, title i VIII. pp. 12, 324; xii. p. 446. 6. See also Bl. Com. 264, note f. b De la Prescription, No. 251. 1 III. 878. epost, § 534. § 381] PRESCRIPTION AND LIMITATION. 823 accepts the local law as binding him, and so does the plaintiff, by the very fact of his electing in this court to bring suit. This, of course, is on the supposition, already noticed, that the thing in litigation has a continuous lodgment on such soil. If it be at the time in transit, then the distinction already adverted to springs up, and the law of the possessor's domicil may be in- voked. "^ 382. Prescription, cannot be extended by removal of goods after title vests. — ^A special case of conflict remains to be no- ticed. It is when goods, to which a title by limitation or pre- scription has accrued, have been moved to another territory, where a longer period for such title is required. According to the views heretofore expressed, the lex situs having trans- ferred title in these goods to the possessor, this title is com- plete, and cannot be devested by the goods being carried else- where. So, in fact, has it been judicially declared.^ V. CoiTFISCATIOiq- AND ESCHEAT. 383. lex situs determines. — No matter what may be grounds of confiscation, the lex rei sitae is to be regarded in such re- spects as supreme. An illustration of this is to be found in the confiscations, by the Massachusetts and Pennsylvania leg- islatures, of the estates of royalists at the close of the Kevolu- tionary War. The ground of many of these confiscations was that tlae owners had abandoned their American domicil, and elected a domicil in England. It was never pretended, either in America or England, that the lex domicilii of the owner, either as to movables or immovables, could be invoked; but the conclusiveness of the action of the lex rei sitae was con- ceded in England, and compensatory damages given by the English government to the parties dispossessed. 384. Rule applies to custom-house seizures. — The same rule applies to custom-house seizures, though the offended state, after a violation of custom-house rules, has not an internation- al right to proceed against the contraband goods in the courts of another state, if, after seizure, they have been surreptitious- 7 This distinction is maintained, 57 ; Brent v. Chapman, 5 Cranch, and rightfully, by Bar, § 64, and 358, 3 L. ed. 125; Shelby v. Guy, 11 Masse, pp. 102, 103. See also post. Wheat. 361, 6 L. ed. 495; Waters v. % 540a. Barton, 1 Coldw. 453; Story, Ccmfl. iWewby v. Blakey, 3 Hen. & M. L. § 582. Ante, § 378. 824 LAW OF THINGS. [Chap. VII. ly removed to such state.-' But however this may be, it is clear that confiscation only attaches to things within the terri- torial power of the confiscating sovereign.^ Escheats, in relation to decedents' estates, are considered hereafter. ^ VI. By what law peocbsses in eem abe to be governed. 385. Lex fori determines process. — As a general rule, the modes by which the possession of property can be recovered are molded by the forms of the court in which suit is to be brought ^ VII. Baneiettpt assignments. 386. Generally. — The subject of the extraterritorial effect of bankrupt assignments has been already incidentally noticed. At present it is sufficient to consider bankrupt assignments as follows : a. On the continent of Europe.^ 387. Conflict as to nature of bankruptcy. — ^Foreign jurists, in considering whether a decree pronouncing a person to be a bankrupt is ubiquitous, are governed in a large measure by the view they take of the question whether bankruptcy statutes are personal or real. By Foelix,^ following in this respect some of the older jurists, bankruptcy is regarded as a capitis dim- inution being an interdict (interdit), determining status; and hence the laws establishing it are regarded as personal. On the other hand, Rocco^ argues that bankrupt laws are in the interest of creditors, and that their object is to prevent the squandering of goods under the control of the state enacting the laws, and to secure the due distribution of such goods. Hence it is concluded that siich statutes are real, and operate only on goods in the state making the decree.* Masse, taking another line,® distinguishes between incapacities which relate 1 See Hert. iv. 18. Ante, § 4; also iPost, § 717. post, §§ 482^96. lA statement of the practice in 2 Bar. § 64 ; Bartolus, in L. 1 , the principal European states will be de S. Trin. No. 51 ; Chassenaeus, found post, § 799, note. title Des Confiscations ; Mevius, 2 Droit priv6 int. No. 89. Proleg. qu. 6, § 14; Bouhier, chap. 3 Droit civ. int. 3d part, chap. 31. 34, No. 28: Casaregis, Disc. 43, < Sec Fiore, Op. cit. §§ 362 et sn/. No. 17. 6 Droit Comm. No. 546. iPost, § 602. § 387] BANKRUPT ASSIGNMENTS. 825 directly to the person of the bankrupt, and those which relate to his goods. The first (e. g., those prohibiting him from the further exercise of the business of merchant or broker) follow him, in this view, wherever he may go. The second only op- erate in the country where the bankruptcy is declared. The incapacity of the bankrupt is, therefore, held to be relative, not absolute; and consequently a merchant declared a bankrupt in Trance may sell his goods in a foreign land, such goods not being within the French domain.® For the same reason he argues that a bankrupt may make, in a foreign land, payments which will be held valid in such land. Merlin, '^ abandoning the distinction between statutes real and personal, seeks to set- tle the question on the principle of equity and good faith. If a purchaser in a foreign land, he holds, knowing that his vendor is by his own law a bankrupt, buys to the prejudice of the bankrupt's creditors, the sale will be void as tainted with fraud ; though it is otherwise if the purchase was in good faith. On the other hand, it is zealously argued by Fiore,* that the incapacity of a bankrupt, when decreed by the state to which he is subject, attaches to him wherever he holds property, so that such property passes by the decree of bankruptcy to the syndic, or bankrupt assignee. Commerce, so it is argued, is cosmopolitan; and a bankrupt decree, being a commercial and international procedure, should have a cosmopolitan effect. On the other hand, as we will see hereafter,® it is shown that however plausible may be this theory, the practice in Europe is to use bankruptcy as a process for the collection of local debts, and that so far from there being one domiciliary bank- ruptcy opened, whose operation shall be cosmopolitan, the practice is to open as many bankruptcies as there are countries in which the alleged bankrupt does business and possesses property. There is no more reason, therefore, for m^aking an English or a French or a German bankrupt assignment ubiqui- tous, than there would be for making ubiquitous an English or a French, or a German execution. 388. Conflict as to its extraterritorial effect. — This conflict of opinion exhibits itself practically whenever the question arises whether a bankrupt assignment operates on the bankrupt's es- tate in foreign lands. Bankruptcy is not regarded as extra- territorial in its operations by those who view it either as an iAnte, § 122; post, § 795. 8 Op. cit. § 366. 1 Repertoire, Faillite, sec. 11. ^Post, §§ 389, 803, 804. 826 LAW OF THINGS. [Chap. V^II. execution, or as a process of domestic policy, issued to restrain .the extravagance of a person who happens to be on the soil of the state issuing the process, the object being to place him un- der an interdict, and to protect those who may deal with him as well as himself. On the other hand, by those who hold that bankruptcy is an international process, to be issued only by the state in which the bankrupt is domiciled, assignments are re- garded as ubiquitous.^ b. England. 389. Foreign bankrupt assignment does not convey immova- bles; doubt as to movables. — In England it is settled that a bankrupt assignment does not convey foreign immovables.^ Sir R. Phillimore^ states the law to be as follows: "I. That an attachment by an English creditor, not acquired by a specific lien prior to, but acquired after, the assignment of a foreign bankruptcy, with or without notice to the bankrupt, is impotent to effect the assignment. "II. That, nevertheless, if the law of the foreign state in which the property may be, should, in violation of comity, ex- ercise jurisdiction over the property, and by express regulation prefer the claim of the attaching creditor to the previous as- signment under the bankruptcy, the title so conveyed by the lex rei sitce and lex fori would not be disregarded in England so as to compel the creditor, when within English jurisdiction, to re- fund the property so acquired. "III. That such a creditor, however, will not be allowed to take advantage of the English bankruptcy without first com- municating the benefit derived from his proceedings in the for- eign state. "IV. That the last-mentioned axiom, however, does not ap- ply where the creditor obtains by his diligence something which did not and could not form a part of the English fund, or pass to the assignees under the assignment, e. g.^ foreign real estate." It should be observed, however, that the cases cited by 1 The practice in the French, Ger- erell v. Dickens, 3 Moore, P. C. C. 98, man, and Italian courts is given post, 1 Mont. D. & De G. 45. Nor will a § 799, note. The topic in the text bankrupt be compelled to assign such is examined by me in 6 Southern real estate to his assignees. Selkrig Law Rev. (1881) p. 690. v. Davies, 2 Dow, P. C. 245, 14 Re- ^Ante, § 275. That in England vised Rep. 146, 2 Rose, 291; Lee, a bankrupt assignment does not pass Bankr. London, 1871, p. 110. foreign real estate is ruled in Cock- 8 IV. 549. 389] BANKRUPT ASSIGNMENTS. 827 this learned author to sustain these propositions are cases in which the parties were British subjects, and that they were, therefore, bound by the laws of their common sovereign. To them, therefore, apply the remarks already made,* that such cases do not touch the question as to whether an English sub- ject would be bound by a French bankruptcy as to personalty in England.* But although English courts will hold an English bankrupt assignee entitled to administer the bankrupt's foreign effects, yet this title may be contested by a creditor of the bankrupt who has attached the property abroad. From a creditor dom- iciled in England, having notice of the bankrupt assignment, the assignee is entitled, as we have seen, to recover what he has 3 Ante, §§ 363, 369. * "The courts of this country'' (England), says Mr. Lee, in his trea- tise on bankruptcy above referred to, p. Ill, "recognize the laws of other countries in giving effect to assign- ments made under laws analogous to our bankrupt Ip.ws, and accordingly creditors have been restrained from recovering by attachment a debt due to the insolvent in this country." He cites only Solomons v. Boss, 1 H. Bl. 131, note; Jollett v. De Pon-thieu and Neal v. Gottingham, 1 H. Bl. 132 note, cases in which, as has already been seen {ante, § 364), the contest- ing parties were subject to the law of the country of assignment, and were therefore incapable on this ground of contesting it. According to Mr. Westlake (1880), § 131, "one who is a bankrupt in England cannot be compelled to make to the trustees an assignment of his immovable property outside of the British dominions, or even of his movable property in any country in which the title of the trustees to such property is not as fully recognized as in England." To this he cites Ex parte Blalces, 1 Cox Ch. Cas. 398; Selkrig v. Davis, 2 Rose, 311, 2 Dow P. C. 245, 14 Revised Rep. 146 ; Coek- erell v. Dickens, 3 Moore, P. C. C. 133, 1 Mont. D. & De G. 45. He proceeds to say that "any cred- itor, British or alien, may retain any payment which he can obtain out of the non-British immovables of the bankrupt, and, if it is only partial, may recover dividends in the bank- ruptcy on the residue of his debt pari passu with the other creditors." Whether a, foreign creditor who has seized movables of the bankrupt in a state which does not recognize the extraterritoriality of a British bankruptcy will be compelled to ac- count, if he claims before the British assignees, does not seem settled. In Hunter v. Potts, 4 T. R. 182, 2 Re- vised Rep. 353, Lord Kenyon put the ruling against the creditor partly on the ground that he was a resident in England and cognizant of the bank- ruptcy. In Sill V. Worswick, 1 H. Bl. 665, and Philips v. Hunter, 2 H. Bl. 402, 2 Revised Rep. 146, the par- ties were all British. That the rul- ings may rest on this ground, see ante, §§ 363, 369. In Ex parte Wil- son, L. R. 7 Ch. 490, 41 L. J. Bankr. N. S. 46, 26 L. T. N. S. 489, 20 Week. Rep. 564; Ex parte Banco de Portugal, L. R. 11 Ch. Div. 317, L. R. 5 App. Cas. 161, it was held that a foreign creditor getting a dividend in a foreign col- lateral bankruptcy would be com- . pelled to account when claiming in a British bankruptcy. In all these cases the law laid down was that, if the creditor was British, he not only would be precluded from claim- ing before the British trustees until what he received was brought in, but he would be compelled to refund. See post^ § 798. 828 LAW OF THINGS. [Chap. VII. thus received ; ^ though it is otherwise as to a foreign garnishee, who has ' paid a debt due to the bankrupt estate to the creditor under direction of the competent foreign tribunal.® There is, however, no English ruling to the effect that a foreign bank- rupt assignment passes English movables. c. United States. 390. Foreign bankrupt assignment not extraterritorial. — In the United States a foreign bankrupt assignment, for the rea- sons above given, -^ will not be permitted to transfer property, whether movable or immovable, as against domestic attaching creditors. ^ ^Hunter v. Potts, 4 T. E. 182, 2 that the appointment in New York Revised Rep. 353; Ex parte Scinde gf ^ receiver for a New York cor- R. Co. L. R. 9 Ch. 557, 43 L. J. Ch. ,. ,, ., . , N. S. 699; though see Wwring v. PO'-ation would prevail as agamst a Knight. Cooke, Bankr. Laws, 300. subsequent attempt by a creditor of 6Le Chevalier v. Lynch, 1 Dougl. the corporation to reach assets of the KB. 170; Allen v. Dundas, 3 T. R. corporation in Manitoba. As a mat- ter of fact, the attacking creditors 7 In Brand v. Oreen, 13 Manitoba in this case were domiciled in Massa- L. Rep. 101, 116, the court held that chusetts, and not in Manitoba; but it was an established principle of apparently the decision would have Knglish law that the attachment or been the same even if they had been assignment by involuntary proceed- domiciled in the latter jurisdiction, ings under the bankruptcy laws of a foreign country in which a bankrupt , ^fj^*®' ^ ^^^' ^^°^' ^°^^- ^■ is domiciled affects or transfers the j See ante, §§ 347-365; Oakey v. title to his purely personal property Bennett, 11 How. 33, 13 L. ed. 593; in England. Though the cases cited Booth v. Clark, 17 How. 322, 15 L. ;„ „,,„„«^+ n^ 4-1, to r.^r,^n^itin^ nyatv,a ^d. 164; BlonB V. Drummond, 1 m support of this proposition are the ^^^^^ g'^, Fed. Gas. No. 1,531; The same as those referred to m the pre- Watchmam,, 1 Ware, 232, Fed. Cas. vious notes to the section, it is clear No. 17,251 ; Very v. McBenry, 29 Me. that the court regarded the English 208; Felch v. Bughee, 48 Me. 9, 77 rule as annlicablp even af?ainst an ^™- ^^"^ ^"^ ' '^"'^^ ^- Morrison, 25 rule as applicable even against an ^^ ggg. ^^^^.^ ^ Williams, 6 Pick. English creditor who attaches prop- 286, 17 Am. Dec. 372; Fiske v. Fos- erty after the bankruptcy; for it ter, 10 Met. 597; Scrliner v. Fisher. •states that a diflferent rule prevails 2 Gray, 43; Butcheson v. Peshine, 16 ;„ +i.„ TT«;+oj Q+„<.„o +i,„+ ;„ =. N- J- Bq. 167; Milne v. Moreton, 6 m the United estates; that in some t,- nrn o \ t^ aod a/ ' Bmn. 353, 6 Am. Dec. 466; Mos- states the rule is absolute as to all selman v. Caen, 34 Barb. 66; Mc- ereditors, and in others only citizens Cullough v. Rodriok, 2 Ohio, 234; of the state are protected against Rogers v. Allen, 3 Ohio, 489; John- J. „, J. J i. J J son V. Parker. 4 Bush, 149; Kid- proceedings. The court adopted and ^^ ^ y^^^^^ -^g j^ -^^ j^g' g^^ applied the English rule, holding also post, §§ 524, 528; and as to the § 390] BANKKUPT ASSIGNMENTS. 829 The nonextraterritoriality of bankrupt assignments is some- times based on the position that compulsory conveyances in bankruptcy are the creatures of local law, and should not be extraterritorially extended; and sometimes on the priority which every state, in case of collision, should give to its own sub- jects. It is also argued, as has been already seen,* that prop- erty, personal as well as real, is subject to the local laws of its site, and that, consequently, if the owner locally incurs obliga- tions on the faith of such property, it is but fair that it should primarily bear the burden of such debt. It is further urged that the forced application of the law of the lex domicilii to such case would operate to extend oppression and fraud.* Other reasons tend to the same result. (1) A compulsory bankruptcy is in the nature of an execution, and it is settled internationally that an execution issued in one state cannot, by its ovni force, attach assets in another state, whatever may be the case in the state where the execution issues. The proper course in such case is to have an ancillary procedure opened in the state where the assets are found ; and until then, such assets analogous case of distribution under conflicting administrations, see post, § 625. That a foreign bankrupt assignee has no standing in conflict with an attaching creditor, see Perry v. Bwrry, 1 Cranch, C. C. 204, Fed. Gas. No. 11,000; Blane v. Dru-mmond, 1 Brock. 62, Fed. Gas. No. 1,531 ; Hunt V. Jaokson, 5 Blatchf. 349. Fed. Gas. No. 6,893. In Wood V. Pwrsons, 27 Mich. 159, it was held that a compulsory insol- vent assignment in Ganada would not, in the absence of any transfer by the insolvent himself, vest the Ganadian assignee with title to prom- issory notes in Michigan which have never been within the territorial ju- risdiction of the Ganadian court or subject by any process to its control ; and that the fact that the insolvent afterwards went to Canada and sub- mitted himself to the jurisdiction of that court would not help the matter. Ghancellor Kent (Gom. vol. 2, p. 403) reaflarms the position taken in Holmes v. Remsen, 4 Johns. Gh. 460, 8 Am. Dec. 581, holding that, "by the general international law of Europe, the proceeding which is prior in point of time is prior in point of right, and attaches to itself the right to take and distribute the estate." But, as we have seen, the general international law of Europe, since the publication of Chancellor Kent'3 work, sustains the issue of bank- ruptcy arrests on the barest and most transient residence of an al- leged insolvent trader. He adds, however: "But whatever considera- tion might otherwise have been due to the opinion in that case [Holmes V. Remsen'], . . . the weight of American authority is decidedly the other way." iAnte, §§ 297 et seq. * This question is discussed post, §§ 799-801. Mr. Wheaton (Law- rence's ed. pt. 2, chap. 2, § 18) says* "How far a bankruptcy declared un- der the laws of one country will affect the real and personal property of the bankrupt situate in another state is a question of which the usage of nations and the opinions of civil- ians furnish no satisfactory solution. Even as between co-ordinate states, belonging to the same common em- pire, it has been doubted how far the assignment under the bankrupt laws of one country will operate a trans- fer of property in another." 830 LAW OF THINGS. [Chap. VII. are open to attachment by individual creditors.^ (2) If the state of the first decree is to take possession of extraterritorial assets, there will be an unfair race, stimulated by official greed,® as to which country shall dispossess the rest. (3) The procedure, being in many respects penal, has no extraterritorial effects. ''^ (4) And a final reason may be found in the fact that, whatever may be the opinion of jurists viewing the ques- tion speculatively, the practice in France and Germany is, as has just been seen, to hold foreigners as well as subjects, if residents, amenable to bankrupt process; and even in England the process is not limited by the test of domicil, but may be ap- plied to foreigners doing casual and temporary business in England.* ISTow it cannot be rationally maintained that a 5 See §§ 794 et seq. OTIie large emoluments of bank- rupt officials may be properly taken into account when we consiaer the propriety of assigning ubiquity to their operations. Very often such procedure enures to the benefit chief- ly of these officials. The London Economist, for instance, in August, 1880, in an article on this topic, cites the ease of a jeweler "whose proper- ty realized at forced sale over £1,250, of which sum £289 were paid to pref- erential and secured creditors, leav- ing the net assets £961, an amount amply sufficient to have paid all his creditors 20 shillings in the pound. Of these net assets £945 were eaten up by the law charges, trustee's and receiver's fees and auctioneer's com- missions. The residue distributed among the creditors amounted to just £9, 17s., 2d." ^Ante, § 4. "B-T i^arte Crispin, L. R. 8 Ch. 374, 42 L. J. Bankr. N. S. 65, 28 L. T. N. S. 483, 21 Week. Eep. 491 ; Re David- son, L. B,. 15 Eq. 383, 42 L. J. Ch. N. S. 347, 21 Week. Rep. 452 ; Ex parte Pascal, L. R. 1 Ch. Div. 509, 45 L. J. Bankr. N. S. 81, 34 L. T. N. S. 10, 24 Week. Rep. 263. In Re lilithman, L. R. 2 Eq. 23, 35 Beav. 219, 35 L. J. Ch. N. S. 255, 12 Jur. N. S. 84, 14 L. T. N. S. 6, it seems intimated that in such cases the English assignee is entitled to hold the bankrupt's goods on behalf of the English creditors. In Ex parte Pylce (1880) 42 L. T. N. S. 664, it was held that where the legal requisites are perfected, and no equitable considerations intervene, the court of bankruptcy will adjudi- cate a debtor a bankrupt upon a peti- tion in England, notwithstanding that a prior adjudication may have' been made against the same debtor in Ireland. In Ex parte ilcGulloch, 43 L. T. N. S.161,L.R. 14 Ch. Div. 714, 28 Week. Rep. 935, it was held that although a debtor, who has carried on business in Ireland and England, has been ad- judicated a bankrupt in Ireland, the court will, in the absence of special circumstances, adjudicate him a bank- rupt in England. In this case, James, L. J., said: "I think it is our duty, under all the circumstan- ces of the case, to allow the English adjudication to stand for what it is or may be worth." In Ex parte Blain, L. R. 12 Ch. Div. 522, 41 L. T. N. S. 47, 28 Week. Rep. 334, it was said by James, L. J., that the British bankrupt legislation was applicable "to foreigners who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction. Every for- eigner who comes Into this country for however limited a time is, during his residence here, within the allegi- ance of the sovereign, entitled to the protection of the sovereign, and sub- ject to all the laws of the sovereign." But to give the English court ju- risdiction in cases of foreigners tern- § 390] BANKRUPT ASSIGNMENTS. 831 bankrupt decree, obtained in England against a citizen of Mas- sachusetts temporarily visiting England, binds bis estate in Massachusetts. And it is equally irrational to maintain that when a business firm or corporation has branches in several European states, the first state, no matter how insignificant may be its interest in the estate, which, in the race between creditors, declares the firm or corporation banlcrupt, takes con- trol of all its effects, wherever situate. 3901/3. So, as to state insolvent assignments. — One state in the United States, also, will not recognize as binding property within its borders, to the prejudice of one of its own citizens, a compulsory insolvent assignment made in another.^ porarily in England, it is necessary A state statute prescribing that an that an act of bankruptcy should insolvent assignment shall dissolve have been committed in England by prior attachments is not extraterri- such foreigner. Wx parte Blain, L. torial. Vpton v. Huhhard, 28 Conn. E. 12 Ch. Div. 522, 41 L. T. N. S. 47, 274, 73 Am. Dec. 670; South Boston 28 Week. Eep. 334. Jron Go. v. Boston Locomotive iToune v. Smith, 1 Woodb. & M. Works, 51 Me. 585. Ante, § 347; 137, Fed. Gas. No. 14,115; Harrison post, § 802. v. Sterry. 5 Cranch, 289, 3 L. ed. 104; The Watchman, 1 Ware, 232, Fed. rr,. -, . . i- j 4. ■ -, ^ Gas. No. 17,251 ; Oreen v. Van Bus- ^he doctrine as applied to resident kirk, 6 Wall. 307, 5 L. ed. 599; Os- citizens is practically undisputed. born V. Adams, 18 Pick. 245; Paine The court in Security Trust Go. v. v. Lester, 44 Conn. 196, 26 Am. Rep. ^^^^ ^^^ -g g 334, 43 L. ed. 835, 442 (a case where the attaching ni. -o rxe ^x ^i.- creditor was not a citizen) ; Kelly v. 1» ^up. Gt. Rep. 545, after stating Grapo, 45 N. Y. 86, 6 Am. Rep. 35; that there is a general consensus of and cases cited in last section; Bur- opinion to the effect that voluntary "\Vv,l^^^^™' ^^ '^u^ ?* ^V' t or common-law assignments will be "When, upon the insolvency of a , , . f debtor, the law of the state in which respected except so far as they come ho resides assumes to take his prop- in conflict with the rights of local erty out of his control, and to assign creditors, or with the laws or public it by judicial proceedings, without jj „f ^j^^ ^^.^^.^ ^^ ^j^j^^ ^^^ his assent, to trustees for distribu- ... , ^ , , tion among his creditors, such an as- signment is sought to be enforced, signment will not be allowed by the said: "But the rule with respect to courts of another state to prevail statutory assignments is somewhat against any remedy which the laws ^^^i^^^^^ ^j^ji^ ^.j^^ authorities are of the latter afford to its own eiti- , ,, ,, , zens against property within its ju- ""t altogether harmonious, the pre- risdiction." Gray, J., Taylor v. Go- vailing American doctrine is that a lumhian Ins. Go. 14 Allen, 355. conveyance under a state insolvent /ri^V-V^f ^1 ^^ y^^h^'.W^ ^" 1^^ operates only upon property ed. 430 ( cited fully oJite, § 357 ), may ^ . / , ,, appear to conflict with the above; within the territory of that state, but the ground of the ruling was, in and that, with respect to property in this case, that the ship assigned was other states, it is given only such t'\er1l?o\?of\re^tardiL^cUng «^-* - ^he laws of such state per- the assignment. ^^i and that, in general, it must 832 LAW OF THINGS. [Chap. VII. 390a. Same. — As elsewhere shown, the doctrine of the last section applies to assignments, though voluntarily made, if made under statutes which provide for the discharge of the claims of all creditors who accept dividends thereunder.-' It is to be observed that, for the purposes of this doctrine, a debt due to the insolvent is regarded as having its situs in the fatate where the debtor resides.^ give way to claims of creditors pur- statute a form without benefit, a for- suing their remedies there. It passes mality, and not matter of substance, no title to real estate situated in a, mere delusion." another state. Nor, as to personal i See omie, § 353a. property, will the title acquired by 2 Jn Rhawn v. Pearoe, 110 111. 350, it prevail against the rights of at- 51 Am. Rep. 691, it was argued that taching creditors under the laws of the situs of the garnished debt was the state where the property is ac- at the residence of the insolvent in tually situated." Pennsylvania, to whom it was pay- In Hibernia 'Nat. Bank v. Lacombe, able. The court, however, said that 84 N. Y. 367, 39 Am. Rep. 518, it it was not important whether the was held that liquidation proceedings debt was strictly in Pennsylvania or instituted in Louisiana against a cor- not at the time the insolvency pro- poration of that state, and the ap- ceedings were instituted in the latter pointment of commissioners to take state, since the parties owing the possession of and administer its as- debt resided in Illinois, and the fund sets, did not operate upon an indebt- was in that state, and was liable edness due from a party in New York under its laws to attachment, and to the corporation as against a cred- the trustees in insolvency under the itor who subsequently attached a law of Pennsylvania would only take debt in New York, although such subject to the remedies provided by creditor was itself a foreign corpora- the laws where the fund had an ac- tion. The court said: "For the rule, tual existence. as we conceive, is well settled that In King v. Cross, 175 U. S. 396, 44 an assignment by virtue of or under L. ed. 211, 20 Sup. Ct. Rep. 131, it a, foreign law does not operate upon was argued that a mere credit, a debt or right of action as againsi though subject to attachment or a person in this state. The plaintiff, trustee process at the residence of as we have seen, although a foreign the debtor, is governed by a different creditor, is rightfully in our courts rule from that which controls tan- pursuing a remedy given by our stat- gible property, and that the situs of utes. It may enforce that remedy to such claim, at least for the purposes the same extent and in the same of insolvency proceedings, is at the manner and with the same priority domicil of the creditor, and passes to as a citizen. Any other construction the trustee of the insolvency court, would make the permission of tne so that the principle that insolvency § 390a] BANKRUPT ASSIGNMENTS. 833 AVhile there is some conflict upon the point, it is now well established that the doctrine applies in favor of attacking cred- itors who are citizens of a third state, as well as those who are citizens of the state in which the property is situated.* There is still a tendency, however, to discriminate in this respect against attacking creditors who are citizens of the state in which the insolvency proceedings are instituted,* though this distinc- tion has been repudiated in a number of the cases.® It seems proceedings have no extraterritorial 10 Sup. Ct. Eep. 843, that a creditor operation does not apply. The point, who is a citizen and resident of the however, was not decided, as the case same state with his debtor, against was disposed of upon another ground, whom insolvency proceedings have ^Reynolds v. Adden, 136 U. S. 348, been instituted in that state, is 34 L. ed. 360, 10 Sup. Ct. Rep. 843 ; bound by the assignment of the debt- Sturtevant v. Armshy Co. 66 N. H. or's property in such proceeding, al- 557, 49 Am. St. Rep. 627, 23 Atl. 368. though situated in another state. To See other cases in note to 23 L. R. the same effect are Long v. Cfird- A. 33, 41; and see also cases cited ivood, 150 Pa. 413, 24 Atl. 711 (see ante, § 353b, notes 2 and 3, with re- note to this case in 23 L. R. A. 33. spect to the constitutionality of such 40, 41 ) ; Crippen v. Rogers, 67 N. H. discrimination in case of a voluntary 207, 25 L. R. A. 821, 30 Atl. 346. assignment for creditors. See con- ^ The distinction between resident tra, however. Witters v. Globe 8a/v. and nonresident creditors is express- Bank, 171 Mass. 425, 50 N. E. 932. ly repudiated, and the doctrine ap- Sturtevant v. Armshy Go. supra, plied in favor of attaching creditors however, distinguishes in this respect who were residents of the state in between citizens of a foreign country which the assignment was made, bj and citizens of the United States, and Jenks v. Ludden, 34 Minn. 482, 27 says that the assignment will prevail N. W. 188; Barth v. Backus, 140 N. as against the former. Y. 230, 23 L. R. A. 47, 37 Am. St. * It was held in Cole v. Cunning- Rep. 545, 35 N. E. 425; McClure v. ham, 133 U. S. 107, 33 L. ed. 538, 10 Campbell, 71 Wis. 350, 5 Am. St. Sup. Ct. Rep. 269, however, that a Rep. 220, 37 N. W. 343. This rule is decree of a court of Massachusetts also adopted in Fransen v. Hutchin- restraining citizens of that common- son, 94 Iowa, 95, 62 N. W. 698. wealth from the prosecution of at- And the Illinois courts, which in- tachment suits in New York, brought sist upon the distinction when the by them for the purpose of evading effect of voluntary assignments for the insolvency law of Massachusetts, creditors is involved, repudiate it as is not in conflict with the constitu- applied to assignments in invitum tional guaranty of equal rights. under insolvency or bankrupt acts. So. it is assumed in Reynolds v. Rhavm v. Pearce, 110 111. 350, 51 Adden, 136 U. S. 348, 34 L. ed. 360, Am. Rep. 691; Townsend v. Cosce, 151 Vol. I. CoNFL. OF Laws — 53. 834 LAW OP THINGS. [Chap. VII. to be generally assumed that a foreign assignment in invitum will pass the title to personal property as against the insolvent himself,® though it is otherwise with respect to real property.^ 111. 62, 37 N. E. 689. See other casea titles are not in conflict with the to the same effect cited in note to laws or the public policy of the state. 23 L. E. A. 33, 41. Such foreign assignees can appear, 6 The following quotation from the and, subject to the conditions above opinion in Security Trust Co. v. mentioned, maintain suits in "our" Dodd, 173 U. S. 624, 635, 43 L. ed. courts against debtors of the bank- 835, 840, 19 Sup. Ct. Hep. 545, states rupt whom they represent, and the rule in the form it is ordinarily against others who have interfered applied : "While it may be true that with or withheld the property of the the assignment in question is good bankrupt. as between the assignor and the as- As shown in ante, § 353a, this signee, and as to assenting creditors, court, in the ease of Barth v. Backus, to pass title to property both within 140 N. Y. 230, 23 L. R. A. 47, 37 and without the state, and, in the Am. St. Rep. 545, 35 N. E. 425, held absence of objections by nonaasent- that an assignment made under a ing creditors, may authorize the as- statute of another state having a signee to take possession of the as- bankruptcy feature would not prevail signer's property wherever found, it over a subsequent attachment, even cannot be supported as to creditors by creditors who were nonresidents who have not assented, and who are of New York; but there is no inti- at liberty to pursue their remedies mation that the title of the assignee against such property of the assignor would not have prevailed if the ques- as they may find in other states." tion had arisen between him and the The New York court of appeals, insolvent or a debtor of the latter, after an elaborate review and dis- The intimation is the other way. cussion of the New York authorities, ' Thus, the court in Security Trust reached the following conclusions in Co. v. Dodd, 173 XJ. S. 624, 43 L. ed. Re Waite, 99 N. Y. 433, 2 N. E. 440 : 835, 19 Sup. Ct. Rep. 545, speaking The statutes of a foreign state can of an insolvency or bankruptcy stat- have no force or effect in New York ute, says: "It passes no title to real ex propria vigore, and hence the stat- estate situated in another state, utory title of foreign assignees in Nor, as to personal property, will bankruptcy can have no recognition the title acquired by it prevail in the state solely by virtue of the against the rights of attaching ered- foreign statute. But, as a matter of itors under the laws of the state comity, the titles of foreign statu- where the property is actually sit- tory assignees are recognized in New uated." York, when they can be, without in- See also Oalcey v. Bennett, 11 How. justice to our citizens, and without 33, 13 L. ed. 593; Sutcheson v. prejudice to the rights of creditors Peshine, 16 N. J. Eq. 167; Heyer v. pursuing their remedies here under Alexander, 108 111. 385; City Ins. Co. our statutes; provided that such v. Commercial Bank, 68 111. 348; § 390a] BAJSfKRUPT ASSIGNMENTS. 835 It follows from the doctrine denying the extraterritorial ef- fect of insolvency proceedings that a provision of a statute un- der which such proceedings are instituted, which purports to avoid all conveyances by way of preferences made within a cer- tain period before the commencement of the proceedings, has no effect upon conveyances of real or personal property in an- other jurisdiction, at least when the question arises in the lat- ter jurisdiction.® Upon the other hand, such a provision miay operate to avoid a conveyance by way of preference, of property within the state where the insolvency proceedings are instituted, whether made to a citizen of that state or of an- other state.* 390%. Foreign receivers of insolvents subject to same rule. — A receiver appointed in one state for an insolvent corpora- tion has no title as such to property located in another state. ^ The same distinctions apply to other cases of receivership. Eeceivers take by virtue of a process analogous to execution, Wright v. Youtsey, 5 Ohio, N. P. 57, 36 L. ed. 773, 12 Sup. Ct. Rep. 958. 7 Ohio S. & C. P. Dec. 172; Rogers The attachment by a foreign cred- V. Allen, 3 Ohio, 489. iter, made within four months prior >Chipman v. Peahody, 159 Mass. to an assignment in insolvency, is 420, 38 Am. St. Kep. 437, 34 N. E. dissolved by such assignment, as well 563. as those by persons residing within In Grampton v. Valido Marble Co. the state, under the provisions of 60 Vt. 291, 1 L. R. A. 120, 15 Atl. Me. Rev. Stat. chap. 70, § 33, espe- 153, however, it was held that effect cially where his debt was contracted may be given to such provision, rel- while the statute was in force, atively to a transfer of personal Owen v. Roberts, 81 Me. 439, 4 L. property in another state, when both R. A. 229, 17 Atl. 403. parties to the transfer are residents Wpton v. Eubiard, 28 Conn. 274, of the state in which the insolvency 73 Am. Dec. 670; Taylor v. Golum- proceedings are instituted, and the S*"™ ^'?*- <^o 14 ^len, 353; Willitts ^ ° . . \ ^ I.T. J. '^- Waite, 25 N. Y. 577; Hooper v. question arises in a court of that Tuoherman, 3 Sandf. 311; Gagill v. state. It was conceded that a court Wooldridge, 8 Baxt. 580, 35 Am. Rep. of the state in which the property 716; Moseby v. Burrow, 52 Tex. 396. was situated might take a different ", i^ otherwise as to property aetu- ally m possession of the receiver. ■^'^'^- Pond V. Cooke, 45 Conn. 126, 29 Am. sBrown v. Smart, 145 U. S. 454, Rep. 668. 836 LAW OF THINGS. [Chap. VIl. which, for reasons heretofore given, has no extraterritorial effect ^ 390b. Rights and powers of receiver outside of jurisdiction of appoiiitment. — The powers and authority of a receiver are, as a maltter of strict right, confined to the jurisdiction of his ap- pointment ; and he may exercise only such power and authority in another jurisdiction as are permitted by the comity of the latter. ^ The modern tendency, however, is toward a liberal ex- ercise of comity in support of the authority of foreign receiv- ers.^ Thus, the courts recognize, protect, and enforce, even as against resident creditors, or creditors who are residents of a third state, as well as those who are residents of the state in 2 Ante, § 390; Booth v. Clark, 17 Am. Rep. 716. But he cannot, in How. 322, 15 L. ed. 164; Farmers' £ any view, be permitted to come in M. Ins. Go. V. Needles, 52 Mo. 17. As and contest existing liens. Hunt v. to the jurisdiction of Federal courts Columbian Ins. Co. 55 Me. 298, 92 to review state courts in such re- Am. Dec. 592; Taylor v. Columbiun spects, see Williams v. Benedict, 8 Ins. Co. 14 Allen, 353. How. 107, 12 L. ed. 1007; Wiswall v. Sampson, 14 How. 52, 14 L. ed. 322. lAtkins v. Wabash, St. L. & P. R. As to practice se though it has been held that he may ^^S, 33 L. R. A. 203, 58 Am. St. Rep. sue subject to local liens, and in sub- 569, 36 S. W. 610; Texas & P. R. Co. ordination to local law. Ex parte v. Gay, 86 Tex. 571, 25 L. R. A. 52, Norwood, 3 Biss. 513, Fed. Cas. No. 26 S. W. 599; Thum v. Pingree, 21 10,364; Hoyt v. Thompson, 5 N. Y. ,-„. 1, oao ci r. 10 320; Runk v. St. John. 29 Barb. 587; ^^^^' ^*^' "^ ^^"^ ^^■ eagill V. Wooldridge, 8 Baxt. 580, 35 ^ "Tte doctrine is generally recog- § 390b] BANKRUPT ASSIGNMENTS. 837 which the receiver is appointed, the right of a foreign receiver with, respect to property which, at the time of his appointment, was within the jurisdiction of the appointment, but was subse- quently removed therefrom.* And, in, general, assuming that there is no violation of local policy, or interference with the rights of creditors, a foreign receiver is allowed access to the lo- cal courts for the recovery or protection of personal property — even property which had its actual situs at the forum at the time of his appointment — ^vested in him by the law of the juris- diction of his appointment, or for the enforcement of choses in action against residents of the forum, or others within the ju- risdiction.* But his right to such property or choses in action. uized that a foreign receiver has no Steel Co. 57 N. J. L. 336, 30 AtL right to sue in another state, but, 545; WoodhuU v. Farmers' Trust Co. while the right is denied, the modern (N. D.) 90 N. W. 795. practice is to permit him to bring But see contra, Humphreys v. Hop- such suits, on the ground of comity, kins, 81 Cal. 557, 6 L. R. A. 792, IS' in all cases where such permission Am. St. Rep. 76, 22 Pao. 892. will not conflict with the rights of * A receiver may invoke the aid of citizens or creditors in the state a foreign court in obtaining posses- where the suit is brought. And the sion of property or funds within its constant tendency of the courts is jurisdiction to which he is entitled, toward a more enlarged and liberal but aid will only be extended as policy, — the recognition of the re- against those who were parties to, ceiver's right to the possession of the or in some way in privity with, the property embraced by the decree ap- proceedings in the course of which pointing him, although situated with- his appointment was made, or who out the jurisdiction of the court are in possession of the property or making the appointment." Leims v. funds to which the receiver has ti, American Naval Stores Co. 119 Fed. right, and not against creditors of a 391, 396. nonresident debtor who are seeking iPond v. Cooke, 45 Conn. 126, 29 to subject the property or fund to Am. Rep. 668; Blake Crusher Co. v. the payment of their debts by pro- New Haven, 46 Conn. 473 ; Cooke v. ceedings duly instituted for that pur- Orange, 48 Conn. 401 ; Chicago, M. & pose. Catlin v. Wilcox Silver-Plate St. P. R. Co. V. Keokuk N. L. Packet Co. 123 Ind. 477, 8 L. R. A. 62, 18 Go. 108 111. 317, 48 Am. Rep. 557-; Am. St. Rep. 338, 24 N. E. 250. Cagill V. Wooldridge, 8 Baxt. 580, 35 So, it was said in Mdbon v. Ohgley Am. Rep. 716; Rolertson v. Staed, Electric Co. 156 N. Y. 196, 50 N. E. 135 Mo. 135, 33 L. R. A. 203, 58 Am. 805: "While the laws of a foreign St. Rep. 569, 36 S. W. 610; Mer- state have no force, as such, in this chants' Nat. Bank v. Pennsylvania state, still our courts uphold the 838 LAW OF THINGS. [Chax". VII. will not be recognized or enforced as against domestic creditors, even though the latter had acquired no specific lien before the title of a foreign assignee or receiver those cases when, by so doing, its upon the principle of comity. If the own policy would be displaced or the title is by virtue of a voluntary con- rights of its own citizens invaded or veyance or transfer, it is sustained impaired. After completely protect- as against all, including even domes- ing its own citizens and laws, the tic creditors; but if it depends on a dictates of international comitj foreign statute or judgment, it is would seem to require that the offi- sustained against all except domestic cer of the foreign tribimal should be creditors. Subject to their superior acknowledged and aided. The ap- rights, the plaintiff can reduce to pointment of a receiver, with full possession all the property of the de- powers to collect the property of a fendant in this state, and can bring litigant, wherever the sijne might be replevin for that purpose, or trover found, should be deemed to operate to recover damages for conversion, as an assignment of such property to Notes and accounts may be collected be enforced everywhere, subject to the by the usual proceedings in our exception just defined." courts, which regard a foreign re- Thus, foreign receivers have been ceiver as representing the original permitted to maintain suits to reach owner, and open their doors to him property fraudulently transferred, as they do to a domestic receiver." Bidlack v. Mason, 26 N. J. Eq. 230; The following quotation from the Sobernheimer v. Wheeler, 45 N. J. opinion in Hurd v. Elizabeth, 41 N. Eq. 614, 18 Atl. 234. But see contra, J. L. I, correctly states the principles Filkms v. Nunnemaoher, 81 Wis. 91, that are actually applied by the 51 N. W. 79. courts to this subject, though some Or to set aside a judgment fraudu- of the cases extend the exception to lently procured. Comstoek v. Fred- include the rights of creditors who erickson, 51 Minn. 350, 53 N. W. 713. are residents of the third state, as This is also implied in Rogers v. well as those who are nonresidents Haines, 103 Ala. 198, 15 So. 606. of the state where the property has So, foreign receivers have been per- its situs : "Conceding that the oflficer mitted to enforce the liability of resi- is invested with this fulness of au- dent stockholders of foreign eorpora- thority [i. e., authority by the law of tions. Hoicarth v. Ellwanger, 86 the jurisdiction in which he is ap- Fed. 54; Hale v. Harden, 37 0. C. A. pointed to gather assets at home ana 240, 95 Fed. 747 ; Hale v. Tyler, 104 abroad], it would appear to be in Fed. 757; Gastleman v. Templeman, harmony with those legal principles 87 Md. 546, 41 L. R. A. 367, 67 Am. by which the intercourse of foreign St. Rep. 363, 40 Atl. 275; Howarth states is regulated, for every govern- v. Lombard, 175 Mass. 570, 49 L. R. ment, when its tribunals are appealed A. 301, 56 N. E. 888; Stoddard v. to, to render every assistance in its Lum, 159 N. Y. 265, 45 L. R. A. 552. power in furtherance of the execu- 70 Am. St. Rep. 541, 53 N. E. 1108. tion of such authority, except in But see contra, Wigton v. Bosler, 102 § 390b] BANKRUPT ASSIGNMENTS. 839 Fed. 70; Wymam v. Eaton, 107 Iowa, The statement of the text upon 214, 43 L. R. A. 695, 70 Am. St. Rep. this point is further supported by 193, 77 N. W. 865. the following cases, which apply the The principles of comity do not principle to various property rights apply to an action by a, foreign re- and ohoses in action having a local ceiver of a foreign mutual insurance situs: Lewis v. American 'Naval company acting under a decree in the Stores Co. 119 Fed. 391, 397; Boul- foreign jurisdiction making an as- ware v. Davis, 9 L. R. A. 601 and sosament on premium notes, even if note, 90 Ala. 207, 8 So. 84; Winams otherwise applicable, where the notes v. Oibbs & 8. Mfg. Go. 48 Kan. 777, were taken for insurance on property 30 Pac. 163; Johnston v. Rogers, 19 in the state while the company was Ky. L. Rep. 1272, 43 S. W. 234; doing business within the state in Hallam v. Ashford, 24 Ky. L. Rep. violation of McClain's Code, § 1144, 870, 70 S. W. 197; Comstock v. prohibiting foreign insurance com- Frederiolcson, 51 Minn. 350, 53 N. W. panics from doing business without 713; Robertson v. Btaed, 135 Mo. 135, compliance with the conditions there- 33 L. R. A. 203, 58 Am. St. Rep. 569, in mentioned. Parker v. 0. Lamb & 36 S. W. 610; Ogden v. Warren, 36 Sons, 99 Iowa, 265, 34 L. R. A. 704, Neb. 715, 55 N. W. 221 ; Incin v. 68 N. W. 686. Granite State Provident Asso, 56 N. The foregoing cases upholding the J. Eq. 244, 38 Atl. 680; Merchants' right of the receiver in this respect Nat. Bank v. McLeod, 38 Ohio St. are, of course, upon the assumption 174; Wilson v. Keels, 54 S. C. 545, that, by the law creating the liabil- 71 Am. St. Rep. 816, 32 S. E. 702; ity, the same is enforceable by the Smng v. Bentley & G. Furniture Go. receiver, and also upon the assump- 45 W. Va. 283, 31 S. E. 925. tion that the liability is of such a, Thum v. Pingree, 21 Utah, 348, 61 nature that it may be enforced by Pac. 18, however, makes the broad the proper party in a jurisdiction statement, without any qualification other than that in which the cor- as to the residence of the attaching poration is created. creditor, that a receiver has no right In Smith v. Fighth Ward Bank, to property beyond the jurisdiction 31 App. Div. 6, 52 N. Y. Supp. 290, of his appointment, and that the which held that a bank might apply same will be administered for the the proceeds of a note collected for benefit of creditors and others inter- a foreign corporation to the payment ested therein by the courts of the of such notes of the corporation as state where it is found; but, as a matured before the appointment of matter of fact, the property involved a receiver for the latter, the court in this case was attached by a resi- said that the title to the collection dent of the state where it had its passed as soon as the receiver was actual situs, and that, too, prior to appointed in the state where the cor- the appointment of the receiver, poration was created; and the rights So, in Filkins v. Nunnemaoher, 81 of the parties then became fixed, al- Wis. 91, 51 N. W. 79, which denied though the right to enforce the title the right of a foreign receiver ap- vested in an ancillary receiver sub- pointed in a creditor's suit to main- sequently appointed in New York. tain an action in Wisconsin to set 8^0 LAW OF THINGS. [Chap. VH- foreign appointment.® And, according to the weight of au- thority, although there is considerable conflict upon the point, the right of the receiver will not prevail as against creditors of a third state, armed with process issuing from a court of the aside a fraudulent transfer of prop- 22, 75 Pac. 583; Cleveland Boiling erty in that state, it was said that, Mill Go. v. Crawford, 9 Ky. & Corp. by the foreign appointment, the re- L. J. 171; Holbrook v. Ford, 153 111. ceiver acquired absolutely no right 633, 27 L. E,. A. 324, 46 Am. St. Eep- or interest in the property in Wis- 917, 39 N. E. 1091 ; Eunt v. Gilbert, consin. This statement, if it has 54 111. App. 491 ; Webster v. Judah, reference to the strictly legal rights 27 111. App. 294; Wyman v. Eaton, of the receiver, is doubtless correct; 107 Iowa, 214, 43 L. R. A. 695, 70 but it does not represent the position Am. St. Eep. 193, 77 N. W. 865; taken by the majority of the courts, Zacher v. Fidelity Trust & Safety since, as shown in the cases above Vault Co. 109 Ky. 441, 59 S. W. 493; cited, they ordinarily, upon principles Linville v. Hadden, 88 Md. 594, 43 of comity, recognize the rights of L. E. A. 222, 41 Atl. 1097; Robertson foreign receivers, even in respect of v. Siaed, 135 Mo. 135, 33 L. R. A. personal property having a local 203, 36 S. W. 610; State Bank v. situs, when to do so will not inter- First Nat. Bank, 34 N. J. Eq. 450; fere with the public policy of the Kruger v. Bank of Commerce, 123 forum, or embarrass resident credi- N. 0. 16, 31 S. E. 270; Lett v. Thui- tors, or, perhaps, creditors who reside ber Whyland Go. 3 Pa. Dist. R. 239; in a third state. Smith v. Fidelity Bldg. Loan & In- The principle of the text has also vest. Asso. 4 Pa. Dist. R. 317; Gro- been applied to trustees. Thus, a gan v. Egbert, 44 W. Va. 75, 67 Am. trustee charged with the administra- St. Rep. 763, 28 S. B. 714. tion of an estate, appointed by a Nearly all the cases that recognize court of a sister state, cannot, as a the right of a foreign receiver in matter of strict right, maintain an respect of property having a local action in courts outside of the juris- situs make an exception in favor of diction of his appointment, but he domestic creditors. This exception , will be permitted to do so as a mat- rests upon the principle that local ter of comity when it will not inter- assets ought not to be withdrawn fere with the rights of local creditors from the jurisdiction, thus compelling pursuing their remedies in the local resident creditors to seek relief out- courts. Fidelity Ins. Trust & S. D. side the jurisdiction. The reason for Go, V. Nelson, 30 Wash. 340, 70 Pac. the exception does not, therefore, 961.. 3,pply to nonresident creditors; and ^Zacher v. Fidelity Trust & Safety while it enables u. resident creditor. Vault Co. 45 C. G. A. 480, 106 Fed. by means of attachment or other pro- 593 ; Ward v. Pacific Mut. L. Ins. Co. cess, to obtain a preference which 135 Cal. 235, 67 Pac. 124; Laclcmann could not be secured by a nonresident v. Swprenne Council, 0. G. F. 142^ Gal. creditor, at least by a creditor who is § 390b] BANKRUPT ASSIGNMENTS. 841 jurisdiction in which the property is found.® But his rights, will prevail over those of creditors who reside in the state where the appointment was made, although they have, subsequently to the appointment, undertaken to reach the property by means of process issuing from the local courts.'' a resident of the state in which the however valid that objection may be receiver is appointed, it is not ap- if raised by domestic creditors who- parent that it violates the provision oppose the transfer of the funds to of the Federal Constitution giving the jurisdiction of another state to- equal privileges and immunities to be there distributed, the citizens of the several states, al- ^Cailin v. Wilcox SiVoer-Plate Co. though, as subsequently shown, such 123 Ind. 477, 8 L. R. A. 62, 18 Am. constitutional provision is violated St. Rep. 338, 24 N. E. 250; Lichten- by a law which discriminates in favor stein v. Gillett Bros. 37 La. Ann. of resident creditors, and against 522; lAnville v. Badden, 88 Md. 594,, creditors who are citizens of another 43 L. R. A. 222, 41 Atl. 1097; Wm- state, in the distribution of the local ren v. Union Nat. Bank, 7 Phila. assets of an insolvent foreign cor- 156; Ray v. Toby Valley Supply Co.. poration when the resident creditors 3 Pa. Dist. R. 518. have no specific lien upon the prop- But see contra, Sercomh v. Gatlin, erty. 128 111. 556, 15 Am. St. Rep. 147, But a resident creditor who has 21 N. E. 606; Weil v. Banh of Burr voluntarily submitted himself to the Oak, 76 Mo. App. 34; State Bank jurisdiction of a foreign court by v. First Nat. Bank, 34 N. J. Eq. proving his claim before the receiver 450. and accepting dividends is estopped ^Farmers' Loan & T. Co. v. Bank- to object to the latter's obtaining ers & M. Teleg. Co. 148 N. Y. 315, possession of assets within the state 31 L. R. A. 403, 51 Am. St. Rep. 690, for general distribution. Wilson v. 42 N. E. 707; Merchants' Nat. Bank Keels, 54 S. C. 545, 71 Am. St. Rep. v. McLeod, 38 Ohio St. 174; Baghy 816, 32 S. E. 702. v. Atlantic, M. & 0. B. Co. 86 Pa.. A foreign receiver will not be re- 291; Oilman v. Ketcham, 23 L. R. A., fused recognition as a suitor, even 52, and note, 84 Wis. 60, 36 Am. St. if a claim of a citizen of the forum Rep. 899, 54 N. W. 395. would be injuriously affected thereby. And this is also implied in Lin- if the receiver prosecutes solely, and ville v. Hadden, 88 Md. 594, 43 L.. in behalf of a party who is also a R. A. 222, 41 Atl. 1097. citizen of the forum. Falk v. Janes, And the rule was applied in Bark- is N. J. Eq. 484, 23 Atl. 813. er v. Central Vermont R. Co. Rap. In Knapp v. Hoboken, 38 N. J. L. Jud. Quebec, 13 C. S. 2, as against 371, it was said that it was doubtful an execution under a, judgment re- whether a debtor could object that covered by a local resident who, how- the plaintiff is a foreign receiver, ever, was acting for a creditor wlio< 842 LAW OF THINGS. [Chap. VH- It -will be observed that, for the purposes of the foregoing principles, debts are generally regarded as having their situs at the residence of the debtor, rather than at the residence of the creditor; and the courts therefore apply substantially the same principles to debts due from residents as to personal chat- tels actually found at the forum.® The principles of comity are invoked, not for the purpose of conferring upon the foreign receiver any new rights with respect to personal property found within the jurisdiction, but merely to enable him to secure and enforce the rights as to such property that are conferred upon him by the law of the juris- diction of his appointment. If, by that law, he has no such rights, none can be conferred upon him by the application of the principles of comity. But while the law of the jurisdic- tion of the appointment cannot guarantee the recognition of was a resident of the state in which tween parties domiciled therein, oan- the receiver was appointed. not be allowed to execute his judg- But an Ohio corporation which has ment against property of the defend- recovered a judgment in that state ant which has passed into Canada, against another Ohio corporation where one of the conditions and con- may maintain a bill in Tennessee to sequences of the contract under the subject personal property in the lat- laws of the state is that the right of ter state to the payment of its judg- execution and sale of the property ment, notwithstanding the appoint- of the defendant shall cease on the ment of a receiver of the debtor cor- appointment of receivers, and receiv- poration, by proceedings in invitum ers have been appointed by the courts in Ohio, in view of the Tennessee of the state. Barker v. Central Ver- statute providing that residents of mont B. Co. Rap. Jud. Quebec, 13 other states, having exhausted their C. S. 2. remedy there against debtors resid- * In many of the cases cited supra, ing in such states, may subject to notes 5 and 6, where the rights of the satisfaction of their claims prop- subsequent attaching creditors were erty situated in Tennessee. Corn,- upheld as against the receiver, the merdal Nat. Bank v. Motherwell property attached was an indebted- Iron & Steel Co. 95 Tenn. 172, 29 L. ness due from a resident. See espe- R. A. 164, 31 S. W. 1002. cially Catlin v. Wilcox Silver-Plate A creditor who obtains a judgment Co. 123 Ind. 477, 8 L. R. A. 62, 18 in Canada against property therein. Am. St. Rep. 338, 24 N. E. 250. upon a contract made and perform- But a, debt due to an insolvent able in one of the United States, be- Massachusetts corporation from a S 390b] BANKRUPT ASSIGNMENTS. 843 such right in another jurisdiction, it may confer upon the re- ceiver the right to personal property without, as well as that within, the jurisdiction. For this purpose and to this ex- tent, the general principle that the situs of personal property is at the domicil of the owner prevails. That principle fails only when it conies in conflict with the public policy of the jurisdiction in which the property is actually found. It is otherwise, however, with respect to real property. Such prop- erty has no situs at the domicil of the owner, and, as elsewhere® shown, it is impossible for a court of one jurisdiction to af- fect directly real property in another. It would seem, there- fore, that, unless the receivership proceedings are supplement- ed by a conveyance or assignment by the ovmer of the legal title, the receiver has no title to real property in another ju- risdiction which can be recognized by the courts of that juris- diction under the principles of comity.^" In the absence of special partnership of the same state lOThe appointment of a receiver is not, after the appointment of a does not give him title to real prop- receiver in that state and the service erty in another state, or authorize of the order of appointment upon the him to maintain an action in the partnership, subject to attachment in state of his appointment to contest New York, where one of the partners the title of purchasers under execu- is domiciled. National Broadway tion in the state where the property Bank v. Sa^npson, 85 App. Div. 320, is situated. Simpldns v. Smith & P. 83 N. Y. Supp. 426. The decision is Gold Go. 50 How. Pr. 56. Mosebij v. upon the ground that the debt hav- Burrmc, 52 Tex. 396, is to similar ing its situs in Massachusetts is eflfeet. vested in the receiver appointed in Small v. Smith, 14 S. D. 621, 86 that state. Am. St. Rep. 807, 86 N. W. 649, how- And Osgood y. Maguire, 61 N. ,Y. ever, holds that a foreign receiver of 524, held that a note due and pay- a foreign corporation, appointed by able in New York to a corporation a, court of competent jurisdiction, of that state had its situs in that and directed by an order of that state, and passed to a receiver ap- state to take possession of all the pointed there, and that his title real and personal property owned by could not be defeated by a subsequent the corporation, may maintain an attachment in Massachusetts, al- action in South Dakota for the re- though the maker was a resident of eovery of real property in the pos- the latter state. session of a resident, if no rights of iAnte, § 289a. resident creditors intervene. There 844 LAW OF THINGS. [Chap. VII- sueh a conveyance or assignment, therefore, the appointment of an ancillary receiver would seem to be necessary to reach, real property in another jurisdiction. Some of the earlier cases, upon the ground that the appoint- ment of a receiver has no extraterritorial effect, have appar- ently laid down the broad doctrine that a foreign receiver can- not sue in his own name;^^ but while a foreign receiver has seems to have been no conveyance or tension of the principles of comity assignment to supplement the decree in this respect. appointing the receiver. The court Frequently, general statements to assumed that the rule above stated the effect that a, foreign receiver has applies to real, as well as to person- no right to maintain a suit in his al, property. own name have reference merely to- Oliver v. Clarke, 45 C. C. A. 360, the absolute or legal rights of the 106 Fed. 402, also holds that a re- receiver, and are not intended to deny ceiver appointed in another state that he may be allowed such privi- might sue for the recovery of real lege as a matter of comity, estate in Texas. But in that ease Some, even of the later cases, how- the receiver claimed under a convey- ever, seem to deny the capacity of a ance to him as such, and did not receiver, either as a matter of right rely alone upon the decree by which or of comity, to maintain a suit out- he was appointed. side of the jurisdiction of his ap- iiBooi/i V. Clark, 17 How. 322, 15 pointment. Thus, it is said in L. ed. 164, apparently went to this Homer v. Barr Pumping Engine Co. extent, and has been frequently cited 180 Mass. 163, 91 Am. St. Rep. 269, as authority for the proposition that 61 N. E. 883, that the general rule a foreign receiver cannot maintain a in Massachusetts is that a receiver suit in his own name. The attempt of a corporation has no right outside of the foreign receiver in this case of the jurisdiction of the tribunal was to reach a chose in action, and that appoints him, to sue in his own was opposed by creditors, — apparent- name on a claim of the corporation ly creditors who were residents of unless he actually or virtually is an the forum, — so that the actual deei- assignee of the claim he seeks to en- sion upon the facts is reconcilable force. with the doctrine that a foreign re- So, Eale v. Harris, 112 Iowa, 372,. ceiver may, upon principles of com- 83 N. W. 1046, intimated, though it ity, be allowed access to the local did not decide, that a foreign receiv- courts when no rights of domestic er, as such, had no right to main- creditors or creditors resident in a tain a suit to foreclose a mortgage; third state -s^ill be prejudiced. Be- but overruled a demurrer to the com- yond this the case has not been gen- plaint for want of capacity, it ap- erally followed, as the tendency is pearing that the mortgage had beeni constantly toward a more liberal ex- assigned to the receiver. :§ 3