?•• Cornell University Law Library The Mbak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® KD 680.N42""' """"""' """"^ ®*'*!iinlfM?lfi?ln?.M??„.3n.l..orAers f lu 3 1924 021 667 260 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Library, 2008. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.prg/details/cu31924021667260 ^ Diqitizeuby Microsoft® fby Digitized by Microsoft® SELECTED CASES, STATUTES AND OEDERS ILLUSTRATIVE OP THE PRINCIPLES OF PRIYATE INTERNATIOML LAW AS ADMINISTEEED IN ENGLAND. Digitized by Microsoft® Digitized by Microsoft® SELECTED CASES, STATUTES AND OEDEBS ILLUSTEATIVE OF THE PEINCIPLES OP PEIYATE INTEPiMTIOML LAW AS ADMmiSTEEED IN ENGLAND, WITH A COMMENTARY. BY HORACE NELSON, M.A., B.C.L., BAEBISTEB-A T-LA W. LONDON: STEVENS AND SONS, LIMITED, 119 . R 59, 434, 435 Bodily V. Bellamy 279 Bold Buccleugh, The 365, 371, n. Bolton, Re 186, 207 Bonaparte, The 253 Bond, Re 164 W.Bond 119 ■ V. Graham 202, 217, 218 BoneUi, Re 435 Bonneval, Dev. DeBonneval 27, 1S6, 189 Booth V. Leyoester 372 Boucher v. Lawson 266 Bouoioault v. Chatterton 319 V. Delafield 318 Boulton V. Dobree 42 Bourgoise, Re 57, 69, n., 423 Bourke v. Ricketts 200 Bousmaker, Ex parte , 43 Bovey v. Smith 194 Bowaman v. Reeve 198 Bowes, Re 198 Boyes v. Bedale 18 Boyle V. Sacker .^ 411 Boyse, Re 390, 419, 420 V. Cololough 189, 194 Bradford v. Young 17, 25, 109, 190, 193. 194, 197, 276 Bradlaugh v. De Ein 390 Bradley «. Eyre 338 Brandon, Ex parte 163, 164, 408 Brandon v. Curling 43 ■ ■ V. Nesbitt 42 Branley ». S. E. R. Co 275 Brazil (Emperor of) v. Robinson . . 406 Erettilot v. Sandos 425 Brickwood v. Miller 170 Briggs V. Briggs ..22, 25, 27, 123, 132, 133 Bristowj). Seoqueville 260, 261, 427, 428, 435, 436 British Linen Co. v. Drummond. .425, 426 Marine Co. v, Innes 414 Brittlebank ». Smith 431 Brodie v. Barry 199 V. Brodie 120 Digitized by Microsoft® TABLE or CASES CITED. Xlll Brook V. Brook 82, 83, 89, 91, 92, n., 146 Brooke v. Brooke 432 Brown v. Collins 422, 423 V. Grooey 256, 441 V. Knapp 217 V. L. N. "W. E. Co 224, 229 V. Lynch 21 V. Thornton 427, 432 Bruce, Ee 46, 378 V. Bruce 22, 26, 32, 197 Braere, Ee 422 Brunei v. Brunei 15, 24 Brunswick (Duke of) v. King of Hanover 404, 405 Bnccleugh v. Hoare 148 Buchanan «. Eucker..349, 360, 361, 428 Buenos Ayres Co. i . Northern Eail. Co 150, 229, 232, 233 Bulkeley v. Schutz 231 BuLlen-Smith, Ee 24,409 Bullock V. Caird 417, 426 Bnnbnry v. Bunbury 149, 150 Burgoyne's Trade Mark, Ee 329 Burland, Ee 238,416 Bum V. Cole 208 V. Farrar 97 Buron v. Deuman 65 Burrows v. Jemino . . 172, 266, 356, 368 Burton v. Burton 120, 124 V. Fisher 27 Buseck, Re 186, 187, 192 Busfield, Ee 399,408,409 Butler V. Dolben 27, 120, 125, 126 V. Freeman 90 Butson, Ee 206 Butterfield v. Financial News .... 421 Buxton V. James 318, 319 Caoiu, v. Wooldridge 214 Calcutta Jute Mills Co. v. Nicholson.. 228, 241, 385 Caldwell v. Van Vlissengen . . . 292, 293, 324, 326 Califomian Fig Syrup Co., Ee. . 322, 336 Call V. Oppenheim 374, 416 CaUaghan, Ee 69 Callandar v. Dittrich 356 Calvin's Case 45, 46, 47 Campbell, Ex parte 164 ,Ee 205 V. Att.-Gen 419, 420 V. Beaufoy 197, 198 V. Campbell 193 V. Dent 277 V. Graham 200 V. Sandford 200 Capdevielle, Ee 15, 16, 23, 32, 381 Carolina, The 40 Caroline (Queen), Trial of 208, n. Carron Iron Co. v. Maclaren . . 229, 232 Carteret v. Petty 149 Digitized by PAOB Cartwright v. Cartwright 436 Cash V. Kenniou 279 Cassell i>. Stiff 317 Casseres v. Bell 45 Castrique v. Behrens 365 V. Imrie . . 161, 188, 339, 341, 343, 344, 352, 353, 355, 356, 357, 364, 365, 435 Catterina Chiazzare 370 Catterrall v. CatterraU 94, 95 Cavan v. Stewart 346, 360, 361, 428 Cesena Sulphur Co. v. Nicholson . . 228, 241, 386 Chamberlain v. Napier 109, 258, 276 Chambers v. BrightweU 217, 219 Champart v. Eanelagh 279 Chandler v. Chandler 124, n. Chapman, Ee 374 Charkieh, The 403 Chartered Bank of India v. Nether- lands India Co. . . 258, 268, 275, 290, 291 292 293 Chatfield v. Berohtoldt .'. 148*, 380 Cherry v. Thompson 110 Ohetham v. Audley 221 Chichester v. Chichester 124, 408 V. Donegal 125 Child, Ex parte 72 Christiana, The 292 Christiansborg, The .... 369, 370, 371, n. Cigala, Ee 382 Cita of Mecca, The 352, 366 Clarke, Ee 189 V. Cretico 402 V. Emery 429 — ■ V, Newmarsh 29 V. Ormonde 151 Clayton, Ee 212 Olegg V. Levy 259, 260, 436 Cleremont, De v. Brasch 275, 441 Clugas V. Penaluna 261, 262 Clyde, Ee 71 Coales, Ee 380 Cooh V. Allcock 419, 420 Cockerell v. Barker 200, 221 V. Dickens.. 147, 168, 169, 441 Cockrell v. CookreU .... 21, 25, 26, 31, 32 Cocks 4). Purday 435 Cohen v. S. E. Ey. Co 275 Cole, Ee 206 1). Sherrard 432 Coles V. Eobins 409 CoUett V. Collett 16, 120, 124 CoLier, Ee 211 41. Eivaz 21,187 Collins V. Collins 121 Co. I/. Brown 231, 328 V. Cowen 328 V. Eeeves 231, 328 Colliss i;. Hector 107,108,109 Colombian Government v. Eoths- child 406,. 408 Colonial Bank v. Hepworth 283, 286 Colquhouni). Brooks 66, 380, 386,387, 389 Colvillo V. Saunders 7 Vlicrosoft® XIV TABLE OF CASES CITED. PAQB Commercial Bank of India, He , . . , 240 of South Australia, Ee 240, 281 Commissioners of Sewers v. Gellatly 371 Commonwealth v. Aves 65 Compton. V. Bearcroft 91 Concha v. Concha 22, 190, 197 «>. Murrieta 434 Concordia, The 37 Connelly D. Connelly 133 Connor v. Bellamont 279 Constitution, The 297, 404 Conway's (Countess) Case 59 V. Beazley 132 Cood V. Cood 277 Coode, Ee 206 Cook V. Cook 124, n. V. Gregson 198 Cooke's Trusts, Ee . .17, 67, 92, n., 107, 108, 256, 257 ». "WUhy 431, 432 Cockney v. Anderson 149, n. Coomber v. Berks 187 Cooper J). Cooper ..67, 92, n., 107, 108, 256, 257, 434 V. Moon 430, 432 V. Stuart 147 V. Waldegrave 279, 426 Cope I'. Doherty 425 Copin V. Adamson 240, 363 Coppin V. Coppin 146, 194 Corbett v. Gen. Steam Nav. Co 229 Cosio V. De Bemales 256 Cosnahan, Ee 187, 208 CoBsman v. British America Assur- ance Co 365 V. West 365 Costa Eiea (Eepublic) v. Erlanger. . 406 Cottington's Case 133 Cowan V. Braidwood 361 Cox V. Mitchell 369 V. Eabbits 243 Craigie v. Lewin 31, 32, 33 Cranstown v. Johnston 150 Crawford v. Whittal 316 Crawley v. Isaacs 359, 361 Credits Gerundeuse v. Van Weede. . 409 Cresswell v. Parker 415 Crispin, Ex parte 163, 165, 387 Crofton V. Crofton 419 Croker v. Hertford 16, 186 Crookenden v. Fuller 16, 25, 187 Crosse v. Talbot 396 Cruikshank v. Eobarts 371 Cunard, Ee 215 Cunha, Da, Ee 56,209,210 Cunningham, Ex parte. . 23, 26, 30, 31, 32 Curling v. Thornton 23 Currie v. Bircham 217 Curtis V. Hutton 147 Cust V. Goring 148 Dakin 11. Oxley 249 Dalglish V. Jarvie 327 PAGE Dalhousie v. M'DouaU . . 11, 17, 18, 30, 105 Dah-ymple v. Dalrymple. . 19, 90, 91, 93, 136 Daly, Ee 105,106 Daniel v. Luker = 202 «;. Oakley 413 Danous, The 40 Darling, Ee 28 «». Atkins ..400, 401 Davidson, Ee 167,169 Dimes, Re... ' 422 • V. Lynch 45 Davis' Trade Mark, Ee 329 ■ -Trusts, Ee 430 Daw V. Eley 322 Dawkius v. Simonetti 375 Dawson v. Jay 69 Deck V. Deck 119 De Cosse Brissao v. Eathbone 188, 339, 342, 360, 357, 362 De Grouchy v. WiUs 27, 106, 277 Dehais, Ee 189 De la Chaumette j;.' Bank of Eng- land 282 n. Delegal v. Naylor 282 n., 285 De Leon v. Hubbard 430 Delta, The 354, 355, 372 Delvale v. Homer 400, 401 Dendre Valley Ey. Co., Ee . . 240, 241 D'Etchegoyen v. D'Etchegoyen . . 20, 22, 23, 24, 25, 118, 120 Dever, Ex parte 172, 275, 276 Dewar v. Maitland 199 V. Span 279 n. De Wutz V. Hendricks 265 Diana, The 41 Dick V. Tolhausen 338 Dillon V. Alvares 371 n. Di Savini v. Lousada 69 Di Sora v. PhilUps 276, 441 Divenny v. Corcoran 204 Dobree v. Napier 290, 292, 298 Doe V. Acklam 46 V. Ackwright 46 V. Mulcaster 46 V. OHver 339, 342, 344 Doglionit'. Crispin 19, 188, 197, 198, 354 Dolphin V. Eobins 105, 131, 133, 193 Don, Ee 144 ■ V. Lippmann . . 346, 360, 425, 426 Donegal v. Donegal 122, 126 Donegani v. Donegani 59 Donohoe v. Donohoe 66 Dormoy, Ee 210, 436 Dost Aly Khan, Ee 189, 210, 436 Doucet V. Geoghegan 23, 25, 26 Douglas V. Brown 434 V. Douglas 15, 21, 22, 29 B. Eorrest 350,361 Dowdale's Case 219 Dree Gebroeders, The 41 Drevon v. Drevon 22, 24, 32 Drewe, Ee 215 Dreyfus v. Peruvian Guano Co 423 Digitized by Microsoft® TABLE OF CASES CITED. XV PAGE DTunuBond's Case 59 Drummond v. Drnmmond .... 149, 198 Du Boulay v. Du Boulay 330 Dues i>. Smith , 106 Duflos V. Burlingham 360, 362 Du Moulin v. Druit 94 Duncan v. Campbell 276 V. Cannan 108 andLawson, Ee.. 148, 192, 198 Dundee Rail. Co., Ee 351 Dungannon v. Hackett 279 Dunston v. Paterson 27 Duranty v. Hart 253 Durham v. Spence 110 Eaoee, Re 408, 412 Eames ». Hacou 201 Earl, Re 208, 430 Easton v. London Joint Stock Bank 285 Edgebury v. Stevens 322 Edinburgh (Provost of) v. Aubery... 214 Effurth V. Smith 44 EHns V. East India Co 293 EUas, Ee 71 Eliza Cornish, The 168, 160 Elliott V. Minto 148, 198 ElHs V. Loyd 279 r. McHenry 171, 172, 279 Elmslie v. Boursier 324 Emery V.Hill 214 English V. Caballero 401 Enohin 4'. Wylie 208,218 Erichsen v. Last 241, 242 Erminia Foscolo, The 372 Escallier v. Escallier 18 Esposito V. Bowden..41, 43, 261, 263, 265 Este V. Smyth 96, 109 Etrufes, The 39 Evans v. Burroll 206 V. Higgs 394, 400 Ewin, Re 377 Ewiug, Ee 207, 211, 216, 220 V. Orr-Ewing..l5, 69, 146, 150, 197, 201, 205, 219, 220, 410 Exchange Assurance v. Vaughan . . 243 Express, The 267 Factagb Parisien, Ee 240 EairUe v. Boosey 317 Farina, Ee 330, 367 Famell v. Bowman , 403 Farrell's Trusts, Ee 432 Faulkener ». Daniel 428 Fawcus, Ee 432 Feaubert v. Turet 108, 109, 110 Featon v. Livingstone. . 19, 88, 145, 146, 152 V. Pearson 44 Ferguson, Ee 69 V. Spencer 171 Fergusson v. Fyffe 279 Femandes Executors' Case . . 202, 203, 218, 382, 384 PAGB Field v. Bennet , 410 Findlay, Ee 70 Finlay v. Finlay 427 Firebraoev. Firebrace .. 14, 17, 20, 22, 30, 117, 119, 124 Fisher v. Begrez 401 ». TuUy 16 Fitch V. Weber 45 Fittock, Ee 206 Flack V. Holm 425 Flad Oyen, The 59 Flatau, Ee 367 Flindt V. Scott 44 ■ V. Waters 43 Florence Land and Public Works Co., Re 285 Flower v. Lloyd 365, n. Fogassieras, De v. Duport..l47, 194, 208 Folkien v. Critico 72 FoUiott ». Ogden 65 Fontaine's Case 361, 423 Forbes v. Adams 148 V. Cockrane 65 V. Forbes.. 17, 20, 21, 24, 31, 32, 214 1). Steven 380 Ford V. Miesoke 416, 432 V. Shephard 410 Foreign Bondholders v. Pastor .... 404 Foster v. Vassall 150 Franconia, The 293, 296 Eraser, Re 215 V. Nevins 420 Frayes v. Worms 354 Frearson v. Loe 324 Freeland v. Walker 44 Freeman, Ee 215 v. East India Co 158, 160 «. Fairlie 221 Frith V. WoUaston 368, 375 Fry t). Moore 411 Furtardo v. Eogers 42, 43 Gaetaho and Maria, The . . 267, 268, 427 Gage V. Bulkeley 353 GaUy, Ee 192 Gamba v. Le Messurier 43 Gambler v. Gambler 68, 69 Ganer v. Lanesborough 428 Ganz, Ee 301 Gardiner, Ee 211 V. Houghton ■ 172 Gardner v. Wright 430 Gamier, Ee 70, 71 Gattomo v. Adams , 253 Gaynor, Re 213 Geer, de v. Stone 46, 47 General Steam Navigation Co. v. GuiUon. .228, 238, 239, 290, 349, 350, 356, 362 GentiH, Re 108, 147, 194 Gera v. Ciantar 18 Gerasimo, The 41 Gettys 1'. Getty s 124 Digitized by Microsoft® XVI TABLE OF CASES CITED. PAQE Gibbons v. Vouillon 395 Gibson, Ex parte 164 GUbeitson v. Fergussou . . 230, 241, 243 Gilchrist ». Herbert 390 Gill j>. Barron ,... 171 GOlam, Ex parte 71 Gillespie, Ee . .'. 28] , 282, n. GiUis «;. GiUis 15,28,118 Gladstone v. Musurus Bey 404 Goldsmid, Ex parte 170, 172 Goldswortby, Be 422 Goodfellow V. Prince 329 Goodman, Ee ..17, 18, 19, 69, 144, 146 Goodwin V. Archer 402 V. Robarts 276, 283 Gordon, Ee 205 Gordon's Settlements, Ee 409 Gorgier v. MieviUe 283 Gout V. Zimmerman 105 Grant v. Easton 351 Gratitudine, The 168 Gray v. Press Association 413 Greece (King of) v. "Wright 406- Greer v. Poole 268 GreU V. Levy -. 261, 263 Grenfell v. Commissioners, &o 389 Griefswald, The 356 GrifEn v. Brady 361 Grimwood v. Bartels 148 Grogan v. Lend. & Manch. Eail. Co. 16 Grove, Ee 15, 18, 19, 22, 23, 24 Guardians of High-vrorth i/. West- bury-ou-Severn 21 Guerin, Ee 46,301 V. Bank of France 301 Guibert, Ee 216 Guidici V. Kinton 217 Guier v. Daniel 22 GuiUebert, Ex parte 279, n. Guiterman, Ee , 327 Gutierrez, Ex parte ■ . . , . 164 Guttierez, Ee 186 Habee v. Queen of Portugal 404 Haggitt V. InefE 430 Haines v. Busk 262 Haldane v. Eckford 14, 15, 21 Hall V. Odber 351, 354 Hallyburton, Ee 192 Hamburgh, The 253, 267 Hamilton v. Barr 413 V. DaUas . .24, 25, 29, 187, 20j0 Hanson v. Walker 198 Hare ». Nasmyth 187, 189 Hartnan v. Kingston 42 Harmony, The 25, 41 Harris, Ee 206 V. Owners of Franconia .... 296 V. Quine 353, 355, 426 v. EothweU 322 267 Harrison v. Gumey 149, 151 ■ V. Harrison 108, 147, 148, 198, 199 PAGE Hart V. Herwig 400, 413 V. Von Gumpaoh 290, 441 Harvey «. Archbold 279, n. V. Dougherty 412, 414 V. Famie. . 15, 88, 91, 92, 93, 105, 106, 107, 110, 118, 120, 122, 130, 131, 132, 133 HassaU v, Lawrence 413 Hawkins v. Sagdale 134 Hawksford v. Giffard .... 352, 355, 356 Hawthorne, Ee 149 Hayward, Ex parte 412, 413 Heath v. Sampson 27, 30 Heathfield v. Chilton 401 Heaton's Trade Mark, Ee 328 Hellmann, Ee 66, 68 Henderson, Ee 354, 355, 367 V. Henderson. .351,354,356, 357, 360, 371, n. V. Eothscluld . .285, n., 404 Hendricks v. Australian, &c. Co. . . 267 Heneage, Ex parte 430 Henley, Ee 214 V. Soper 354 Henriques v. Henriques 120, 123 Henry v. Ady 428 Hepburn v. Skirving 27, 32 Herbert v. Herbert 90 Heriz v. Eiera 266 Hermann Loog, Ee 241 Hernando, Ee 109, 146, 193, 276 Hervey v. Fitzpatriok 218, 219 Hessing v. Sutherland 71 Het Huys, The 37 Hewitson v. Fabre 410,417 Hewitt, Ee 199 Hicks «. PoweU 149, 150 Hill, Ee 208 Hillyard v. Smith 410, 412 Hitohins v. Hitchins 420 Hobbs V. Henniug 366 Hodgson V. De Beauohesne . . 16, 22, 23, 25, 26, 31, 32, 33, 40 Hog V. Lashly 198 Holland v. Hall 263, 265 Hohuan v. Johnson 262 Holmes, Ee 149, 152 V. Holmes 200 Holthausen, Ex parte 173 Hood V. Barrington 204, 205 Hoop, The 42 Hooper v. Gumm 162 Hope V. Carnegie 149, 220 V. Hope 69, 261, 263, 422 Hopldns V. Eoebeck 395, 400, 401 Horsy v. Daniel 338 Hoslnns v. Matthews 21, 28 Hottentot Venus' Case 72 Houlditch V. Donegal! 341 Houstoun, Ee , , 72, 422 V. SUgo . . 356, 372, 373, n., 430 Hovey v. Blakeman 221 Howden, Ee 206 Huart V. Harkness , . , . , 192 Huber v. Steiner 426, 428 Digitized by Microsoft® TABLE OF CASES CITED. XVll FAQS Hudson V. Clementson .,,,.,,.,, 263 Hughes V. Cornelius , , . , 61, 366 HuUet V. King of Spain 406 Humpherson v. Syer .327 Hunt t>. Hunt 133 Hunter v. Nookolds 187 V. Potts 168 V. Stewart 366, 367 Hutclieson, He 205 Hutchinson, Ex parte 430 V. Colorado 409 Hutchison v. Cathcart 106 Huthwaite v. Phayre 216 Hymani). Helm .... 369, 370, 371, n., 372, 373, n. Ildeeton v. Udertou , . . . 136, 144, 146 Imlay v. Ellefsen 371, 424 Tmrnanuel, The 41 Imperial and Continental Gas Asso- ciation V. Nicholson. .228, 241 Land Co. of Marseilles v. Masterman 420 Ingate v. Austrian Lloyd's Co 238 Ingham v. Sachs 133 Innes v. Dunlop 278, n. V. Mitchell 220 International Pulp Co., He 241 Ireland v. Livingstone 277 Isaacson v. Durant 46, 46 Isherwood v. Cheetham 188, 190 Jackson's Trade Mark, Ee 329 V. Napper 329, 330 V. Petrie 160, 161 Jacobs V. Credit Lyonnais .... 258, 260, 270, 277, 279 James v. Catherwood 268 V. Despott 417 V. James 94, 95, n. Jameson «. Marshall 218 Jauney v. Sealey 219 Jefferson v. Glover 216 Jeflerys v. Boosey 318, 346 JeUard, Ke 409 Jenney v. Mackintosh 414, 441 Jephson v. Kiera 46 Jemingham v. Herbert 148 Johann Christoph, The 41 Johnson's Patent, Ee 326 Johnston v. Orr Ewing 328 Johnstone v. Beattie . .20, 28, 68, 69, 72 V. Baker 148 Jollett V. Deponthieu 155, 168 Jones V. Garcia del Eio 265 V. Scottish Co 228, 238 Jonge Klassina, The 41, 44 Jopp V. "Wood. .16, 21, 26, 26, 31, 32, 40 Joynt's Divorce Bill. . . , 124, n., 409, n. ^* Digitized by FAQE Kalienbacb V. Lewis 276, 277 Kamak, The 267 Kaye v. Sutherland 412 Kelsall V. MarshaU 239, 363 Kenar's Trusts 430 Kent V. Burgess 90 Keynsham Co. v. Baker 229 Kibble, Ex parte 367 KUdare v. Eustace 160 Kilkenny Co. v. Eielden 223, 229 King V. Brampton 97 V. FoxweU 15, 17 Klingemann, Ee 436 KLoebe, Ee 198 Knight, Ex parte , 167 Knowles v. Eoberts 416 Kynnaird v. Leslie 93 Lacon v. Higgins 90, 256 Lacroix, Ee 187,191,192 Lamotte, Ee 422 Lane, Ee 220, 410, 412, 414, 430 Laneuville v. Anderson 195, 210 Lang V. Smyth 283 Langen v. Tate 420 Langwoi-ihy, Ex parte . ,23, 24, 26, 163 Lansdowue v. Lansdowne .... 108, 201 Lanwaine, Ee ..,,,, 421 Larpent v. Sindry 190 Lauderdale Peerage Case. . 16, 17, 18, 21, 22, 23, 24, 26, 28, 30, 95, u., 152 Lautour v. Teesdale 94 Law V. Garrett 363, 371 Lawson v. Vacuum Brake Co 420 Lebel v. Tucker 278, n., 281, n. Le Chevalier v. Lynch 169 Lee V. Abdy 278 Lees V. Lees 430 Leese v. Martin 417 Leevin v. Comae 44 Leishman v. Cochrane 429 Lemons, Ee 70 Lenders v. Anderson. .408, 409, 410, 412, 416 Leo XIII., The 266 Leon, The 292 Leonard v. Wells 329, 330 Leroux v. Brovim 258, 261, 427 LesUe v. BailUe 202, 216 Le Sueur v. Le Sueur 106, 117, 119 Lett, Ee 107 Lever v. Fletcher 266 Levitt V. Levitt 430 Levy, Ee 167, 169 Lewis V. Baldwin 233 V. Herbert 410 V. Kingsbury 420 Lhoneux & Co. <;. Hong Kong Bank 233, 237 Liberia (Eepublio of) v. Imperial Bank 406 Microsoft® n TABLE OF CASES CITEt). PAGE iard, Ee .' 215 ig's, Ee 409 it V. Antioosti 420 itfoot V. Tenant 261 ehouse Board of Works, Ex ,rte, Re VaUance 202, 203, 218 eriok v. Limerick 94, 95, n. on V. Heddle 413, 414 rpool Insurance Co. v. Massa- chusetts ; 238 Marine Credit Co. v. Hun- r 162,358, 362, 425 etta. The 426 'd Italiano, Re 241 ■ V. Pettijean 96 iwood V. Coysgafne 400, 401 an V. Fairlie 202, 219 )el V. Strampfer 429 ion and County Banking Co. v. iver Plate Bank 283 f. W. Ry. Co. 0. Lindsay .... 351 g, Re 215 gford, The 352, 366 ez V. Burslem 426 elace, Re 382 ■«. "Ward 317, 318 ■e V. Eairlie 202, 219 IS V. Dixon 277, n. y, Re 207 U «'. Jardiue 170 ■ V. LyaU 380, 382 ! V. EEwood 430 ch V. Provisional Q-ovt. of Para- lay 65, 196 us, Mayor v. East India Co. 95, n., 241 /AETHY V. Decaix 130, 131 Jonnell v. Hector 44, 45 /ormiok v. Gamett 106, 435 Jullock, Ex parte .... 170, 171, 374 donald v. Maodonald 199, 435 farlane v. Norris 426 Hbton t!. Ahbott 193, 194, 198 gregor v. Lowe 406 lenry v. Lewis .... 369, 370, 371, 372, 373 kemde. Re 208 V. Eorbes 380 kereth v. Glasgow & S. W. Ry. ) ^. 233 kie V. Darling 69 kintosh, Re 374 leod V. Sohultze 356 joughlin, Ee 90 namara v. d'Evreux 265 nichol, Ee 217 'hail. Ex parte 415 pherson v. Maopherson 434 reight. Re 20, 30 razo V. WiUes 65 rid & Valencia Ey. Co., Re . . 240, 241 PAGE Magdalena Steam Navigation Co. V. Martin 400 Magee, Ex parte 432, 433 Maghee «). M'Alister 131 Mais, Ee 214 Malaohi Oarolino's Case . . 395, 400, 401 Malcolm v. Martin , 200 Male V. Eoberts . . 67, 68, 92, 256, 441 MaUIvo, The 371 Maltass v. Maltass 22, 26 Manger v. Eodrigues 351, 364 Manning v. Manning 120, 124 Maraver, Ee 68, 186, 196, 212 Marc V. Eouy 390 Maria v. HaU 42 Marrett, Ee 17, 22, 23, 25, 26, 32 Marseilles Extension Co., Ee . .268, 259 Marshall v. Critioo 402 V. Marshall 414, 416 V. Murgatroyd 47 V'. Mcholls 59 v. Parker 428 Marsland, Ee 25, 105, 106, 107 Martin, Ex parte 171 V. Lee 193, 194 V. Martin 151 Maspons v. Mildred 277, 426 Massey v. Heynes 414 Masters v. Manby 401 Matheson, Ee ', 240 Matthaei v. Galitzin 149 Mattos, Ex parte 170, 172 Maubourquet v. Wyse 346 Maughan, Ee 408 Maule V. Murray 351 Mavro v. Ocean Marine Insurance Co 267 Maxwell v. MoLure 22, 24 V. MaxweE 193, 991 Maynard v. Hill ^ 90 Mayne v. Butter 430 Mears v. Sinclair 21 Medley, Ee 69 Meek v. Michaelsen 410 Meeus v'. Thellusson 346, 363 Meikian v. OampbeU 221 Meinertzhagen v. Davis 216, 216 Melan v. Fitzjames 424, 425 Melbonm, Ex parte 172 Messina v. Petrocooohino 353 Mette V. Mette 89, 92 Meyer v. Dresser 426 V. Ralli 367 Mewburu, Re 409 Middleton ». Janverin 93 Mildred v. Maspons 276, 277 Miller v. James 187, 188 V. Race 286 Milne v. Graham 282 Minet v. Vulliamy 214 Minor v. L. & N. W. Ry. Co 229 Missouri Steamship Co., Re . . 266, 275 Mitchell, Ee 71 M. Moxham, The . . 148, 290, 291, 292, 300, 420 Digitized by Microsoft® TABLE OF CASKS CITED. XIX FAQE Moar V. Harvey 30 Montagu, Re 422 Montellano v. Christin 402 Moor V. Anglo-Italian Bank 149 Moore r. Harris 275 V. Hegeman , 134 Moorhouse v. Lord 13, 15, 26, 29, 32 Morgan, Re 71 V. Larividre 404 f. Oswald 44 Moritz V. Stephan 412 Mostyn v. Tabrigas 288, 290, 339 Moulin, Du V. Druitt 94 Mouton V. Schweitzer 420 Mnir, Re 205 Mulligan, v. Marsh 323 Munro v. Munro. .5, 7, 11, 15, 17, 18, 21 Mnnroe v. Douglas 6, 7, 9, 32 Murguia, Re 202, 213 Murray v. Bogue 317 Mutrie v. Binney 371, 372, 373 Naddj v. Bassett 420 Napoleon Bonaparte, Re 27, 212 Nat V. Coons 195 Nathan, Re 409 v. Seitz , 413 Nayade, The 40 Naylor v. Eagar 371 Nelson v. Bridport 147, 150, 152, 434, 435 New V. Bonaker 215 Newby v. Van Oppen . . 223, 232, 233, 234, 238, 239 New ChUe Co. v. Blanco .... 403, 412, 414, 416 Newman v. Finto 337 Newton's Patents, Re 326 V. Manning 71 New Zealand Co. v. Watson 277 Niboyet i;. Niboyet .. 29,66,118,119, 120, 12.3, 124, 126, 132 NickaUs, Re 206 Nickels V. Ross 322 Nobel's Co. n. Jones 324 Norden Steamship Co. v. Dempsey 276 Norris, Re 16, 165, 412 ^.Chambers 149,151 North Carolina Co., Re 241 Norton v. Florence Land and Public Works Co 149, 150, 277, 285 Nostra Signora de los Dolores .... 292 Nouvion V. Freeman 354 NoveUi V. Rossi 339, 342, 344, 355, 356 Novello V. Toogood .... 394, 400, 401 Nugent V. Vetzera 68, 69 Nutter V. Messageries Maritimes . . 232, 233 Nye IV Macdonald 432, 433, 434 PAOE Obicini v. BHgh 353 O'Callaghan v. Thomond 278, n. Ocean, The 41,44 Oohsenbein v. Papelier 364 Odwin V. Forbes 172 Ogden V. FoUiott 65 J). Peele 42 Ohio, &c. Co. V. Wheeler 223 Oldenburgh, He 189, 210, 436 OUphant, Re, 210 V. Hendrie 214 OUendorfe t: Black 318 O'Mealey v. Wilson 45 Ommaney v. Bingham 198 O'Neil D. Clason 417 Ongley v. HiU 420 O'Reardon, Re 170 Oriental, &o. Co., Re 241 Orion, The 37 Orleans, D', Re .... 27, 208, 209, 211 Ormiston, Ex parte 374 OrreU v. OrreU 194, 199 Ostell V. Lepage 354, 371, n. Page v. Donovan 186 Paget V. Ede , . . . 161 Palmer v. Gould's Co 233 Paradine v. Jane 250 Paraguay, Lynch v. Provisional Government of 65, 196 Parisian, The 420 Parker v. Olive 32 Parkinson v. Potter. . 400, 401, 402, 403 Parlement Beige, The. . . . 95, 291, 293, 296, 403, 404, 405 Partington v. Att.-Gen 187,203, 218, '387 Pascal, Ex parte 170 Patience, Re 16, 21, 26, 30 Patria, The 275 Patrick v. Shedden 353 Patten, Re 16, 20, 30 Pattison v. MiUs 266, 277, n. Paul V. Roy 363 Pearse v. Pearse 383 Peat, Re 147, 148 Pechell V. Hilderley 191 PeUecat v. AngeU 262 Penedo v. Johnson 406 Peninsular and Oriental - Steam Navigation Co. «). Shand ., 254, 271, 275 Penn v. Baltimore 150 Pertreis ■!>. Tondear 97 Peru, Republic of v. Dreyfus. . 406, 407 V. Peruvian Guano Co 406, 407 V. Weguelin .... 406 Peruvian Guano Co. v. Bockwoldt 369, 370, n., 371, n. b2 Digitized by Microsoft® XX TABLE OF CASES CITED. PAGE Peruvian Railways Co., Ee 240 Peshawar, The 370 Peter v. Stirling 382 Petty, Ee 189 PhiUps v. Hunter 158, 168, 339 PHUips V. Allan 172 V. Eyre 172, 290, 291 Phipps V. Anglesea 201 Phcenix, The 40, 41, 42 Phosphate Sewage Co. ». MoUeson 441 Picker v. London and County Bank- ing Co 282, 283 Pickering ». Stephenson .... 233, 441 Pierson v. Garnet 200 Pieters v. Thompson 371, n. Pike ». Hoare 149 Pipon V. Kpon 1-54, 197 Pitt V. Daore 147, 148 — — V.Pitt 123 Planchc v. Eletcher 266 Plimpton V. Malcolmeon 322 Plomley, Re 69 Plnmmer v. Woodbume 354, 356 Poitier v. Croza 400 Pollard, Ex parte 150,151 PoUexfeu v. Sibson 418 Pommery v. Apthorpe 389 Poole's Patent, Ee 326 Pope V. Nickerson 252 Portland, The 41 Postilion, The 41 Potinger v. Wrightman 20, 21 Potter V. Brown 172 Potts V. Bell 42 , Ee 203 Power V. Whitmore 356 President, The 41 of U. S. A. V. Drummond 22, 31 Preston V. Melville .... 183, 197, 201, 203, 218 Price, Ee 28 V. Dewhurst.. 203, 218, 364, 365 Primus, The 41 Prioleau ». IT. S. A 406 Probart, Ee 208, 209 Proctor V. Tyler 420 Qttaeeiee v. Colston 262 Queensland Mercantile Co., Re ... . 241 Queen's Proctor «. I^ 430 Quelin *. Moisson 172 Raohael, The 39 Raflenel, Ee 16 Eaphael v. Burt 283 Rathbone, Ex parte 173 PAOB Rathbone, Re 409 Raymond v. Broadbelt 200 Read, Re 208 Regent Stores, Re 238 Eegiua v. Allen 298 V. Anderson 72, 298 V. Armstrong 298, 300 V. Azzopardi 299 V. Bjomsen 298 V. Carr 297 V. Commissioners, &o 384 V. Cumimg 32 V. Dudley 296, 298 V. Ganz 301 V. Holmes 300 V. Jacobi 300 V. Keyn 291, 296 V. Lesley ....290, 291, 298, 300 V. Lewis 299 V. Lopes 297, 298 V. Manning 66 V. MiUis 94, 95 V. Newman 428 4'. NiUins 300 V. Peel 298 V. Povey 436 V. Sattler 297 V. Sewa 297 V. Von Seberg 298 V. Zulueta 300 Eeid, Re 187, 195 V. Hadley 285, 364 V. Hoekins 263 Reimers v. Druoe 339 Reiner v. SaUsbuiy 149 Eenard v. Levinstein 323 Eensborg, The 41 Eeuss V. Bos 240 EeveU, Ex parte 367 Rex i>. Brampton 97 V. Depardo 297 V. Ealing or Ely 299 V. Eaop 300 1). Helsham' 299 V. Hutchinson 368 V. Mattos 299 ». Sawyer 299 V. Schiever 72 V. Topping 300 Reynolds v. Coleman 26, 413, 416 V. Eenton 360 Ricardo v. Garcias 356 Richards v. Goold 268 Richardson v. Dowdele 219 Eippon, Re 190 Riviere's Trade Mark, Re 329 Roberdeau ». Rous 160 Roberts v. Hardy 44 Robertson, Re 26, 27, 28 V. Jackson 253 Robey v. SnaefeU Co 413 Robinson, Ex parte 170, 171 V. Bland.... 146, 262, 271, 853 Robotham v. Robotham 124 Roche, Re 204 Digitized by Microsoft® TABLE OF CASES CITED. XXI PAGE gers V. L. 0. D. By. Co 229 gerson, E,e 208 oker V. Hooker , 90, 94 se V. Ross , 11 sse's Case 394 thr. Roth 88,91,92 thscMld 4'. Queen of Portugal . . 406 uq^uette v. Overmann 426 usiUon V. EousiUon . . 261, 265, 360, 363 utledge V. Low 318 okmaboye v. Mottiohund 425 .ddimau's Trust 409 ding V. Smith 94, 95 Je, Ee 189 mbaU V. Metropolitan Bank .... 285 5sell V. Smyth 348, 354 aU r. Kennedy 21 an V. Kyan 133 de, Ee 205 DLEB V. Eobins 353 s Case 297,^94 .mon V. Dunoombe 16, 56, 196 1 Eoman, The 267 idilands v. Innes , 218 idwith V. Sand with Ill ito Teodoro v. Santo Teodoro- . . 119 itos V. Illidge. .65, 261, 262, 263, 264, 300 •gazurietta, Ee 71 i»ris, Ee 208, 211 inders v. Drake 200 issaye, Ee 206 rini, Di v. Lousada 69 i?yer v. Shute 106 lool Directors v. James 21 iwalbe. The 292 itt, Ee 421 -V. Att.-Geu...24, 105, 127, n., 132, 134 - V. Bentley 69, 71 - V. Bevan 279, 351 - V. Pakingtou .... 339, 342, 354, 367 - V. Eoyal Wax Candle Co 238 - V. Seymour 291 icomb V. Bowlney 400, 401 Igwiok V. Tedras 238 krig V. Davis 168 I V. Miller 147 QphiU V. Queensland Co 168 re, De v. Clarke 106 Tnour V. Seymour 414, 415 rza V. SandUands 67 irp V. St. Sauveur 56, 58 V. Taylor 206 irpe V. Crispin 20, 27, 28, 29 iw r. Att.-Gen 127, 132 -». Gould 131,133 - V. Staughton 202 !arman «. Findlay 416 FAOE Sheddenv. Att.-Gen 127 V. Patrick 137,141 Sheehy v. Professional Life Assur- ance Co 240, 363, 359 Sheffi.old V. London Joint Stock Bank 285 Sheppard v. Dalbiao 421 Shiels V. G. N. Ey. Co 224, 229 Sholtsn, The "W. A 233 Sibeth, Ex parte 110, 172 Sidaway v. Hay 171 SifBkin v. Allnutt 44 V. Glover 44 Simeon v. Bazett 366 Simonds v. White , 254 Simoninw.Mallao. .73, 81, 83, 91, 92, n., 125 Simpson v. Pogo 289, 339, 358, 362 ■ — V. Hazard , 419 Sinclair v. Sinclair 133, 366 Skottowe V. Tonng 380 Slave Grace, The -65 Sloman v. New Zealand. . 238, 403, 410 Smallpage and Brandon's Case . . 281, n. ■!!. Tonge 410 Smart, Re , 207 Smith, Ee 208, 215, 381 V. Buchanan 172 V. Condry 289 r. Davis 430 V. Go\dd 441 V. Maxwell 90 V. Moffatt 169 V. Nioolls 354, 356, 360 ■ ■ II. WegueHn 404 Smyth, Ee 422 SneUe Zeylder, The 36 Snook V. Mattock 338 Societe Anonyme, &o. , de Glaces v. Tnghman's Co 325 Generale de Paris r. Drey- fus.... 358, 373, 374, 415, 416 Industriale v. Companhia Portugueza 232, 238, 363, 410 Solomon v. Eoss 155, 156, 168 Somerville v. Sohembri 328, 330 4;. SomerviUe .. 15,20,23, 24, 31, 198, Sottomaior, Ee 72, 421 Sottomayor v. De Barros (Queen's Proctor intervening) . . 20, 24, 25, 26, 27, 82, 88, 89, 90, 91, 92, 93, 94, 434 Spain, King of v. Hullet 406 Spanish Sailors' Case 72 Sparenburgh v. Bannatyne. . 42, 43, 45 Speckardt v. Campbell 415 Speller «). Bristol Co 414 Spratt V. Harris 206 Stanley 4.'. Bernes .... 24, 175, 195, 196 Stapleton v. Conway 200, 201 Stark, Ee 71 Steamship Thanemore v. Thompson 414 Steele v. Braddell 91 Steele, Ee 199 Steer, Ee 16 Digitized by Microsoft® xxu TABLE OF CASES CITED. PAGE Steigerwald, Ee 208 Stephens v. MoParland 68 Stevenson- «!. Masson 17, 21, 23, 24 Stewart, Ke 210 V. Bank of England 404 . J). Gibson 66 ; V. West India Co 267 Stirling-Maxwell v. Cartwright . . 220 Stoddart, Be 195 Stonehamt). Ocean Ky., &o. Ins. Co. 296 Story v.Fvy 199 Strathmore Peerage Case 137, 141 Stronsberg v. Costa Rica 406 Stuart V. Bute 69 Studdi;. Cook 193 Sturla V. Freccia 430 Submarine Telegraph Co. v. Dick- son 292 Sudlow V. Dutch Ehenish Ey. Co. . . 233 41. Sudlow 124, n. SullevorSuUy ». Att.-Gen. 223, 226, 388 Sussex Peerage Case . .89, 434, 435, 436 Swansea Shipping Co. v. Duncan . . 409 Swift V. KeUy 90 Sykes v. Scholfield 414 Sylva V. Da Costa 72, 421 Tabes v. Bandelach 40 TaiUeur, Le v. S. E. Ey. Co 229 Tait, Ee 374 Talbot, Ee 422 Talleyrand v. Boulanger 424, 425 Tarleton v. Tarleton 356 TatuaU !;. Hankey 192 Taylor v. Barclay 265, 403 V. Best 47, 401, 403, 406 V. Crowland Co 229 V. Pord 360 Thomas J). Hamilton 412, 416 Thompson v. Barclay 265 ■ . V. Bell 278, n. V. Powles 265, 279, n. Thomson ». Grant 199 Thorne v. Watkins 197 Thornton v. CurHng 197, 198 V. Thornton 371 Thorp V. Thorp 134 Thurbnm (). Stewart 172 Tighe V. Tighe .- 356 Tisohler v. Apthorpe 389 ToUemache v. ToUemache .... 125, 132 Toller f. Carteret 151 Tootal's Trusts, Ee. .16, 26, 29, 206, 379 Tourle v. Tourle 123 Tourton t). Flower 216 Tozier v. Hawkins 413, 416 Trafford v. Blanc, 357. [See Tru- fort, Ee.) Transatlantic Co. ii. Pietrom. ... 371, n. Trasher v. Everhart 339 Triquet v. Bath 395, 400, 401 Troija, The 42 PAOE Trongen v. Dent 1S8 Trotter v. Trotter 180, 193, 199 Trufort, Ee, .57, 187, 188, 198, 357, 358, 364, 368 Tucker, Ee 206, 207 TuUoch 4). Hartley 147 Turnbull v. Moreton 430 Turner, Ee 189, 207, 409 V. Thompson .... 120, 122, 123, 126, 131, 133 Twee Frienden 38 Two Sicilies, King of «>. Willoox ..406, 407, 433 Twycross v. Dreyfus 404 Twyford v. Traill 213, 218 Tyler v. BeU 217 ITdny v. East India Co 385 trilee, Ee ; 69, n. Union Bank of Calcutta, Ee 241 United States v. Macrae. .406, 407, 433, 441 V. Prioleau 406, 407 V. Wagner 406 United Telephone Co. «>. Sharpies . . 324, 325- Upton V. Att.-Gen 127, n. Viqahaviv. Butterfield . . 16, 17, 20, 22, 27, 28, 29, 31, 33 Usparioha v. Noble 44 Valentine v. HaU 420 Vallee v. Dumergue 239, 346, 363 Vanderdonckt v. Thelusson 435 Van Grutten v. Digby .... 108, 110, 258, 2.'59 Vanquelin v. Bouard 217, 339, 357 Vansittart v. James , 374 Vaughan v. Lemche 44 Vavasseur v. Krupp 404, 405 Viale V. Michael 390 Viesca v. d'Aramburu 208 , De la V. Lubbock 202 VigUantia, The 41 Vigny, De, Ee 189 Virginie, La , 7 Viveash v, Beecher 402 Voinet v. Barrett 369, 360, 362 Von Heyden v. Neustadt 324 Vron Slate Co., Ee 238 Vrow Anna Catherina, The 41 Wadswoeth v. Queen of Spain .... 404 Wahl, De V. Braune 42, 43 Waite, De v. Bingley 428 Walcot V. Botfield 15, 16 Waldegrave Peerage Case 96 Wallace «.'. Att.-Gen 380 Wallis V. Brightwell 193, 201 Digitized by Microsoft® TABLE OF CASES CITED. XXlll PAGE SVaUop, Ee 382 Walsh V. Lincoln 371 Walton V. Lavater 324 Waring ». Knight 156 Warrenderi). Warrender . . 88, 105, 131, 145, 146 Waterhouse v. Stansfield 150, 151 Waterman v. Ayres 329 WatMns v. Scottish Lnperial In- surance Co 412,413 Watson V. Dreyfus 413 V. Sheather 238 Wauohope e. Wauohope 32 Waugh V. Morris 263, 265 Waymell v. Read 261, 262 Weatherby v. St. Giorgio. .218, 220, 221 Weaver, Ee 208, 209, 214 Webster, Ee 205 Weldon v. Gronnod 409 Wells V. "Williams 42, 45 Wendt, Ee 173 Werle v. Colqnhoun 388, 389 Westman v. AWiebolaget 232, 238 Whicker 4>. Hume .... 15, 32, 186, 190 White, Ee 212 «. HaU 151 Whyte V. Eose 202, 216, 218 Wiedman v. Walpole 110 Wigmore ». Alvarez 394 Wilde, Ee 211 Williams v. Colonial Bank. . 162, 282, n., 285, 427 V. Dormer 105, 126 V. Jones 341, 348 V. 'WiUiams 108 WiUison v. Patteson 42, 43 WiUoughby, Ee 422 Wilson, Ex parte 168, 170, 172 , Ee 214 PAGE Wilson V. Duusany 198 V. Ferrand 371 ji. WUson 25,118,419 Wimbled v. Malmberg 390 Winchelsea v. Q-arretty 198 Wingate, Ee 205 Winter, Ee 206 Wolff v.Oxholm ■. . 65 Wood V. Anderston Co 233 V. Boosey 317 t). Chart 318 Woods V. Mclnnes 415 Worms V. De Valdor 66, n., 427 Wright, Ee . . 5, 17, 18, 20, 27, 96, 140 :- V. Commissioners 390 Wiitz, De v. Hendricks 265 WyckofB, Ee 203, 213 Wynne v. Callander 262 XiMBNES 1). Jacques , 390 Yates v. Thomson 427 Yelverton v. Yelverton 30, 105, 117, 119, 346 Yorkshire Tannery v. Eglington . . 414 Young r. Brassey 415 V. Wildey 425 Yrisarri v. Clement 406 ZOLLVBEKQT, The 292 Zyohlinski v. Zyohlinski 118 Digitized by Microsoft® Digitized by Microsoft® PMYATE INTEMATIOML LAW. UDNY V. UDNY. In ihe Hottse op Loeds. — On appeal from the Court of Session (Second Division), 14tli Dec. 1866, 3rd Series, toI. v. p. 164. 3rd June, 1869. [Reported L. E. 1 So. App. 441.] {Domicil — Political and civil status — Domicil distinguished from „ -if allegianee.) Origin. The late Colonel John Eobert FxiUerton Udny, of Udny, in tlie Every indi- county of Aberdeen, though born at Leghorn, where his father* was ■>'ij v. Exile. TTdny) as to the effect on domicil of a sentence of exile for life, could be supported. For, as in the like case of imprisonment for Hfe, there is wanting any intention of residence on the part of the person transported or imprisoned. (See Urquhart v. Butterfield, 1887, 37 Oh. D. 357, 385, per Lopes, L. J.) And as regards the sentence of a foreign court, it is improbable that a penal status of this kind would be recognised as affecting the question of domicil. (See p. 65, infra, and the cases cited immediately here below; Dicey, pp. 129, 130 ; St. Comm. iv. 10.) An exile or refugee to this country does not, without more, ExUe— acquire a domicil here {De Bonneval v. Be Bonneval, 1838, Curt. ^^*^&^^- 856 ; Heath v. Sampson, 1851, 14 Beav. 441 ; Be d'Orleans, 1859, 28 L. J. P. 129). A person of intellect insufficient to choose a domicil retains. Person of while that condition continues, the domicil which he had at its "^^°'™<^ ' mina. commencement {Bempde v. Johnstone, 1796, 5 Ves. jun. 198 ; ITep- burn V. Skirving, 1861, 9 "W. R. 764 ; Be BariatinsU, 1843, 13 L. J. Ch. 71, per Lyndhurst, L. 0. ; 8ottomayor v. Be Barros, 1879, 5 P. D. 94, 98 ; Urquhart v. Butterfield, 1887, 37 Ch. D. 357, 382). But if such an one, though of age, has never had sufficient intel- lectual capacity to choose for himself, his father, probably, may change his domicil as though he were a minor {8harpe v. Crispin, 1869, L. R. 1 P. & D. 611, 618, per Sir J. P. Wilde). For if his Digitized by Microsoft® 28 ASCERTAINMENT OF DOMICIL. InvaKd. Eesidence in ex-territorial cominunity. next of kin and those who had the control of his movements and life were not capable of changing his domicil, that domicil would, from the moment of his majority, have hecome indelible {lb.). It would appear, however, from this reasoning, that it is not so much to the father as to the person, whoever he might be, holding a posi- tion analogous to that of a committee of the person (if there were any such) that this influence would be allowed ; and if there were such, and he was not the father, it is submitted that the father's control could not conflict with the committee's ; and, further, that an English Court would look more to the beneflt of the person of unsound mind than to anything else, and that no power would be recognised in any person to change such an one's domicil to his detriment (cf. Ee Price, 1887, 34 Ch. D. 603, 0. A. ; Re Darling, 1888, 39 Ch. D. 208, C. A.) (A). If a person for considerations of health resides abroad with the purpose of permanent or indefinite residence, he will acquire a foreign domicil {Hoskins v. Matthews, 1856, 25 L. J. Ch. 689). But otherwise if the residence is for a time and limited {Firebrace V. Firebrace, 4 P. D. 63 — 65), even though he go abroad in a dying state and without any expectation of returning to England, siQce, in this case, he has no animus manendi, no intention of "settling" abroad {Moorhousey. Lord, 1863, 32 L. J. Ch. 295, 299, per Lord Kingsdown; Att.-Gen. v. Pottinger, 1861, 30 L. J. Ex. 284; Johmtoney. Beattie, 1843, 10 CI. & E. 42, 139, per Lord Camp- bell ; Lauderdale Peerage, 1885, 10 App. Cas. 692, 740, per Earl of Selborne; Gillisy. Qillis, 8 Ir. E. Ch. 597) {I). As domicil is the relation which the law creates between an individual and a particular locality, residence in a foreign state, not being a British possession, as a privileged member of an ex- (Jc) Sharps v. Crispin is not conclusive as Sir J. P. Wilde found that, assuming the person ■whose domicil was there in issue was of sufficient capacity after he came of age to select a domicU for himself, lie had selected the same domicil as his father : Dicey, p. 102, note. It is not meant that the lunatic's domicil would change with that of his committee, but that if the committee, for the lunatic's henefit, had changed his residence, he might supply as it were, in a proper case, the intention as well. See also persons of unsound mind, pp. 71 et seq., infra; jurisdiction — lunacy, pp. 421, 422, infra. (J) It is obvious that in such a case there is no evidence that a man is seeHng a new domioU. He is, practically, not a free agent, and has, without more, no intention of creating between himself and his new residence a relation affecting his legal environment. " There must be an opportunity of exercising a choice, for if there is no alternative it cannot be said (practically) there is volition or choice :" Urquhart v. Butterjield, 37 Ch. D. at p. 385, per Lopes, L. J. Digitized by Microsoft® UDNY V. UDNY. 29 territorial community, although it might be effectual to destroy a residential domicil acquired elsewhere, is ineffectual to create a new domicil of choice, even though such residence be of a person enjoying, or among a community enjoying, the de facto protection of the Queen {Rp TootaVs Trusts, 1882, 23 Oh. D.'532 ; Ahd-ul- Messih v. Farra, 1888, 13 App. Oas. 431 ; AMallah v. Richards, 1888, 4 T. L. E. 622) (w). A peer of Parliament is not, merely by reason of his obligation Peer, to attend the House of Lords when summoned, incapacitated from acquiring a domicil of choice in a foreign country [Hamilton v. Dallas, 1875, 1 Oh. D, 257, Bacon, Y.-O.). A clergyman of the Ohurch of England is not, for that reason Clergyman, alone, domiciled in England {Re Robertson, 1885, 2 T. L. E. 178, 0. A.). And even if beneficed, he has not, of necessity, a domicil here {lb. ; see p. 31, infra, note). If a person is resident in a foreign country quS, his official posi- Diplomatic, tion in relation thereto, this does not in itself import an intention ii,rii"servioe. of acquiring a domicil there {Att.-Oen.y. Kent, 1862, 31 L. J. Ex. 391, 397; Att.-Gen. v. Rowe, 1862, 1 H. & 0. 31 ; Douglas v. Douglas, 1871, L. E. 12 Eq. 617 ; S/uirpe v. Crispin, supra; Udny V. Udny (consul); Att.-Gen. v. Pottinger, supra; Niboyet\. Niboyet, 1878, 4 P. D. 1 (consul) ) («) . And if a person be already domiciled (m) It is otherwise as to national character in time of war : Cargo ex Indian Chief (next ease). («) It might be otherwise if the appointment (not being that of an ambassador, minister, or other person enjoying exterritoriality) were for Hfe, and one the accept- ance of which implied an intention of permanent residence abroad : Arnott v. Groom, Court of Sessions Cases, 2nd aeries (9 D.), 142, Lord Jeffrey. Much depends on the nature of the office : Att.-Gen. v. Pottinger, supra. See also Clarice t. Newmarsh, Court of Sessions Cases, 1836 (14 S.), 488, 600— per Lord President Hope:— "An officer in a marching regiment, who is quartered for a time in Scotland, acquires a residence there, which is very different, as an element in the question of domicil, from the residence arising out of a more permanent cause, such as the governorship, in this instance, of Fort Augustus. Residence may be connected with the appoint- ment to a civil, as well as to a military, office ; and wherever it is of a permanent kind, it forms an important ingredient in the question of domicil. Take, for example, the case of the late Baron Norton, who was an Englishman, and came to Scotland in consequence of his appointment as one of the Barons of Exchequer. It would be difficult to hold, considering his long residence here, with his family, that he had not lost his Enghsh domicU and acquired a Scottish domicil, though his residence arose out of an official appointment. And it may equally happen, though a military appointment be the cause of residence, that the residence is of that fixed and permanent sort which excludes the idea of any other domicil remaining, and necessarily induces a new domicil in the country where the residence is established. Looking to the whole circumstances in Governor Trapaud's (whose domicil was in issue) condition, I hold that the fact of his occupying a mUitary post does not entitle me to disregard all that he has been doing throughout his Uf e ; and, on attending to that, I am satisfied that he acquired a domicil in Scotland." Trapaud had Digitized by Microsoft® 30 ASCERTAINMENT OP DOMICIL. in any country, an official appointment there does not affect his domioil {Heath v. Sampson, 1851, 14 Beav. 441). But if an alien accept service under the British Crown, that is probably sufficient to give him a domieil ia that part of her Majesty's dominions in which his duties require him to reside {Urquhart v. Butterfield, 1887, 37 Ch. D. 357, per 0. A. ; see Military and Naval Service, infra) . Military and A person's domicil, whether it be at the time original or acquired, is not altered by his entering into the military or naval service of a state in some country of which he is already domiciled (Yeherton v. Yelvertmi, 1859, 29 L. J. P. M. 34, Sir Cresswell Cresswell ; Brown v. Smith, 1852, 21 L. J. Ch. 356 ; Re Patten, 1860, 6 Jur. N. S. 151 ; Dalhousie v. McBonall, 1840, 7 CI. & F. 817 ; Mrebraee v. Firehraee, 1878, 4 P. D. 63 ; Ex parte Cun- ningham, 1884, 13 Q. B. D. 418, C. A. ; Re Patience, 1885, 29 Ch. D. 976, Chitty, J. ; Re Macreight, 1885, 30 Ch. D. 165, Pearson, J. ; Lauderdale Peerage, 1885, 10 App. Cas. 692) (o). married in Scotland ; purchased land in the neighbourhood of Fort Augustus \ and died there. And see the next three notes. (o) It is suggested that this is only true when the acceptance of such service does not necessarily imply his permanent or indefinite residence in one country of that state, more than in any other. A., a domiciled Englishman, accepts an appoint- ment in the armed forces of New South Wales, which necessitates his permanent or indefinite residence in that colony. A. goes to New South Wales and takes up his appointment. It is submitted that A. acquires a domicil in New South wales. The actual decisions go no further than this, that A. domiciled in one part of the Queen's dominions, does not change his domicil merely by entering into the British navy, or into the British army, even though he enter the Eoyal Engineers, whose headquarters are at Chatham (Ex parte Cnnnirigham, supra), or even though he has resided for some considerable time in one particular place, in the discharge of his duty (Lauderdale Peerage, supra). This (if it may be said without presumption) is quite sound, because there is nothing in these facts to imply that A. must neces- sarily be permanently or indefinitely resident in one part of her Majesty's dominions more than in any other. See also Lauderdale Peerage, supra, at p. 739, per Earl of Selbome : " As to ihe factum, there is nothing but military service under the Crown of Great Britain for some years in British North America, and residence in New York in connection with the duties of that service, for some time before, and at the time of the marriage, and until his (Colonel Maitland's (whose domicil was in question) ) death, which happened two days afterwards These are facts certainly not indicative in themselves of a change of domioil ; on the contrary, they are, at least primd facie, unfavourable to it ; though it is not necessary to sag that a residence, even under such circumstances, for several years in New York, might not possibly be sufficient, if accompanied and explained by clear proof of an intention to settle there permanently, sine animo rerertendi." Att.-Gen. v. Napier, 1851, 20 L. J. (Ex.) 173, 175: "If a natural-bom subject, domiciled in England,, upon going abroad enters into her Majesty's service, and goes abroad at the Queen's command into foreign service, it is clear that his original domioil has not been parted with by him. He goes for a temporary purpose, and is supposed to be there for a time, not for the purpose of fixing his abode abroad." Per Parke, B., and see Mooar v. Sarvey, 128 Mass. 219 ; Ames v. Duryea, 6 Lans. (N. Y.) 155 ; Story, p. 57, note (b), and the preceding and two following notes. Digitized by Microsoft® UDNY V. UDNY. 31 But if an alien thereto enter the naval or military service of a foreign state, he acquires a domioil in the territory of that state {p), when, as must generally be the case, the entering into such service necessarily requires his permanent or indefinite residence abroad [q) {Ex parte Cunningham, supra, at pp. 423, 424, per Cotton, L. J. ; Forbes v. Forhes, 1854, 23 L. J. Ch. 724, 726, 727, per Wood, V.-O. ; Jopp v. Wood, 1865, 4 De G. J. & S. 623, per Turner, L. J. ; Somerville v. Somerville, 1801, 5 Yesey, 750, 757 ; United States {President) v. Brummond, 1864, 33 Beav. 451) (r). There is a strong presumption of law against a person in naval or military service acquiring a domicH elsewhere than in some country of the state which he serves {Hodgson v. De Beauchesne, 1858, 12 Mo. P. C. 285, 319 ; Att.-Gen. v. Najner, 1851, 20 L. J. Ex. 173 ; Att.-Gen. v. Pottinger, 1861, 30 L. J. Ex. 284, 292, per Bramwell, B. ; Ex parte Cunningham, supra, at p. 424, per Cotton, L. J. ; cf. Craigie v. Letvin, 3 Curt. Ecc. Eep. 435, per Sir H. J. Fust). Indeed, such service for the most part precludes his permanent or indefinite residence in any other country (s). (p) Mr. Dicey (p. 140) suggests a difficulty which might arise in the case of a state made up of several countries. Perhaps, in such an event, the territorial connection of the particular branch of the service, or of the regiment, to which the person whose domicil was in question, was, or had heen attached, would, where possible, be taken into consideration. In JJrquhart v. Sutterfield, supra, the Court of Appeal showed an inclination to regard an alien's employment in the £«^Ks7i customs as giving an English domicil. (q) Baggallay, L. J. (Ex parte Cunningham, 421), enunciates as a distinct pro- position of law: "A subject of her Majesty entering into the military or naval service of a foreign power, acquires a domicil in the country of that power." A statement to the same effect was made at the bar in Somerville v. Somerville, and apparently assented to by the Court (5 Vesey, 750, 757). But in neither case was any such proposition necessary to the decision, and it is, with the greatest deference, submitted that the law as stated by the learned Lord Justice is, ia terms, too absolute. "Service abroad," i.e. permanent or iadefinite residence abroad, ia the real test. Would, for instance, the acceptance of a mere honorary command in a foreign service, determine a man's domicil, and so, possibly affect the distribution of his personal estate on his death ? ' ' The question did not turn upon the simple fact of the party being under an obligation by his commission to serve in India ; but when an officer accepted a commission or employment, the duties of which neeessarily required residence in India, and there was no stipulated period of service, and he proceeded to India accordingly, the law from such circumstances presumed an intention consistent with his duty, and held his residence to be animo et facto in India : " Forbes v. Forbes, 1854, 23 L. J. Ch. 724, 726, 727, per Wood, V.-C. See also the three preceding notes. (»•) Cf. JJrquhart v. Butterjkld, supra. Is) As regards officers on half -pay, see Forbes v. Forbes, supra ; Cockrell v. Cockrell, 1856, 25 L. J. Ch. 730, 733, 734. Digitized by Microsoft® 32 ASCERTAINMENT OP DOMICIL. Anglo-Indian -^ Series of decisions, extending over a period of upwards of cases. seventy years, namely : — Bruce v. Bruce, 1790, 2 B. & P. 229, H. L. (So.), Lord Thurlow; Munroe v. Boughs, 1820, 5 Mad. 379, Leach, Y,-C. ; Craigie v. Lewin, 1843, 3 Curt. 435, Sir H. J. Fust ; Forbes v. Forbes, 1854, 25 L. J. Oh. 724, Page-Wood, Y.-C. ; Hodgson v. Be Beauchesne, 1858, 12 Mo. P. 0. 285, P. C, per Dr. Lushington ; Hepburn v. Skirimg, 1861, 9 W. E. 764, Stuart, V.-O. {t) ; decided that a person in the military or covenanted service of the East India Company acquired a domioil in India ; which was in general retained after his return to Europe, so long as he remained liable to return to India, although he, in these latter circum- stances, might acquire or resume another domicil, at any rate, in the United Kingdom {Ait. -Gen. v. Pottinger, 1861, 30 L. J. Ex. 284) (m). [t) As to tte term Anglo-Indian, see Craigie v. Zemin, supra, at p. 442 ; as to these cases, see also Coc/crellv. CocJcrell, supra, per Kindersley, V.-O. ; Att.-Gm. v. Napier, supra ; Jopp v. IVood, 1864, 34 L. J. Oh. 212 ; Whicker v. Hmne, 1858, 28 L. J. Oh. 396 ; Re Capdevielle, 1864, 33 L. J. Ex. 306 ; He Marrett, 1887, 36 Ch. D. 400, 0. A. They have been animadverted on as anomalous and misleading : Drevm v. Drevon, 1864, 34 L. J. Ch. 129, 134, per Kindersley, V.-C. ; £x parte Cunningham, 1884, 13 Q. B. D. 418, 425, per Lindley, L. J. On the other hand, Bruce v. Bruce (wliich the later cases followed), though a decision on appeal from Scotland, was determined in the House of Lords on grounds of general jurisprudence equally appUoahle to an English cause. See p. 14, supra. The rule, also, received the tacit assent of the House of Lords in Moorhouse v. Zord, 1863, 10 H. L. C. 272, and was supported by Lord Hatherley, when V.-C, as being in agreement with general principles : Forbes v. Forbes, supra, at pp. 726, 727. The period of an officer's residence, in the East India Company, in India was indefinite and un- certain : Of. Anderson v. Zaneuvillc, 2 Eco. & Adm. 41, 53, Dr. Lushington. It was residence in India under circumstances which required him to remain there that caused the change of domioil : Ex parte Cunningham, supra, at p. 423, per Cotton, L. J., citing Forbes v. Forbes, ubi supra; of. Jopp v. Wood, supra, at p. 216, per EomiUy, M. E,. If a military officer in the service of the company, below the rank of full colonel, did not return to India on the expiration of his leave of absence, or previously attain his fuU rank, he must have quitted the service of the company (Hodgson v. Be Beauchesne, supra, at p. 318 ; Farker v. Clive, 4 Burr. 2419, 2422 ; F. v. Cuming, 1887, 19 Q. B. D. 13) ; and the judgments in those cases in which the officer was absent from India proceed on the ground that he would have returned if required: Att.-Gen. v. Foitinger, supra. Lindley, L.J. [Ex parte Cunningham, at p. 425), speaMng of these Anglo-Indian cases, uses the expression "while they were law." Mr. Dicey (p. 338), while objecting to the decisions because, as he says, in ninety-nine cases out of a hundred a servant of the company did not intend to make India his permanent home, admits that this efEeot could only be got rid of by legislative action. Perhaps the Lord Justice had in his mind the fact that, by the abolition of the company's powers and authority, the circum- stances under which the domicU was acquired had passed away: 21 & 22 Vict, c. 106 ; Indian Succession Act, 1865, s. 10 ; Wanchope v. Wanchope, 1877, 4 Rettie, 496 ; Me Marrett, supra. («) The United Kingdom would not be "foreign " for this purpose, and so would Digitized by Microsoft® UDNY V. UDNY. 33 The domicil of a servant is not necessarily either that of his Servant. master or in the country in which he is employed. (See Dicey, p. 143 ; and cf. the cases on traders, p. 26, supra.) Residence in a country for purposes of education by no means, Student. iu itself, confers a domicil there {Scrimshire y. Scrimshire, p. 75, infra; Urquhart v. Btitterfield, 1887, 37 Ch. D. 357). But the cir- cumstance of such education, followed, in the case of one sent abroad as a minor, by a continued residence there after majority, and when the education is complete, would facilitate the acquisi- tion of a domicil {The Benedict, Spinks' Adm. Eep. 314, 317, per Dr. Lushington) [x). not be within tte rule in Bbif^sOK Y. Be Beauchesne, supra. "With. Att. -Gen, y. Pottinger, ef. Craigie v. Lewin, supra, where note that the officer whose domioil was in question, not only came to this country on leave of absence for a distinct period, but with the intention to return to India, unless on the happening of a particular event. 3 Cfurt. p. 446. [x) See further, Domicil of Corporations, pp. 227 et seq. ; Domicil of Married Women, pp. 104 et seq., infra, and see the next case. Digitized by Microsoft® 34 THE INDIAN CHIEF. In the High Ootjet of Abmiealtt. 27th February, 1801. [Reported 3 C. Eob. 12.] J., whose This was the case of a sMp and cargo seized in the harbour of Cowes, orSn °as ^^ ^ voyage from Batavia to Hamburgh, in which two questions arose, American was I'especting the national character, of Mr. Johnson, claimant of the resident and ship, and of Mr. Millar, claimant of the cargo. ' engaged in Mr. Johnson was born in America, but left that country in 1771 and trade in this settled as a merchant ia London. Duriug the Am.erican war, 1778, he '^U ^— That ^^^^ England and became a partner in a, commercial house in France, by so residing reserving to himself, in the articles of partnership, the liberty of and engaging returning to America when he thought proper. In 1785 he returned in trade he ^o England, and continued engaged in mercantile pursuits, in this adomicil M a "o^itry, till September 1797. From 1790 he acted as American merchant in Consul. In September 1797, Mr. Johnson sailed for America. There this country, were indications that, for some time previously, he had purposed by reason _ returning to his native country, when his monetary afiairs should whereof his permit of it. Other facts and the arsruments sufficiently appear from ship was f T_ . J i •> i. r subject to the judgment. capture when engaged in The King's Advocate for the Captors (o). trade with the enemy ; but j_rnold and Sewell for the Claimants, that on bona fide quitting this country JtTDGMENT — Sir W. Scott : This is the case of a ship seized in the and sailing port of Cowes, where she came to receive orders respecting the delivery for America ^f ^ cargo taken in at Batavia, with a professed original intention domicH^re-^^ of proceeding to Hamburgh; but on coming into this country for verted and particular orders, the ship and cargo were seized in port. It does not his ship was appear clear to the Court, that it might not be a cargo intended to be therefore to be delivered ia this country, as many such cargoes have been, under the restored. Dutch Property Act : I mention this to meet an observation that has been thrown out, "that it is doubtful whether the ship might not be confiscable on the ground of being a neutral ship coming from the colony of the enemy, not to her own ports or to the ports of this country." I cannot assiime it as a demonstrated fact in the case, that the cargo was to be delivered at Hamburgh. The vessel sailed in 1795, and as an American ship with an American pass, and all American documents ; but nevertheless if the owner really resided here, such papers could not protect his vessel: if the owner was resident in England, and the voyage such as an English merchant («) The arguments will be found at pp. 12 — 16 of the report in Robinson. Digitized by Microsoft® THE INDiAl^ CHIEF, 35 could not engage in, an American residing here, and carrying on trade, 1801 . could not_ protect his ship merely ty putting American documents on l)oa,rd ; Ms interest must stand or fall according to the determination which the Court shall make on the national character of such a person. There are two positions which are not to be controverted ; that Mr. Johnson is an American generally by birth, which is the circum- stance that first impresses itself on the mind of the Court ; and also by the part which he took on the breaking out of the American war. He came hither when both countries were open to him ; but on the breaking out of hostilities, he made his election which country he would adhere to, and in consequence thereof went to France. As to the doubt that has been suggested, whether he would be deemed an American, not having been personally there at the time of the declara- tion of the independence of that country, I think that is sufficiently cleared up, by tiie circumstance of his being adopted as such by the act of the American Grovernment, declaring him and his family to be 15 Jan. 1785. American subjects, and by the ofiicial character which that Govern- ment has intrusted to him ; I am of opinion, therefore, that he has not lost the benefit of his native American character. He came, however, to this country in 1783, and engaged in trade, and has resided in this country tiU 1797; during that time he was undoubtedly to be con- sidered as an English trader ; for no position is more established than this, that if a person goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered as a merchant of that country; I should, therefore, have no doubt in pronouncing that Mr. Johnson was to be considered as a merchant of this countrj- at the time of the saUing of this vessel on her outward voyage. That leads me to take a view of the circumstances of this case ; the ship went out in 1795 with Mr. Hewlet on board, and Mr. Johnson says, " he sent out Mr. Hewlet as supercargo, and put the vessel under his control to take freight for America, but that his designs were frustrated by various circumstances," and the ship actually went to Madeira, Madras, Tranquebar, and Batavia, and from thence to Cowes, where she was arrested. Now there can be no doubt that if Mr. Johnson had continued where he was at the time of sailing, if he had remained resident in England, it must be considered as a British transaction ; and therefore a criminal transaction, on the common principle that it is illegal in any person owing an allegiance, though temporary, to trade with the public enemy. But it is pleaded that he had quitted this country before the capture, and that he had done this in consequence of an intention which he had formed of removing much earlier, but that he had been prevented by obstacles that obstructed his wish : to this effect the letter of March, 1797, is exhibited, which must have been preceded by private correspondence and application to some of his creditors. It does, I think, breathe strong expressions of intention, and of an ardent desire to get over the restraint that alone detained him ; and it affords conclusive reason to believe that if he had been a free man, and at liberty to go where he pleased, he would have removed long before ; and that he was detained here as a hostage, as he describes himself to his creditors, on motives of honour, creditable to his character. On the 9th of September, 1797, he did actually retire ; of the sincerity of his quitting this country there can hardly be a doubt entertained ; it Digitized2}y Microsoft® 36 COMMERCIAL DOMICIL IN TIME OF WAE. ] 801. is almost impossible to represent stronger or more natural grounds for — r- such a measure ; and I do not think the Court runs any risk of encountering a fraudulent pretension, put forward to meet the circum- stances of the moment, without anything of an original and bona fide intention at the bottom of it. The ship was sent out under the management of the supercargo, and it is said that Mr. Hewlet exceeded his commission : the affidavit does not go so far ; it does not appear from that, that the agent had not the power to enter into such an engagement ; but this, I think, appears clearly, that it was the understanding both of Mr. Johnson and of his agent, Mr. Hewlet, who had been his clerk, and to whom he refers for a confirmation of his avowed design of removing, that before the completion of such a voyage Mr. Johnson would be in America ; therefore if the illegality of the voyage must be supposed to have presented itself to their minds as a British transaction, owing to Mr. Johnson's residence in England, there was reason enough for them to conclude that Mr. Johnson would be removed ; and, on that view of the matter, although it is certain that an agent would bind his em- ployer in such a case, there is ground sufficient to presume that the agent acted fairly and bona fide, and under the expectation that Mr, Johnson would be returned to America. The ship arrives a few weeks after his departure ; and taking it to be clear that the national character of Mr. Johnson as a British merchant was founded in residence only, that it was acquired by residence, and rested on that circumstance alone, it must be held that from the moment he turns his back on the country where he has resided, on his way to his own country, he was in the act of resuming his original character, and is to be considered as an American, The character that is gained by residence ceases by residence {a). It is an adventitious character which no longer adheres to him, from the moment that he puts himseK in motion, bond fide, to quit the country, sine animo revertendi. The Courts that have to apply this principle, have applied it both ways, unfavourably in some cases, and favourably in others. This man had already quitted the country. Stronger was the case of Mr. Curr tissos (S) ; he was a British-born subject, that had been resident in Surinam and St. Eustatius, and had left those settlements with an in- tention of returning to this country ; but he had got no farther than Holland, the mother country of those settlements, when the war broke out (c). It was determined by the Lords of Appeal, that he was in itinere, that he had put himself in motion, and was in pursuit of his native British character : and as such he was held to be entitled to the restitution of his property. So here, this gentleman was in the actual pursuit of his American character ; and, I think, there can be no doubt that his native character was strongly and substantially revived, not occasionally, nor colourably, for the mere purposes of this present claim ; and therefore I shall restore this ship. (a) JJdny v. Udny, supra, pp. 9, 10. (b) The Snelle Zeylder, Lords, 25 April, 1783. (c) The order of reprisals against Holland, Deo. 1780. Digitized by Microsoft® THE INDIAN CHIEF. 37 IN THE SAME CASE. As to the Cargo, on a Claim given on hehalf of Mr. Millar, an asserted American Subject, and American Consul resident at Calcutta. [3 C. Rob. 22. 5tli March, 1801.] The King's Advocate for the Captors (a). Arnold and Laurence for the Claimant. Judgment — Sir W. Scott: This is the case of a cargo seized in the M., resident harbour of Cowes, where the ship had put in for final orders, her ^ Calcutta as professed oriadnal destiaation beine; Hamburgh. A claim is given for -'^^^""^'^ this cargo as the property of a Mr. Millar, described to be American g^igg tradina' consul at Calcutta. The proofs of property are not satisfactory, and, there, deemed therefore, further proof must be demanded, if it be necessary, to deter- a British mine the matter upon that ground. But the captors are wiUing to S^'^'i'^^?''* ' ^° admit the sufficiency of the present proof, for the purpose of obtaining pg^ty tal^^in the judgment of the Court upon points of law, which they contend to trade with the be decisive against the claim, however supported in point of fact, enemy was On the part of the claimant many grounds have been taken : I am condemned. first reminded that he was American consul, although it is not dis- ■^jp^ T^ a tinctly avowed that his consular character is expected to protect him (b) ; trading nor coidd it be with any propriety or effect, it being a point fuUy where, though established in these Courts, that the character of consul does not not strictly protect that of merchant united in the same person. It was so de- ^^'^ *^^ cided on solemn argument in the course of the last war, by the Lords, ^lommions he in the cases of Mr. Gildermester, the Portuguese consul in Holland, -^^s protected and of Mr. Eykellenburg, Prussian consul at Flushing. These cases by British were again brought forward to notice in the case of Mr. Fenwick (c), arms, and American consul at Bordeaux in the beginning of this war; on whose ^^"J^''* *° *"^ behalf a distinction was set up in favour of American consuls, as being jgi^ii^ .-—Not persons not usually appointed, as the consuls of other nations are, exempt from from among the resident merchants of the foreign country, but spe- the obligation cially delegated from America, and sent to Europe on the particular not to trade mission, and continuing in Europe principally in a mere consular ^gj^y ^ character. But in that case, as well as in the case of Sylvanus Bourne {d), American consul at Amsterdam, where the same distinction was attempted, it was held that if an American consul did engage in commerce, there was no more reason for giving his mercantile cha- racter the benefit of his official character, than existed in the case of any other consul. The moment he engaged in trade, the pretended ground of any such distinction ceased ; the whole of that question therefore is as much shut up and concluded as any question of law can be. (a) The arguments are reported 3 C. Rob. 22 — 26. Together with the facts, they appear in the judgment. \b) It was admitted (p. 22) that a person living in a foreign country, and carry- ing on trade, would not be privileged by the oharaoter of consul of another state, or protected from having his national oharaoter determined by the place of his residence. (c) Concordia, Lords, 5 Feb. 1782 ; The Set Suys Brandenburg, Lords, 16 July, 1784 ; Pigou, Lords, 18 July, 1797. ((?) Orion, Cushing, Admiralty, 24 March, 1797. Digitized by Microsoft® 38 COMMEECIAL DOMICIL IN TIME OF WAB, 1801. Another topic has been rather insinuated, than expressly urged, that Mr. Millar was not a general merchant of Calcutta ; but whether he was a general merchant or not is totally immaterial ; for if this was even his first adventure, still in this transaction he must be taken as a merchant, and can be considered in no other character. A third ground is, that the trading was not direct to Batavia, but that the ship sailed first to Tranquebar, and from thence took , a cargo to Batavia; with the proceeds of which cargo the present cargo was purchased, and taken in on account of this gentleman ; but the mere prior interposition of a neutral port will not alter the nature of the offence, which consists, in this, that the cargo, on which the present question arises, was taken in at the enemy's port. If Mr. Millar is to be taken as a British merchant, the outward voyage wiU be imma- terial, and the circumstance of purchasing the cargo in question at the enemy's port will be sufficient to make it liable to the penalty of con- fiscation. Another ground is, that he was not resident in the British territory, for that the sovereign of this country is not in possession of Bengal, with the same imperial rights as belong to the Mogul. It is contended on this point that the King of Great Britain does not hold the British possessions in the East Indies in right of sovereignty, and, therefore, that the character of British merchants does not necessarily attach on foreigners locally resident there. But taking it that such a paramount sovereignty, on the part of the Mogul princes, really and solidly exists, and that Great Britain cannot be deemed to possess a sovereign right there ; still it is to be remembered, that wherever even 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 different 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 be- come 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 — Doris amara suam non intermiscuit undam ; 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 carry on their trade (e). "With respect to establishments in Turkey, it was declared in the case of Mr. Eremeaux {d), in the last war, that a merchant carrying on trade at Smyrna, under the protection of the Dutch consul at Smyrna, was to be considered as a Dutchman, and in that case the ship and goods belonging to Mr. Eremeaux, being taken after the order of (c) It is otherwise as to domioil: pp. 28, 29, supra. (d) Twee Frienden, Angel, Lords, 12 July, 1784. Digitized by Microsoft® THE INDIAN CHIEF. 39 reprisals against Holland, were condemned as Dutch property.- The 1801. same in China, and I may say generally throughout the East, persons admitted into a factory, ai-e not known in their own peculiar national character; and being not admitted to assume the character of the country, they are considered only in the character of that association or factory. The case aUuded to (in which Lord WiUiam Murray (e) was concerned as agent claiming for Mr. Cohen), was this ; a Jew, living in a Dutch establishment under the sovereignty of the rajah of Cochin, on the coast of Malabar, claimed under the character of a subject of the rajah of Old Cochin, but he was held by the Lords of Appeal to be a Dutchman ; and I remember perfectly well in the later case of Mr. Constant de Eebecque(/) it was the opinion of the Lords, that although he was a Swiss by birth, and no Frenchman, yet if he had continued to trade in the French factory in China, which he had fortunately quitted before the time of capture, he would have been liable to be considered as a Frenchman. I am, however, inclined to think that these considerations are unnecessary, because though the sovereignty of the Mogul is occasionally brought forward for purposes of policy, it hardly exists otherwise than as a phantom ; it is not applied in any way for the actual regulation of our establishments. This country exercises the power of declaring war and peace, which is among the strongest marks of actual sovereignty, and if the high, or as I may almost say, this empyrean sovereignty of the Mogul, is some- times brought down from the clouds, as it were, for purposes of policy, it by no means interferes with that actual authority which this country, and the East India Company, a creature of this country, exercises there with full effect. The law of treason, I apprehend, would apply to Europeans living there in full force ; it is nothing to say, that some particular parts of our civil code are not applicable to the religious or civil habits of the Mahomedan or Hindoo natives ; and that they are on that account, allowed to remain xinder their own laws. [His lord- ship then gives other reasons for considering India at this time as British territory (^), and continues :] It is besides an obvious question, to whom are the credentials of this gentleman as consul addressed ? certainly to the British government — to the East India Company, and not to the Mogul. What is the condition of a foreign merchant residing there ? From attention to the argument of a gentleman whose researches have been particularly turned to subjects connected with the East, I have made enquiry of a person of the greatest autho- rity on such a subject, who is just returned from the highest judicial situation in that country ; and the result is (as on general principles I should certainly have expected), that a foreign merchant resident there is just in the same situation with a British merchant, subject to the same obligations, bound by the same duties, and amenable to the same common authority of British tribunals. It is said to be hard that Mr. Millar should incur the disabilities of a British subject at the same time that he receives no advantage from that character ; but I cannot accede to that representation ; because he is in the actual receipt of the benefit of protection, for his person and commerce from British arms and British laws, imder an existing (e) Eachael Mobareck, Lords, 10 May, 1792. (/) Mrufis, Lords, 8 Deo. 1798. ig) 3 C. Eob. p. 32. Digitized by Microsoft® 40 COMMERCIAL DOMICIL IN TIME OP WAR. 1801. Britisli administration in the country. He maybe subject to some limitations of commerce incident to sucb establishments, which would not occur in Europe ; but he must take his situation with all its duties, and amongst these duties, the duty of not trading with the enemies of this country. I am of opinion, therefore, that he must be considered as a British merchant ; and that his property, as the property of a British mer- chant, taken in trade with the enemy, is liable to condemnation. I am imder the necessity of pronouncing this determination, and_ of condemning these goods as droits and perquisites of Admiralty, being seized and taken in port {h). Commercial domioil in time of war. Residence in country, presence of property, and acts of trade contributing to resources, impose obligations. This case exemplifies the distinction between that domioil which determines civil status and the mere residence or acts of trade which, for the most part («'), determine national character in time of war {Hodgson v. De JBeaucheme, 1858, 12 Mo. P. 0. 285, 313, per Dr. Lushington) . The principle acted on touching this matter is, that in whatso- ever country a person is present enjoying its protection he is affected with the obligations which the law of that country imposes upon its subjects in time of war ; while at the same time he partakes of the rights which such residence confers {The Danom, 17th March, 1802, in a note to The Nayade, 4 0. Eob. 256). Further, if a person by his presence or by the presence of his property, whether moveable or immoveable {The Phoenix, 1803, 5 0. Eob. 20 ; Twiss, p. 118), or by an act of trade, contributes, or seeks to contribute, to the resources of any given country {k), his property (whether the owner be a consenting party to the use so made of it or not) {The Carolina, 1802, 4 0. Eob. 256; The Orozembo, 1807, 6 C. Eob. 430), so far as it does or may so contribute will, in time of war, be considered enemy property, (/j) See TheBaUica, 1853, Spinks, Adm. Rep. 264. ii) As to the questions incidental to this case belonging to public international laT?-, Bee Travers Twiss, Law of Nations, Rights and Duties in Time of War, Chaps. III., V. and VIII., and pp. 33—38 ; PhOlimore, Vol. III.; HaU, Chap. VI. pp. 457—472; Cobbett, Leading Cases, pp. 121—131; Hosack, pp. 164—170; Wharton, International Law Digest, §§ 338 — 346. As to national character deter- nuned otherwise than by residence, infra, p. 45. With The Indian Chief axiA Tabbs v. Bandelack, 4 Esp. 108, 110, per Lord Kenyon, cf. Vdnyy. Vdny ajiAJoppy. Wood, 1864, 34 L. J. Ch. 212, supra, p. 26. {k) The national character of any part of a neutral state which may happen to be in the military occupation of the enemy will be determined in accordance with the indications afforded by the declarations of her Majesty's GoTemment : Amould, 146, and cases there cited. Digitized by Microsoft® THE INDIAN CHIEF. 41 and will be subject to the risks to whicli enemy property is exposed {The Earmony, 1800, 2 0. Eob. 322, 325, per Sir Wm. Soott ; The Portland, 1800, 3 C. Eob. 41 ; The Fostilion, Harriots Decisions, 1799, 245 ; The Immanuel, 1799, 2 0. Eob. 186 ; The Anna Catherina, 1802, 4 C. Eob. 107 ; The Eendsborg, 1802, 4 C. Eob. 121; The Vigilantia, 1805, 6 C. Eob. 122; The Vrow Anna Catherina, 1806, 6 C. Eob. 269 ; The Dree Gebroeders, 1802, 4 0. Eob. 232 ; The Phasnir, supra ; The Jonge Klassina, 1804, 5 0. Eob. 297; The Primus, 1854, 1 Ecc. & Adm. E. 353; The Gerasimo, 1857, 11 Moore P. C. 88 ; and American doctrine and autborities, Wbarton, I. L. Digest, vol. iii. §§ 352, 353) (/). If, bowcTcr, on the outbreak of war, a person, at any rate if he Active be not a natural-born subject (m), takes in good faith active transfer^ ° measures to transfer himself to neutral territory, he will divest taken bona himself of any obligations he may have incurred by residence in break of war, T'glpoHp ironi this country or within the territory of the enemy. And property obligations. of a neutral or of a natural-born subject similarly removed from the hostile country will be freed from enemy character {The Diana, 1803, 5 0. Eob. 59 ; The Ocean, 1804, ib. 91 ; The President, 1804, ib. 277 ; cf. The Dree Gebroeders, supra, at p. 234, per Sir Wm. Scott ; The Baltica, 1855, Spinks, 264, 275, per Dr. Lushington ; The Benedict, 1855, Spinks, 314, 317, per Dr. Lushington ; The Gerasimo ; and Wharton, ubi supra) («). Temporary residence for purposes of health or travel does not, Temporary in itself, involve in any liability {The Diana; The Earmony; ^ofinvolvtTn Wharton, supra). liabiKty. Alien Enemies : Actions by : Contracts with(o). — For purposes of Alien enemy: actions by, [T) Cf. Order in Council, 29tli March, 1854, "Her Majesty is pleased, by and ■with the advice of her Privy Council, to order, and it is hereby ordered, that general reprisals be granted against the ships, vessels, and goods of the Emperor of All the Eussias, and of his subjects and others inhatiting within any of his countries, terri- tories, or dominions": Twiss, 304. ()») As to who is, infra, p. 45 ; and as to this probable exception. Dicey, p. 345. («) Ths application of the above doctrines has been limited as regards the carriage of neutral goods, not being contraband of war, in enemy ships, as between the signatories thereto, by the Declaration of Paris, 1856. See the books on International 'Law. The sale of a ship absolutely and bona fide by an enemy to a neutral immi- nente beUo, or even flagrante beUo, is not illegal : The Benedict, supra ; The Ariel, 11 Moo. P. C. 119. But a merely colourable transfer wOl not avail: The Johwm Christaph, 2 Spinks, Ecc. & Adm. 2. And if the enemy retain a continuing interest, this is sufficient for condemnation : The Baltiea, supra. (o) On this subject, see the judgment delivered by Willes, J., Esposito v. Bowden, Digitized by Microsoft® 42 ALIEN ENEMIES. and contracts with: Who are : Allegiance the test. Besidence here without more, not evidence of license. Action cannot be maintained by or in favour of alien enemy, except under particular circum- stances. Burden on alien enemy claiming to shew persona standi. Contract during war with alien enemy illegal without royal license. Contracts contract and litigation, the sutject of an hostile power is an alien enemy from his allegiance and without reference to his place of residence {Harman y. Kingston, 1811, 3 Oamp. 150 ; cf. Twiss, 82, 83). And in the exceptional event of residence in this country being relied on as evidence of a licence from the Crown (o), it must be shown that the presence of the alien enemy here was known to and sanctioned by the Crown after the commencement of hostilities {Boulton v. Dobree, 1808, 2 Camp. 163 ; Akiator v. Smith, 1812, 3 Camp. 245). Unless by virtue of an Order in Council {p), or licensed in the manner hereinafter mentioned {p), or unless he come here under a flag of truce, or some other act of public authority that puts him in the Queen's peace pro hS,c vice {q), an alien enemy cannot maintain an action in the Courts of this country [The Soop, 1799, 1 C. Eob. 196 ; Wells v. Williams, 1698, 1 Salk. 45). Nor can an action be maintained in favour of such an one ; for example, an action brought in the name of an English agent for his principal, an alien enemy {Brandon v. Nesbitt, 1794, 6 T. E. 23). When an alien enemy claims, it is for him to show a persona standi in judicio, by stating the specific order, license, or other ground by or on which he claims to be protected {The Phoenix, 1854, 1 Sp. Ecc. & Adm. E. 306, 307 ; The Troija, 1854, ib. 342). A contract made with an alien enemy after the outbreak of war is void {Potta V. Bell, 1800, 8 T. E. 548 ; Willison v. Patteson, 1817, 7 Taunt. 439 ; Ogden v. Peele, 1826, 8 D. & E. 1). As regards contracts made before war. A contract of iasurance 1857, 27 L. J. Q. B. 17, 19, Ex. Ch. ; and as to the operation of the below-stated principles on the contract of partnership, see more particularly Lindley, pp. 72 et seq., and cases there cited. (o) Infra, p. 44. (p) It is usual on the outbreak of war for her Majesty in Council to issue general orders as to trade with the enemy. See The Neptune, Spinks, 281. As to the effect of residence of British subject in neutral or enemy territory, or neutral in enemy territory, or enemy by aUegiauce with lioense here, see pp. 44 et seq. ; The Indian Chief. (j) As to prisoners of war : — If an alien enemy, a prisoner of war, make a con- tract, it may be enforced by the Crown for its own benefit : Maria v. Sail, 1 Taunt. 33, n. But this power is seldom, if ever, exercised : Furtardo v. Modgers, 3 B. & P. 191, 201, per Lord Alvanley, C. J. P. See, however, De Wahl v. Braune, 1856, 26 L. J. Ex. 343, per Pollock, C. B. If the Crown does not enforce the contract, the prisoner may, it seems, sue on it after the return of peace : Spareiiburgh v. Banna- tyne, 1 B. & P. 163, 170, per Heath, J. ; 171, per Eooke, J. ; Maria v. Sail, uU supra. A prisoner of war is within the Queen's peace and protection, and could probably maintain an action in tort not affected by his position : Ih. See further, Addison, 151 ; and p. 297, infra (Criminal Law). Digitized by Microsoft® THE INDIAN CHIEF. 43 in which a British subject insures against capture, even though made before made before war, is at no time enforceable against capture by a enforceable British ship {Furtardo v. Rodgers, 1802, 3 B. & P. 191 ; Oamba v. i^g^anoe Le Messiirier, 1803, 4 East, 407), or capture by a co-belligerent ^^^^ (not necessarily an ally) {Brandon v. Curling, 1803, 4 Bast, 410) (r). capture. And semble, any contract is imenforceable if its enforcement would recoup an alien enemy losses incurred during the war, or which tends to aid the enemy country, or to increase or prevent the diminution of the resources of such country {Furtardo v. Rodgers, siqyra). Otherwise the right of action on a contract made before In other cases war {Willison v. Patteson, supra) revives on the conclusion of revives on peace {Flindt v. Waters, 1822, 15 Bast, 260 ; Brandon v. MsMtt, p°^oiT'°" °^ sujira, per curiam) ; unless it has meanwhile been barred by the unless barred operation of the Statute of Limitations {De Wahl v. Braune, 1856, iJ,nitations° 25 L. J. Bx. 343, 345, per Bramwell, B. ; Pollock, Contract, p. 95) ; or unless the chose in action, being the property of an alien or forfeited, enemy, has been enforced to the use of the Crown after inquisition made and concluded during the continuance of the war {Att.-Gen. v. Weeden, 1699, Parker, 267; Flindt v. Waters; Be Wahl v. Braune, supra, at p. 344, per Pollock, 0. B.) (s). For plea of alien enemy is not a perpetual, but merely a temporary, bar {Flindt v. Waters, supra). So, even during the continuance of hostilities, Kightto the right of an alien enemy to prove for a dividend as regards a dividend! debt arising under a contract made before war will be recognised, the dividend being reserved until the conclusion of peace {Ex parte Bousmaker, 1806, 13 Vesey, 71). But if the declaration of war If contract rendered the contract illegal, and so impossible of performance, avofded. the contract is avoided {Esposito v. Bowden, 1857, 27 L. J. Q. B. 17) {t). [r] The contract of insurance, if made before war, being in its inception valid, there is no return of the premium, if once risk has attached : Furtardo v. Rodgers, ubi supra. The law concerning these contracts (as to which see further, Amould, 131 — 135) rests on the authority of decisions in the Common Pleas and King's Bench, temp. Geo. III., grounded on a view of public poUoy open to doubt, and questioned by Lord Mansfield, though not in a judicial capacity : Bell v. Gibson, 1 B. & P. 345, 354, per Buller, J. ; and see Amould, I. o. Mr. Amould approves the poHoy of the rule. For general criticism of the plea alien enemy, see Sparenburgh T. JBarmatyne, 1 B. & P. 163, esp. 170, per Byre, C. J. See p. 44, infra; and Esposito V. Sowden, supra. (a) Page 42, supra, note. (<) See further, p. 265, infra (Contract). Digitized by Microsoft® 44 LICENCES TO TRADE. night to defend action. Licences to trade. Construed liberally. Insurance. Shipments in person in enemy country. Crown cannot license resident in hostile country to maintain action. Licence limited in time protects licensee if adventure protracted by means beyond his control. Natural-bom subject and neutral resident — unless under particular circum- stances — in enemy An alien enemy is able to defend an action {ScrimsMre v. Scrim- shire, p. 76, infra; Addison, Contract, 151). The Crown may grant licences to alien enemies to trade ■with British subjects, and licences to British subjects to trade with alien enemies {Flindt v. Scott, 1814, 5 Taunt. 674, Ex. Ch.) (s). In any question arising thereunder reference must, of course, be made to the express terms of the licence {t). But such a licence is construed liberally, and legalises the commerce therein mentioned, and all usual and requisite contracts, including a contract of insurance lUsparicha v. Nohle, 1811, 13 East, 331 ; Morgan v. Osivald, 1812, 3 Taunt. 554), entered into for carrying on such commerce [Flindt V. Scott, supra; Vaughan v. Lemcke, 1825, 7 D. & E. 236). The licensee, consequently, may enter into, sue, and be sued, in respect of such contracts (Fenton v. Pearson, 1812, 15 East, 419). But a licence to import from an enemy country does not extend to pro- tect shipments made by the licensee in person, in the enemy country, he himself acting as a merchant of that country [The Jonge EJassina, 1804, 5 C. Rob. 297). And if a natural-bom subject be resident in an hostile country the Crown cannot enable him to maintain an action here, since otherwise the fruits of an action might be remitted to an hostile country, and so increase its resources {M'Connell v. Hectcfr, 1802, 3 B. & P. 113, 114, per Eooke, J.). A licence to trade, limited to expire on a certain day, will protect the adventure beyond that day, if it be protracted by events beyond the control of the licensee [Siffkin v. Glover, 1813, 4 Taunt. 717; SiffUn Y.Allnutt, 1813, 1 M. & S. 39 ; Frceland v. Walker, 1812, 4 Taunt. 478 ; Leevin v. Comae, 4 Taunt. 483, note ; Effuth v. Smtth, 1814, 5 Taunt. 329). Any British subject or subject of a neutral sovereign resident, unless merely temporarily {The Ocean, 1804, 5 C. Eob. 91, p. 41, supra), in enemy territory, or unless by conduct — a most important and determinate factor in which is an act of engaging in trade or no [Roberts v. Sardy, 1815, 3 M. & S. 533, 536, per Lord Ellen- (s) Reversing the judgment in K. B., 16 East, 625. (t) In addition to those here cited, a number of cases ■will be found collected in Fisher's Digest, International Law, II. A. 7, License to Trade. Digitized by Microsoft® THE INDIAN CHIEF. 45 borough, 0. J.) — an intention is made ma.nifest not to adhere to territory on the enemy (ib.), and any British suhject or subject of a neutral as alien sovereign engaged in the service of an enemy, is on the same footing ®"^®™y- as an alien enemy {SparenMrgh v. Bannatyne, 1797, 1 B. & P. 163 ; M'Connell v. Sector, 1802, 3 B. & P. 113 ; O'Meali/ v. Wilson, 1808, 1 Camp. 482, Lord EUenborough) (««). But a character acquired in this latter mode ceases on the discontinuance of hostilities, unless it pleases the Crown to continue to regard any person who has been engaged in hostility as being still an alien enemy, c.^., by treating him as a prisoner of war {Sparenhurgh v. Bannatyne, supra). On the other hand, a natiu-al-born subject of this country, Subject domiciled {v) in a foreign country in amity with this may lawfully country of exercise the general privilege of a subject of such friendly country ^ ®^ " to trade with another country in hostility with this {Boll v. Beid, 1813, 1 M. & S. 726) . And, if a subject of a state at war with Alien enemy this country resides here with the licence and permission of the reSdrhere. Crown (p. 42, supra), he has the same rights and privileges as an alien friend {Wells v. Williams, 1698, 1 Salk. 46; Casseres v. Bell, 1799, 8 T. E. 166 ; Vin. Abr. AUen (L.), pi. 8) {0). Since the Act of Union the English Acts relating to aliens Ireland, apply, unless otherwise expressed, in Ireland, so far as they are Acts affecting the status of persons in allegiance to the sovereign of the United Kingdom {Davies v. Lynch, 16 W. E,. 1207). Natural-born subjects are persons bom within the Queen's Natural-bom dominions, not being the children of alien enemies {Calvin's Case, ^" •'^" ^" Rep. part vii. p. 1 ; Isaacson v. Burant, 1886, 17 Q. B. D. 54) and persons bom abroad whose fathers (unless attainted at the time of the birth of such persons of high treason, or liable to the penalties of high treason or felony on account of their returning to Great Britain or Ireland {Fitch v. Weber, 1847, 6 Hare, 51), except on licence from the Crown, or unless in actual service of any («) As to treason, p. 298, mfra (Criminal Law). (») Perhaps not " domiciled," but something very near it. (») It has been held that a natural-born subject residing in an enemy's country, and carrying on commerce, cannot maintain an action in our Courts, even though naturalized as a citizen of that .country : O'Mealyv. Wilson; McCmnell v. Sector, supra. This is not affected by the Naturalization Act, for such an one is on the ordinary footing of an alien enemy. Digitized by Microsoft® 46 NATUEAL-BOEN SUBJECTS. foreign prince or state in enmity with the Qrueen), or whose grand- fathers, the children being the children of British fathers not incapacitated in any of the ways above mentioned, were natural- born subjects (25 Edw. 3, stat. 1 ; 7 Anne, c. 5, s. 3 ; 10 Anne, c. 5 ; 4 G-eo. 3, c. 21 ; 13 Greo. 3, c. 21), until (if at any time) they cease to be so by reason of that part of her Majesty's dominions in which they continue resident ceasing to belong to the Crown of England by division of succession {Isaacson v. Burant, supra, dis- senting from certain dicta in Calvin'' s Case), or by reason of the operation of any treaty concluded between her Majesty and some foreign state, or through the operation of any cession of any part of her Majesty's dominions and the provisions made in that behalf {Doe V. AcMam, 1824, 2 B. & C. 779 ; Doe v. Mukaster, 1826, 5 B. & C. 771 ; Jephson v. Biera, 1835, 3 Knapp, P. C. 130 ; Ee Bruce, 1832, 2 C. & J. 436; ^neas MacdonaWs Case, 1747, 18 State Trials, 857, explained Isaacson v. Burant, supra; Boe v. Arkwright, 1833, 5 0. & P. 575), or until (if at any time) they have availed themselves of the provisions of the Naturalization Act, 1870 {q. V. infra), applicable to them (see also Be Ouerin, 1889, 5T. L. E. 160; 76.188). As to persons naturalized under the Naturalization Act, 1870, see the Act here below. The status conferred by the above-mentioned Acts .of Edw. 3, Anne, Greo. 2, and Geo. 3, is a merely personal status, and is not made transmissible to the descendants of the persons to whom the status is thereby given. There is no foundation for the notion that by the common law the posteriority of a~ natural-born British subject must be treated as British subjects for ever. The grand- child born abroad, whose father was also born abroad, being respectively grandchild and child of a man who was by the common law a natural-born British subj6ct, would be himself a natural-born British subject, but his children, if born abroad, would be aliens {Be Oeer v. Stone, 1882, 22 Ch. D. 243, Kay, J. ; Be Willoughhy, 1885, 30 Ch. D. 324, C. A.). Children born abroad ^of ambassadors in the service of the Crown are, it is said, treated as natural-born subjects {Calvin's Case, supra ; Cockburn, Nationality, p. 7 ; Westlake, § 264) ; but it is doubtful if this rule applies to children born abroad of a soldier Digitized by Microsoft® THE INDIAN CHIEF. 47 In tlie service of the Grown abroad {Be Qeer v. 8tone, supra, at p. 254, per Kay, J.) {y). Persons born upon the high seas are deemed born in that country to which the ship belongs; and, therefore, a child born in an English ship upon the high seas is a natural-born subject (cf. Marshall v. Murgatroyd, 1870, L. E. 6 Q. B. 31) {%). Naturalization — Denization — Expatriation. NATUEALIZA.TION ACT, 1870. 33 Vict. c. 14. An Act to amend the Law relating to the legal condition of Aliens and British Subjects. [12tli May, 1870.] Whereas it is expedient to amend the law relating to the legal con- dition of aliens and British subjects : Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliameat assembled, and by the authority of the same, as follows : 1. This Act may be cited for all purposes as "The Naturalization Short title. Act, 1870." Status of Aliens in the United Kingdom. 2. Real and personal property of every description may be taken, Capacity of acquired, held, and disposed of by an alien in the same manner in all ^^ ^^° "^ respects as by a natural-born British subject ; and a title to real and property, personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject : Provided, — (1.) That this section shall not confer any right on an alien to hold [y) Tlie authority for the proposition about ambassadors' children is the dictum in Calvin's Case. It is not necessary that the -wiTCS should be English subjects : De.Geerv. Stone, sripra, at pp. 251, 252. The dictum apparently proceeds on the ground that legiance or obedience is stiU owed the Queen in a special sense by her ambassador abroad. This reasoning would apply equally well to a soldier. And certainly ambassadors, ministers, &o., and military forces in adverse occupa- tion of foreign soil, owe no allegiance to the foreign soyereign, and are in no way affected by foreign law : 7 Anne, o. 12 ; Taylor v. Best ; and notes, below. See books on international law; and p. 96, infra (Marriage). Kay, J., however, in De Geer v. Stone, I. e., following Westlake, ed. 1, p. 9, inclined to rest the rule on exterritoriality. Mr. Westlake, nevertheless, does not take this position in the second edition of his book. See § 261. If the rule reaUy rests on exterritoriality, it would, presumably, apply to all children born at an embassy or legation. When, also, her majesty's forces have adverse occupation of foreign soil, their position is exterritorial. See references above. (z) Story, § 45 (at the end), may be cited in support of another view : sed qu. if he is speaking of anything but domicil. There does not appear to be any direct authority. It is always doubtful how far such a rule as that enunciated by Blackburn, J., in the case cited, will be applied to any particular circumstances. As to. the King's children and the issue of the Princess Sophia, see 26 Edw. 3, Stat. 1 ; 4 & 5 Anne, o. 16. Digitized by Microsoft® 48 NATURALIZATION. Power of naturalized aliens to divest them- selves of their status in certain cases. How British- bom subject may cease to be such. AJien not entitled to jury de medietate linguBB. Capacity of British subject to real property situate out of the United Kingdom, and shall not qualify an alien for any office or for any municipal, parliamentary, or other franchise : (2.) That this section shaU not entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly given to him : (3.) That this section shall not affect any estate or interest in real or personal property to which any person has or may become entitled, either mediately or immediately, in possession or expectancy, in pursuance of any disposition made before the passing of this Act, or in pursuance of any devolution by law on the death of any person dying before the passing of this Act. > 3. Where her Majesty has entered into a convention with any foreign state to the effect that the subjects or citizens of that state who have been naturalized as British subjects may divest themselves ' of their status as such subjects, it shall be lawful for her Majesty, by Order in Council, to declare that such convention has been entered into by her Maj esty ; and from and after the date of such Order in Council, any person being originally a subject or citizen of the state referred to in such Order, who has been naturalized as a British subject, may, within such limit of time as may be provided in the con- vention, make a declaration of alienage, and from and after the date of his so making such declaration such person shall be regarded as an alien, and as a subject of the state to which he originally belonged as aforesaid. A declaration of alienage may be made as follows ; that is to say, — If the declarant be in the United Kingdom in the presence of any justice of the peace, if elsewhere in her Majesty's dominions in the, presence of any judge of any Court of civU. or criminal jurisdiction, of any justice of the peace, or of any other officer for the time being authorised by law in the place in which the declarant is to administer an oath for any judicial or other legal purpose. If out of her Majesty's dominions in the presence of any officer in the diplomatic or consular service of her Majesty. 4. Any person who by reason of his having been born within the dominions of her Majesty is a natural-born subject, but who also at the time of his birth became under the law of any foreign state a subject of such state, and is still such subject, may, if of fuLL age and not under any disability, make a declaration of alienage in manner aforesaid, and from and after the making of such declaration of alienage such person shall cease to be a British subject. Any person who is born out of her Majesty's dominions of a father being a British' subject may, if of fuU age, and not under any disability, make a declaration of alienage in manner aforesaid, and from and after the making of such declaration shall cease to be a British subject. 5. From and after the passing of this Act, an alien shall not be entitled to be tried by a jury de medietate linguse, but shall be triable in the same manner as if he were a natural-born subject. Expatriation. 6. Any British subject who has at any time before, or may at any time after the passing of this Act, when in any foreign state and not J Digitized by Microsoft® NATUBALIZATION ACT, 1870. 4S under any disability voluntarily become natm-alized in such state, shall, J^enounce from and after the time of his so having become naturalized in such her Maiesty* foreign state, be deemed to have ceased to be a British subject and be regarded as an alien : Provided, — (1.) That ■where any British subject has before the passing of this Act voluntarily become naturalized in a foreign state and yet is desirlous of remaining a British subject, he may, at any time within two years after the passing of this Act, make a declaration that he is desu-ous of remaining a British subject, and upon such declaration hereinafter referred to as a declara- tion of British nationahty being made, and upon his taking the oath of allegiance, the declarant shall be deemed to be and to have been continually a British subject ; with this qualification, that he shall not, when within the limits of the foreign state in which he has been naturalized, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pursuance of a treaty to that effect : (2.) A declaration of British nationality may be made, and the oath of allegiance be taken as follows ; that is to say, — if the declarant be in the United Kingdom, in the presence of a justice of the peace; if elsewhere in her Majesty's dominions, in the presence of any judge of any court of civil or criminal jurisdiction, of any justice of the peace, or of any other oflB.cer for the time being authorized by law in the place in which the declarant is to administer an oath for any judicial or other legal purpose. If out of her Majesty's dominions, in the presence of any officer in the diplomatic or consular service of her Majesty. Naturalization and resumption of British Nationality. 7. An alien who within such limited time before making the appli- Certificate of cation hereinafter mentioned as may be allowed by one of her Majesty's naturaliza- Principal Secretaries of State, either by general order or on any special ^°"' occasion, has resided in the United Kingdom for a term of not less than five years, or has been in the service of the Crown for a term of not less than five years, and intends, when naturalized, either to reside in the United Kingdom, or to serve imder the Crown, may apply to one of her Majesty's Principal Secretaries of State for a certificate of naturalization. The applicant shall adduce in support of his application such evidence of his residence or service, and intention to reside or serve, as such Secretaiy of State may require. The said Secretary of State, if satisfied with the evidence adduced, shall take the case of the applicant into consideration, and may, with or without assigning any reason, give or withhold a certificate as he thinks most conducive to the public good, and no appeal shall he from his decision, but such certificate shall not take effect until the applicant has taken the oath of allegiance. An ahen to whom a certificate of naturalization is granted shall in the United Kingdom be entitled to all political and other rights, powers, and privileges, and be subject to aU obligations, to which a ij_ Digitized by Microsoft® e 50 NATURALIZATION. Certificate of re -admission to British nationality. Form of oath of allegiance. natural-born British subject is entitled or subject in the Umted Kingdom, with this qualification, that he shall not, when within the limits of the foreign state of which he was a subject previously _ to obtaining his certificate of naturalization, be deemed to be a British subject unless he has ceased to be a subject of that state in pursuance of the laws thereof, or in pui'suance of a treaty to that effect. The said Secretary of State may in manner aforesaid grant a special certificate of naturalization to any person with respect to whose nationality as a British subject a doubt exists, and he may specify in such certificate that the grant thereof is made for the purpose of quieting doubts as to the right of such person to be a British subject, and the grant of such special certificate shall not be deemed to be any admission that the person to whom it was granted was not previously a British subject. An alien who has been naturalized previously to the passing of this Act may apply to the Secretary of State for a certificate of naturaliza- tion under this Act, and it shall be lawful for the said Secretary of State to grant siich certificate to such naturalized alien upon the same terms and subject to the same conditions in and upon which such certificate might have been granted if such alien had not been previously naturalized in the United Kingdom. 8. A natural-born British subject who has become an alien in jjursuance of this Act, and is in this Act referred to as a statutory alien, may, on performing the same conditions and adducing the same evidence as is required in the case of an alien applying for a certificate of nationality, apply to one of her Majesty's Principal Secretaries of State for a certificate, hereinafter referred to as a certificate of re-admission to British nationality, re-admitting him to the status of a British subject. The said Secretary of State shall have the same discretion as to the giving or withholding of the certificate as in the case of a certificate of naturalization, and an oath of allegiance shall in like manner be required previously to the issuing of the certificate. A statutory alien to whom a certificate of re-admission to British nationality has been granted shall, from the date of the certificate of re-admission, but not in respect of any previous transaction, resume his position as a British subj ect ; with this qualification that within the limits of the foreign state of which he became a subject he shall not be deemed to be a British subject unless he has ceased to be a subject of that foreign state according to the laws thereof, or in pur- suance of a treaty to that effect. The jurisdiction by this Act conferred on the Secretary of State in the United Kingdom in respect of the grant of a certificate of re- admission to British nationality, in the case of any statutory ahen being in any British possession, may be exercised by the governor of such possession ; and residence in such possession shall, in the case of such person, be deemed equivalent to residence in the United Kingdom. 9, The oath in this Act referred to as the oath of allegiance shaU be in the form following ; that is to say, "I do swear that I will be faithful and bear true allegiance to her Majesty Queen Victoria, her heirs and successors, according to law. So help me GOD." Digitized by Microsoft® NATURALIZATION ACT, 1870. 51 National Status of Married Women and Infant Children. 10. The foUowing enactments shall be made with respect to the National national status of women and children : status of (1.) A married woman shall be deemed to be a subject of the "earned state of which her husband is for the time being a subject ; infant (2.) A widow being a natural-born British subject, who has become children. an alien by or in consequence of her marriage, shaU. be deemed to be a statutory alien, and may as such at any time during widowhood obtain a certificate of re-admission to British nationality in manner provided by this Act : (3.) Where the father being a British subject, or the mother being a British subject and a widow, becomes an alien in pursuance of this Act, every child of such father or mother who during infancy has become resident in the country where the father or mother is naturalized, and has, according to the laws of such country, becom.e naturalized therein, shall be deemed to be a subject of the state of which the father or mother has become a subject, and not a British subject : (4.) "Where the father, or the mother being a widow, has obtained a certificate of re-admission to British nationality, every child of such father or mother who during infancy has become resident in the British dominions with such father or mother, shall be deemed to have resumed the position of a British subject to all intents : (5.) Where the father, or the mother being a widow, has obtained a certificate of naturahzation in the United Kingdom, every child of such father or mother who during infancy has become resident with such father or mother in any part of the United Kingdom, shall be deemed to be a naturalized British subject. Supplemental Provisions. 11. One of her Majesty's Principal Secretaries of State may by Regulations regulation provide for the following matters : — as to registra- (1.) The form and registration of declarations of British nationality: *^°°- (2.) The form and registration of certificates of naturalization in the United Kingdom : (3.) The form and registration of certificates of re-admission to British nationality : (4.) The form and registration of declarations of alienage : (5.) The registration by ofiicers in the diplomatic or consular service of her Majesty of the births and deaths of British subjects who may be bom or die out of her Majesty's dominions, and of the marriages of persons married at any of her Majesty's embassies or legations : (6.) The transmission to the United Kingdom for the purpose of registration or safe keeping, or of being produced as evidence, of any declarations or certificates made in pursuance of this Act out of the United Kingdom, or of any copies of such declarations or certificates, also of copies of entries contained in any register kept out of the United Kingdom in pursuance of or for the purpose jof carrying into effect the provisions of this Act : Digiffz^d by Microsoft® 52 NATURALIZATION. (7.) With the consent of the Treasury the imposition and application of fees in respect of any registration authorized to be made by this Act, and in respect of the making any declaration or the grant of any certificate authorized to be made or granted by this Act : The said Secretary of State, by a further regulation, may repeal, alter, or add to any regulation previously made by him in pursuance of this section. Any regulation made by the said Secretary of State in pursuance of this section shall be deemed to be within the powers conferred by this Act, and shall be of the same force as if it had been enacted in this Act, but shall not so far as respects the imposition of fees be in force in any British possession, and shall not, so far as respects any other matter, be in force in any British possession in which any Act or ordi- nance to the contrary of or inconsistent with any such direction may for the time being be in force. rs\?I^*denL ^^- '^'^^ following regulations shaU be made with respect to ■ evidence under this Act : — (I.) Any declaration authorized to be made under this Act may be proved in any legal proceeding by the production of the original declaration, or of any copy thereof certified to be a true copy by one of her Majesty's Principal Secretaries of State, or by any person authorized by regulations of one of her Majesty's Principal Secretaries of State to give certified copies of such declaration, 'and the production of such declaration or copy shall be evidence of the person therein named as declarant having made the same at the date in the said declaration mentioned : (2.) A certificate of naturalization may be proved in any legal proceeding by the production of the original certificate, or of any copy thereof certified to be a true copy by one of her Majesty's Principal Secretaries of State, or by any person authorized by regulations of one of her Majesty's Principal Secretaries of State to give certified copies of such certificate : (3.) A certificate of re-admission to British nationality may be proved in any legal proceeding by the production of the original certificate, or of any copy thereof certified to be a true copy by one of her Majesty's Principal Secretaries of State, or by any person authorized by regulations of one of her Majesty's Principal Secretaries of State to give certified 'copies of such certificate : (4.) Entries in any register authorized to be made in pursuance of this Act shall be proved by such copies and certified in such manner as may be directed by one of her Majesty's Principal Secretaries of State, and the copies of such entries shall be evidence of any matters by this Act or by any regulation of the said Secretary of State authorized to be inserted in the register : (5.) The Documentary Evidence Act, 1868, shall apply to any regulation made by a Secretary of State, in pursuance of or for the purpose of carrying into effect any of the provisions of this Act. Digitized by Microsoft® NATUKALIZATION ACT, 1870. A3 Miscellaneous. 13. Nothing in this Act contained shall affect the grant of letters of Saving of denization by her Majesty. letters of 14. Nothing in this Act contained shall qualify an alien to be the owner of a British ship. |^y^| ^^.*° 15. Where any British subject has in pui-suance of this Act become . an alien, he shall not thereby be discharged from any liability in aUeSanoe respect of any acts done before the date of his so becoming an ahen. prjor to 16. All laws, statutes, and ordinances which may be duly made by expatriation. the legislature of any British possession for imparting to any person Power of the privileges, or any of the privileges, of naturalization, to be enjoyed oolouiea to by such person within the Hmits of such possession, shall within such legislate with Hmits have the authority of law, but shall be subject to be confirmed '^^sp^''y° or disallowed by her Majesty in the same manner, and subject to the tion. same rules in and subject to which her Majesty has power to confirm or disallow any other laws, statutes, or ordinances in that possession. 17. In this Act, if not inconsistent with the context or subject-matter Definition of thereof, — terms. "Disability" shall mean the status of being an infant, lunatic, idiot, or married woman : "British possession" shall mean any colony, plantation, island, territory, or settlement within her Majesty's dominions, and not within the United Kingdom, and all territories and places under one legislature are deemed to be one British possession for the purposes of this Act : " The governor of any British possession" shall include any person exercising the chief authority in such possession : " Officer in the diplomatic service of her Majesty" shall mean any ambassador, minister or charg6 d'affaires, or secretary of lega- tion, or any person appointed by such -ambassador, minister, charge d'affaires, or secretary of legation to execute any duties imposed by this Act on an officer in the diplomatic service of her Majesty: " Officer in the consular service of her Majesty" shall mean and include consul-general, consul, vice-consul, and consular agent, and any person for the time being discharging the duties of consul-general, consul, vice-consul, and consular agent. Repeal of Acts mentioned in Schedule. 18. The several Acts set forth in the iirst and second parts of the Repeal of schedule annexed hereto shall be wholly repealed, and the Acts set Acts. forth in the third part of the said schedule shall be repealed to the extent therein mentioned ; provided that the repeal enacted in this Act shall not affect — (1.) Any right acquired or thing done before the passing of this Act: (2.) Any liability accruing before the passing of this Act : (3.) Any penalty, forfeiture, or other punishment incurred or to be incurred in respect of any offence committed before the passing of this Act ; Digitized by Microsoft® 54 NATURALIZATION. (4.) The institution of any investigation or legal proceeding or_ any other remedy for ascertaining or enforcing any such liability, penalty, forfeiture, or punishment as aforesaid. SCHEDULE. Note. — Eeference is made to the repeal of the " whole Act" where portions have been repealed before, in order to preclude hence- forth the necessity of looking back to previous Acts. This schedule, so far as respects Acts prior to the reign of George the Second, other than Acts of the Irish Parliament, refers to the edition prepared under the direction of the record commission, intituled " The Statutes of the Eealm ; printed by command of his Majesty King George the Third, in pursuance of an address of the House of Oonunons of Great Britain. From original records and authentic manuscripts." PAET I. Acts wholly eepbaled, other than Acts of the Ieish PAEiiAMENT. Date. Title. 7 Jas. 1, c. 2 An Act that all such as are to be naturalized or restored in blood shall first receive the sacrament of the Lord's Supper, and the oath of allegiance, and the oath of su- premacy. 11 Wni. 3, c. 6(a). .. . An Act to enable his Majesty's natui-al-born subjects to inherit the estate of their an- cestors, either lineal or collateral, notwith- standing their father or mother were aliens. 13 Geo. 2, c. 7 An Act for naturalizing such foreign pro- testants and others therein mentioned, as are settled or shall settle in any of his Majesty's colonies in America. 20 Geo. 2, c. 44 An Act to extend the provisions of an Act made in the thirteenth year of his present Ma- jesty's reign, intituled "An Act for natu- ralizing foreign protestants and others therein mentioned, as are settled or shall settle in any of his Majesty's colonies in America, to other foreign protestants who conscientiously scruple the taking of an oath." (a) 11 & 12 Will. 3 (RufE.). Digitized by Microsoft® NATUEALIZATION ACT, 1870. 55 Date. Title. 13 Geo. 3, c. 25 An Act to explain two Acts of Parliament, one of the thirteenth year of the reign of his late Majesty, "for naturalizing such foreign protestants and others, as are settled or shall settle in any of his Majesty's colonies in America," and the other of the second year of the reign of his present Majesty, " for naturalizing such foreign protestants as have served or shall serve as officers or soldiers in his Majesty's Eoyal American regiment, or as engineers in America." 14 Geo. 3, c. 84 An Act to prevent certain inconveniences that may happen by hills of naturalization. 16 Geo. 3, c. 52 An Act to declare his Majesty's natural-horn subjects inheritable to the estates of their ancestors, whether lineal or collateral, in that part of Great Britain called Scotland, notwithstanding their father or mother were aliens. 6 Geo. 4, c. 67 An Act to alter and amend an Act passed in the seventh year of the reign of his Ma- jesty Eling James the First, intituled "An Act that all such as are to be naturalized or restored in blood shall first receive the sacrament of the Lord's Supper and the oath of allegiance and the oath of supre- macy." 7 & 8 Vict. c. 66 .... An Act to amend the laws relating to aliens. 10 & 11 Yict. c. 83. . . . An Act for the naturalization of aliens. PAET II. Acts of the Ibish Pabliament wholly bepealed. 14 & 15 Ohas. 2, c. 13. , An Act for encouraging protestant strangers and others to inhabit and plant in the kingdom of Ireland. 2 Anne, c. 14 An Act for naturalizing of aU protestant strangers in this kingdom. 1 9 & 20 Geo. 3, c. 29 . , An Act for naturalizing such foreign mer- chants, traders, artificers, artizans, manu- facturers, workmen, seamen, farmers, and others as shall settle in this kingdom. 23 & 24 Geo. 3, c. 38 , . An Act for extending the provisions of an Act passed in this kingdom in the nineteenth and twentieth years of his Majesty's reign, intituled "An Act for naturalizing such foreign merchants, traders,^ artificers, artizans, manufacturers, workmen, seamen, farmers, and others as shall settle in this kingdom." 36 Geo. 3, c. 48 An Act to explain and amend an Act, inti- tuled "An Act for naturalizing such foreign merchants, traders, artificers, artizans, manufacturers, workmen, seamen, farmers, and otherswho shall settle in this kingdom." Digitized by Microsoft® 56 NATUKALIZATION. PAET III. Acts paetially repealed. Extent of Eepeal. An Act for reviving, continu- So far as it makes ing and amending several perpetual the Act statutes made in this king- of 2 Anne, c. 14. dom heretofore temporary. An Act for consolidating and The whole of sect. 47. amending the laws rela- tive to jurors and juries. 3 & 4 WiU. 4, c. 91 An Act consolidating and The whole of sect. 37. amending the laws relat- ing to jurors and juries in Ireland, 4 Geo. 1, c. 9 .... (Actof Irish Par liament.) 6 Geo. 4, c. 50 Act to be construed generally in accordance with principles of International law. This Act is not retrospective, and does not affect rights accrued anterior to its passing {Sharp v. St. Sauveur, 1871, L. R. 7 Ch. 343, 351). Subject to this, it does away with the disabilities of aliens, and puts them, except as regards the ownership of British ships (fl), on the same footing as to proprietary rights in England as natural-born subjects (see sects. 2 and 14). But it does not interfere with the general principles which have been recognized in our Courts on the subject of domicil {Bloxam v. Favre, 1883, 8 P. D. 101, 107, per Sir James Hannen ; affirmed, 1884, 9 P. D. 130, C. A.). The statute is to be interpreted and applied, so far as its language admits, so as not to be inconsistent with the comity of nations, or with the established rules of international law {lb. [b) ; cf. also B. V. Manning, 1849, 19 L. J. M. 0. 1). Sect. 2. Sect. 2. — The object of this section was to put aliens on the same general footing as British subjects as to acquiring, holding, and disposing of property in England ; but it does not give an alien power to dispose of property in a manner not in accordance with the law of his domicil {Bloxam v. Fatre, supra). As to copy- right, patent, and trade marks, see International Copyright Act, and notes, below, (a) As to which, see note to sect. 14, infra. (b) See as to this, Niboyet v. Niioyct, 1878, 4 P. D. 1 ; Colquhuon-v. Brooks, 1888, 21 Q. B. D. 52 ; Salmon v. Suncomhe, 1886, 11 App. Cas. 627, J. C. ; and Maxwell on the Interpretation of Statutes, o. vi, §§ ii. iii., and cases there cited. Digitized by Microsoft® NATURALIZATION ACT, 1870. ^7 Sect. 3.— Pai-1. Paper, 1870 (c. 192), citizens of United States Sect. 3. who have become naturalized British subjects enabled to divest themselves of such status by a declaration of alienage within two years of the 13th May, 1870. The Supplementary Convention is given as a schedule to 35 & 36 Vict. c. 39 {q. v.). Art. 1 provides that any person being originally a citizen of the United States who had previously to the 13th May, 1870, been naturalized as a British subject, may, at any time before the 10th August, 1872, and any British subject, and so on (the converse ease), may, at any time before the 12th May, 1872, publicly declare his renunciation in the form thereto annexed. Sect. 4. — See p. 59, infra. Sect. 4. Sect. 6.-See Re Tmfort, 1887, 36 Oh. D. 600. Sect. 6. Sect. 7.— See Re Bourgoise, 1888, 58 L. T. 431 ; 4 T. L. E. Sect. 7. 195 ; W. N. 1888, p. 3, Kay, J., as to which see a note by Mr. Thomas Barclay, Law Quarterly Review, vol. iv., p. 226. Mr. Barclay submits that a certificate of naturalization in the terms of that granted to Bourgoise is not a qualified naturaliza- tion, because it is as absolute as any state can make it, without invading the independence of other states. But such a certificate — a certificate which is only as absolute as — is, with respect, a qualified certificate. There are also the words of the Act, " with this qualifi- cation." On appeal it was held unnecessary to interfere with the foreign guardians {Re Bourgoise, 1889, 5 T. L. R. 363 ; W. N. 1889, p. 64). Sect 9. — Oath means declaration or affirmation in the case of Sect. 9. persons permitted by law to declare or affirm (13 & 14 Vict. c. 21, s. 4 ; see 3 & 4 Will. 4, c. 49 ; 1 & 2 Vict. c. 77 ; 3 & 4 Will. 4, c. 82 ; 5 & 6 Will. 4, c. 63, s. 2 (but note sect. 6) ; 51 & 52 Viet. 0. 46). See also 33 & 34 Vict. c. 102. Sect. 10. — As to resident, see p. 16, siq}m, note ; and see also Seot. lO. as to this section, Bloxam v. Favre, supra. 35 & 36 Vict. c. 39, s. 3. Nothing contained in the Naturali- zation Act, 1870, shall deprive any married woman of any estate or Digitized by Microsoft® 58 BRITISH SHIPS. Sect. 11 (7). interest in real or personal property to whicli she may have hecome entitled previously to the passing of that Act, or affect such estate or interest to her prejudice. And see Sharp v. St. Sameur, supra. Sect. 11 (7). — ^Fees to he taken in stamps (London Gazette, 27th September, 1870), cancelled 4th April, 1879. See sect. 16, n., and 33 & 34 Vict. c. 102. Sect. 13. Denizen. Sect. 13. — Letters of denization may he granted hy letters patent from the Crown. No period of residence is necessary for deniza- tion. But a denizen becomes a British subject only from the date of the letters to him (Bacon Abr. Tille- Alien. (B) ). A denizen is not capable to be of the Privy Council, or a member of either House of Parliament, or to enjoy any office or place of trust, either civil or military, or to take either the legal or beneficial interest in any hereditaments on grant from the Crown (12 & 13 Will. 3, c. 2, s. 3). Sect. 14. Ownership of British snips. Sect. 14.— Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), sect. 18 : No ship shall be deemed to be a British ship unless she belongs wholly to owners of the following description ; (that is to say,) (1.) Natural-born British subjects : — Provided that no natural-bom subject who has taken the oath of allegiance to any foreign sovereign or state shall be entitled to be such owner as aforesaid unless he has subsequently to taking such last-mentioned oath taken the oath of allegiance to her Majesty (see sect. 9, and note above), and is and continues to be during the whole period of his so being an owner resident (p. 16, supra, note) in some place within her Majesty's dominions, or if not so resident, member of a British factory, or partner in a house actually carrying on business (p. 418, infra) in the United Kingdom, or in some other place within her Majesty's dominions. (2.) Persons made denizens by letters of denization, or natu- ralized by or pursuant to any act of the Imperial Legislature, or by or pursuant to any act or ordinance of the proper legislative authority in any British possession : Provided that such persons are and continue to be during the. Digitized by Microsoft® THE INDIAN CHIEF. 59 wliole period of their so being owners resident in some place within her Majesty's dominions, or, if not so resident, members of a British factory, or partners in a house actually carrying on business in the United Kingdom, or in some other place within her Majesty's dominions, and have taken the oath of allegiance to her Majesty subsequently to the period of their being so made denizens or naturalized. (3.) Bodies corporate established under, subject to the laws of, and having their principal place of business in the United Kingdom or some British possession. See Henriques v. Butch West India Co. ; Att.-Qen. v. Alexander, and notes, below. Sect. 16. — Of. sect. 18 (2) of Merchant Shipping Act, above ; and Sect. 16. see Westlake, sect. 270, and cases there cited, namely, Donec/ani V. Doiiegani, 1835, 3 Knapp. 63 ; Be Adam, 1837, 1 Mo. P. C. 460. A person's conduct in particular circumstances may have been Alienage and such that he will be treated for certain purposes as an alien, though {'qua°?f by^ he be strictly a British subject (pp. 45, 46, supra ; Driimmond's Case, conduct. 1834, 2 Knapp, 295 (on the award of commissioners for liquidating claims of British subjects in France) ) (c). And although not a British subject by birth or otherwise, there may be circumstances, such as British domicil, which may entitle any person not only to the same trading privileges as resident British subjects (p. 45, supra), but also to protection and consideration in other respects as between the Queen and foreign powers (Countess Conwai/'s Case, 1834, 2 Knapp, 364, 367, per Parke, B.). The Jurisdiction of Prize Courts. — The jurisdiction in matters Jurisdiction of prize has always been exercised in England by the High Court Courts.^ of Admiralty, by virtue either of its own inherent jurisdiction, as the Court of the Lord High Admiral, and in conformity with the common principles of international law [The Flad Oyen, 1 C. Eob. 139, per Lord StoweU), or in pursuance of Orders in Council (c) As to which, see also De Bode v. M., 1851, 3 H. L. 0. 449 ; and cf. Marshall v. Nicholls, 1862, 21 L. J. Q. B. 343 (Fisheries Convention, Belgium) ; Countess Con- way's Case, infra. Digitized by Microsoft® 60 JUKISDICTION OF PKIZE COURTS. (Maude & Pollock, pp. 66, 67, and in particular note (a) ). By statute 6 Greo. 4, c. 12, the prize jurisdiction of the Scotch Admi- ralty Court was vested in the High Court of Admiralty of Eng- land. And since the Act of Union the Irish Admiralty Court has not exercised jurisdiction in prize matters (M. & P., ubi supra). The Naval Prize Act, 1864 (27 & 28 Yict. c. 25), enacts (sect. 4) that the High Court of Admiralty of England shall have juris- diction throughout her Majesty's dominions as a Prize Court, and that the High Court of Admiralty, as a Prize Court, shall have power to enforce any order or decree of a Yice- Admiralty Prize Court, and any order or decree of the Judicial Committee of the Privy Council in a prize appeal. The Act further enacts (sect. 5), that an appeal shall lie to the Judicial Committee from any order or decree of a Prize Court {i. e., the High Court of Admiralty, and every Court of Admiralty or of Vice- Admiralty, or other Court exercising Admiralty jurisdiction in her Majesty's dominions, for the time being authorized to take cognizance of and judicially proceed in matters of prize (sect. 3) ), as of right in the case of final decree, and in other cases with the leave of the Court making the order or decree. General orders (sect. 13) as to prac- tice or procedure of Prize Courts may, subject to the Act, be made by the Judicial Committee in conjunction with the judge of the Admiralty Court {d). Except in so far as it declares the Admiralty Court to be a Prize Court for all the Queen's dominions, the Act does not interfere with the authority of her Majesty in Coxmoil to constitute other Prize Courts within the United Kingdom or else- where (sect. 55). By the operation of sects. 3, 16, 32, 34, 42 and 44 of the Supreme Court of Judicature Act, 1873 (36 & 37 Vict. c. 66), the jurisdiction of the High Court of Admiralty is assigned, until any Eule of Court under that Act shall transfer it to some other divi- sion (which transference, it is apprehended, will not take place), to the Probate, Divorce and Admiralty Division of the High Court of Justice. But any cause or matter assigned to that division may (d) Is this judge now represented by the Tresident of the P., D. and Adm. Division, or hy the judges of that Division, or by whom? S. C. J. Act, 1873, s. 31, sub-8. (5). Of. a note by Professor Holland, Law Quarterly Review, Vol. IV, p. 107 ; but see Jud. Act, 1873, s. 12, and sections cited above. Digitized by Microsoft® THE INDIAN CHIEF. 61 at the request of tlie President, with the concurrence of the Lord Chancellor, or, in his absence, of the Lord Chief Justice, be heard by another judge of the High Court. By sect. 18 of the same Act, the appellate jurisdiction of the Judicial Committee on appeal from the High Court of Admiralty is transferred to the Court of Appeal ; from which Court a further appeal lies to the House of Lords (Appellate Jurisdiction Act, 1876, s. 3). The appeal from Yice- Admiralty Courts and other prize courts still lies to the Privy Council {supra ; and Yice- Admiralty Courts Act, 1863 (26 Vict. c. 24), s. 22). Apart from what has been said above as to the authority of her Majesty in Council and their inherent jurisdiction, it appears that these Courts have jurisdiction under sect. 11 of the Act of 1863 to adjudicate on certain matters of prize (see as to droits of Admiralty, supra, p. 40, per Sir Wm. Scott ; and M. & P. p. 676, note ; as to questions on recapture, sect. 10, sub-sect. 10, of the Vice-Admiralty Courts Act, 1863). Probably at the outbreak of or in contemplation of war an Order in Council would confer on the Vice-Admiralty Courts, or some of them, prize jurisdiction concurrently with the Probate, Divorce and Admiralty Division. The jurisdiction in matters of prize carries with it the determi- nation of all consequences with respect to freight, cargo, and the like {Hughes v. Cornelius, 1681, 2 Show. 232 ; M. & P. p. 67, note) (e). fe) As to the force and effect of a sentence of a foreign prize court, see pp. 365, 366, infra. Digitized by Microsoft® 62 The case of JAMES SOMMERSETT, a Negro. Kino's Bench. 12 Geo. 3, A.D. 1771, 1772. [Eeported xy Howell's State Trials, 1 ; Sub nom. Somerset v. Stewart, Lofft. 1 (a).] Retm-n to Qn the 3rcl of December, 1771, affidavits were made by Thomas to"*us th'irt^'^' Walklin, Elizabeth Cade, and John Mavlow, that James Sommersett, person de- ^ negro, was confined in irons on board a ship called the Ann and tained was a Maiy, John Knowles commander, lying in the Thames, and bound for slave and Jamaica ; and Lord Mansfield, on an application supported by these refused to affidavits, allowed a writ of habeas corpus, directed to Mr. Knowles, wronhTwas' ^^^ requiring him to return the body of Sommersett before his lord- kept ; held, ship, with the cause of detainer. insufficient. Mr. Knowles, on the 9th of December, produced the body of Per Lord Sommersett before Lord Mansfield, and returned for cause of detainer, v'^h^^n^'^' t^° *^^* Sommersett was the negro slave of Charles Steuart, Esq., who of dominion ^^^ delivered Sommersett in Mr. Knowles' custody, in order to carrj' must bo re- him to Jamaica, and there sell him as a slave. Affidavits were also cognized by made by Mr. Steuart and two others, to prove that Mr. Steuart had the positive purchased Sommersett as a slave in Virginia and had afterwards counti-y where ^^^ought him into England, where he left his master's service; and it is used. that his refusing to return, was the occasion of his being carried on board Mr. Knowles' ship. Lord Mansfield choosing to refer the matter to the determination of the Court of King's Bench, Sommersett with sureties was bound in a re- cognizance for his appearance there on the second day of the next Hilary term ; and his lordship allowed till that day for settling the form of the return to the habeas corpus. Accordingly on that day Sommersett appeared in the Court of King's Bench, and then a return was read, the substance of which will appear from the judgment. Davy, Serj., Glynn, Serj., Mansfield, Alleyne, and Hargrave against the return. Steuart's alleged rights are founded on slavery, and wholly depend thereon (5) ; and if such rights are here recognized, domestic slavery, with its horrid train of evils, may be lawfully imported into this {a) The report of the argtiments is condensed, but judgment ia given in extenso. (4) This is, for the most part, the substance of the argument of Mr. Hargrave. The argument itself was not delivered by him as reported in Howell. But it may be apprehended that he only refrained from delivering those parts of it as to which he had been anticipated by others on the same side. Thus the whole of it was before the Court. Digitized by Microsoft® sommeesett's case. 63 country. Slavery is against natural justice. The old rules by whlcli 1771, 1772. the title to a villein was tried, are not applicable to slavery commencing out of England ; hence it is evident that the introduction of such a slavery is not permitted by the law of England. Yillenage is the onlj- slavery which cotild possibly exist in England, and that is long ago extract. Further, if a man in England contract to enslave himself, this is bad. It will be said on the other side, that there are Acts of Parliament relating to slavery, and that therefore it is now lawful. But the utmost which can be said of those statutes is, that they im- pliedly authorize the slavery of negroes in America ; permitting slavery there, where unhappily it is thought to have become necessary, it is not permitting here, where it is unnecessary. The slavery of negroes being admitted to be lawful now in America, it may be urged, that the lex loci ought to prevail, and that the master's property in the negro as a slave, having had lawful com- mencement in America, cannot be justly varied by bringing him into England. But the lex loci cannot prevail, if great inconveniences will ensue from giving effect to it. To give effect to it here would be an unlimited sacrifice of the municipal law to the law of a foreign country, and would make the prohibition (which it is submitted exists) of the commencement of domestic slavery hero, wholly ineffectual, since it could be introduced from abroad. Moreover to discountenance the lex loci in this respect is the policy of most other European states. It may be contended that though he will not be permitted to exercise them severely, yet the master's rights will be acknowledged in England. But no such modification of the condition is possible, which does not leave the most odious attribute of it, the arbitrary control of the person and freedom of the slave. Therefore, no such modification is possible which does not amount to a refusal to recognize the slavery at all. At any rate, Steuart cannot remove his slave out of England. If the law of England allowed the admission of such a slavery, would it disallow the master from taking his slave out of the kingdom ? . . WaUaee and Dunning in support of the return : — Slavery exists in three-fourths of the globe. It exists in the "West Indies, not because of positive laws, but because there is no law against it. It is not for this Court to see whether West Indian regulations are the best possible ; such as they are, they must be adhered to. There is no law against slavery in England. ViUenage itself has all but the name, and existed so late as the time of Elizabeth. If it be objected that a proper action could not be brought, the con- tract in Virginia might be laid in London, according to the well-known practice (c), and would not be traversable. Great inconvenience will be caused here, if the decision is against us. Freedom is not an absolute natural right; some part of it must always be restrained. We must not call others barbarians because we are ignorant of their internal police. In Africa, where it had its true commencement, this man's condition was servitude, according to their customs. Great pains have been taken, on the other side, in collecting the sentiments of other countries, but such sentiments do not affect the point or the jurisdiction of this Court. [c) See now R. S. C. 1883, Ord. XXXVI. l: 1. Digitized by Microsoft® 64 SLAVERY. 1771, 1772. There are analogies in England. The apprentice is bound oiit by • the parish without choice of his own, and a contract for life may be good. Davy, Serjeant, in reply : — All relations governed by municipal laws, must be so far dependent on them, that if the parties change their country the municipal laws give way, if contradictory to the -political regulations of that other country. In the case of master and slave, being no moral obligation, but founded on principles, and supported by practice, utterly foreign to the laws and customs of this country, the law cannot recognize such relation. This air is too pure for a slave to breathe in. 22nd June, 1772. Judgment — Lord Mansfield: On the part of Sommersett, the case which we gave notice should be decided this day, the Court now proceeds to give its opinion. I shall recite the return to the writ of habeas corpus, as the ground of our determination, omitting only words of form. The captain of the ship on board of which the negro was taken, makes his return to the writ in terms signifying that there have been and stiU are slaves to a great number in Africa, and that the trade in them is authorized by the laws and opinions of Virginia and Jamaica ; that they are goods and chattels, and, as such, saleable and sold. That James Sommersett is a negro of Africa, and long before the return of the king's writ was brought to be sold, and was sold to Charles Steuart, Esq., then in Jamaica, and has not been manumitted since ; that Mr. Steuart, having occasion to transact business, came over hither, with an intention to return, and brought Sommersett to attend and abide with him, and to carry him- back as soon as the business should be transacted. That such inten- tion has been and still continues ; and that the negro did remain till the time of his departure in the service of his master, Mr. Steuart, and quitted it without his consent ; and, thereupon, before the return of the king's writ, the said Charles Steuart did commit the slave on board the Anne and Mary, to safe custody, to be kept till he should set sail, and then to be taken with him to Jamaica, and there sold as a slave. And this is the cause why he, Captain Knowles, who was then and now is commander of the above vessel, then and now lying in the river of Thames, did the said negro, committed to his charge, detain, and on which he now renders him to the orders of the Court. "We pay all due attention to the opinion of Sir Philip Yorke and Lord Chancellor Talbot, whereby they pledged themselves to the British planters for all the legal consequences of slaves coming over to this kingdom or being baptised, recognized by Lord Hardwicke, sitting as Chancellor, on the 19th of October, 1749, that trover would lie : that a notion had prevailed, if a negro came over or became a Christian, he was emanci- pated, but no ground in law ; that he and Lord Talbot, when Attorney and Solicitor-General, were of opinion that no such claim for freedom was valid ; that though the Statute of Tenures had abolished villeins regardant to a manor, yet he did not conceive but that a man might still become a villein in gross, by confessing himself such in open Court. We are so well agreed that we think there is no occasion bf having it argued (as I intimated an intention at first) before all the judges, as is usual, for obvious reasons, on a return to a habeas corpus. The only question before us is, whether the cause on the return is suf- Digitized by Microsoft® sommersett's case. fiS fieient ? If it is, the negro must be remanded ; if it is not, he must be 1772. discharged. Accordingly, the return states that the slave departed and refused to serve, whereupon he was kept to be sold abroad. So high an act of dominion must be recognized by the law of the country where it is used. The power of a master over his slave has been extremely different in different countries. The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created is erased from memory. It is so odious that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England ; and therefore the black must be discharged. The rule of this case (d) must be strictly limited to transactions How far taking place in England or on board an English ship on the high applies.^ seas or within the territorial waters of England {Forbes v. Cock' rane, 1824, 2 L. J. K. B. 67 ; The Slave Grace, 1827, 2 Hagg. Adm. 94). No person can avail himself in England of any right which flows from a condition of things or a status which, though legal and recognized in the country of its inception, is repugnant to English law, whether as being opposed to a statute or to the common law, or to accepted English notions of morality or public policy ; and a penal status under the law of a foreign country will not affect a person here, either as regards his personal or pro- prietary rights [Sommersett's Case, at p. 58, per Lord Mansfield; Folliott v. Ogden, 1789, 1 H. Bl. 124 ; Ogden v. FoUiott, 1790, 3 T. E. 733 ; Wolf v. Oxholm, 1817, 6 M. & S. 99 ; cf. Lynch v. Provisional Government of Paraguay, 1871, L. E. 2 P. & D. 268). But when the transaction takes place, not in England, but in a country in which the right and status are recognized, then, although it will not have any operative effect in this country, yet, so far as such recognition does not necessitate any active operation here, it will be recognized in the English Courts {The Slave Grace, supra ; Madrazo v. Willes, 1820, 3 B. & A. 353 ; Santos v. Illidge, 1859, 29 L. J. 0. P. 348, Ex. Oh. ; cf. Buron y. JDenman, 1848, 2 Ex, {d) As to which and slavery, see also Story, §§ 96, 96 (a), and Commonwealth v^ Aws, 1836, 18 Pick. 193, cited at large, «*., p. 154, note (a). N. Digitized by Microsoft® ^ 66 STATUS. 167) (e). For any status existing under the law of a person's domicil is recognized as regards all transactions taking place and operating wholly within the country where he is domiciled (same English Court cases). Though it must be remembered that our Courts may may refuse to . . i • i .i adjudicate. refuse to adjudicate at all upon a matter which they consider illegal or immoral [Stewart t. Gibson, 1838, 7 01. & F. 707 ; Hyde V. Hyde, helow). Where no question of illegality, immorality, or penal law arises, a person's status under the law of his domicil is recognized in the abstract by English Courts [Re Barloiv's Will] 1887, 36 Ch. D. 287, 298; Dicey, pp. 163 — 168). But the tendency (more particularly observable in matters of contract) to refer some matters which would seem in strictness dependent on status to the lex loci actus occasionally operates as a practical refusal to give effect to the general princij)le (Dicey, p. 164, note). And it is best studied in its particular applications (/). General recognition afforded to status im- posed by lex domicilii. Majority or minority, probably in the main dependent on domicil. As regards contract. Minority. — The sta,tus of majority or minority depends on the law of the domicil (AM-ul-Messih v. Farra, 1888, 13 App. Cas. 431, 438, P. C. ; cf. Bonohoe v. Bonohoe, 1887, 19 L. E. Ir. 349, Y. C.) {(/) . So funds in Court in Ireland, placed to the separate credit of an infant domiciled abroad, were paid out to her on attaining her maj'ority by the lex domicilii {lb. See Be Ba Cimha, 1828, 1 Hagg. Bcc. 237) {h). But as regards transactions taking place in some country other than the country of the domicil, it is doubtful what effect the status of minority so regulated by the lex domicilii has upon an infant's contractual or other capacity in respect of such transac- tions. It is settled, however, that the question must be decided (e) In Worms v. Se Valdor, 1880, 49 L. J. Ch. 264 ; "W. N. 1880, p. 16, Ery, J., cites with approval Story, § 92, and adds that slavery -will not be recognized in English law. These remarks were, however, unnecessary to the decision which the learned judge himself rested on the rule that procedure is solely a matter of the lex fori. See De La Vega v. Vianna, and notes, infra. The dictum is apparently. more sweeping than the propositions enunciated above, but is not, it is submitted, really in conflict with them. (/) Immoveables : Doe v. VardiU, and notes, below ; legitimacy and Ulegitimaoy, pp. 17 et seq., supra; marriage and divorce, jurisdiction in matrimonial causes", husband and wife, see following cases; corporations: Senriques ^\ . Putifh West India Co. ; Att. -Gen. V. Alexander, emi notes, 'below. iff) See also SeSelhnann's Will, 1866, L. K. 2 Eq. 363, Eomilly, M. R., where the guiding principle seems to have been the assumed benefit of the infant. (7i.) As to which case, see p. 209, infra, note. Digitized by Microsoft® sommeesett's case. 67 either by the law of the domicil or by the law of the place where the contract is made or the transaction takes place, and that the lex loci solutionis has nothing to do with it {Cooper v. Cooper, 1888, 13 App. Oas. 88, H. L. (So.) ; see also MalsY. Roberts, 1800, 3 Esp. 163 (i) ; S/orza v. Sandilands, 5 Jur. 398 ; Udni/ v. Udny, above, per Lord "Westbury ; Jlrquhart v. Butterfield, 1887, 37 Ch. D. 357 ; Guepratte v. Toung ; Llotjd v. Guibert, and notes, below) . In Re Cooke's Tmsts (1887, 56 L. J. Ch. 637 ; 3 T. L. E. 558 ; W. N. 1887, p. 89 ; not cited in Cooper v. Cooper, supra), Stirling, J., held, on the authority of propositions of law laid down in Sottomayor v. De Barros (below; and see pp. 91, 92, infra), by which the learned judge conceived himself to be bound (3 T. L. E. 559), that a notarial contract relating to her property entered into in France by a domiciled Englishwoman, in contemplation of her marriage with a domiciled Frenchman, and of residence with the husband in France, was of no effect as against the lady, she being a minor by the law of England at the time of the making of the contract, and the contract not binding her by that law. Even if an infant's capacity to contract should, under any cir- Alienation, cumstances, be held to depend upon the law of the place where the contract was made, there might still remain the further question whether or no there had been a valid alienation of any property of the infant's under such contract, since capacity to assign moveables is in general dependent upon the law of the owner's domicil (Dicey, p. 179; Sillv. TFbrsit'/c/c, below). And for the same reason the capacity of an infant to make a valid gift of moveables must be determined in accordance with the law of his domicil {lb.) {J). But if the right to a moveable were once duly acquired by the lex loci rei sitae, it would, it is conceived, be held good in our (i) In this case^ — a suit brought in England against the defendant, aged nineteen, in respect of debts alleged to have been incurred in Scotland — Lord Eldou is reported to have said, "The cause of action arose in Scotland, the contract must be, therefore, governed by the laws of that country where the contract arises." But if there was no capacity, there could be no contract and no cause of action. Cf. Cooper v. Cooper, at p. 100 ; pp. 266, 257, infra. And further, this dictnm appears to depend on a view of the obligation of contract now rejected : see p. 271, infra. The case is not decisive because the foreign law was not proved, and was not, therefore, considered in the determination of the suit : p. 441, infra. (j) As to grant of probate, see p. 209, infra; domicil and power to change, pp; 20, 21, supra. Digitized by Microsoft® 68 STATUS. Testamentary capacity. Parent and chUd. Person. Courts, even as against an Infant domiciled here {Male v. Roberts, supra ; Cammell v. Sewell, below ; of. Be Barlow's Will, 18S7, 36 Ch. D. 287, 295, 296, per Bowen, L. J. ; see, also, Stephens v. McFarland, 8 Ir. Eq. 444 (assignment under bankruptcy, q. v., pp. 166 et seq., infra) ). An infant's testamentary capacity in respect of moveables depend&upon the law of Hs domicil {infra, pp. 186, 196 ), and is not affected by 24 & 25 Yict. c. 114, ss. 1 and 2 {In goods of Maraver, 1828, 1 Hagg. N. E. 498; Ahd-ul-Messih v. Farra, supra ; see p. 196, infra). Parent and Child— Person. — " The law of this country regulated the authority of a parent of a foreign child living in England by the laws of England, and not by the law of the country to whicK the child belongs" {Johnstone-v. Beattie, 1843, 10 CI. & E. 42, 114; Nugent v. Vetzera, 1866, L. E. 2 Eq. 704 ; see, also. Re Agar Ellis, 1883, 24 Ch. D. 317, C. A.) {h). Property. Property. — As regards the rights of a parent domiciled in Eng- land over moveables in England prima facie belonging to an infant, it may be, that when the property is so in England, such rights are governed by the ordinary rules of the law of England {Re milmann's Will, 1866, L. E. 2 Eq. 363, Eomilly, M. E.) (/)• It is submitted, however, that except in so far as there might happen to be in any particular rights in question something abhorrent to English notions (p. 65, supra), the law properly appli- cable is that of the parent's, and so the infant's (see pp. 20, 21, supra) domicil. Some remarks of Shadwell, Y.-C, in Ganibier v. Oambier, may be relied oil as an authority to the contrary. But Mr. Grambier, who claimed an interest in his children's property, was himself domiciled in England. And it was merely decided that the personal property adjudged by a Dutch Court to belong to two British bom subjects domiciled in England, was, so long as the domicil of those persons continued English, to be administered (h) In many instances this would practically result from the territorial applic- ability of the criminal law, and from the rule concerning torts : Territorial Waters Jurisdiction Act and notes ; The Salley, and notes, helow. {T) But the parent, in this case, does not appear to have had any "beneficial interest, and the opinion of Lord Bomilly was expressed without argument. Digitized by Microsoft® sommeesett's case. 69 according to the law of England '(1835, 7 Sim. 263, 270). Cer- tainly it would be productive of grave inconvenience if a foreign parent's rights over his children's property were hahle, in all cases, to be interfered with, by reason only pf a transitory visit of the children to England (cf. Re Goodman's Trusts, 1881, 17 Ch. D. 266, 296, per James, L, J.), Guardian, and Ward. — Although our Courts, guided by inter- Guardian and national comity, will generally recognize and respect the authority of a foreign guardian {Stuart v. Bute,18Ql, 9 H. L. C. 440; Nugent v. Vefzera, 1866, L. E. 2 Eq. 704 ; Di Savini v. Lousada, 1870, 18 W, R. 425), a foreign guardian has, in strictness, no authority over his ward in England {Johnstone v. Seattle, 1843, 10 CI. & F. 42 ; Dawson v. Jaij, 1854, 3 De G. M. & G. 764 ; cf. Mvinc/ and Others v. Orr-Eicing, 1883, 9 App. Cas. 34, H. L. (E.) ; Eimig V. Orr-Ewing, 1885, 10 App. Cas. 454, H. L. (Sc.) ). Such an one, therefore, if he wish to exercise his powers in England, whether over his ward's person or property, shoidd get appointed guardian by the English Courts (see, in addition to the cases cited above, Scott v. Bentley, 1855, 1 K. & J. 281, 284, Wood, V.-C. ; Re Ferguson, Ir. Eep. 8 Eq. 563 ; as to appointment of guardians. Annual Practice, sub tit. Guardians and Guardianship of Infants Act, 1886) . But a foreign curator bonis, duly appointed by the Court of the domicil, is permitted to retain assets of the infant's received by him under an Enghsh wiU of which he is administrator. That is to say, the title of such an one to moveables of his ward coming into his hands is recognized here {Mackie v. Barling, 1871, L. E. 12 Eq. 319). In a proper ease — it being for the benefit of the infant — an Eemoval of infant wiU be permitted to be taken out of the jurisdiction {Re jurisdiction. Medkij, 6 Ir. E. Eq. 339 ; Sope v. Hope, 1854, 23 L. J. Ch. 682, Ward of 688, per Lord Cranworth, L. C. ; Re Plomley, 1882, 47 L. T. 283 ; ^°"''*" Re Callaghan, 1884, 28 Ch. D. 186, C. A.), the guardian entering into recognizances, or a guardian resident in England being appointed, or the Court in some other manner satisfying itself that its future orders will be obeyed {lb.) {ni), [m) See also cases cited p. 422, infra (jurisdiction) ; and Me Ullee, 1885, 54 L. T. 286 ; 2 X. L. B. 8 (a case of peculiar cirotunstances — children of Indian prince by EngUshwoman) ; Be JSottri/oise, p. 67, supra. Digitized by Microsoft® 70 STATUS. Guardianship of Infanta Act, 1886. Where the mother of infants whose father died intestate was permanently resident in England, the Court in Ireland, on evidence of her consent, made an order, under sect. 6 of the Guardianship of Infants Act, 1886 (49 & 50 Vict. c. 27), substi- tuting a paternal uncle of the infants as their guardian in place of the mother {Re Lemons, 1887, 19 L. E. Ir. Oh. 575). Trustees. Trustees. — The position of a foreign trustee hears a general resemblance to that of a foreign guardian. If a foreign trustee wishes to exercise his office in England he should get appointed trustee here ; for otherwise he will secure but a partial recognition (of. Re Barloio's Will, 1887, 36 Ch. D. 287, 0. A. ; and see Re Findlay, 1886, 32 Oh. D. 221, 641 (curator bonis — infant — transfer of stock) ). Persons of unsound mind. Property- Persons of unsound mind («). — A foreign curator, committee, or other person discharging functions analogous to those discharged by a committee of property in England, cannot as such and of his own mere motion safely deal with the party's property in England. The legal position of the person of unsound mind under the law of the place in which he is under restraint, whether any change has been caused in his status by any act in the law, the operation of which will be recognized here, and the rights and obligations which such law confers or imposes upon the person or persons claiming the aid of the English Oourts are recognized, and taken into consideration by our Oourts ; but whether any and what effect will be allowed here to such law, position, status, or condition depends on the particular law in question and the nature of the rights claimed under it, and the manner in which the matter comes before the English Oourt {Re Barlow's Will, 1887, 36 Oh. D. 287, 0. A. ; and see Re Garnier and cases cited below). Probably where a committee is appointed, and there is a vesting of the right to the custody of the property of the person of unsound mind as in England, such vesting will be interpreted here as applying to all moveable property wherever situate {lb., at p. 293, per Ootton, L. J.). So a curator bonis appointed by the Oourt of . («) See p. 27, sujpra (domicil) ; p. 421, infra (jurisdiction) ; p. 148, »«/)•., to be my lawful wedded wife [&)• husband]." 10. And be it enacted, that the consul shall be entitled, for every marriage which shall be solemnized under this Act by him or in his presence, to have from the parties married the sum of twenty shUlings, if the marriage shall be by licence, and otherwise the sum of ten shillings. 11. And be it enacted, that the consul shall forthwith register in duplicate every marriage solemnized as aforesaid in two marriage register books to be furnished to him for that purpose from time to tirae by the Eegistrar-General (through one of her Majesty's principal Secretaries of State), according to the form provided for the registration of marriages by an Act of the seventh year of the reign of King William the Pourth, intituled " An Act for registering Births, Deaths, and Marriages in England," or as near to such form as the diiierence of the circumstances will admit of ; and the entry in each such book of every such marriage shall be signed by the person by whom the marriage shall have been solemnized, if there shall be any such person other than the consul, and by the consul and both the parties married, and attested by two witnesses ; and all such entries shall be made in regular order from the beginning to the end of each such book, and the number of the place of entry in each duplicate marriage book shall be the same.. 12. And be it enacted, that in the month of January in every year every consul shall make and transmit to one of her Majesty's principal Secretaries of State, to be transmitted by him to the Eegistrar-General, a true copy, certified by such consul under his hand and consular seal, according to the form in the Schedule (B.) to this Act annexed, of all the entries of marriages during the preceding year in the register book kept by him ; and if there shall have been no marriage registered during such preceding year, the consul shall certify such fact under his hand and consular seal; and the consul shall keep the said duplicate marriage register books safely until the same shall be filled, and one of such duplicate marriage register books, when filled, shall be transmitted to one of her Majesty's principal Secretaries of State, to be transmitted by him to the Registrar-General. 13. And be it enacted, that after any marriage shall have been solemnized under this Act it shall not be necessary, in support of such mariiage, to give any proof of the actual dwelling for the time required by this Act of either of the parties, .previous to the marriage, within the district wherein such marriage was solemnized, or of the consent of any person whose consent thereto is required by law, nor shall any evidence to prove the contrary be given in any suit touching the validity of such marriage. 14. And be it enacted, that it shall be lawful for the consul by- whom or in whose presence any marriage is solemnized under this Act to ask of the parties to be married the several particulars required to. be registered touching such marriage. 15. And be it enacted, that if any marriage shall be had under the provisions of this Act by means of any wilfully false notice, oath, affirmation, or declaration made by either party to such marriage, as to any matter to which a notice, oath, affirmation, or declaration is by this Act required, it shall be lawful for her Majesty's Attorney-General Digitized by Microsoft® SCKIMSHIKE V. SCRIMSHIEE. 101 or Solieitor-Qeneral to sue for the forfeiture of all estate and interest accruing from in any property accruing to the offending party by such marriage ; ^^^. ™arriage, and the proceedings thereupon, and the consequences thereof, shall be ^ yg ' ' the same as are provided by law in the like case with regard to marriages solemnized by licence in England according to the rites of the Church of England. 16. And be it enacted, that every person -who shall inowinglj"- and Persons wilfully make any oath, affirmation, or declaration, or sign any false takmg false notice, required by this Act, for the pui-pose of procuring any marriage, g^^^ ' gf' and every person who shall forbid any such marriage by falsely perjury, representing himself or herself to be a person whose consent to such marriage is required by law, knowing such representation to be false, shall suffer the penalties of perjury ; and such offender may be tried in any county or place in England in the same manner, and may be dealt with in aU respects as if the offence had been committed in such county or place in England. 17. And be it enacted, that in any and every action or suit for The forfeiture, and upon any and every prosecution for perjury, as afore- certificate said, the declaration and certificate of the consul, under his hand and ?* eTidence" consular seal, shall be received and taken as good and valid evidence in the law of all facts and matters stated in such declaration and certificate, without its being necessary for the said consul to attend in person to prove the same. 18. And be it enacted, that this Act shall be taken to be part of the Provisiona of said Act for registering Births, Deaths, and Marriages in England, as Registration fully and effectually as if incorporated therewith; and that every Act extended consul shall be deemed a registrar under the said Act ; and that all the provisions and penalties of the said Act relating to any registrar, or register of marriages or certified copies thereof, shall be taken to extend to every such consul, and the registers of marriages under this Act, and to the certified copies thereof, so far as the same are applicable thereto. 19. And be it enacted, that every British consul-general and consul Consuls may already appelated or hereafter to be appointed to reside in any foreign ^® authorized country or place, who shall be directed or authorized, by writing under gJ^^i^^J^ the hand of one of her Majesty's principal Secretaries of State, to solemnize solemnize and register marriages, and any person duly authorized to marriages, act in the absence of such consul, or, in any foreign place where there is no British consul resident, any vice-consul or consular agent who shall be directed or authorized as aforesaid by one of her Majesty's principal Secretaries of State to solemnize and register marriages in such place, shall, in the country or place in which he is so appointed to reside, or in which he is directed or authorized to solemnize and register marriages as aforesaid, be a consul duly authorized for all the purposes of this Act ; and in the construction of this Act the term "consul" shall (save where such construction would be inconsistent with the context) be construed to mean a consul so authorized ; and the district of every such consul for the purposes of this Act shall be all or such parts of the foreign country in which (or at a place within which) such consul is appointed to reside, or is so directed or authorized as aforesaid, as such Secretary of State may, by such writing under his hand, direct, or, where there shall be no direction in this behalf, shall be the district of the consulate of such consul. 20. And whereas many marriages have been entered into abroad by Certain past Digitized by Microsoft® 102 MAEKIAGE. maiTiages confirmed. Extent of Act. Britisli subjects under circumstances wHcli may occasion doubts as to the validity of such marriages, and it is expedient that such marriages should be confirmed in the cases hereinafter mentioned : Be it enacted,, that all marriages, both or one of the parties being subjects or a sub- ject of this realm, which, before the passing of this Act, have been solemnized in any foreign country or place, or on board a British vessel of war on any foreign station, by a minister in holy orders according to the rites and ceremonies of the Church of England, or of Ireland, or of the United Church of England and Ireland, or by an ordained minister of the Church of Scotland ; and all marriages of the like parties which have been solemnized according to any religious rites or ceremonies, or contracted per verba de preesenti in any foreign country or place in the presence of any British ambassador, minister, charge d'affaires, consul-general, consul, or vice-consul, exercising his functions within the foreign country or place in which such marriages have been had, or on board a British vessel of war on any foreign station in the pre- sence of the officer commanding such vessel ; and all marriages of the like parties which have been solemnized according to anyreHgious rites or ceremonies, or contracted per verba de prsesenti in any foreign country or place, and registered by or under the authority of any British consul- general, consul, or vice-consul exercising his functions within such foreign country or place, the signatures of the parties being written in the register, shall be deemed and held to be as valid in the law and cognizable in the like manner as if the same had been solemnized within her Majesty's dominions with a due observance of all forms re- quired by law : Provided always, that this enactment shall not extend to render valid any marriage which before the passing of this Act has been declared invalid by any Court of competent jurisdiction in any proceeding touching such marriage, or any right dependent on the validity or invalidity thereof, or any marriage where either of the parties has afterwards, during the life of the other, lawfully inter- married with any other person. 21. Provided always, and be it enacted, that nothing in this Act contained shall confirm or impair or in anywise affect, or be construed to confirm or impair or in anywise affect, the validity in law of any marriage solemnized beyond the seas, otherwise than as herein pro- vided ; and this Act shall not extend to the marriage of any of the Royal Family. SCHEDULES. SCHEDULE (A). Notice of Maeeiaqe. To the [British Consul-General or Consul] at I hereby give you notice, that a marriage is intended to be had within three calendar months from the date hereof between Digitized by Microsoft® SOTTOMAYOE V. DE BAKEOS. 103 me and the other party herein named and described ; (that is to say,) Name and Siimame. Condition. Eankor Profession. Age. Dwelling Place. Length of Residence. John Brown .... Elizabeth Reeve. . Widower. Spinster. .... Of fuU age. Minor. .... .... Witness my hand, this day of (Signed) John Brown. SCHEDULE (B). I [consul-general or consul] residing at , do hereby certify, that this is a true copy of the entries of marriages registered in my office, from the entry of the marriage of John Brown and Eliza- beth Eeeve, number 1 , to the entry of the marriage of Michael Jones and Maria Tomkins, number 14. Witness my hand and seal, this day of January, 1850. (^Signature and consular seal of the Consul- General or Consul.) By 31 & 32 Vict. o. 61, consul is to include acting consul. If a British subject is married according to the provisions of this Act, it wiU not serve to invalidate the marriage that the place of celebration is the wife's domicil, and that by the law of her domicil she was under an absolute incapacity to marry {Be Alison, 1874, 81 L. T. 638, per Malins, V.-C. ; sed qu., see the concluding words of sect. 1). But if there is a British consul in a foreign country, but a British subject does not choose to avail himself of this Act, he must rely on the foreign law (lb-). See He Alison, p. 96, supra, note. V. Miscellaneous. As to certain marriages of British subjects solemnized in Mexico Mexico. previous to 10th August, 1854, see 17 & 18 Vict. c. 88. As to marriages between British subjects at St. Petersburg, see St. Peters- burer. 4 Geo. 4, 0. 67. As to any marriage between members of the Greek Church Greek Church, celebrated at the Greek Chapel in Finsbury Circus, or at London Digitized by Microsoft® 104 MARRIAGE. Banns — Scotland. Wall, or at the residences of members of the said church, see the Greek Marriages Act, 1884 (47 & 48 Yict. c. 20). Banns, where one party resident in Scotland. 49 Vict, c .3 (Mar-< riages Validity Act, 1886), s. 1 : — No marriage solemnized, or tq be hereafter solemnized, in any church in England, after publication of banns in such church, shall be or be deemed to have been invalid by reason only that one of the parties to such marriage was at the time of such publication resident in Scotland, and that banns may have been published or proclaimed in any church of the parish or place in which such party was resident, according to the law or custom prevailing in Scotland, and not in the manner required for the publication of banns in England. Colonial law establishing validity. Colonial Laws establishing Validity of any Marriage. — By 28 & 29 Vict. c. 64, it is enacted that every law made or to be made by the legislature of any of her Majesty's possessions abroad, for the purpose of establishing the validity of any marriage previously contracted in such possession, shall have, and be deemed to have had from the date of the making of such law, such force and effect for the purposes aforesaid, within all parts of her Majesty's dominions, as such law may have had, or may after the date of the passing of that statute have, within the possession for which such law was made : Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such mar- riage both of the parties thereto were, according to the law of England, competent to contract the same. QiL, If " law of England" here means law of England in the strict sense, or English law embracing private international law as part of it ? Domicil of married women. Domicil of Married Women. — " When a marriage — there being no personal incapacity attaching, upon either party, or upon the particular party who is to be regarded — has been duly solemnized according to the law of the place of solemnization, the parties be- come husband and wife. But when they become husband and wife, what is the character which the wife assumes ? She becomes the wife of the foreign husband in the case where the husband is a Digitized by Microsoft® HYDE V. HYDE. 1^5 foreigner in the country in whioli the marriage is contracted. She no longer retains any other domicil than his, which she acquires. The marriage is contracted with a view to that matrimonial domicil which results from her placing herself by contract in the relation of wife to the husband whom she marries, knowing him to be a foreigner, domiciled and contemplating permanent and settled residence abroad. Therefore it must be within the meaning of such a contract, if we are to inquire into it, that she is to become subject to her husband's law, subject to it in respect of the matri- monial relation and all other consequences depending upon the law of the husband's domicil" (Harvey v. Farnie, 1882, 8 App. Gas. 43, 60, 51, per Lord Selborne, L. 0.). The wife, therefore, acquires on marriage the domicil of her husband, that is to say, either the domicil which the husband had at the time of the marriage, or that which it is known to the parties that he intends to acquire, or has agreed with the wife to acquire, and does acquire, as from the marriage {lb. ; Warrencler y. Wan-ender, 1835, 2 01. & F. 488 ; Balhousie v. M'Bonall, 1840, 7 CI. & F. 817 ; Be Marsland, 1886, 2 T. L. E. 608 ; 55 L. J. Oh. 381, 382, per Kay, J.). And this domicil she retains during coTerture, though she resides apart from her husband {Bolphin v. Robins, 1859, 7 H. L. 0. 390 ; 29 L. J. P. 11 ; Re Daly, 1858, 27 L. J. Oh. 751 ; Yelverton v. Telverton, 1859, 29 L. J. P. 34). But, Judicial probably, if there has been a judicial separation, the wife can, for ^®P^™ '°''- Bome purposes at any rate, acquire a domicil of her own {Le Sueur V. Le Sueur, 1876, 1 P. D. 139, 141, per Sir E. PhiLlimore; and see M. C. A. ss. 25, 26, p. 113, infra ; Bolphin v. Robins, 1859, 29 L. J. P. 11, 14, 15). On the death of her husband a widow retains his last domicil Husband's imtil she acquires another by re-marriage or otherwise, or until her domicil of origin reverts, by reason of her abandonment of her former domicil, without the acquisition of a new one {Gout v. Zim- merman, 1847, 5 Notes of Oases, 440, 447; p. 17, supra). The ordinary rule that a wife is domiciled where her husband is, Divorce, fails where there has been a sentence of divorce, and, as regards domicil, a divorced woman is in the same position as a widow {Williams v. Bormer, 1851, 1852, 2 Eob. Ecc. 505 ; 16 Jur. 366 ; Scott v. Att.-Gen., 1886, 11 P. D. 128). Digitized by Microsoft® 106 MAEEIAGE. Marriage and proprietary- rights in moveables. Equity to a settlement. Matrimonial domioU. Marriage and Proprietary Rights in and regarding Moveables (w). — In the absence of contract to tlie contrary, whether by marriage settlement or otherwise, the effect of the marriage upon the pror perty rights of the parties inter se, and as regards third parties {Be Greuchy v. Wills, 1879, 4 0. P. D. 362) (o), is dependent, in the first place, upon the law of the husband's domicil at the time of the marriage (Re Daly ; Be Marsland, sujyra ; Bank of Scotland v. CuU hert, 1813, 1 Kee. 463, 481 ; Hutchinson v. Cathcart, 8 Ir. Eq. E, 294; Harvey v. Farnie, supra) [p). And if the matrimonial domicil is not in doubt, it does not matter that the assistance of an English Court is sought. And the fact that the husband has to seek such assistance to obtain moneys coming to him jure marito will not entitle the wife to her equity to a settlement if no such right is conferred by the matrimonial domicil [Sawyer v. Shute, 1792, 1 Anstr. 63 ; Bices v. Smith, 1822, Jac. 544 ; McCormick v. Qarnett, 1854, 23 L. J. Ch. 777 ; Be Marsland, 1886, 55 L. J. Ch, 581 ; 2 T. L. E. 608). But although the matrimonial domicil, in this respect, is prima facie that which the husband had at the time of the marriage, and although it seems clear that the law of the wife's domicil before marriage will not be allowed any influence in determining pro- prietary rights resulting from the act of marriage, and although the lex loci actus is probably also immaterial, yet if there is a boni fide intention on the part of the husband, known to the wife, to acquire from and after the marriage a domicil other than his domicil before, or to re-assume his domicil of origin, then the effect of the marriage in this respect will be adjudged by the law of the domicil so about to be acquired or re-assumed (see Haney v. Farnie; (k) As to personal rigtts, cf. pp. 68, 69, supra; and see p. 124, infra (restitu- tion). As to marriage and immoTeables, Doe v. Vardill, and notes, below. (o) Judgment expressed doubtfully, and reference made to the intention of the ■wife (before marriage) in contracting with the third party, and to the lex loci celebrationis. Lex loci is, it is submitted, in this respect, of little importance. See next note. (p) Note that the law of the domicil may determine that certain of its rules shaU not apply if there is a contrary intention, and that this may affect the rights of the parties, e.g., in the case of a gift to the wife for her separate use {De Serre v. Clarke, 1874, L. E. 18 Eq. 588), even without a settlement. But the law of the matrimonial domicil itself should prevail as to whether a contrary intention has been expressed or no. However, a marriage celebrated in England is more than a formality of contract, though its effect on proprietary rights is confined to cases where the matrimonial domicil is here. The selection of England as the place of celebration is evidence of intention as far as it goes. Cf. Story, § 159 ; see Watts v. Shrimpton, 1855, 21 Beav. 97, 102, per Eomilly, M. B., pp. 271, 272, infra. Digitized by Microsoft® SCEIMSHIRE V. SCRIMSHIEE. 107 Re Marsland, supra ; CoUks v. Hedor, 1875, L. R. 19 Eq. 334 ; Story, p. 274). Certainly the balance of convenience is in favour of tlie acceptance of this principle, and the intention of the hushand, assented to by the wife, may be taken as cogent evidence of a contract of the parties that the law of that country in which they intend to pass their wedded life shall determine their proprietary rights. That a domicil is not abandoned by a mere intention to depart, without more, is doubtless a useful rule and settled law, but to press this so far in application as to hold that proprietary rights of this description must be determined by a law which both parties intend straightway to abandon, must, it would seem, in many cases work great hardship [q). If, however, there is no agreement to change the domicil as from the time of the marriage, the matrimonial domicil will not be assumed to be in a given country merely because the husband has acquired a domicil there immediately after the marriage {Be Marsland, supra). And in no case will an intended matrimonial Contractual domicil affect the contractual capacity of the parties contracting on ^ ^' the marriage {Cooper v. Cooper, 1888, 13 App. Gas. 88 ; Be Cooke's Trusts, 1887, 56 L. J. Oh. 637 ; 3 T. L. E. 558 ; W. N. 1887, p. 89, StirliQg, J.). If a change of domicil is made subsequently to the marriage in Change of ,. j.T_-i a' 1. -li- i- domicil sub- an ordmary way, this has no ettect on rights m property m posses- sequent to sion before the date of the change (Dioey, p. 272) ; but if a '^^'"'^s^- subsequent change of domicil is made in good faith the mutual rights of the parties in relation thereto will be regulated, as regards rights vesting subsequently to such change, by the law of that domicil {Be Lett's Trusts, L. E. 7 Ir. Ch. 132 — ^but note that the cases there cited, and on which the decision was apparently rested, are not decisive, since it does not appear from the respective reports that there had been any change of domicil : Be Marsland, supra — principle apparently assumed at the bar and assented to by Kay, J. : but the domicil at the date of the marriage and of the vesting was the same, although there had been an intermediate change. (}) What was said in this respect in Survey v. Farnie and Be Marsland was in each case not strictly necessary to the decision, and ColUss v. Sector (q. v. infra) was a case of peculiar circumstances, and might be distinguished on that ground. The three cases, however, contain, at the least, high authority for the principle contended for in the text, which is, it is submitted, good law. Digitized by Microsoft® 108 MAREIAGK. The opinion of Savigny is to the contrary : Guthrie, p. 293. See also Harvey v. Farnie, 1882, 8 App. Oas. 43, 47, per Lord Selborne, L. C). Marriage and Proprietary Rights in Immoveables. — Where there is no contract the effect of a marriage on immoveable property -will he determined by the lex loci rei sitae [Harrison v. Harrison, 1872^ L. E. 8 Ch. 342, 346 ; Doe v. Vardill, and notes, below; Westlake^ § 157 ; In goods of Gentili, 1875, Ir. L. E. 9 Eq. 541). Harriage Marriage Contract. — Where there is a contract or settlement, or contract. Capacity. agreement in the nature thereof, the capacity of the parties thereto respectively to enter into the same and to be bound thereby is regulated by the law of their respective domicils then actually existing at the date of the contract {Cooper v. Cooper ; Re Cooke's Constmotion. Trusts, supra) (r). And the rights of the parties to such contract, and their privies, are determined in accordance with such contract^ so far as regards the property comprised in it or to which it relates {Feauhert v. Turst, 1702, Pre. Ch. 207 ; Lansdoimie v. Lansdowne, l820j 2 Bligh, 60, 87 ; Anstruther v. Adair, 1834, 2 My. & E. 513 ; Williams v. Williams, 1841, 3 Beav. 547 ; Van Grutten v. Bighj, 1862, 32 L. J. Ch. 179 ; ColUss v. Hector, 1875, L. E. 19 Eq. 334, 343, per Hall, V.-C). The law governing the construction of such contract — the law of its obligation — will, in the absence of aught to the contrary, be that of the matrimonial domicil; for that will be presumed to be the intention of the parties (same cases and Lloyd v. Guibert, and notes, infra) . And the acquisition of a subsequent domicU — not being a specially acquired matrimonial domicil — will make no difference {Duncan y. Cannan, 1865, 23 L. J. Ch. 625); Express or But the parties may make it an express term of the contract that as to govem- its Construction and their respective rights and obligations under it "ig a'w- shall be determined by the law of some given country (by which law it will then be determined), or may vary in part the applica- tion to their own case of the laws of any given country, or of the (>•) Ee Cooke's Trusts is an express decision on this point, excluding not only the matrimonial domicil, but also the lex actus. See p. 67, supra, which also, and p. 256, infra, see as to the general question. Digitized by Microsoft® SOTTOMAYOR V. DE BAEROS. 109 matrimonial domicil {Feaubert v. Turst, supra ; Este v. Smyth, 1854, 23 L. J. Ch. 705 ; Re Hernando, 1884, 27 Ch. D. 284). An intention to the like effect may be gathered from the uniform use throughout the contract of the technical terms of the law of any country (of. Bradford \. Young, 1885, 29 Ch. D. 617 C. A.), and from the form in which the contract was made {He Barnard, 1887, 56 L. T. 9 ; 3 T. L. E. 281) ; for the intention of the parties at the time of entering into the contract is the real test in these cases (i5.,Kay,J.). So, a settlement made on a marriage had in England between a domiciled Turkish subject and an Englishwoman, on the faith of the husband's promise to reside in England, was held by Hall, y.-C, to be gOYemed by English law, though it did not appear that the residence contemplated would amount to the acquisition of a domicil {Collm v. Hector, 1875, L. R. 19 Eq. 334). And where a contract was executed in Scotland (where the marriage took place) by a domiciled Englishman, described as residing in Scotland, and a Scotchwoman whose domicil was Scotch, and who resided in Scotland, and trusts were declared of English realty of the husband's in English form and in Scotch form of personalty in Scotland belonging to the wife, the same learned judge inferred from these trusts that the trusts of the husband's property were to be construed as English, and the others as Scotch {Chamberlain v. Napier, 1880, 15 Ch. D. 614 ; cf. Re Hernando, supra ; and see especially these two cases as to settlements of immoveables). The debtor, who was a domiciled Englishman, married his wife, Bankruptcy, who was a Prussian subject, at Cologne, and a marriage contract in the form used under the Code Napoleon, which was in force in the Rhenish provinces of Prussia, was executed by the intended husband and wife. It was admitted that, when the contract was construed according to the law of Prussia under the code, the effect of it was to give the wife's property to her for her separate use. No trustee of the wife's separate property was appointed by the marriage contract. It was held by the Court of Appeal that the marriage contract was to be construed according to the law of Prussia, but that the husband having become bankrupt in England the English law was to be applied in order to deter- Digitized by Microsoft® 110 MARRIAGE. On death. mine what property passed to his trustee, and that, since hy the law of England a hushand is a trustee for his wife of her separate property, if there is no other trustee, the property, though it was in the possession of the hantrupt, was In his possession as trustee, and did not pass to the trustee in bankruptcy {Ex parte Sibeth, 1885, 14 Q. B. D. 417). The assistance of the Prussian law was not needed at all, the bankruptcy taking place here {lb., per Cotton, L. J. ; see, further, Sill v. Worsmck, and notes, below). Unless the contract provides otherwise {Feaubert v. Turst, supra), the mutual rights of husband and wife on death are dependent on the law of the domicil of the deceased at his or her death {Harvey V. Fariiie, supra, at p. 52, per Lord Selbome, L. C. ; Enohin v. Wylie, and notes; Sill v. Worswick, and notes, below: Divorce, p. 134, infra). mamage contract. Formalities of Formalities. — Although a marriage contract, as any other, should be executed and comply with the formalities required by the law of the place where it is made, this rule will not be pressed against a contract in substance English {Van Grutten v. Digby, 1862, 32 L. J. Ch. 179 ; Westlake, p. 66. See Guepratte v. Young, and notes, below). Senible, the same principle applies where the contract in substance is of a foreign country. Breach of promise of marriage. Breach of Promise of Marriage. — There are two cases {Durham v. Spence, 1870, L. E. 6 Ex. 46 ; Chm-ry v. Thompson, 1872, L. E. 7 Q. B. 573) on service abroad in this respect. These decisions, however, were prior to the Judicature Act, and reference should now be made to Order XI. pp. 411 et seq., infra {s). {«) In Wiedmann v. Walpole, 1888, St. James' Gazette, 28th Nov. ; Times, 29th Nov. 1888 ; Standard (same date), it was pleaded that the alleged promise having been made abroad, Tvliere its breach gave rise to no cause of action, no action ■was maintainable here. But this plea was abandoned at the bar ; Sir Edward Clarke, S.-G., and Graham being of counsel for the defendant. It is submitted that the obligation of a contract of this description must, as other contracts, be governed by that law which the Court determines to have been within the intention of the parties : Lloyd v. Guihert, and notes, below. Digitized by Microsoft® Ill RATCLIFF r. RATCLIFF and ANDERSON. In the Couet foe Ditoeoe and Matbjmoniai, Causes. — Coram Campbell, C. J., Martin, B., and Sir Gresswell Cresswell. 26th May, 1859. [Reported 1 Sw. & Tr. 467.] The facts and arguments for the present purpose sufficiently appear Jurisdiction of from that part of the judgment extracted. The considered judgment Court of of the Court was delivered by Campbell, C. J. Divorce. Judgment. — A preliminary objection is made on the part of the "wiiere the co-respondent that this Court has no jurisdiction to entertain the suit, domicil of the as the marriage, the alleged adultery, and all the material facts relied parties is upon by the petitioner, took place in the East Indies. The Court for ?''^?^!^'. *^s Divorce and Matrimonial Causes certainly has no jurisdiction beyond J^gc" 'T^ that Tvhich it derives from statute 20 & 21 Vict. c. 85, by which it was founded constituted. But in construing this statute we can only look to its though the enactments as they appear in the statute book, without regard to any- marriage and thing to be found in any other Bill upon the same subject introduced adultery may into either the House of Lords or the House of Commons and not pi^g abroad passed into a law, or to any proposal or opinion said to have been propounded by any member of either House while this Bill was passing through Parliament. The preamble having recited that it was " expedient to amend the law relating to divorce, and to constitute a Court with exclusive jurisdiction in England," sect. 27 enacts that "it shall be lawful for any husband to present a petition to the said Court praying that his marriage may be dissolved on the ground that his wife has, since the celebration thereof, been guilty of adultery." It is not necessary at present to define the extreme limits of the jurisdic- tion of the Court ; but I am clearly of opinion that we have jurisdic- tion over this case upon which we are required to adjudicate. The parties are British subjects. At the time when the matters set forth in the petition arose the parties were domiciled in England, and they were stiU domiciled in England when the suit began. Under such circumstances it cannot be necessary that the marriage should have been celebrated in England ; nor would the Court have been ousted of its jurisdiction if the adultery had been alleged to have taken place in France or Scotland. We were told of a decision in the House of Lords to the contrary in Sandwith v. Sandwith ; but, upon examina- tion, this turns out only to have been an exercise of the legislative power of Parliament to pass a divorce bill siace 20 & 21 Vict. c. 85, constituting the Court for Divorce. That statute, of course, could not limit the legislative power of Parliament, nor can the construction of that statute be influenced by a marriage being thus legislatively dissolved. . . . I am of opinion that the Court is bound to pronounce for the divorce. Digitized by Microsoft® 112 DIVORCE. Jurisdiction in matters matrimonial now vested in !E!cclesiastical Courts to The Court may enforce decrees or orders made before this Act comes into opera- tion. As to suits pending when this Act comes into operation. Jurisdiction over causes matrimonial to be exer- cised by the Court for Divorce and Matrimonial Causes. No decree for divorce £l mens^ et thoro to be made here- after, but a judicial separation. Sentence of judicial separation may be obtained by husband or ■wife for aiultcry, &c. 20 & 21 Vict. c. 85. An Act to amend the Law relating to Divorce and Matrimonial Causes in England. [28th August, 1857.] Whereas it is expedient to amend the law relating to divorce, and to constitute a Court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolu- tion of a marriage : be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : ^ # i?f ^ ^ # 2. As soon as this Act shall come into operation, all jurisdiction now exerciseable by any Ecclesiastical Court in England in respect of divorces k mensa et thoro, suits of nullity of marriage, suits of jacti- tation of marriage, suits for restitution of conjugal rights, and in all causes, suits, and matters matrimonial, shall cease to be so exerciseable, except so far as relates to the granting of marriage licences, which may be granted as if this Act had not been passed. 3. Any decree or order of any Ecclesiastical Court of competent jurisdiction which shall have been made before this Act comes into operation, in any cause or matter matrimonial, may be enforced or otherwise dealt with by the Court for Divorce and Matrimonial Causes hereinafter mentioned, in the same way as if it had been originally made by the said Court under this Act. 4. All suits and proceedings in causes and matters matrimonial which at the time when this Act comes into operation shall be pending in any Ecclesiastical Court in England shall be transferred to, dealt with, and decided by the said Court for Divorce and Matrimonial Causes as if the same had been originally instituted in the said Court. ****** 6. As soon as this Act shall come into operation, all jurisdiction now vested in or exerciseable by any Ecclesiastical Court or person in England in respect of diYorces k mensa et thoro, suits of nuUity of marriage, suits for restitution of conjugal rights, or jactitation of marriage, and in all causes, suits, and matters matrimonial, except in respect of marriage licences, shall belong to and be vested in her Majesty, and such jurisdiction, together with the jurisdiction conferred by this Act, shall be exercised in the name of her Majesty in a Court of record to be called "the Court for Divorce and Matrimonial Causes." 7. No decree shall hereafter be made for a divorce k mensa et thoro, but in all cases in which a decree for a divorce k mensa et thoro might now be pronounced the Coiu-t may pronounce a decree for a judicial separation, which shall have the same force and the same consequences as a divorce k mensa et thoro now has. ****** 16. A sentence of judicial separation (which shall have the effect of a divorce k mensa et thoro under the existing law, and such other legal effect as herein mentioned) may be obtained, either by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards. Digitized by Microsoft® KATCLIFF V. RATCLIFF. 113 17. Application for restitution of conjugal rigMs or for judicial A-pplioation separation on any one of the grounds aforesaid may be made by either ^f ooniugal husband or wife, by petition to the Court. rights or ****** judicial 21. A wife deserted by her husband may at any time after such deser- separation tion, l£ resident within the metropolitan district, apply to a police magis- ^'^usband ^ trate, or if resident in the country to Justices in petty sessions, or va. either or wife by case to the Court, for an order to protect any money or property she petition to may acquire by her own lawful industry, and property which she may Court, &c. become possessed of, after such desertion, against her husband or his Wife deserted creditors, or any person claimina: under him. , ^ , , * J,' * * * * husband may apply to a 22. In all suits and proceedings, other than proceedings to dissolve poEce any marriage, the said Coui-t shall proceed and act and give relief on magistrate or prinbiples and rules which in the opinion of the said Court shall be as |^^*'"®i "'. nearly as may be conformable to the principles and rules on which the ^^^ OTote-°°^ Ecclesiastical Courts have heretofore acted and given relief, but subject tionT to the provisions hereia contained and to the rules and orders under Court to act this Act. on principles 23. Any husband or wife, upon the application of whose wife or oi the Eccle- husband, as the case may be, a decree of judicial separation has been siastaoal ■pronounced, may, at any time thereafter, present a petition to the _ ' „ Coxu't praying for a reversal of such decree on the ground that it was gerarTtion obtained in his or her absence, and that there was reasonable ground obtained for the alleged desertion, where desertion was the ground of such during the decree ; and the Court may, on being satisfied of the truth of the absence of allegations of such petition, reverse the decree accordingly, but the '"J^''^'^'^ °^ reversal thereof shall not prejudice or affect the rights or remedies reversed. which any other person would have had in case such reversal had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and of the reversal thereof. 25. In every case of a judicial separation the wife shall, from the In case of date of the sentence and whilst the separation shall continue, be con- judicial sidered as a feme sole with respect to property of every description separation which she may accLuire or which may come to or devolve upon her ; considered a and such propertj' may be disposed of by her in all respects as a feme feme sole sole, and on her decease the same shall, in case she shall die intestate, with respect go as the same would have gone if her husband had been then dead ; *° property provided, that if any such wife should again cohabit with her husband, ®^® ^^^ „ all such property as she may be entitled to when such cohabitation *°1""^' "• ' shall take place shall be held to her separate use, subject, however, to any agreement in writing made between herself and her husband whilst separate. 26. In every case of a judicial separation the wife shall, whilst so also, for separated, be considered as a feme sole for the purposes of contract, purposes of and wrongs and injuries, and suing and being sued in any civU pro- contract and ceeding ; and her husband shall not be liable in respect of any engage- ^""'^• ment or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as plaintiff or defendant ; provided, that where upon any such judicial separation alimony has been decreed or ordered to be paid to the wife, and the same shall not be duly paid by the husband, he shall be liable for ^'' Digitized by Microsoft® ^ 114 JURISDICTION IN DIVORCE. On adultery of -wife or incest, &o. of husband, petition for dissolution of marriage may be presented. As to " in- cestuous adultery." Adulterer to be a co- respondent. Court to be satisfied of absence of collasion. Dismissal of petition. Power to Court to pronounce decree for dissolving marriage. necessaries supplied for her use ; provided also, that nothing shall prevent the wife from joining, at any time during such separation, in the exercise of any joint power given to herself and her husband. 27. It shall be lawful for any husband to present a petition to the said Court, praying that his marriage may be dissolved, on the ground that his wife has since the celebration thereof been guilty of adultery ; and it shaU. be lawful for any wife to present a petition to the said Court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or besti- ality, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce ^ mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards ; and every such petition shall state as distinctly as the natm-e of the case permits the facts on which the claim to have such marriage dissolved is founded: provided that for the purposes of this Act incestuous adultery shall be taken to mean adultery committed by a husband with a woman with whom if his wife were dead he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity ; and bigamy shall be taken to mean marriage of any person, being married, to any other person diu'ing the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of her Majesty or elsewhere. 28. Upon any such petition presented by a husband the petitioner shall make the alleged adulterer a co-respondent to the said petition^ unless on special grounds, to be allowed by the Court, he shall be excused from so doing ; and on every petition presented by a wife for dissolution of marriage the Court, if it see fit, may direct that the person with whom the husband is alleged to have committed adultery be made a respondent. 29. Upon any such petition for the dissolution of a marriage, it shall be the duty of the Court to satisfy itseU, so far as it reasonably can, not only as to the facts alleged, but also whether or no the petitionei: has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any counter-charge which may be made against the petitioner. 30. In case the Coiu-t, on the evidence in relation to any such petition, shall not be satisfied that the alleged adultery has been committed, or shall find that the petitioner has during the marriage been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is prer sented or prosecuted in coUusion with either of the respondents, then and in any of the said cases the Court shall dismiss the said petition. 31. In case the Court shall be satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner has been in any manner accessory to or cojiniving at the adultery of the other party to the marriage, or has condoned the adultery com- plained of, or that the petition is presented or prosecuted in coUusion with either of the respondents, then the Court shall pronounce a decree declaring such marriage to be dissolved : Provided always, that the Court shall not be bound to pronounce such decree if it shall find that the petitioner has during the marriage been guilty of adultery, or if the petitioner shall, in the opinion of the Court, have been guilty of Digitized by Microsoft® RATCLIFP V. EATCLIFF. 115 unreasonable delay in presenting or prosecuting such petition, or of cruelty towards the other party to the marriage, or of having deserted or wilfully separated himself or herself from the other party before the adultery complained of, and without reasonable excuse, or of such wilful neglect or misconduct as has conduced to the adultery, * Sf * * * * 33. Any husband may, either in a petition for dissolution of marriage Husband or for judicial separation, or in a petition limited to such object only, may claim claim damages from any person on the ground of his having committed 'J?'™^^^^ from adultery with the wife of such petitioner, and such petition shall be served on the alleged adulterer and the wife, unless the Court shall dispense with such service, or direct some other service to be sub- stituted ; and the claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to the same or the like rules and regulations as actions for criminal con- versation are now tried and decided in Courts of Common Law ; and all the enactments herein contained with reference to the hearing and decision of petitions to the Court shall, so far as may be necessary, be deemed applicable to the hearing and decision of petitions presented under this enactment ; and the damages to be recovered on any such petition shall in all cases be ascertained by the verdict of a jury, although the respondents or either of them may not appear ; and after the verdict has been given the Court shall have power to direct in what manner such damages shall be paid or applied, and to direct that the whole or any part thereof shall be settled for the benefit of the chUdren (if any) of the marriage, or as a provision for the mainten- ance of the wife. 34. Whenever in any petition presented by a husband the alleged Power to adulterer shall have been made a co-respondent, and the adultery shall Court to order have been established, it shall be lawful for the Court to order the adulterer to adulterer to pay the whole or any part of the costs of the proceedings. ^^^ costs. 35. In any suit or other proceeding for obtaining a judicial separa- Power to tion or a decree of nullity of marriage, and on any petition for Court to dissolving a marriage, the Court may from time to time, before ™ake orders making its final decree, make such interim orders, and may make ^f ch'ld such provision in the final decree as it may deem just and proper with respect to the custody, maintenance, and education of the children the marriage of whose parents is the subject of such suit or other proceed- ing, and may, if it shall think fit, direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery. n- ■» a- ■» » * 41. Every person seeking a decree of nullity of marriage, or a Afadavifcin decree of judicial separation, or a dissolution of marriage, or decree in support of a a suit of jactitation of marriage, shall, together with the petition or petition- other application for the same, file an affidavit verifying the same so far as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage. 42. Every such petition shall be served on the party to be affected Service of thereby, either within or without her Majesty's dominions, in such P^titio"- manner as the Court shall by any general or special order from time to time direct, and for that purpose the Court shall have all the powers conferred by any statute on the Court of Chancery : Provided always, i2 Digitized by Microsoft® 116 JURISDICTION IN DIVORCE. Examination of petitioner. Court may order settle- ment of property for benefit of innocent party and children of marriage. Mode of taking evidence. Court may issue commis- sions or give orders for examination of witnesses abroad or unable-to attend. Rules of evideMoe in Common Law Co arts to be observed. Attendance of witnesses on the Court. that tlie said Court may dispense mth such service altogether in case it shall seem necessary or expedient so to do. 43. The Court may, if it shall think fit, order the attendance of the petitioner, and may examine him or her, or permit him or her to he examined or cross-examined on oath on the hearing of any petition, hut no such petitioner shall be hound to answer any questions tending to show that he or she has heen guilty of adultery. 45. In any case in which the Court shall pronoim.ce a sentence of divorce or judicial separation for adultery of the wife, if it shall he made appear to the Court that the wife is entitled to any property either in possession or reversion, it shall be lawful for the Ooui't, if it shall think proper, to order such settlement as it shall think reasonable to be made of such property or any part thereof, for the benefit of the innocent party, and of the chUdren of the marriage, or either or any of them. 46. Subject to such rules and regulations as may be estabhshed as herein provided, the witnesses in all proceedings before the Court ■where their attendance can be had shall be sworn and examined oraUy in open Court : Provided that parties, except as herein-before pro- vided, shall be at liberty to verify their respective cases in whole or in part by afiidavit, but so that the deponent in every such afiidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after such cross-examination may be re- examined orally in open Court as aforesaid by or on behalf of the party by whom such affidavit was filed. 47. Provided, that where a witness is out of the jurisdiction of the Court, or where, by reason of his Olness or from other circumstances, the Court shall not think fit to enforce the attendance of the witness in open Court, it shall be lawful for the Coiu't to order a commission to issue for the examination of such witness on oath, upon interrogatories or otherwise, or if the witness be within the jurisdiction of the Court to order the examination of such witness on oath, upon interrogatories or otherwise, before any officer of the said Court, or other person to be named in such order for the purpose ; and all the powers given to the Courts of law at Westminster by the Acts of the thirteenth year of King George the Third, Chapter sixty-three, and of the first year of King WiUiam the Pourth, Chapter twenty-two, for enabling the Courts of law at Westminster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such examination, and all the provisions of the said Acts, and of any other Acts for enforcing or otherwise applicable to such exami- nation and the witnesses examined, shall extend and be applicable to the Court and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined, as if such Court were one of the Courts of law at Westminster, and the matter before it were an action pending in such Court. 48. The rules of evidence observed in the Superior Courts of com- mon law at Westminster shall be applicable to and observed in the trial of all questions of fact in the Court. 49. The Court may, under its seal, issue writs of subpoena or subpoena duces tecum, commanding the attendance of witnesses at such time and place as shall be therein expressed ; and such writs may Digitized by Microsoft® KATCLIFF V. KATCLIFF. H'' be served in any part of Great Britain or Ireland ; and every person served with such, writ shall be bound to attend, and to be sworn and give evidence in obedience thereto, in the same manner as if it had been a writ of subpoena or subpoena duces tecum issued from any of the said Superior Courts of common law in a cause pending therein, and served in Great Britain or Ireland, as the case may be : Provided that any petitioner required to be examined, or any person called as a witness or required or desiring to make an affidavit or deposition under or for the purposes of this Act, shall be permitted to make his solemn affirmation or declaration instead of being sworn in the circum- stances and manner in which a person called as a witness or desiring to make an affidavit or deposition would be permitted so to do under the " Common Law Procedure Act, 1854," in cases within the pro- visions of that Act. 57. When the time hereby limited for appealing against any decree Liberty to dissolving a marriage shall have expired, and no appeal shall have parties to been presented against such decree, or when any such appeal shall ™*'''^y again. have been dismissed, or when in the result of any appeal any marriage shall be declared to be dissolved, but not sooner, it shall be lawful for the respective parties thereto to marry again, as if the prior marriage had been dissolved by death : Provided always, that no clergyman in No clergyman holy orders of the United Church of England and Ireland shall be compelled to compelled to solemnize the marriage of any person whose former mar- e° ^^'^^ riage may have been dissolved on the ground of his or her adultery, or marriao-es. shall be liable to any suit, penalty, or censure for solemnizing or refusing to solemnize the marriage of any such person. xf ■ ■ ,. c 58. Provided always, that when any minister of any church or chapel anvchurch^ of the United Church of England and Ireland shall refuse to perform &c. refuses to such marriage service between any persons who but for such refusal perform would be entitled to have the same service performed in such church marriage or chapel, such minister shall permit any other minister in holy orders ^^'^^"'th '^' of the said United Church, entitled to officiate within the diocese in minister may which such church or chapel is situate, to perform such marriage perform such service in such church or chapel. service. 59. Alter this Act shall have come into operation no action shall be No action in maintainable in England for criminal conversation {a). England for % % •:;. AS «. ■Sf criminal con- versation. The operation of this Act is confined to England {Yekeiion y. Operation of Yekerton, 1859, 1 Sw. & Tr. 686). And it does not extend to confined to the colonieB {Firebrace v. Firebrace, 1878, 4 P. D. 63, 66), or to the England. Channel Islands {Le Sueur v. Le Suew, 1876, 1 P. D. 139). The imisdiction of the Divorce Division is dependent on the Jurisdiction •' ^ of EngUsla (a) Amending Acts, which do not, however, affect the question of jurisdiction, and to which add now the Matrimonial Causes Act, 18S4 (47 & 48 Vict. c. 68), substituting a monetary penalty in lieu of attachment in the event of non- compliance with decree in a suit for restitution of conjugal rights, will be found collected in the Appendix to Dixon on Pivorce. Digitized by Microsoft® 118 JURISDICTION IN DIVORCE. Court depends construction of the atove Act IRatcliff v. Ratcliff; Nihoyet v. Ni on Divorce Act. How far analogy with oases on foreign divorces. boyet, 1878, 4 P. D. 1-0. A. ih) ; Jud. Act, 1873). For tMs reason there is no strict analogy hetween the cases decided here on the jurisdiction of the Court, and those on the effect which is allowed in England to foreign divorces. The former turn simply on the true construction of this statute. The latter turn on the principles of private international law as part of the law of Eng- land ; that is to say, on the principles which the English Courts apply and accept in affording recognition or refusing it to the judgments in matrimonial causes of tribunals vyithout our borders (cf. Harvey v. Farnie, 1882, 8 App. Gas. 43, 56, 57, per Lord Selbome, L. C). Nevertheless the statute is, so far as its express terms allow, to be construed so as not to be in contravention of accepted principles of comity [Niboyet v. Niboyet, 1878, 4 P. D. 1. See note, p. 56, supra ; Harvey v. Farnie, 1882, 8 App. Cas. 43, 57, per Lord Selborne, L. C). If at the time of the presentation of the petition the husband marriage, and has acquired an English domicil, the jurisdiction of the Court is not affecr ^°t affected by reason of the domicil having been foreign, both at jurisdiction founded on domicil at time of pre- sentation of petition. Respondent appearing Domicil at time of the time of the marriage contracted in the country of the domicU, and of the commission of the offence ( Wilson v. Wilson, 1872, L. E. 2 P. & D. 435, Lord Penzance). If the respondent appears absolutely, or appears and submits to the jurisdiction, the Court need not inquire as to domicil, and has submitting to jurisdiction to pronounce a divorce {Zychlinski v. Zychlinski, 1861, jurisdiction. 31 L. J. P. 37 ; 2 Sw. & Tr. 420, Sir Cresswell Cresswell ; Call- well V. Callwell, 1860, 3 Sw. & Tr. 259, Sir C. Cresswell, Willes and Hill, JJ.). The domicil of the husband will sustain the jurisdiction of the Court over the wife, though married abroad, always after marriage resident abroad, and accused of adultery committed abroad : the jurisdiction of the Court not being defeated by non-residence, except where non- residence affects the domicil {Ratcliff v. Ratcliff; Grillis v. Gillis, 1874, 8 Ir. E. Ch. 597, Warren, J. ; and see B'Ftchegoyen V. B'Ftchegoyen, 1888, 13 P. D. 132, Sir James Hannen). Husband will q^}^Q wife's remedy for matrimonial wrongs must usually be not be called "' o j Husband resident abroad, but domiciled bere. (i) But see this case, p. 120, infra. Digitized by Microsoft® EATCLIFF V. lUTCLIFF. ^ 19 sought in the place of the husband's domicil (Firebrace v. Firehrace, upon to 1878, 4 P. D. 63, 67, per Sir James Hannen). And the hushand jurisdiction to cannot be made to answer in a jurisdiction to -which he has never ^e^er^been ^ been subject by any act of his own, whether by contracting mar- subject. riage here, or by making this country the place of the delictum, or of his residence, or otherwise, and to which he owes no allegiance {Yelverton v. Yelverton, 1859, 29 L. J. P. 34, Sir Cresswell Cress- well (restitution of conjugal rights) ; Le Sueur v. Le Sueur, 1876, 1 P. D. 139, Sir E. PhiUimore). So where the parties were domiciled in Jersey and were married there, and there continued resident and domiciled till the husband deserted his wife and went to reside in the United States, and the wife came to England and became bona fide resident here, and in- stituted a suit here against her husband by reason of his adultery committed in Jersey and desertion, it was held by Sir Robert Phil- limore that the husband was not amenable to the jurisdiction {Le Sueur V. Le Sueur, 1876, supra). It is not, however, inconsistent with the principle enunciated by But wife may, Sir James Hannen above, that a wife should be allowed in some i,e able to ' cases to obtain relief against her husband in the tribunal of this obtain relief , ° being resident country, she being resident here though not domiciled (Firebrace v. here, though not domiciled. Firebrace, supra). So where the marriage was had in England between an English- woman and a Neapolitan, on the condition that the parties should always reside in England for six months in each year, which stipulation had been fulfilled till within a few years of the date of the petition. Sir E. PhiUimore granted a decree on the petition of the wife resident here, though the husband had abandoned his English domicil, if he had ever acquired one, and the adultery was committed abroad (Santo Teodoro v. Santo Teodoro, 1876, 5 P. D. 79 ; see also Beck v. Deck, 1860, 29 L. J. P. 129, coram Sir C. Cresswell, J. 0., Martin, B., and Willes, J., decided on ground of aUegianeie, as to which see Udny v. Udny and notes above, and Niboyet v. Niboyet, 1878, 4 P. D. 1, 18, per Brett, L. J. ; Bond v. Bond, 1860, lb. 143 ; same judges, proceeding also on ground of allegiance not shown not to be English). And it may be that where a man leaves his wife, returning to Digitized by Microsoft® 120 JURISDICTION IN DIVORCE. her from time to time, is the place of the matrimonial homo {D'JEtchegoyenw. B' Etchegoyen, supra). And husband. If it is established that the petitioner is resident in England, not casually as a traveller, but bonS. fide and permanently, he will be able to obtain a decree against' his wife committing adultery abroad since he became so resident, though the evidence may not establish full domicil here {Brodie v. Brodie, 1861, 30 L. J. P. 185, coram Sir C. Cresswell, J. 0., "Wightman and Willes, JJ. (c) ; see also Hemiques v. Henriques, p. 123, infra, note). But mere casual presence will not do {Manning v. Manning, 1871, L. E.. 2 P. & D. 223, Lord Penzance ; Burton v. Burton, 1873, 21 W. E. 6'48, Lord Penzance). Nihoyet v. The wife's domicil of origin was English. The marriage was celebrated at Gibraltar. The alleged adultery and the greater part of the desertion took place in England. The domicil of th& husband had been throughout and continued to be French, though he was residing in England as a French consul, and was served here : Held by James and Cotton, L. J J. (overruling Sir E. Philli- more), Brett, L. J., dissenting, that the husband's protest against the jurisdiction must be overruled {Nihoyet v. Nihoyet, 1878, 4 P. D. 1). This decision was mentioned with marked reserve by Lords Selborne and Blackburn in Harvey v. Farnie^ 1882, 8 App. Cas. 43, 56, 60, and must, it is conceived, be strictly confined to its own particular circumstances (cf. Turner v. Thompson, 1888, 13 P. D. 37, 41, per Sir James Hannen) . The contention that the Jurisdiction of the English Ecclesiastical Courts depended on mere residence does not seem to have been by any means established beyond a doubt in those Courts {Butler v. Bolben, 1756, 2 Lee, 312, 319 ; Collett v. Collett, 1843, 3 Curt. 726). Further, the jurisdiction by sect.. 6 of the Divorce and Matrimonial Causes Act (above) transferred from the Ecclesiastical Courts to the new Court created by the Act was the jurisdiction in respect of certain causes therein specified, of tcMch divorce a vinculo matrimonii teas not and could not have been (c) It is possible and arguable that all that was meant was that a matrimonial domicil was established, and, therefore, it was not necessary to say whether domicil of another kind was. See p. 16, supra, hiboyet v. JV., p. 19, per Brett, L. J. Digitized by Microsoft® KATCLIFF 0. EATCLIFF. 121 one. Sect. 27 created a proceeding totally new in England {Collins v. Collins, 1884, 9 App. Cas. 205, 239, per Lord Blaokbum) . James, L. J., in the course of Hs judgment, says, at page 6 : " I arrive, therefore " — that is because, as he said, there was residence more than casual here and the delict — " at the conclusion that the facts stated in the petition would have constituted a matter matrimonial in England, in which some jurisdiction would, hut for the passing of the Act, have been vested in and exercised by an Ecclesiastical Court or person in England, and that such jurisdiction now belongs to and is vested in her Majesty. This appears to ine sufficient to dispose of the plea which denies all jurisdiction whatever in the subject-matter of complaint." But the respondent's plea was that he neither had nor ever had any domicU in England, and that therefore the Court had no jurisdiction to dissolve the marriage. And it is humbly submitted that the consideration, whether or no the Ecclesiastical Courts would have exercised jurisdiction to do something else in regard to the relation of the parties, was quite beside the question whether or no the Act gave the Court which it created jurisdiction in the circumstances to dissolve the relation of husband and wife entirely. Again, he says (p. 7), " The Act was passed expressly to con- stitute a Court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dis- solution of a marriage. I read that as ' in certain of such cases ' ' in certain of such matters matrimonial ' in England. And that is followed by the 27th section which is quite universal ia its language. ' It shall be lawful for any husband ... it shall be lawful for any wife, &c.' That universality is of course to be limited by the object and purview of the Act, and is to be read thus : ' And in any such matrimonial matters in England it shall be lawful for any husband or wife, &e.' " But surely the preamble of the Act means nothing more than this, Whereas it is expedient to amend the law relating to divorce ; and whereas there is now no Court with exclusive jurisdiction in matters matrimonial in England, but this jurisdiction is scattered among a number; and whereas there is no Court with authority in any case to decree the dissolu- tion of a marriage; and whereas it is expedient to constitute a Court with exclusive jurisdiction in matters matrimonial in Digitized by Microsoft® 122 JUEISpiCTION IN DIVOKCE. England, and with authority in certain cases to decree the dissolu- tion of a marriage : Be it therefore enacted that all jurisdiction in matters matrimonial now vested in Ecclesiastical Courts shall be transferred to the Court we now create, and that in certain cases, that is, on adultery of wife or incestuous adultery, &c. (sect. 27) of husband, that Court shall have jurisdiction on petition presented to decree the dissolution of a marriage. Then he says, " Of course it is always to be understood and implied that the legislature of a country is not intending to deal with persons or matters over which, according to the comity of nations, the jurisdiction properly belongs to some other sovereign or state. But I do not find any violation of that comity in the legislature of a country dealing as it may think just with persons native or not native, domiciled or not domiciled, who elect to come and reside in that country, and during such residence to break the laws of God or of the land." But he himself had said (p. 6), that the English Court would not lose its jurisdiction because the delict was abroad, which shows that the jurisdiction does not depend on the place of the commission of the delict {RatcUff v. RatcUff) ; and it is submitted that the principle enunciated is apposite only to criminal jurisdiction. As to the difficulty raised about a decree of nullity (p. 9), it can be answered in all but a very few cases by the remarks of Sir James Hannen in Turner v. Thompson, 1888, 13 P. D. 37, 41. See p. 125, infra. Cotton, L. J. (p. 21), bases his judgment in part on the proposi- tion that the respondent having been properly served the only question was whether the Court had jurisdiction over the suit. This doctrine would make even casual presence sufficient, and is in conflict with the judgment of James, L. J., and with the whole current of authorities. {Donegal v. Donegal, 1821, 3 PhiU. 697.) It stands alone and was imnecessary to the decision. He then proceeds, as James, L. J., to conclude that the facts would have founded jurisdiction in the Ecclesiastical Courts, and that if the Court held that it had no jurisdiction to pronounce a divorce it could have no jurisdiction at all. This reasoning has been already respectfully commented on above. (Consider also the judgment of Brett, L. J., and that of Sir E. Phillimore in the Court below : Digitized by Microsoft® RATCLIFF V. EATCLIFF. 123 Story, p. 312, note, citing 19 Alb. L. J. 146 ; Dicey, p. 227, note and references there ; Dixon on Divorce, pp. 59, 60.) But thougt, as has been said, it is conceived that the decision must be confined strictly to the circumstances in which it was decided, it must nevertheless be remembered that it is an authority for saying that the Court has, under some circumstances, jurisdic- tion to dissolve a marriage when the parties are merely resident but not domiciled here. {Turner v. Thompson, supra; Harvey v. Faniie, supra.) And if the husband's domicil was English at the time of the Abandonment ji ''y adulterous marriage, it is douotiul whether he could be heard to deny the husband of jurisdiction of the Court, he deserting his wife and leaving her °"^° ®'^®' here {Niboyet v. Niboyet, at p. 14, per Brett, L. J. ; Briggs v. Briggs, 1880, 5 P. D. 163, 165, Sir James Hannen, citing Lord Westbury, in Pitt v. Pitt, 4 Macq. 640 ; cf. Harvey v. Farnie, at p. 47, per Lord Selborne, L. C). It is doubtful whether the Court has jurisdiction to make an Costs— oo- ,« , ., JJ.J!' j-*ij respondent, order tor costs agamst a co-respondent, a foreigner domiciled abroad and being out of the jurisdiction {Henriques v. Henriques, Times, 27th Oct. 1887, Butt, J. {d). See Tourle v. Tourle, 1 Sw. & Tr. 176). (d) Before Mr. Jttstioe Btjtt. Times, 27 Oct. 1887. Henriques v. Henriques and Nunes. This was a suit by Guillierme Jo^ Carlos Henriques, otherwise known as William John Charles Henry, for the dissolution of his marriage with the respondent, whose maiden name was Maria de Jesus, on the ground of her misconduct with Luiz Nunes. Mr. Inderwick and Mr. Searle appeared for the petitioner. There was no appearance for the respondent or co-respondent, and neither had filed an answer nor entered an appearance. The petitiouer is a British subject, and was bom in London in 1846. Though having a house in Surrey he resided principally in Portugal, where he has an estate, and also carries on business as a patent agent. In April, 1865, while he was yet a minor, he married the respondMit at Camota, in Portugal, she being a person of hmnble circumstances, and there are five children of the marriage. In 1886 the petitioner was constructing a road for the Portuguese Government, and he took the co-respondent, who was a married man with a good character, into his employment as a blacksmith, giving him a porter's lodge to live in. Evidence was adduced to show that the respondent frequently visited the co-respondent in circumstances which excited the suspicions of her eldest son, who in consequence discharged Nunes from his father's employment, and that after his discharge the respondent made appointments with Nunes, and ultimately eloped with him from her husband's estate to Lisbon. Mr. Justice Butt pronounced a decree nisi with costs. He, however, said that he should not give costs against the co-respondent unless counsel for the petitioner satisfied biTn in argument that the Court had jurisdiction to make an order for costs against a co-respondent who was a foreigner and out of the jurisdiction. . Mr. Searle said that, as Nunes was a person without the means to, pay costs, his Lordship would not be asked to hear an argument on the point of jurisdiction to grant them. Digitized by Microsoft® 124 JURISDICTION IN DIVORCE. Judicial Judicial Separation. — The same principles are applicable as to separa ion. jiji-igdiotion to pronounce a dissolution of tlie marriage (Nihoyet v. Niboyet, supra, the judgments of James and Cotton, L. JJ. ; p. 19, per Brett, L.J. (domicil) ). But the jurisdiction before vested in or exerciseable by any EecleBiastieal Court or person in England in respect of divorces k mensa et thoro is now exercised by the Divorce Division. And if residence, not merely transitory but yet not domicil, was sufficient to found jurisdiction in the Eccle- siastical Courts in that respect, it is so, it is submitted, in the Divorce Division. However, mere residence casually or. as a traveller is not sufficient {Manning v. Manning, 1871, L. E. 2 P. & D. 233, Lord Penzance ; Burton v. Burton, supra ; Gettys v. Gettys (3 Lea. 260), 31 Amer. Eep. 637; Collctt v. Collett, supra). Restitution of Restitution of Conjugal Rights. — Here, again, see and consider rights" sect. 6 ; Niboyet v. Niboyet, the judgments of James and Cotton, L. JJ., and Brett, L. J., I.e. The Court has no jurisdiction in this respect over a husband not domiciled in England ( Yelverton v. Yekerton, 1859, 1 Sw. & Tr. 586 ; 29 L. J. P. 34, Sir Cresswell Cresswell ; Firehrace v. Mrehrace, 1878, 4 P. D. 63, Sir James Hannen). Service out of The Court has no power to allow service abroad of a petition for jurisdiction. j.ggtit^tioji of conjugal lights (Firebrace v. Mrebrace, at pp. 68—69 ; Chichester v. Chichester, 1885, 10 P. D. 186, Sir James Hannen), It may be, however, that when the parties are domiciled here a proceeding like that by " ways and means " of the Ecclesiastical Courts could be resorted to (see Mrebrace v. Mrebrace, I. c. and Service out of the Jurisdiction, p. 409, infra) (e). NuUity and Nullity and Jactitation. — The Court has jurisdiction to inquire jao 1 a ion. .^^^ ^^^ validity of any marriage between domiciled English people (e) If the hushand abandons an acquired domicil here hefore the commencement of the suit, that abandonment would not be the less operative, because his motive was to avoid liability to proceedings in the Court : Mreirace v. Firebrace, at p. 66, per Sir James Hannen. The learned President found, however, as a fact, that the respondent never did acquire an English domicil. As to service out of jurisdiction in other cases, see sect. 42, above ; and in Divorce BUI, and as regards dispensing with personal service, Mobotham v. Robotham, 1858, 27 L. J. P. 34 ; Joynfa Divorce Bill, 1888, 13 App. Cas. 741 ; Chandler v. Chandler, 1858, 27 L. J. P. 35 ; 28 lb. 6 ; Cook V. Cook, 1858, 28 lb. 5 ; Sudlow v. Sudlow, 1868, 28 lb. 4. The Court must be satisfied that proper efforts have been made to discover the whereabouts of the party.- Digitized by Microsoft® RATCLIFF V. EATCLIFF. 125 wheresoever it may have teen celebrated {Scrimshire v. Scrimshire, pp. 73, 74, above; ToUemache v. Tollemache, 1859, 30 L. J. P. 113). If the husband's domicil is English and the wife maintains the marriage she will not be able to deny the jurisdiction over her {Chichester v. Donegal, 1822, 1 Add. 5, 19, Sir John NichoU). And since a woman when she marries a man, not only by construc- tion of law, but absolutely as a matter of fact, does acquire the domicil of her husband if she lives with him in the country of his domicil, and since it is to be remembered that a marriage by the law of England, when one of the parties is incompetent, is not a marriage absolutely void, but only voidable at the instance of the injured party, it will be but rarely that a difficulty will arise in respect of the wife claiming a separate domicil {Turner v. Thompson, 1888, 13 P. D. 37, 41, Sir James flannen ; Butler v. Dolben, 1756, 2 Lee, 312). A suit for declaration of nullity raises the question whether the contract to marry was ever carried out, and this consideration gives the courts of the country in which the alleged marriage was solemnized jurisdiction {Nihoyet v. Niboyet, at p. 18, per Brett L. J.). And the Court has jurisdiction to inquire iato the validity of any marriage celebrated in England, even between foreigners domiciled abroad at the date of the marriage or alleged marriage, or the institution of the suit {Simonin v. Mallac, 1860, 29 L. J. P. 97 ; SottomayorY. De Barros, above). Nevertheless, if the marriage has been dissolved by a decree recognized here (see the next case) there is no jurisdiction, that is, there is no marriage to be inquired into {Turner v. Thompson, 1888, 13 P. D. 37, Sir James Hannen ; cf. Tollemache v. Tollemache, sujira). As regards the question whether mere residence can give the Court jurisdiction in this respect, Niboyet v. Niboyet is an authority for saying that, under some circumstances, the Court has jurisdic- tion if the parties are resident here {Turner v. Thompson, I.e. per Sir James Hannen, and cf . what is there said with the remarks of James, L. J., in Niboyet v. Niboyet, 4 P. D. at page 9). " I do not think that the same rule," that is, that the jurisdiction is dependent on domicil, " applies to suits for a declaration of marriage or in respect of jactitation of marriage." {lb. at page 19, per Brett, L. J.) But it is submitted that this must be considered with what the then Digitized by Microsoft® 126 LEGITIMACY DECLAEATION ACT. Lord Justice had said earlier in his judgment as to the country of solemnization having jurisdiction in this respect (page 18). (Cfi also Ex parte Langworthy, 1887, 3 T. L. E. 544, 545, per Lindley, L. J.). Where the wife has ohtained a sentence of divorce, the wife, in a suhsequent suit of nullity promoted by the hushand, cannot be held subject to the jurisdiction of the Court by reason of her domicil being his {Williams v. Dormer, 1852, 2 Hob. Ecc. E. 505, p. 105, supra). See also sect. 6 ; Btitkr v. Dolben ; Donegal v. Donegal, supra. Legitimacy Declaration Act, 1858. 21 & 22 Vict. c. 93. Le^timaoy Sect. 1. — Any natural-bom subject of the Queen, or any person Act, 1858. whose right to be deemed a natural-born subject depends wholly or in part on his legitimacy or on the validity of a marriage, being domiciled in England or Ireland, or claiming any real or personal estate situate in England, may apply by petition to the Court for Divorce and Matrimonial Causes (Divorce Division, Judicature Act, 1873), praying the Court for a decree declaring that the petitioner is the legitimate child of his parents, and that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage, or for a decree declaring either of the matters aforesaid ; and any such subject or person, being so domiciled or claiming as aforesaid, may in like manner apply to such Court for a decree declaring that his marriage was or is a valid marriage, and such Court shall have jurisdiction to hear and determine such application and to make such decree declaratory of the legitimacy or illegitimacy of such person, or of the validity or invalidity of such marriage, as to the Court may seem just ; and such decree, except as hereinafter mentioned, shall be binding to all intents and purposes on her Majesty and aU persons whomsoever. Sect. 2. — Any person, being so domiciled or claiming as afore- said, may apply by petition to the said Court for a decree decla- ratory of his right to be deemed a natural-born subject of her Majesty, and the Court shall have jurisdiction to h^ar and deter- Digitized by Microsoft® RATCLIFF V. RATCLIFF. 127 mine suoli application, and to make such decree thereon as to the Court may seem just ; and where such application as last afore- said is made by the person making such application as herein mentioned for a decree declaring his legitimacy or the validity of a marriage, both applications may be included in the same peti- tion ; and every decree, &c. Sect. 6. — Attorney-General to have copy of petition and to be respondent. Sect. 8. — Decree of Court not to prejudice any person unless cited or made a party to the proceedings, or is the heir-at-law or next of kin or other real or personal representative of or derives title under or through a person so cited or made a party ; nor any person if subsequently proved to have been obtained by fraud or collusion. Sect. 9 relates to any person domiciled in Scotland, or claiming any heritable or moveable property situate in Scotland. Sect. 11. — This Act is to be construed as one with the Divorce and Matrimonial Causes Act (/). (/) Compare pp. 17, 18, supra. See Shau) v. Alt. -Gen., 1870, L, R. 2 P. & D, 166 ; Scott T. AU.-Gcn., 1886, 11 P. D. 128, and the next case and notes. Natural- ■bom subject, pp. 45, 46, supra. As to sect. 7 (citing), see JJpton v. Att.-Gen., 1863, 32 L. J. P. 177. As to sect. 10 and estoppel, see Shedden v. Att.-Gen., 1860, 30 L. J. P. 217. Digitized by Microsoft® 128 Scotch Divorce. Foreign divorce where domicil English from date of solem- nization to date of decree — the juris- diction being founded on delict only, and transient residence and decree for a cause in- suf&cient in England. Meld: — decree inoperative ■within the meaning of 1 Jac. 1, c. 11. REX V. WILLIAM MARTIN LOLLEY. At Sebjeauts' Imr. 7th December, 1812. [Eeported R. & Ry. 237.] The prisoner was tried at the Laneasliire Summer Assizes in the year 1812. The indictment stated that he on the 18th July, 1802, at Liyerpool, was married to Anne Servaia, widow, and afterwards to Helen Hunter, spinster, the said Anne, his former wife, being then living. The two marriages were proved to have been duly solemnized at Liverpool, and that the first wife was alive a week before the assizes. The prisoner's defence was that his former wife had divorced him in Scotland before his second marriage, and that his second wife when she married him was fully acquainted with it. These facts were established in proof. Eaine, for the prosecution, insisted that this Scotch divorce was of no validity so as to authorize a second marriage in England, and to excuse the prisoner from the crime of bigamy under the third section (o) of 1 Jac. 1, c. 11, which point the learned judge reserved for the opinion of the judges. Evidence was also given showing that the prisoner took his wife into Scotland, that she might be induced to institute a suit against him there for his misconduct, and that he cohabited with a prostitute there for the very purpose of irritating his wife and furnishing ground for the divorce. The point as to fi'aud and circumvention practised upon the first wife, and fraud and imposition upon the Court that pronounced the decree arising on this evidence, was also reserved for the consideration of the judges. The prisoner was found guilty, subject to these points reserved, and judgment was respited to the following assizes. The case (5) was argued before all the judges in Serjeants' Inn HaU, on 7th December, 1812, by Brougham, for the prisoner, and Littledale, for the Crown. The judges held the conviction right, being unanimously of opinion, that no sentence or act of any foreign country or state could dissolve an English marriage a vinculo matri- monii for ground on which it was not liable to be dissolved a vinculo {a) Which contains the proviso mentioned below, (i) The report is here transcribed in full. Digitized by Microsoft® EEX V. LOLLEY, 129 matrimonii ia England, and that no divorce ol an Ecclesiastical Court -was within the exception in sect. 3 of 1 Jac. 1, c. 11, unless it was the divorce of a Court within the limits to which 1 Jac. 1 extends. The judges gave no opinion upon the husband's conduct in drawing on his wife to sue for the divorce, because the jury had not found fraud. It should be remembered that Lollei/s Case was decided on the 9^^® ^?^' " sidered. construction of the statute 1 Jao. 1, c. 11. Now this statute, after reciting, "Forasmuch as divers evil-disposed persons being married run out of one country into another and into places where they are not known, and there become to be married, having another husband and wife living, to the great dishonour of God and utter undoing of divers honest men's children and others," enacts, " That if any person or persons within his Majesty's dominions of England and "Wales, being married, &c., do marry any person or persons, the former husband or wife being alive," &c., such person or persons are to incur the penalty provided by the statute : " Provided that nothing therein contained shall extend to any person or persons that are or shall be at the time of such marriage divorced by any sentence in the (c) Ecclesiastical Court." The defence was that the prisoner had been divorced in Scotland before his second marriage. But it was held that he was married — " being married " — at the time of his second marriage, because (1) " no sentence or act of any foreign country could dissolve an English marriage a vinculo matrimonii for ground on which it was not liable to be dissolved a vinculo matrimonii in England " ; (2) because no divorce of an Ecclesiastical Court was within the exception in the statute unless it was a divorce of a Court within England and "Wales. The second reason need no longer trouble us. As regards bigamy within sect. 27 of the Divorce Act (p. 114, supra), the question is merely, was the party married — "being married" — at the time of the second marriage? As regards bigamy as a criminal ofEence, was the party married — "being married," or (c) The report reads "any", the Statutes at Large "the". N. K Digitized by Microsoft® 130 FOREIGN DIVOECE. had his former marriage been declared void by the sentence of any Court of competent jurisdiction ? (24 & 25 Yict. o. 100, s. 57, p. 299, infra). It will appear from the following cases that the proviso contained in the statute relating to criminal law is in effect read into the Divorce Act, and the same principles, seemingly, will be applicable to the one case as to the other. As explained subsequently, the decision amounts to no more than this, that a marriage is indissoluble by a foreign Court when it is an English domiciled marriage ab initio down to the time . of the divorce {Harvey v. Farnie, 1882, 8 App. Cas. 43, H. L. (E.) ) {d). loiim/a Case « Now, what was Lolky's Case ? It was a case of this class, explained. that persons who had married, and had always been and always continued to be matrimonially and actually domiciled in England, had recourse to Scotland for the purpose of constituting a merely forensic domicil, and there obtained a divorce for a crime, I take it, committed in Scotland. That was held by the English Courts not to be a valid sentence . . . There was a total absence of matrimonial or actual domicil. . . . That case decided, and every subsequent case is consistent with the decision, that in those circumstances the Scotch Court had no proper jurisdiction, or, at all events, not such a jurisdiction as could be recognised for the purpose of giving any effect to its sentence in England " {Harvey Y, Farnie, at p. 54, per Lord Selborne, L. C). " The only ground upon which it has been said that a Scotch Court could not divorce the parties was that the actual marriage, the contract, was made in England. I do not myself see why upon any principle that should make any difference. What was urged was that there was authority for that proposition, and for that purpose Lolley's Case was cited. " Now, Lord Brougham did more than once cite " {McCarthy v. Decaix, 1831, 2 Euss. & My. 614, 619 ; Warrender v. Warrender, 1835, 2 CI, & F. 540) "and act. upon Lolky's Case, as though he had understood it as going to the full extent of what I have just said, that the fact that a marriage was contracted locally in Eng- land made it an English marriage, and therefore indissoluble by any foreign Court on the ground of adultery or anything else. {d) In the Law Eeports {I. c), H. L. (So.). This is a mistake. The appeal was from an order of the Court of Appeal in England, dismissing' an appeal from a judgment of the President of the Divorce Division, dismissing a petition for declaration of nullity of marriage: 1880, 5 P. D. 163 ; 1880, 6 P. D. 35. Digitized by Microsoft® KEX V. LOLLEY. 131 Lord Brougham appears to have thought that that was the decision in Lollej/'s Case, but I think that that was not the decision. When you look at the facts in LoUeifs Case they are clear. An English husband married an English wife in England ; he was a domiciled Englishman, she was a domiciled Englishwoman. They continued to be domiciled Englishman and Englishwoman down to the moment when, going into Scotland for a temporary purpose, he there committed adultery, and she, therefore, caused him to be divorced in a Scotch Court. Now, in that state of facts the point which was decided by the twelve judges, upon the point being brought forward, was this : they said they could not and would not inquire into whether there was fraud or not, because if there had been any fraud it ought to have been left to a . jury to find it, and that the fraud was not left to a jury ; but they did find upon the very point that was brought before them, that there was an English domicil throughout the whole period of the case, and when they decided that an ' English marriage,' which, I think, is the phrase that was used, was indissoluble by a foreign Court, they meant an English marriage under these circumstances and in this way, namely, one where the domicil was English from the beginning to end of the transaction " {lb. pp. 58, 59, per Lord Blackburn). So, therefore, the English Courts will recognise as vaHd the Sentence of decision of a foreign tribunal dissolving a marriage celebrated in domicil England between a man domiciled at the date of the marriage and "^^^o^ised. continuously therefrom till the date of the decree in the country where such tribunal has jurisdiction and an Englishwoman, al- though the sentence proceed upon the sole ground of adultery committed by the husband within the foreign jurisdiction [Sarvcy V. Fariiie, 1882, 8 App. Cas. 43 H. L. (e) ; Magliee v. McAllister, 1853, 3 Ir. Oh. 604, there approved ; Turner v. Thompson, 1888, 13 P. D. 37). And where the domicil of the husband is English at the time of Sentence of ,1 , n p ' n L 1 i ' ' {v 1* * Court of non- the sentence oi a loreign Oourt, sucn sentence is mertective m domicil not England {Harvey v. Farnic, supra ; Dolphin v. BoUns, 1859, 29 recognised. L. J. P. 11 ; 7 H; L. C. 390 ; Shaw v. Gould, 1868, L. E. 3 H. L. {e) Dissenting from McCarthy v. Becaix, supra; and explaining Tovey v. Lindsay,- 1813, 1 Dowl. 117, see pp. 61 — 63. See also note, p. 130, siipra, k2 Digitized by Microsoft® 132 FOKEIGN DIVOECE. 55; Conway v. Beazkij, 1831, 3 Hagg Const. 639; ToUemache. V. ToUemache, 1859, 30 L. J. P. 113 (first marriage in country, ■where dissolution subsequently pronounced) ). As to sentence Even if Niboyet v. Mboyet (p. 120, supra) was rigMy decided, fide^residence. ^^^ ^i even SO, it decides more than that a wife bond fide resident in England and deserted hy her hushand is not barred, her hus- band beiug also resident in England, and the delict having been committed here, from presenting a petition for divorce under the Divorce and Matrimonial Causes Acts by reason of the matri- monial domicil being elsewhere, it does not necessarily follow that the English Coiirts will allow effect in England to a sentence of divorce pronounced by the Court of a foreign country under cir- cumstances similar to those in Niboyet v. Niboyet, or where both parties were bona fide resident but not domiciled in the foreign country {Harvey v. Farnie, 6 P. D. 35, 50, 51, per Cotton, L. J. ; 8 App. Cas. 43, 56, per Lord Selborne, L. C). But, still, if both the parties are bona fide resident in the foreign country and the dissolution is for a cause which would be good in England, it may be that the sentence will be recognised {Harvey v. Farnie, 1880, 5 P. D. 153, 157, per Sir James Hannen). Though if one party only be resident in the foreign country, the sentence is not recog- nised {Shaic V. A.-G., 1870, L. E. 2 P. & D. 156, Lord Penzance j Briggs v. Briggs, 1880, 5 P. D. 163, Sir James Hannen). Domicil of Harvcy v. Farnie does not decide that when the husband's domicil husband . n i • • i i i acquired after was English at the time of the marriage and so remamed but sub- before decree sequently, before the decree, became foreign, the decree of a Court sufficfenfm °^ ^^® Country of such subsequently acquired domicil will be the absence of sufficient. And Something was said by Lord Selborne (pp. 47, motive. 50, 51) tending to the conclusion that a sentence might not be recognised here if it were that of a Court of a country in which the husband neither had a domicil at the time of the marriage, or, to the knowledge of the wife, the intention of acquiring one. It does not appear from the report (1886, 11 P. D. 128) of the more recent ease Scott v. A.-G. whether any argument to this effect was urged before the very learned President of the Probate Division or no. But, at any rate, no notice is taken in the judgment of such an argument. And in that case where the husband and wife, both domiciled in Ireland, were married in that country and there Digitized by Microsoft® REX v. LOLLEY. Ij resided for atout two years, and subsequently acquired a domioil abroad, and the wife was divorced from her husband by a sentence of the foreign Court, the divorce was recognized — a later marriage of the wife in England being declared valid (/). Yet if the husband purposely acquired a domicil with ulterior motive it may be different (JIavetj v. Farnie, 5 P. D. 153, 157 ; Briggs v. Briggs, lb. 165 ; Story, § 311, note). And i£ the domicil is one which has been acquired subsequently to the marriage, there is more force in the objection that the divorce has been pronounced for a cause in- sufficient by the law of England {Lolki/'s Case; Harvey v. Farnie, 8 App/ Cas. at p. 47, per Lord Selborne, L. C. ; see also Briggs v. Briggs, svpra ; contra, Westlake, § 48). The priaciples mentioned in considering foreign judgments (pp. Fraud and ■ 363, 364, infra) respecting fraud and collusion apply, but with greater stringency, to foreign sentences of divorce {Shaw v. Gould, at p. 87, per Lord Westbury; Dolphin v. RoUns, supra; Hunt v. Hunt (72 N. Y. 227), 28 Amer. Eep. 129 ; and see all cases cited here above; and Ingham v. Sacks, infra). When neither the domicil or the place of celebration is or has "When ueith been English, a sentence in a matrimonial cause pronounced by a pi^e^of"'^ Court of the matrimonial domicil wiU be deemed of effect here, e?le^ration ' English. and a sentence of a Court of the place of celebration will carry great weight, and is sufficient if so regarded by the law of the domicil {Scott v. A.-G., 1886, 11 P. D. 128; Cottington's Case, 1678, cited Kennedy v. Cassilis, 9 Swan. 326 ; Sinclair v. Sinclair, 1798, 1 Hagg. Const. 294 ; Ryan v. Ryan, 1816, 2 PhiU. 332 ; Conelly v. Conelly, 1851, 7 Mo. P. C. 438 ; Argent v. Argent, 1865, 11 Jur. N. S. 861 ; cf. Harvey v. Farnie, at p. 50, per Lord Selborne, L. C. ; Turner v. Thompson, supra; and Birt v. Boutinez, 1868, L. E., 1 P. & D. 487). In the recent case Ingliam v. Sachs (1887, 56 L. T. 920), how- ever. Butt, J., appears to have gone further than this and to have held that a decree of a Court of the place of celebration could not be refused recognition and effect here. On appeal {Coram, Cotton, L. J., Sir James Hannen, and Lindley, L. J.) the Court desired to be informed what proof had been furnished to the foreign (./) Note, the marriage dissolved was in no sense English. Digitized by Microsoft® 134 FOREIGN DIVORCE. Court as to tlie husband's domicil at tlie time of tlie proceedings in that country, thus affording an indication that, in the opinion of the 0. A., it was, at any rate, of importance that the foreign Court should have been satisfied on evidence fairly put before it by the parties that the matrimonial domicil was in the foreign country at the time of the sentence there. It appears that the truth as to the husband's domicil had been concealed from the foreign Court {g). But the death of the respondent unfortunately prevented the Court giving judgment (see a note by Mr. Westlake, Law Quarterly Eeview, vol. iv. pp. 108 — 9). Effect of fgreign divorce. Foreign divorce regarded only as to marriage tie : after capacity dependent on lex domicilii. As regards moveables. Effect of Divorce. — If by the foreign sentence of divorce, recog- nised as of effect in England, the marriage is absolutely dissolved, the divorced parties become unmarried persons. Either of them, therefore, is free to remove into any other jurisdiction and to acquire a new domicil by which his or her capacity as regards the effects of that sentence will be regulated {Scott v. A.-Q., 1886, 11 P. D. 128) ; and if such new domicil is English, the party wiU be free to marry according to the law of England {lb.) {h). As regards moveables, the effect of a foreign divorce will be generally dependent on the law of the country of the owner's domicil at the time when the question is considered in the English Court {Silly. Worsivicli, below; Scott v. A.-O., supra) («), {g) This alone, probably, would have been sufficient cause for disregarding the sentence, see above. As to a divorce by act of foreign legislature, compare further Maynardy. Sill, 1887 (U. S. B.), Davis, Vol. oxxv. p. 190. (k) A prohibition of re-marriage, being penal, -will probably not be recognised under any circumstances as having operation in England : Dicey, rule 47, comment and note — relying in part on American decisions, see Story, p. 117, note {a), and add Moore v. Segeman, 92 N. T. 821 ; Thorp v. Thorp, 90 N. Y. 602. Scott v, Att.- 6en. determines that the law of the domicil at the time of the second marriage must govern the capacity then, and in so deciding Sir James Hannen avoided lie point as to penal status. Much must depend on the nature of the particular law in question. Qu. if the rule as to penal status (Sommerseif s Case, above) will prevail in England against an incapacity of this sort imposed by the lex domicilii. (») Incidents of divorce to be deduced from place where decreed : Story, § 230 b. This must, of course, be so so far as ascertaining whether divorce absolute or not and so forth, and so far as foreign decree actually deals with proprietory rights in moveables, a. g., order in nature of ahmony or order varying settlement : Sehilaby v. Westenhoh; Godard v. Gray, and notes, below ; Oammell v. Sewell, and notes to that case ; and Sill v. Worswick, below. And in many cases the country in which the sentence is pronounced must be that to the law of which recoui'se must be had to ascertain where the ownership is. The point is one thraught with difficulties and which has apparently never arisen for judicial decision in English Courts. As to immoveables, see Doe v. Vardill, and notes, below. See, also, on this question Hawkins v. Magdale (80 Ey. 353), 44 Amer. Rep. 483, deaUng with the interpreta- tion of a statute which enacted that a divorce should be a bar to dower.' Digitized by Microsoft® DOE on the demise of John Birtwhistle v. AGNES VARDILL. In the Hottse or Loeds.— Error from the Court of King's Benot. 2nd Sept. 1835 ; lOth August, 1840. [Reported 5 B. & C. 453 ; 6 Bing. N. C. 385 ; 9 Bl. N. E. 32 ; 2 01. & F. 571 ; 7 01. & P. 895.] In Hilary Term, 1825, the plaintiff, in error, brought an action of A person be trespass and ejectment against the defendant, in error, for one un- ^'J Scotland divided third part of lands in Yorkshire. At the trial at the Yorkshire ^^Sed Spring Assizes of that year the jury found a special verdict, raising in there, but i substance the question whether John Birtwhistle, the lessor of the married till -plaintiff, having been born in Scotland of parents domiciled there, but after his not married till after his birth, and being the only son of his parents, ^^^J}-.' *^°J^| and legitimate by the law of Scotland for the purpose of taking land ^he lair of and for every other purpose, could, as heir of his father, take the Scotland, lands in England. On the 5th February, 1826, the case was argued cannot take in the King's Bench before Abbott, 0. J., Bayley, Holroyd and Little- *^^?^„^^^'^ dale, JJ., by Tindal, for the lessor, and Courtenay, contra, and the git^atein. ^ Court gave judgment for the defendant. The present writ of error England, was then brought, and the matter was argued in 1830 before the The land judges, to whom a question was put which they took time to consider, being in The Lord Chief Baron Alexander subsequently delivered their opinion ^^^gland its on -1 ./ jr descent mus as follows :—_ _ be governed My lords, in this case the judges have agreed upon the answer by the la-w -which is to be given to the question put to them by your lordships, of England, The question is, " A. went from England to Scotland, and resided and and the heii was domiciled there, and so continued for many years till the time of j^^^e state his death. A. cohabited with M., an unmarried woman, during the of la-wf ul whole period of his residence in Scotland, and had by her a son, B., matrimony, who was born in Scotland. Several years after the birth of B., who or else he is was the only son, A. and M. were married in Scotland according to the "°*^ , "^ y laws of that country. By the laws of Scotland, if the marriage of a England, mother of a child with the father of such child takes place in Scotland, such child, born in Scotland before the marriage, is equally legitimate with children bom after the marriage, for the purpose of taking land and for every other purpose. A. died seised of real estate in England, and intestate. Is B. entitled to such property as the heir of A. ? It appears to us, that whenever a question of the nature put to us by your lordships arises in an English Court of Justice, there are two points to which the attention of the judge must be directed, separately, and in succession to each other. The first in order regards the status or condition of the claimant ; the second is, what rules of inheritance Digitized by Microsoft® 136 IMMOVEABLES. 1840. the law of the country where the property is situated and the tribunal sits has impressed upon the land, the subject of the claim. As to the first of these questions, I believe I express the opinion of the judges when I say, in the well-considered language of liord Stowell, in Dalrymple^. Dalrymple{a), that "the cause being entertained in an English Court, must be adjudicated according to the principles of English law applicable to such a case ; but the only principle appli- cable to such a case by the law of England is, that the status or con- dition of the claimant must be tried by reference to the law of the country where the status originated : having furnished this principle, the law of England withdraws altogether, and leaves the question of status, in the case put, to the law of Scotland." Such is the sentiment of that great judge, and such is his language, varied only so far as to apply to a question of legitimacy what was said of a question respect- ing the validity of a marriage. When the question of personal status has been settled upon these principles, when it has been ascertained what the claimant's character and situatipn are, it becomes then neces- sary to inquire what are the rules and maxims of inheritance which the law of that country where the inheritance is placed, and whose tribunals are to decide upon it, has stamped and impressed upon the land in debate. In order the more distinctly to explain what is meant, I will suppose a case, in many circumstances resembling the present. In addition to the circumstances stated in the question, let it be further supposed that the father and mother of the claimant had, after their marriage, one or more sons born to them. Suppose then the present claim to be made. The first inquiry having been satisfied, and it being upon that inquiry perfectly ascertained that the claimant is the eldest legitimate son of his deceased parent, for the purpose of taking land and for every other purpose, by the law of Scotland, it will next be necessary to inquire what are the rules and maxims of inheritance which the law of England has impressed upon that land which is the subject of the claim. Let it further be supposed, that upon this inquiry it shall turn out that the land claimed is of that description which is called " borough-English." This being proved, we think it clear that the claimant's legitimacy by the law of Scotland, his right to inherit by that law, will give the claimant no right whatever to the land in England held in borough-English. The comity between nations is conclusive to give to the claimant the character of the eldest legitimate son of his father, and to give him all the rights which are necessarily consequent upon that character ; but what these rights are respecting English land must be left to the law of England, and the comity is totally ineffectual to alter, in the slightest degree, the rules of inheritance and descent which the law of England has attached to this English land. It would unquestionably descend upon the youngest son. I am anxious to mark clearly the distinction which I have pointed out, because it is upon that distinction that our opinion rests. I will therefore illustrate it by another example. Take the case of Ilderton v. Ilderton (li), that is the case of a claim to dower by a foreign widow : whether she is a widow or not, that is, whether she was the lawful wife of the man who was, during the («) 2 Hagg. C. 54. {b) 2 Hy. Bl. 145. Digitized by Microsoft® DOE V, VARDILL. 137 coverture, seised of tlie land, is a question which the law of England 1840. permits to be deterijiiaed by the foreign law, the law of the country where the contract of marriage was made : there the comity stops. "When her character of widow shall have been fixed according to these foreign rules, the law of England comes into action, and, proceeding inexorably by its own provisions and regulations, decides what are the interests in the English land which her character of widow has con- ferred upon her : it inquires what are the rules which attach upon the particular land in favour of a widow. If, upon that inquiry, it appears that the land is subject to the common law, it wiU give her a third ; if it appear to be gavelkind, one half, while she remains casta et sola ; if the land be customary land of any manor, she can only have what the custom m.ay bestow. The distinction to which I am directing your lordships' attention is very familiar to foreign jurists, and is noticed by them as the distinc- tion between real and personal status : the last being those which respect the person and. follow it everywhere : the first being those which are connected with the land and adhere to it, and are as immoveable as the subject to which they are applied. My lords, it appears to us that the answer to the question which your lordships have put must be founded on this distinction : while we assume that B. is the eldest legitimate son of his father in England as weU as in Scotland, we think that we have also to consider whether that status, that character, entitles him to the land in dispute as the heir of his father ? and we think that this question, inasmuch as it regards real property situated in England, must be decided according to those rules which govern the descent of real property in that country, without the least regard to those rules which govern the descent of real property in Scotland. We have therefore considered whether, by the law of England, a man is the heir of English land, merely because he is the oldest legitimate son of his father. "We are of opinion that those circumstances are not sufficient of themselves, but that we must look further, and ascertain whether he was born within the state of lawfiil matrimony : because, by the law of England, that circumstance is essential to heirship ; and that this is a rule not of a personal nature, but of that class which, if I may use the expression, is sown in the land, springs out of it, and cannot, according to the law of England, be abrogated or destroyed by any foreign rule or law whatsoever. It is this circumstance which, in my opinion, dictates the answer which we must give to your lordships' question ; viz., that in selecting the heir for English inheritance, we must inquire only who is the heir by the local law. It has appeared to us,. that the vice of the appellant's argument consists in treating the question, who shall be the heir to English land, as a question of personal status : so it is, no doubt, up to a certain point ; but, beyond that point, it becomes a question to be decided entirely by the local laws relating to real property in the realm of England. . . . . It is said that two cases have been decided in this House which are nearly in point, and prove that the claim of B. ought to be supported : these are, the cases of Shedden v. Patrick (c), and The Strathmore Peerage case (d) In both the cases the claimants were bastards : the laws of their own country, the laws of their own (o) 1 Maoq. 535. [d) 6 Paton, 645. Digitized by Microsoft® 138 IMMOVEABLES. 1840. domicil, the laws of tlie spot where the matrimonial contract was entered into declared them to he illegitimate It is obvious that if, in the cases to which I am now referring, the claimants had been declared heirs by the Scottish law, the Scottish law admitting no heir- ship without legitimacy, that law must have been called in aid to bestow upon them that personal character of legitimacy refused to •them by the law of their own domicil. The law which, by acknow- ledged principles ascertained their personal status, fixed upon these persons a, character of illegitimacy fatal to their claims ; on the first step the ground sank under them, and it became impossible for them to advance. These decisions, therefore, are entirely consistent with ■the principles I have unfolded. My lords, it is a matter of satisfaction to us to reflect that this ride, held by us to be the rule of English law, is more useful and convenient than the rule opposed to it hj the plaintiff in error It wiU exclude many difficult and intricate inquiries which might intrude themselves from foreign laws into this subject. My lords, I conclude that it is the humble opinion of all the judges who have attended the argument of this case that B., described in your lordship's question, is not entitled to the property in England as the heir of A. 2nd Sept., 1835. Lord Brougham, who had been counsel in the case, now stated his opinion on the side adverse to that he had main- tained at the bar, impeaching the judgment below, and advising a reversal. Lords Lyndhiirst and Denman agreed that it was desirable that the case should be further argued, and it was ordered accordingly. 1st July, 1839. Sir J. Campbell, A.-G., for the plaintiff in error. Dampier, contra. This second argument took place before Tindal, L. C. J., Vaughan, Bosanquet, Patteson, Williams, Coleridge, Ooltman, and Maule, JJ., Parke and Gurney, BB. At its conclusion the same question was put to the judges as formerly in 1830 (e). The judges required time, and, on the 20th July, their unanimous opinion was delivered by Lord Chief Justice Tindal (/) :— His lordship, after stating the question, and that it was the opinion of all the judges who heard the argument that B. was not entitled to the property as the heir of A., continued : — My lords, the grounds and foundation upon which our opinion rests are briefly these : That we hold it to be a rule or maxim of the law of England with respect to the descent of land in England from father to eon that the. son must be born after actual marriage between his father and mother; that this is a rule jure positivi, as are all the laws which regulate succession to real property, this particular rule having been framed for the direct purpose of excluding, in the descent of land in («) Ante, p. 135. - (/) Who had been counsel for the plaintiff in the King's Bench, supm, p. 135. Vaughan, J., had meanwhile died, but had expressed an opinion immediately after the argument in agreement with that now delivered. Digitized by Microsoft® DOE V. VARDILL. 13J England, tlie application of the rale of the civil and canon law by 1840. which the subsequent marriage between the father and mother was held to make the son born before marriage legitimate ; and that this rule of descent, being a rule of positive law annexed to the land itself, cannot be allowed to be broken in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy upon the supposed ground of the comity of nations. The Lord Chief Justice then considers earlier authorities for the rule that the heir must be a person born in actual matrimony, and especi- ally the construction and operation of the statute of Merton (/), when " To the King's writ of bastardy, whether any one beiag born before matrimony may inherit in like manner as he that is born after matri- mony, all the bishops answered that they would not nor could not make answer to that writ, because it was directly against the common order of the church, and all the bishops instanted the lords, that they would consent that all such as were born after matrimony should be legitimate, as well as they that be born within matrimony, as to the succession to inheritance, forasmuch as the church accepteth such as legitimate. And all the earls and barons, with one voice, answered that they would not change the laws of the realm which had hitherto been used and approved" ; and, after pointing out that although, at the time of the passing of this statute, the king's dominions included Normandy, Aquitaine and Anjou, where legitimatio per subsequens matrimonium prevailed, there is not the slightest allusion to any exception in the rule itself as to those born in the foreign dominions of the crown, but the language of the rule is, in its terms, general and universal as to the succession to land in England, continues (y) : It there- fore appears to be the just conclusion from these premises that the rule of descent to English land is, that the heir must be born after actual marriage of his father and mother, in order to enable him to inherit ; and that this is a rule of a positive inflexible nature, applying to and inherent in the land itself which is the subject of descent, of the same nature and character as that rule which prohibited the descent of land to any but those who were of the whole blood to the last taker, or like the custom of gavelkind or borough English, which cause the land to descend, in the one case to aU the sons together ; in the other, to the younger son alone. And if such be, as it appears to us to be, the rule of law which goTcms the descent of land in England, without any exception, either express or implied therein, on the score of the place of birth of the claimant, it remains to be considered whether, by any doctrine of international law, or by the comity of nations, that rule is to be let in by which B., being held to be legitimate in his own country for aU purposes, must be considered as the heir-at-law in England. The broad proposition contended for on the part of the plaintiff in error is that legitimacy is a personal status to be determined by the law of the country which gives the party birth ; and that, when the law of that country has once pronounced him to be legitimate, he is, by the comity of international law, to be considered legitimate in every other country also, and for every purpose : and it is then contended (/) 7 01. & F. p. 929. (g) 7 01. & F. p. 934. Digitized by Microsoft® 140 IMMOVEABLES. ■ 1840. that as, by the Scotcli law, there is a presumptio juris at de jure that, under the circumstances supposed, the parents of B. were actually married to each other before the birth of B., such presumption of the Scotch law, by which his legitimacy is effected, must also be adopted and received to the same extent in the English as in the Scotch Courts of Justice. Now, there can be no doubt but that marriage, which is a personal contract, when entered into according to the rites of the country where the_ parties are domiciled and the marriage celebrated, would be con- -sidered and treated as a perfect and complete marriage throughout the whole of Christendom. But it does not therefore follow, that, with the adoption of the marriage contract, the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was celebrated. That the marriage in question was not celebrated in fact until after the birth of B . is to be assumed from the form of the question. Indeed, except on that supposition, there would be no question at all. Does it follow, then, that because the Scotch hold a marriage celebrated between the parents after the birth of a child to be conclusive proof of an actual marriage before, a foreign country, which adopts the marriage as complete and binding as a contract of marriage, must also adopt this consequence ? No authority has been cited from any jurist or writer on the subject of the law of nations to that effect. Nothing beyond the general proposition that a party legitimate in one country is to be held legitimate all over the world. Indeed, the ground upon which this conclusion of B.'s legitimacy is made by the Scotch law is not stated to us, and we have no right to assume any fact not contained in the question which your lordships have proposed to us. We may, however, observe that in the course of the argument at your lordships' bar, the ground has been variously stated upon which the laws of different countries have arrived at the same conclusion. It was asserted that, by the law of Scotland, the subsequent marriage is not to be taken to be the marriage itself, but only evidence, though conclusive in its nature, of the marriage prior to the birth of B. ; that the canon law rests the legitimacy of the son born before such marriage upon a ground totally different, viz., that, having been born illegitimate, he is made legitimate, legitimatus, by the subsequent marriage, by a positive rule of law, on account of the repentance of his parents : whereas, by the Scotch law, a marriage previous to his birth is con- clusively presumed, so that he always was legitimate, and his parents had nothing to repent of. Pothier, on the other hand (Contrat de M. part V. c. 2, 2), when he speaks of the effect of a subsequent marriage in legitimating children born before it, disclaims the authority of the canon law, nor does he mention any fiction of an antecedent marriage, but rests the effect upon the positive law of the country, being a common right throughout the whole country (^). Now, it could never be contended by any jurist, that the law of England, in respect to the succession of land in England, would be bound to adopt a positive law of succession like that which holds in France, the distinction being so well known between laws that relate to personal status and personal contracts, and those which relate to {ff) See, also. He WrigM's Trusts, 2 K. & J. 595, 604, 605. Digitized by Microsoft® DOE V. VARDILL. 141 real and immoveable property ; for whicli it is unnecessary to make 1840. reference to any other authority than that of Story in his admirable Commentaries on the Conflict of Laws (§§ 430, 431). And if such posi- tive law is not upon any principle to be introduced to control the English law of descent, what ground is there for the introduction into the English law of descents, not only of the contract of marriage observed in another country, which is admitted to be adopted, but also of a fiction with respect to the time of the marriage ? that is, in effect, of a rule of evidence which the foreign country thinks it right to hold (A). But admitting, for the sake of argument, and we are not called upon to give an opinion on that point, that B., legitimate in Scotland, is to be taken to be legitimate all over the world, the question still recurs, whether, for the purpose of constituting an heir to land in England, something more is not necessary to be proved on his part than such a legitimacy ; and if we are right in the grounds on which we have rested the first point, one other step is necessary, namely, to prove that he was born after an actual marriage between his parents ; and if this be so, then, upon the distinction admitted by all the writers on international law, the lex loci rei sitse must prevail, not the law of the place of birth. My lords, in the course of the discussion, some stress appears to have been placed on the argument, that if B. had died before A., the intestate, leaving a child, such chUd might have inherited to A., tracing through his legitimate parent ; and then it was asked, if the child might inherit, why might not the parent himself inherit ? But the answer to that supposed case appears to be, that if the parent be not capable of inheriting himself, he has no heritable blood which he can transmit to his child ; so that the child could not, under the assumed facts, have inherited, and the question therefore becomes, in truth, the same with that before us. The case supposed would be governed by the old acknowledged rule of descent : " Qui doit inheritor al pere, doit inheritor al fitz." My lords, the two decided cases that have been relied upon in the course of the argument, that of Shedden v. Patrick («),' and that of The Strathmore Peerage, do not, upon consideration, create any real difficulty (A). Those cases decide no more than that no one can inherit without having the personal status of legitimacy ; a point upon •which all agree ; but they are of no force to establish the main point in dispute in this case, viz., that such personal status is sufficient of itself to enable the claimant to succeed as heir to land in England. Upon the whole, in reporting to your lordships as the opinion of. the judges, " that B. is not entitled to the real property as the heir of A.," I am bound at the same time to state, that although they agree in the result, they are not to be considered as responsible for aU the grounds and reasons on which I have endeavoured to support and explain such opinion. The further consideration of the case was adjourned, and on the 10th August, 1840, Lord Brougham spoke at length against the opinion of the judges and the decision below, but did not move(Z). (A) Infra, p. 427. {k) 6 Paton, 645. (i) 1 Maoq. 535. (?) 7 CI. & P. pp. 940-957. Digitized by Microsoft® 142 IMMOVEABLES. J 840. The Lord Chancellor Cottenham expressed his entire concurrence with the opinion of the judges, and moved judgment for the defendant in error. Judgment accordingly. The material validity of a testamentaTy disposition of an English, leasehold is governed by the law of England. The lex situs determines the nature of property, whether it is moveable or immoveable. FREKE V. LORD CARBERY. EoLLS CouET. 3rd July, 1873. [Eeported, L. E. 16 Eq. 461.J This was a suit instituted by the trustees of the will, dated 26th April, 1845, of the late John Lord Carhery, for the purpose of obtaining the opinion of the Court on certain questions which had arisen in admi- nistering the estate. The only one of these questions reported, or which it is necessary here to consider, arose under the following cu-- cumstances : — The testator was a domiciled Irishman, and died on 12th May, 1845. By his will he gave his leasehold house in Belgrave Square to trustees upon trust for sale and investment, and directed the investments to be held upon such trusts as were thereby declared concerning his general personal estate, and the trusts declared of the general personal estate included trusts for accumulation extending beyond any of the periods allowed by the Thellusson Act {m) (which does not apply to Ireland). The validity of the trusts for accumulation were not disputed so far as these related to pure personalty ; but the question was raised whether these trusts were valid as to the proceeds of the sale of the house in Belgrave Square. Pearson, Q. C, and Kekewich, for the trustees. Sir R. Baggallay, Q. C, and Charles Hall, and Southgate, Q. C, and /. W. Chitty, for next of kin. Fry, Q. C, and Hornett, for parties interested under the trusts for accumulation. LoED Selboene, L. C. {n), after disposing of the other questions, continued : — The only remaining question which has been argued is as to the leasehold estate. Now, I confess, that is a point upon which I need no authority. The territory and soil of England, by the law of nature, and of nations, which isjecognised also as part of the law of England, is governed by all statutes which are in force in England. This lease- (ot) 39 & 40 Geo. 3, c. 98. («) Sitting for the Master of the Eolls.. Digitized by Microsoft® FJREKE V. CAKBERY. 143 hold property in Belgrave Square is part of the territory and soil oi 1873. England, and the fact that the testator had a chattel interest in it, and not a freehold interest, makes it in no way whatever less so. An Act of Parliament, limiting the period for which accumulations are per- mitted, has as much force in Belgrave Square, and upon every part of the property in the land of Belgrave Square, as it has in any other part of England : and, for that purpose, it appears to me to he totally immaterial what is the quantity of intere^ dealt with by the wiU. AH the general doctrines and maxims which are to be found in any of the books of authority really go the same way. The passage which Mr. Fry quoted from Story (o), in which the words of Lord Lough- borough (jo) were cited with approbation, is simply a translation into the phraseology of the English law of the maxim of the general law, mobilia sequuntur personam, and is certainly not meant to apply arbi- trarily in a new sense, because Lord Loughborough used the word "personal" instead of "moveable." The doctrine depends upon a principle which is expressed in the Latin words ; and that is the only principle of the whole of our law as to domicil when applicable to the succession of what we call personal estate. It is so not by any special law of England, but by the deference which, for the sake of inter- national comity, the law of England pays to the law of the civilized world generally. Domicil is allowed in this country to have the same influence as in other countries in determining the succession of move- able estate ; but the maxim of the law of the civilized world is mobilia sequuntur personam, and is founded on the nature of things. When " mobUia" are in places other than that of the person to whom they belong, their accidental situs is disregarded, and they are held to go with the person. But land, whether held for a chattel interest or held for a freehold interest, is, in nature, as a matter of fact, immoveable and not moveable. The doctrine is inapplicable to it ; and Story, in that very passage cited by Mr. Ery from placitum 447, manifestly recognizes that, where he says that all lands and all houses are neces- sarily immoveable ; and then he speaks of their universally partaking of the law of immoveable property, or "property savouring of the realty," — language which must be used with respect to an interest less than fee simple, and less than what we call freehold ; because, to speak of a thing "partaking" or "savouring" implies that, by the positive law of the country, they also are made to partake and savour in some respects of a law not appUcable to all kinds of immoveable property. I think, therefore, that the doctrine, which appears to me to be clearly the true doctrine, is recognized by necessary implication in those passages to which reference has been made ; and Story says, with regard to some things, such as fixtures, which may or may not be moveable or immoveable, which are ambiguous in their nature, if they are at all connected with immoveable property, then it belongs to the law of the country in which that property is situated to determine whether they shall be deemed moveable or immoveable. The attempt to infer that things immoveable in their nature are to be considered moveable constructively, because the beneficial interest is allowed to go like the beneficial interest in and succession to moveables, appears to me to be quite turning away Story's doctrine from its real sub- stance, which is this : that so strong is the force of the immoveable (o) § 380, 2nd ed. {p} In Sill v. WorMicIe. Digitized by Microsoft® 144 IMMOVEABLES. 1873. character wliere it is found, that it wiU attract to itself prima facie things whicli are ambiguous, at least to the extent of obliging other nations to recognize the law of the place where the immoveable pro- perty is situate, as entitled to lay down the rule with regard to those ambiguous things connected with it. I hold, therefore, that as to the proceeds of the house in Belgrave Square, they must necessarily follow the law applicable to the house itself, and are in no degree brought under a different law by the direction in the will ; and that as to the house and the proceeds of the house, the Thellusson Act does apply. Who IB heir dependent on law of England. Hut if no pecnUar rule regarding immoveables, status well constituted by lex domicilii sufficient. As to mar- riage. Doe V. Vardill decides that the heir to English land must be bom in lawful -wedlock. That English heirship, the descent of English land, required not only that the man should he legitimate, hut as it were porphyro-genitus, horn legitimate ■within the narrowest pale of English legitimacy {Re Goodman's Titists, 1881, 17 Ch. D. 266, 299, per James, L. J.). And as a man not born in lawful ■wedlock cannot be the heir, so neither can he have any heir but his own issue {Re Bon's Estate, 1857, 27 L. J. Oh. 98). Wberefore it has been held that a father is incapable of inheriting immove- able property in England from his son born out of lawful wedlock, not^withstanding that such son has become legitimated in the country of his father's domicil by the subsequent marriage of his parents {ih). But although, irrespective of any question of the personal status of the individual, there are, by the law of this country, attached to the land itself certain rules and canons with regard to inheritance which cannot be departed from {Re Bon's Estate, at p. 101, per Kindersley, V.-C), yet whether or no a certain status has itself been constituted, will be determined by the law of the domicil. And if there is not by the law of England any peculiar exception regarding the title to immoveables, to the rights incident to the character and status so constituted, the status wUl be effectual here {Re Goodman's Trusts, supra, at pp. 293-4, per Cotton, L. J., p. 299, per James, L. J. ; Boe v. Vardill, pp. 140, 141, supra). So a marriage duly solemnized abroad is sufficient to found a claim for dower out of lands in England {Ilderton v. Ilderton, 1793^ 2 Hy. Bl. 145). Digitized by Microsoft® DOE V. VARDILL. And wherefore also it is submitted, that where a marriage is duly constituted seoundum legem loci contractus and the parties are under no incapacity in relation to the same by the lex domicilii, the marriage will he good for the purposes of title and succession to immoveable property in England, and issue born thereof can inherit. But the marriage must not be polygamous, incestuous by the common consent of Christendom, or, perhaps, by the common law, or forbidden to the parties absolutely by a statute of the Imperial Parliament {Scriimhire v. ScrimsMre ; Sottomayor v. Be Bcirros ; Hyde v. Hyde, and notes, above). And also a party claiming land in England can derive no assist- ance from a rule peculiar to the lex domicilii which merely bars, in the events which have happened, inquiry into the legality of the marriage relied on (FentonY. Livingstone, 1859, 3Macq. 497) (q). (s) As to the proposition as to marriage here submitted, see, in support thereof, in addition to authorities cited in the text, Warrender t. Warrender, 1835, 9 Bligh, 89, 127, per Lord Brougham ; Fenton v. Livingstone, supra, at p. 649 (for when the claimant, &o.), per Lord Wensleydale ; and particularly Ilderton v. Jlderton, at p. 147, as reported, and stated above, pp. 136, 137, per Alexander, 0. B. For a contrary opinion, see Dicey, p. 182, note, citing Fenton v. Livingstone, supra; and opinion of Mr. Westlake, Pari. Paper, 3rd April, 1876 (Marriage with a Deceased Wife's Sister (Colonies) ) . As to Fenton v. Livingstone, however, it is submitted that the speeches of all the lords in that case, with the possible exception of that of Lord Chelmsford, but including Lord Wensleydale' s, proceed on the ground (1) that the marriage in question was illegal in England, where it was celebrated and where the parties were domiciled ; (2) that the rule of English law, which prohibited the questioning of the marriage after the death of one of the parties, could not, as a mere local rule of procedure and convenience, be extended to a claim to land in Scotland ; (3) that the marriage in question was utterly repugnant to Scottish law, and would have been highly criminal in Scotland. The remarks of Lord Chelmsford at the conclusion of the report, where he puts not the case before the Lords, but its converse, are assented to, indeed, by Lord Wensleydale, but that learned lord in his speech does not, it is submitted, lay down so broad a principle. As to Mr. Westlake's opinion, Mr. Westlake says that the union of a man and his deceased wife's sister, being domiciled abroad at the date of their marriage in the country where it is contracted and is valid, wOl be recognized as valid in England, yet the issue of such a marriage ■will not be able to inherit lands in the United Kingdom. " This arises from the cases of Doe v. Vardill for England and Ireland, and Fenton v. Livingstone for Scotland, in which it has been held that, to inherit land, it is not enough to be the issue of married parents, but it is also necessary to be the issue of parents who would have been married if they had gone through the ceremony of marriage in the country where the land lies." This seems to refer to Mr. Westlake's view as to marriage and lex actus, as to which see p. 93, supra. In his book, § 168, Mr. Westlake simply cites Doe v. Vardill, as the actual decision was, and apparently combats the view that the validity of the marriage preceding the birth must depend on the lex situs, for if that is so, he says, the validity of a divorce from an earlier marriage must depend oq the lex situs also, and where are we to stop? "Doe v. Vardill should therefore be considered as being what the judges seem to have considered it as mainly being, a decision that a special rule of English law requires birth after marriage as an additional condition for such inheritance" (p. 189). And as to Fenton v. Livingstone, he merely says that it will be useful to read that Scotch apneal in connection with Doe v. Vardill. See, also, in Digitized by Microsoft® 141 146 IMMOVEABLES. Porm and solenmities of transfer must comply ■with lex situs. Construction of deeds. The forms and solemnities of a transfer of immoveable property must comply with the law of the place where it is situated {Robin- son Y. Bland, 1760, 2 Burr. 1077, 1079, per Lord Mansfield; Warrender v. Warrender, 1835, 9 Bligh, 89, 127, per Lord Brougham ; i?e Hernando, 1884, 27 Ch. D. 284, 296, per Pear- son, J.). And compliance with that law in this respect is sufficient {Adams v. CluUerhuol;, 1883, 10 Q. B. D. 403 (lease) ), and com- pliance with the lex actus alone is insufficient {Coppin v. Coppin, 1725, 2 P. W. 291 (wiU))(r). Deeds dealing with immoveables are generally to be construed by the rules of the lex situs {Re Hernando, supra (settlement — will) ; see, further, p. 108, stqyra (marriage settlement) ; Lloyd v. the same Pari. Paper, an opinion signed by Sir G-eorge Jessel and' Sir Henry James which does not refer to any difference as regards the validity of a marriage when the question is as to land ; and note the Legitimacy Declaration Act, 1858, p. 126, supra. What is a lawful man-iage ? It is submitted that there is no pecidiar mle of real property law which requires any greater degree of lawfulness than there is in any marriage which would be pronounced vfSid by the Diyorce DiTision. Lawful marriage merely means a union good in law as opposed to a mere con- cubinage. In Brook v. Brook, 1861, 9 H. L. C. 193, Lord St. Leonards (who seems to have taken the view that the statute 5 & 6 Will. 4, c. 54, applied to all English subjects of the Crown under all circumstances) alone, of all the lords, alludes to the fact that the title to real estate was in question. P. 229: — "I consider this as purely an English question. It depends wholly upon our laws, binding upon all the Queen's subjects. The parties were domiciled subjects here, and the question of the validity of the marriage will affect the right to real estate." But he continues : ' ' We cannot reject the consideration of the domioil of the parties," and that was the ground of the decision: SoUmnayor v. De Barros, above. Nevertheless, the question of the validity of the marriage did affect the right to real estate in England, and if the lex loci rei sitae, that is, the law of England in the strict sense, was snfBcient to decide that question affecting such right, how came it that their lordships entered into the elaborate discussion they did ? Fenim V. Livingstone had already been decided in their lordships' House, and if the decision did proceed on the ground put by Mr. Dicey, and by Mr. Westlake in the opinion cited, and was good for England as for Scotland, there was an end of the matter. If there is a conflict between Ilderion v. Ilderton and Fentm v. Livingstone, then, according to the rule laid down by Lord Selbome, L. C, in Bwing and others V. Orr-Ewing, 10 App. Gas. at p. 499, the opinions expressed by the Lords on the Scotch appeal ought not to be held conclusive in England. Mr. Eoote (at p. 5o of his book) also takes a contrary view to that above sub- mitted, saying that Doe v. Vardill decided that succession to immoveable property demands not only legitimacy by the personal law, but legitimacy by the lex situs, i. e., that the persons concerned shall have been bom in what the English law calls wedlock, speaking for itself, and not as adopting principles of private international law. But as to Doe v. Vardill, see above, and the explanation of the case in Re Goodman's Trusts, supra. And see above as to lawful wedlock. Mr. Eoote who regrets the rule which he feels constrained by authority to lay down, says that a man who married his deceased wife's sister abroad, the marriage being lawful by the lex domicilii, could be indicted for bigamy if he went through the ceremony of marriage here with another woman, the woman so married abroad being alive, but that the issue born of the first marriage could not inherit land in England. It is finally submitted that a proposition which necessitates such a "precious absurdity" can only be supported by express English authority, and that there is none, but the contrary. See also Serimshire v. Scrimshire, pp. 79, 80, supra (lawful marriage). {r) See further, as to wills of immoveables and their construction, pp. 193 194 infra. ' ' ' Digitized by Microsoft® FREKE V. CARBERY. 14' Guibert, and notes below (contracts relating to immoveables) ; see, also, p. 194, infra). The incidents of immoveable property, the right of alienating or Inoidenta and limiting it {Cuiiis v. Htitton, 1808, 14 Ves. 537), depend entirely Iifenating on the law of the country where it is situate {Att.-Gen. v. Mill, depenS^n 1831 , 2 D. & 01. 393 (mortmain) ; Nelson v. Bridport, 1846, 8 Beav. l^x situs. 547, 570, Lord EomiUy, M. E. (will— trust) ). And a person of Majority and age for that purpose by the lex situs can make a good conveyance of immoveables though not of age by the lex actus {Sell v. Miller, 11 Ohio (N. S.) 331). So land situated abroad can, in the absence of any trust or Land situate personal contract, be dealt with only according to the law of the situs. ' place where it is situate {Harrison v. Harrison, 1872, L. E. 8 Oh. 342) ; and is not within the peculiar rules of the law of England, but, in the absence of evidence of foreign law to the contrary, will be considered as assets, and as applicable to the payment of chari- table legacies {Beaumont v. Oliveira, 1868, L. E. 6 Eq. 534, 539) (s). Similarly it will be assumed that the lex loci rei sitae does not Bankruptcy. allow any operative effect to a foreign bankruptcy {Cockerell v. Dickens, 1840, 3 Mo. P. 0. 98, 133) (s). The term of prescription with regard to immoveables is regulated Prescription by the lex loci rei sitse (Story, §§ 576-581 ; 3 Burge, 125, 126). ?bn.^""*^' So a law conferring the right to immoveables by flux of time on the possessor is effectual here in an action as to land situate in the country where it prevails {Beekford v. Wade, 1805, 17 Ves. 87). For a term of prescription with regard to immoveables imposed by the lex situs is a good plea here, and an action as to foreign land, which if it related to land in England would be statute barred here owing to lapse of time, can be maintained in our Oourts if not barred by the lex loci {Re Peat's Trusts, 1869, L. E. 7 Eq. 302 ; Pitt v. Dacre, 1876, 3 Oh. D. 295 ; see, further, Foote, pp. 144, 145 ; Tulloch v. Eartletj, 1841, 1 T. & 0. C. 0. 114). The English law determines what is to be treated as moveable Leaseholds. and what immoveable as regards property situate in England, and J^ent-charge. the rules as to immoveables apply to leaseholds {Freke v. Carhery, arising from In goods of Oentili, Ir. L. E. 9 Eq. 541 ; Be Fogassieras v. Duport, (s) See further, pp. 167, 169, infra. As to the lex situs of newly- settled colonies, see Jex v. McKinney, 1889, 14App. Gas. 77 ; Cooper v. Stnart, 1889, 5 T. L. E. 387, and of. D. 95. n. auvra. Digitized by Microsoft® 148 IMMOVEABLES. Lunatic. Property abroad, lex situs deter- mines nature of. Action for tort com- mitted to immoveables. Jurisdiction. 11 L. E. Ir. 123 (0 ), to a rent charge {Chatfiekl v. Berchtoldt, 1872, L. E. 7 Oh. 192), and to moneys arising from the sale of lands {Re Don's Estate; Re Feat's Trusts; Pitt v. Bacre, supra). So although a curator ad bona was fully entitled hy the law of the lunatic's domicil to have complete control over the property of the lunatic, yet that power being necessarily controlled, as regards immoveable property here, by the laws of this country, the Court refused to pay out to him a fund representing real estate which had been sold upon petition under the Partition Act, 1868 (31 & 32 Yict. c. 40), but permitted him to receive the income only from time to time {Grhnwood v. Bartels, 1877, 46 L. J. Oh. 788; see, further, p. 71, supra). Conversely our Courts apply the rules of the lex situs to deter- mine the nature of property situate abroad {Johmtone v. Baiter, 1817, 4 Madd. 474, note ; Jerningham v. Herbert, 1829, 4 Euss. 388 ; Allen v. Anderson, 1846, 5 Hare, 163 ; Elliott v. Minto, 1821, 6 Madd. 16 (Scotch heritable bonds, as to which see also Buccleugh V. IToare, 1819, 4 Madd. 467 ; Custy. Goring, 1854, 18 Beav. 583) ; Forbes v. Adams, 1839, 9 Sim. 462 ; Re Peafs Trusts; Pitt v. Bacre, supra) . It is doubtful whether, except as springing out of contract or quasi-contract between the parties, an action can be brought at aU in the Courts of this country for a tort committed to land abroad {The M. Moxham, 1876, 1 P. D. 107, 112 ; see Westlake, p. 210). But, if it can be, then the general rule, that a tort is only actionable here if it is actionable also according to the law of the place where it was committed, holds good {The M. Moxham, supra; of. Batthijany v. Walf&rd, 1887, 36 Ch. D. 269, C. A.). All questions as to the burdens and liabilities of immoveable estate situate in a foreign country depend, in the absence of any trust or contractual obligation, simply upon the law of the country where the real estate exists {Harrison v. Harrison, supra, at p. 346) ; wherefore, if the contested claim is based upon the right to land, and must be determined by the lex loci rei sitae, and the only ground for instituting proceedings in this country is the fact that the defendants are resident here, the Courts of this country have {t) So the proceeds of English leaseholds will be divisible on intestacy among the persons entitled by the Statute of Distributions : Se Duncan and Lawson 1889 5 T. L. B. 402 ; W. N. 1889, p. 78. ' ' Digitized by Microsoft® DOE V. VAEDILL. 149 no jurisdiction \Re Hawthorne, 1883, 23 Ch. D. 743, Kay, J. ; Norris v. Chambres, 1861, 30 L. J. Oh. 285, Eomilly, M. E. ; affirmed, 3 De G. F. & J. 583, Campbell, L. 0. ; SicJis v. Powell, 1869, L. E. 4 Oh. 741). And it is not the general practice to entertain actions here for the recovery of land in a foreign country (Be Holmes, 1861, 2 J. & H. 527 ; Reiner v. Salishurtj, 1876, 2 Oh. D. 378 ; Blake v. Blake, 1870, 18 W. E. 944; Matthaei v. Gamzin, 1874, L. E. 18 Eq. 340) («). So the Court will not decree the partition of foreign land {Carteret v. Petty, 1676, 2 Sw. 323, note ; 2 Oh. Oa. 214) ; or direct an issue to try the validity of a vi^ill of foreign land {Pike V. Hoare, 1763, 2 Eden, 182). Prima facie the Courts of this country "will not interfere to Lis pendens. restrain a creditor from suing in the Courts of the country where immoveahle property is situate to obtain a decision in the Courts of that country relating to the disposition of such immoveable pro- perty {Moor V. Anglo-Italian Bank, 1879, 10 Oh. D. 681, Jessel, M. E.). And if there is a pending suit in the Court of the country having actual jurisdiction over the subject-matter, entertaining that suit by a litigation prior to that here, it is contrary to all the rules of the comity of nations that the English Courts should actively interfere between the same litigants {Norton v. Florence Land Co., 1877, 7 Oh. D. 332, Jessel, M. E.). Although if there is a mixed fund of both moveables and immoveables, it may be that proceed- ings in the forum rei situs will be restraiued, both as to the move- ables and immoveables, if it be not proved that the foreign Court can deal with the immoveables separately {Hope v. Carnegie, 1866, L. E. 1 Ch. 320 ; Bunhury v. Bunbury, 1839, 8 L. J. Ch. 297, Langdale, M. E. ; affirmed by Cottenham, L. 0. (English settle- ment and will — immoveable and moveable property — administra- tion) ). And where there had been a decree in England, Lord Eldon restrained trustees from proceeding in the forum sitils for the execution of the same trusts {Harrison v. Qurney, 1821, 2 Jac. & W. 563) {v). [u) It does not affect the principle, but Cookney v. Anderson, 1862, 32 L. J. Ch. 427 ; 1 D. J. & S. 365, on which Malius, V.-C, partly relied in Matthaei v. Galitzin, was overruled in Dnimmond v. Drummond, 1866, L. E. 2 Oh. 32. His honour's attention was not called to this. (») See, also, as to mortgages, Beokford v. Kemble, infra. Digitized by Microsoft® 150 IMMOVEABLES. Personal Nevertheless, " the Courts of Equity in England are, and always iurisdiotion in , „ . ... j j. ■ equity. have been, courts of conscience, operating m personam and not in rem ; and in the exercise of this personal jurisdiction they have always been accustomed to compel the performance of contracts and trusts as to subjects which were not locally or ratione domicihi within their jurisdiction. They have done so as to land in Scot- land, in Ireland, in the Colonies, in foreign countries" {Ewing and others v. Orr-Euing, 1883, 9 App. Oas. 34, 40, per Lord Selbome, L. C). So if it is proper that the Court here should administer a trust at all, it will administer the trusts as to foreign land {Ewing and others v. Orr-Eicing, supra ; Bunhury v. Bunhury, supra) (x). So also a contract made in England, though it relates to land abroad, gives a right to a personal remedy in England [Penn v. Lord Baltimore, 1 Ves. 444, and notes thereto 2 L. C. in Equity). And a contract between domiciled Englishmen relating to im- moveable property is, in the absence of evidence to the contrary, governed by English law (y), and is therefore cognizable by the Courts of this country, although it has been adjudicated upon by the Courts of the country in which the real estate is situate [Goody. Good, 1863, 33 Beav. 314; see, also, JRoberdeait v. Mous, 1738, 1 Atk. 543 ; Bayley v. Edwards, 1784, 3 Sw. 703 (wUl) ; Archer v. Preston, cited Arglasse v. Muschamp, 1682, 1 Vem. 77 ; Kildare v. Eustace, 1686, 1 Vern. 419 ; Foster v. Vassall, 1747, 3 Atk. 389 ; Cranstoun v. Johnston, 1796, 3 Ves. 170 ; Jackson v. Petrie, 1804, 10 Ves. 164; Buenos Ayres Go. v. Northern By. Go., 1877, 2 Q. B. D. 210 (company : see Henriqiies v. Butch West India Go., and notes, below) ). But the Court will not make a decree which the lex loci rei sitae would not permit the defendant to perform {Ex parte Pollard, 1840, M. & C. 239, 250, Cottenham, L. C), or enforce a contract not capable of fulfilment by the lex loci ( Waterliouse v. Stansfield, 1852, 21 L. J. Ch. 881; Hicks v. Powell, supra; Nelson v. Bridport, 1846, 8 Beav. 547 (trustee released by change in lex situs) ). And the equitable principles concerning third parties affected by notice will not be extended to contracts regarding foreign immoveables. The lex situs must prevail and must be proved {Norton v. Florence Land Go., 1877, 7 Ch. D. 332, (») See further, pp. 216 et seg., infra; and as to marshalling', p. 199, infra, [y) See further, Lloyd v. Guihert, and notes, below. Digitized by Microsoft® FEEKE V. CARBERY. 1' 336, per Jessel, M. E.). And if the claim is not valid thereby it must fan {Ih.; Martin v. Martin, 1831, 2 Euss. & My. 507); though a party and his privies will not escape the obligation of an English contract merely because it is ineffectual by the lex loci, there being no impediment to its completion there {Ex parte Pollard; Waterhouse v. Stamfield, supra). A claim of a contractual nature regarding immoveable property Quasi oon- abroad, although not founded on express contract, will, neverthe- less, be supported here against defendants duly constituted personal representatives by a grant of probate in England (Batthyany v. Walford, 1887, 36 Ch. D. 269, C. A.). On like equitable principles (p. 150, supra) our Courts entertain Mortgages. actions concerning mortgages of foreign lands and even decree foreclosure {Toller v. Carteret, 1705, 2 Yern. 494 ; Paget v. Edo, 1874, L. E. 18 E(j. 118). For a decree in a foreclosure action is merely a decree in personam, and can therefore be made by our Courts, provided the mortgagor is within the jurisdiction, although the mortgaged property is not situate in England [Norris v. Chamhres, 1861, 30 L. J. Ch. 285). But the Court will take into consideration the lex situs if evidence be given thereof {Bent v. Young, 1838, 7 L. J. N. S. Ch. 151, 155, per ShadweU, Y.-C. ; see also as to mortgages, Jackson v. Petrie, 1804, 10 Yes. 164; Norris v. Chambres, supra: but see also Ex parte Pollard, supra). And if the accounts can be more conveniently taken here, and an action is commenced here for foreclosure, an injunction will be granted against proceeding abroad {Beckford v. Kemhle, 1822, 1 S. & St. 7, Leach, Y.-C. : but cf. Norton v. Florence Co., supra, at p. 337, per Jessel, M. E.). In like manner, the Court here has jurisdiction to appoint a Receiver, receiver of immoveable property abroad (Seton, 4th ed. p. 450, and cases there cited; add Norris v. Chambres, supra; Harrison v. Gurney, 1821, 2 Jac. & W. 563 ; Clarke v. Ormonde, 1821, Jac. 116, 121, per Lord Eldon, L. C). The Court will relieve against the fraudulent conveyance of, or Fraud. dealings with, immoveables abroad {Arglasse v. Muschamp, 1682, 1 Yern. 75 ; Angus v. Angus, 1737, West, cases temp. Hardwicke ; White V. Sail, 1806, 12 Yes. 321). No petition of right can be presented in this country in respect Petition of right. Digitized by Microsoft® 152 TITLES OF HONOUE, of lands not in England but elsewhere witliin her Majesty's domi- nions. For the Sovereign is as much resident in any other part of her dominions as in England {Re Sohnes, 1861, 2 J. & H. 527; Reiner v. Salisbury, 1876, 2 Oh. D. 378). Titles of Titles of honour. — An inquiry as to a title of honour will be dealt honour. . . ... with in the same way as if the inquiry were as to real estate situate in the country to which the title is attached, and of which its grantor is Sovereign, and must be governed by the law and prac- tice of that country {Lauderdale Peerage, 1883, 10 App. Cas. 692, 715, per Lord Fitzgerald; Fenton v. Limngstone, 1859, 3 Macq. 497, 535, per Lord Brougham ; Nelson v. Bridport, 1846, 8 Beav. 547). Digitized by Microsoft® 153 SILL v. WORSWICK. In the Coubt of Common Pleas. 13th Jiily, 1791. [Reported 1 Hy. Bl. 665.J Assumpsit for money had and received to the use of the plaintiff, with j^ creditor of the usual counts. Plea, the general issue ; which was tried before a bankrupt Mr. Justice Wilson at Lancaster, 27th August, 1787, when a special resident verdict was found in substance as follows : "^ England That WUliam Skirrow on the 2nd of January, 1782, exercised the himself of a trade of a woollen draper at Lancaster ; that he was then indebted to judgment of a one James PUkington, in 100/. and upwards, and on that day became a foreign Court, bankrupt; that on the 16th of January a commission issued on the obtained on petition of Pilkington ; that on the 28th Skirrow was declared a ^"enced i^™' bankrupt ; that on 5th of March an assignment was made of all his England, so estates and effects to the plaintiffs ; that before and when he became as to retain a a bankrupt Skirrow was indebted to the defendant Worswick in e Cosse Brissac v. Rathbone, 1861, 30 L. J. Ex. 288). And the remedy of a party alleging himseK aggrieved is by application to the proper Court having jurisdiction to revoke the probate which has been granted ; or, as the case may be, recourse must be had to the mode of appeal provided in the foreign country {Miller v. James, supra; lie Trufort, supra, Stirling, J.) (»). Foreign judg- But where a declaration propounding a will averred that a corn- evidence in petent tribunal of the State of Ohio, where the deceased died domi- ciled, by its definitive decree ordered the said wiU, being satisfied that it was duly executed according to the law of Ohio, to be received and admitted to probate as a good and valid will by the law of the said State, for the purpose of passing personal estate ; that, by virtue of the said definitive decree, the said will was entitled to be proved as a good and valid will for passing personal estate in England ; and the grounds of demurrer were that the defendant contended that the validity of the will according to the law of Ohio should have been distinctly averred, and that the statements respecting the admission of the will to proof apparently without contest, and certainly without the then present defendants being party to any contest, could not be substituted for such an averment, inasmuch as they amounted at most to evidence quantum valeat of the truth of that averment. Sir Cresswell Cresswell held the decla- ration insufficient, and allowed the demurrer («') [Ishericood v. Cheet- ham, 1862, 31 L. J. P. 99). (i) See pp. 356, 357, infra. Digitized by Microsoft® certain cir- cumstances. ENOHiN V. WYLIE. 189 And if there is a will disposing of immoveables in England, a English land, judgment of a foreign Court declaring the validity of the will cannot be pleaded in bar to an action brought here for the purpose of having the wiU established so far as it relates to the real estate in England {Botjse v. Colchugh, 1854, 24 L. J. Ch. 7, Wood, V.-C). If application is made for probate in England, and the validity Lispendens or iavalidity of the wiH is being litigated in the Court of the domi- ,£niicU. ° cU, the application wiU stand over to await the decision of that Court [Hare v. Nasmyth; De Bonneval v. Be Bonneval, supra ; see Lis alibi pendens, pp. 368 et seq., infra). When a foreign grant is relied on, the only document on which Foreign the Court can act is the document which was before the foreign Soument will Court (A) {In Goods ofBehais, In Goods of Be Vigny, 1865, 4 S. & T. ^ ""^^^^ 13; Re Clarke, 1867, 36 L. J. P. 72; In Goods of Rule, 1878, 4 °^™ * ' P. D. 76 ; In Goods of Petty, 1880, 41 L. T. 529 ; In Goods of Olden- burgh, 1884, 9 P. D. 234 ; but see In Goods ofBost Aly Khan, 1880, 6 P. D. 6 (foreign Court refusing to part with original {I) ) ; In Goods of Turner, 1866, 36 L. J. P. 82 (probate by mistake not sent — Court, being satisfied copy before it true copy, granted probate tiU more authentic copy could be sent) ). So, where E., domiciled in Mexico, made a will according to the law of Mexico, and the proper Court there decreed probate of a Spanish translation and not of the original. Sir James Hannen held, that the grant in this country must be made upon the pro- duction of an English translation of the Spanish copy, and not of a certified copy of the original. For the Courts of this country give credit to a foreign tribunal that it has duly investigated the facts upon which it proceeded {In Goods of Rule, supra). And where P., domiciled in Brazil, made a will according to the law of Brazil, written iu Portuguese, and probate was granted in Brazil of such win so written, the Court refused to grant probate of an English translation of the wUl made in Brazil and certified by the British consul at Eio de Janeiro ; for the document which was before the foreign Court ought to have been brought here and translated in the registry {In Goods of Petty, supra; see also In Goods of Clarke, supra). (h) See further, Probate, p. 202, infra. {!) Cf. Crispin v. Doglioni, 1863, 32 li. J. P. 109, Digitized by Microsoft® 190 TESTAMENTAKY DISPOSITIONS. Two or more instruments. If there are two or more testamentary instruments the Court will follow the Court of competent jurisdiction as to whether they are to be admitted to prohate as a will and codicil, or codicils, or as together constituting the will {Larpent v. Sindry, 1828, 1 Hagg. Eco. 382 ; cf. p. 207, infra). Lord Kings- down's Act. WiUs of British Testamentary instruments cannot be made valid by a combination of the laws of two or more countries. Wills and testamentary instruments of British subjects, 24 & 25 Vict. c. 114. — It is to be observed that the 1st and 2nd sections of this Act apply to form only for the purpose of admission to con- firmation and probate. And admission to probate proves nothing more than that the instrument was testamentary according to the law of the country where the probate was granted (Whicker v. Hume, 1858, 28 L. J. Ch. 399, per Lord Oranworth ; cf . Bradford V. Young; Concha v. Concha, p. 197, infra ; Isherwood v. Cheetham, p. 188, supra). To give effect to the instrument, if disputed, it is still necessary to show that the testator's testamentary capacity would be recognized by the lex domicilii, and it may be shown that the instrument is materially invalid or partiaUy inoperative as containing provisions contravening such lex {Whicker y. Hume, supra; Dicey, p. 306 (m) ). Also that a will made by a British subject out of the United Kingdom, though it does not comply with the forms required by the law of the place where it was made, or with the laws then in force in that part (i£ any) of the British dominions where the testator had his domicil of origin, or a will made by such person within the United Kingdom, although not complying with the lex actus, may respectively yet be admitted to probate and be held well executed by reason of its validity according to the lex domicilii. For the Act adds to, but does not diminish, the law (sect. 4). But if a testamentary instrument, or a series of testamentary instruments, is not, or are not, any of them, duly executed either by the law of England under the provisions of this statute, by the lex actus, or, semble, by the law of the domicil, it, or they, cannot be made valid by a combination of the several laws or any of them. {m) In In Goods ofMippmi, 1863, 32 Ii. J. P. 141, where a British subject died abroad in 1863 leaving a will duly executed according to English law, Sir CJ CressweU admitted the will to probate without evidence as to domicil. But the case decides no more than that, on an unopposed motion for probate of a will so executed, it is not necessary to give evidence as to domicil. Digitized by Microsoft® BREMER V. FREEMAN. 19^1 So where the facts were these : A testator made a will in India, and added a codicil at Florence. Neither the will nor codicil were witnessed or duly executed by the law either of England or Italy. He wrote on the back of the will, at Q-enoa, a second codicil, which was also not witnessed, but which was well executed, though not Talid, according to the law of Italy. It was held that neither the will nor either codicil could be admitted to probate. Lord Penzance saying, " It was argued that by regarding the validity of these papers, partly according to Italian law and partly according to English law, a valid will and codicils would be the result. The Court was invited to regard so much of the Italian law as held the second codicil well executed, and then, dropping the Italian law, and recurring to the English law, to hold that this paper, being well executed, being endorsed upon the will, and referring to it, operated as a republication of the will, and thereby established it. Whether such woidd be the effect of applying the English law in the manner proposed, it is not necessary to discuss ; for I am of opinion that, in determining the question whether any paper is testamentary, regard can be had to the law of one country only at a time, and that the mixing up of the legal precepts of two different countries can only result in conclusions conformable to neither. The Court, therefore, pronounces against all the papers " {PecMl^r. miderley, 1869, L. E. 1 P. & D. 673, 677). If, however, it can be shown in any case that a will and codicils, though not made in the form ordinarily required by the law of the place where they were made, were yet all made in a form allowed by the law of that place in the circumstance of a British subject making his will and codicils there, they will be admitted to probate under sect. 1 of the statute as valid according to the law of the place where made. For then all the instruments would have been duly executed in the form required for English wiUs {In Goods of Lacroix, 1877, 2 P. D. 94). "British Subject" (w). — British subject includes, for the purposes British of this Act, a person naturalized, unless by the terms of his naturali- ^'^ ^^° " zation there has been an exception in this relation {In Goods of («) See pp. 45 ei seq., supra. Digitized by Microsoft® 192 TESTAMENTARY DISPOSITIONS. Qally, 1876, 1 P. D. 438; In Goods of Lacroix, supra). And conversely the Act (except, protalDly, as to sect. 3) (o) has no appli- cation to the testamentary instruments of persons aliens at the time of their death, although they have at some other time had a British nationality {In Goods of Buseck, 1881, 6 P. D. 211 ; Bloxam V. Favre, 1883, 8 P. D. 101 ; affirmed, 1884, 9 P. D. 130). mt^ iijjjg United Kingdom" does not include the Channel Islands or the Isle of Man (1 St. Com. pp. 83 et seq.). Personal « Personal Estate." — These words are not probahly sufficient to estate. . . •^^ ^ ^■, give a title to any immoveahles abroad under a wul held well exe- cuted hy virtue only of the provisions of this statute, and not well executed hy and contrary to the lex loci rei sitse (see pp. 146, 147, supra, and cf. p. 189, supra, and pp. 194, 198, infra). But other- wise as to chattels real in England, for then the land passes hy the lex loci {Re Duncan and Laicson, p. 198, infra). Wai executed Will executed under power. — A will disposing of personal estate situate in this country made in pursuance of a power of appoint- ment, and executed in compliance with the requisites of the power, is entitled to probate, though not executed according to the testa- mentary law of the domicil of the party making it {Tatnall v. Hanhey, 1858, 2 Mo. P. C. 342 ; In Goods of Alexander, 1860, 29 L. J. P. 93 ; foUowed by Sir J. P. Wilde, in In Goods of Sally- burton, 1866, L. E. 1 P. & D. 90, q. v., though doubting whether In Goods of Alexander rightly decided : see also Westlake, §§ 85 and 86). But where moveable property was held under an Bnghsh win, in trust for such person as I. F. A. should by wiU in writing duly executed appoint, it was held that an appointment bywiU of I. F. A., not well executed according to the law of England, but valid according to the law of her domicil, and, on that account^ admitted to probate in this country, was a good execution of the power {D'Huart v. Harkness, 1865, 34 Beav. 324). For when a person directs that a sum of money shall be held subject to a power of appointment by wiU, without more, he does not mean any (o) See p. 187, n., supra. Digitized by Microsoft® under power. ENOHIN v. WYLIE. 193 particular form of will recognized by the law of this country, but any will which is entitled to probate here. A power to appoint by will simply may (as to moveable property) be executed by any will to which the law of this country allows validity {lb., at p. 328, per Eomilly, M. E. ; cf. Barms v. Vincent, 1846, 5 Mo. P. 0. 201 ; and contra, per Lord Oranworth, in Dolphin y. Robins, supra). Interpretation and Construction of Testamentary Dispositions (/;) . — Interpreta- As a general rule, a testamentary disposition will be interpreted struotion of " and construed according to the law of the domicil of the testator ^stamentary at the time of his death {Enohin v. Wylie ; Wallis v. Brightwell, 1722, 2 P. W. 88 ; Anstnither v. Chalmer, 1826, 2 Sim. 1 ; Trotter y. Trotter, 1829, 4 Bligh, N. E. 502 ; Campbell v. Campbell, 1866, L. E. 1 Eq. 383 (satisfaction) ; McGibbon v. Abbott, 1885, 10 App. Cas. 653, P. C). And both the description of property {Maxwell V. Maxwell, 1870, L. E. 4 H. L. 506 ; Orrelly. Orrell, 1871, L.E. 6 Ch. 302; Re Arnold, 1888, 37 Ch. D. 637), and designatio personarum {Martin v. Lee, 1860, 14 Mo. P. C. 142, explained McGibbon v. Abbott, at p. 659; Re Andros, 1883, 24 Ch. D. 637) will be construed according to that law {q). Nevertheless, the fundamental rule in construing a will is to ascertain the intention of the testator {Martin v. Lee; McGibbon v. Abbott; Re Arnold, supra; Jarman, Chap. I.). Wherefore the operation of the rule as to domicil, which is really only an applica- tion of this fundamental rule, may be defeated by the expressed intention of the testator {Bradford v. Young, 1885, 29 Ch. D. 617, 625, per Fry, L. J.), or by such intention gathered from the use of technical langiiage {Studd v. Cook, 1883, 8 App. Cas. 577 (H. L. Sc.) ) ; more especially so far as such language is used regarding, and the instrument deals with immoveables {Bradford v. Young, at p. 623, per Cotton, L. J. ; McGibbon v. Abbott, supra ; Re Hernando, 1884, 27 Ch. D. 284, 296, 297). The use of a few technical {p) See, also, administration, pp. 196 et seg., infra, aa to partial intestacy, as to pars legitrma, as to election, as to currency in -which a legacy is given ; as to change of domicil between date of execution and death, see p. 194, infra. (?) In Bernal v. Bernal, 1838, 7 L. J. N. S. Ch. 115, Lord Cottenham, B. C, construed the witl generally according to the intention of the testator ; was guided as to the validity of the bequest by the lex domicilii, but applied the la-w of England to the designatio personarum. It must, however, now be taken that the ratio decidendi on the last point was wrong. Digitized by Microsoft® 194 TESTAMENTARY DISPOSITIONS. expressions, however, will not, in general, suffice, and the Court must be able to clearly gather the intention of the testator {Brad- ford V. Young, supra, C. A.) (r). Testamentary Immoveables. — As regards wiUs of immoveables, the lex loci rei dispositions of • n 1 immoveatles. sitse govems both as to the testamentary capacity of the testator and as to the forms and solemnities necessary to give the testament effect {Goppins. Coppin, 1725, 2 P. W. 291; Orrell^. Orrell, supra; Bovey v. Smith, Yermont, 85 ; Story, § 474 ; Bot/se v. Colclough, p. 189, sup)ra ; Doe v. Vardill, notes, above). Thus, where a French subject domiciled and resident in France, by his will, executed as required by the 1 Vict. c. 26 (but not made and executed as required for the validity thereof by the law of France), bequeathed his personal estate in England and Ireland to trustees, whom he also named executors, and gave and devised leaseholds for years in Cork, in Ireland, and all other his real estate and chattels real in England and Ireland to the same trustees, it was held that the will was valid as to the chattels real, although invalid as to the personal property of the testator, other than the chattels real ; and the Court granted to the trustees, in that cha- racter alone, administration with the wiU annexed, limited to the chattels real in Ireland {De Fogassieras v. Duport, 11 L. E. Ir. Ch. 123 ; Frehe v. Carhery, above ; In Goods of Qentili, 9 Ir. L. E. Eq. 541) (s). Change of Change of Domicil after Execution of Testamentary Instrument. — execution of If (wMch is not probable) {f) the 3rd section of the 24 & 25 Yict. inst^eS''^ c. 114, does not apply to the testaments of aliens, the vaHdity and due execution of an alien's testament of moveables is dependent always on the law of his domioil at the time of his decease (p. 186, supra) ; and if invalid at that time will not have any force or effect in England by reason only of its having been valid and duly (»•) Of. contract on marriage, pp. 108 H seq., supra. See, also, Story, p. 668, note ; and consider Mariin, v. Lee ; McOihhon v. Abbott, supra (will ■written in English, the testator having heen domiciled in Lower Canada). («) As to interpretation, see interpretation of testamentary dispositions, p. 193, supra, and consider all cases there cited ; Story, § 479, n. ; and cases cited Admini- stration, p. 200, infra, as to money charged on land. (t) See p. 187, supra, note. Mr. Dicey (p. 312) inclines to the opinion that sect. 3 does not touch material validity or invalidity, sed qu. Digitized by Microsoft® BREMER l". FREEMAN. 19= executed aooording to the law of the testator's domicil at the time yaM \y lex . domioilii at it was made [Bremer v. Freeman ; In Goods of Reid, 1866, L. E. 1 date of P. & D. 74, per Sir J. P. Wilde; Nat v. Coom, 10 Missouri, 534), «^^'='^ti°'^- unless the law of the domicil at the time of the death holds such a testament good, although not executed in accordance with its own law {u). And if the same section does not apply to the testaments of aliens, there may be a difficulty as to wnich law is to he applied to interpret the testament of an alien, when his domicH at the time of his death is different from his domicil at the date of the execution of the will (see Story, § 479, g ; Lanemille v. Anderson, 1860, 2 S. & T. 24) (v). A. S., being then domiciled in Scotland, executed there two invalid by _ testamentary instruments, dated respectively 19th September, 1832, at date of and 1st January, 1837. He subsequently "took up his residence" e^^o^tio"- in England, and died in this country in 1860. The Court of Pro- bate was moved to grant letters of administration of the effects of the deceased with the instrument dated in 1832, and a contract or settlement made in Scotland, when the deceased was there domi- ciled, between the deceased and C. D., in contemplation of their then intended marriage, and the document dated 1st January, 1837, as a codicil annexed. It was argued, merely, that the docu- ment dated in 1832 executed a power of appointment by a writing under the hand of the deceased— as the document was — contained in the settlement, and that the document dated 1st January, 1837, which was not witnessed, being a holograph of the deceased made before the WiUs Act, was a good testamentary paper. Sir Cress- weU Cresswell said : " In 1837 the deceased was domiciled in Scot- land ; but you do not show me that the documents of which you ask probate would be a good testament according to the law of Scotland. I reject the motion " (In Goods of Sfoddarf, 1862, 31 L. J. P. 195). This decision, 22nd February, 1862, was subsequent to the deci- sion in Bremer v. Freeman and Stanley v. Bernes, but previous to that of the House of Lords in EnoMn v. Wylie. In neither of (m) See p. 187, iupra. \v) It would seem that, in the absence of anything showing the testator's inten- tion to the contrary, the law of the domicil at the date of deaOi should prevail, for the same reason as Vk&t law is held to determine the validity or invalidity of the will. o2 Digitized by Microsoft® 196 ADMINISTRATIONt these three cases (q. v., atove) is the exact point dealt with, but it is, it is submitted, clearly covered by the ratio decidendi of the Privy Council and the Lords in Bremer v. Freeman and Enohin v. Wylie, and the Delegates in Stanley v. Bernes, that is, that the validity or invalidity of a wiU of moveables depends on the law of the domicil of the testator at the time of his death. No reference was made to any cases, and the point on which the judgment pro- ceeds was not argued at all. If the law of the domicil at the time of death is the determining law, and holds the will in the circum- stances good, this is sufficient, and it cannot matter that it was, for any reason, invalid by the law of the domicil at the date of execu- tion. That is to say, whether or no the former incapacity operates to make the will invalid at the time of death or no is a question which the law of the domicil at the time of death, and that law alone, is competent to answer. It should also be observed that the instrument of 1832 dealt in part, and the instrument of 1837 wholly, with land. It is submitted that the decision was per incuriam, and that it cannot be supported (x). Administra- tion. Distribution under will and on intestacy. Distribution ; lex domicilii. Legal repre- sentation, collection, administra- tion as dis- Administration (y) ; Distribution ; and Succession on Intestacy {y). — For the purposes of succession and enjoyment, the law of the domicil of the owner at the time of his death (see Lynch v. Provi- sional Government of Paraguay, 1871, L. E. 2 P. & D. 268), governs the moveable assets {Blackwood v. M., 1882, 8 App. Cas. 82, 93, P. C. ; Ahd-ul-Messih v. Farra, 1888, 13 App. Oas. 431, 439, P. C; Enohin v. Wylie). But for the purpose of legal representation, of collection, and of administration, as distinguished from distribution among the suc- cessors, such assets are governed not by the law of the owner's («) Mr. Westlake (§ 80) says that the testator's capacity should certainly be determined by his personal law at the time of his death. A will which is invalid by the lex domicilii at the time of death by reason of the personal incapacity of the testator is invalid: In, goods of Maraver, p. 186, supra. It would seem that the converse should hold good ; and, on the principle above stated as the result of the eases on wUls, it is submitted that it does. Mr. Dicey, however (p. 311), adopts from Story, § 465, who makes the question merely dependent on the general rules as to majority and minority (p. 66, supra; p. 286, infra), the opinion that the capacity of a testator to make a will must be determined by the law of his domicil at the time the will is made. See, also, Salmon v. Buncombe, 1886, 11 App. Cas. 627, 636— J. C. {y) See, also, interpretation of testamentary documents, and cases there cited, supra; as to. immoveables, Doe v. Vardill, and notes, above. Digitized by Microsoft® ENOHIN V. WYLIE. 197 domicU, but by the law of their own locality {Blackwood v. E., f^g'^g^. supra; Preston v. Mekilk, 1841, 8 01. & F. 1 ; Euoing and others bution; law ' ' 7 >/ gj actual V. Orr-Ewing, 1883, 9 App. Gas. 34, H. L. (E.) (2) ; E^cmg and locality. otfiers V. Orr-Ewing and others, 1885, 10 App. Gas. 453, 510, per Lord Selbome, H. L. (So.)). So the. succession to moyeable property is administered by the Court of this country, according to the law of this country, by ascertaining the domicil (a), and the law of the domicil {Concha v. Cmicha, 1886, 11 App. Gas. 541, 562, 563, per Lord Blackburn; Ahd-ul-Messih v. Farra, supra). And if a foreign Gourt of competent jurisdiction in the country Foreign of the domicil has decided as to rights of succession, its decision will be conclusive here inter partes {Boglioniv. Crispin, 1866, L. E. 1 H. L. 301, H. L. (E.) ; Be Trufort, 1887, 36 Oh. D. 6G0, Stirling, J. ; Foreign Judgments, pp. 352 et seq., infra). Though a mere grant of probate, whether English or foreign, As to a grant is not conclusive as to the domicil of the deceased. The Court of ° ^'° * ^' distribution must ascertain the domicil for itself {Bradford v. Young, 1884, 26 Gh. D. 656, Pearson, J.; affirmed, 1885, 29 Ch. D. 617, C. A. ; Concha v. Concha, 1886, 11 App. Gas. 541, H. L. (E.)). Neither has a mere grant of probate any operation as to the vaKdity of the dispositions made by a will. It only shows that a will has been made {Thornton v. Curling, 1824, 8 Sim. 310, per Lord Eldon; Campbell v. Beaufoy, 1859, 28 L. J. Gh. 645, Wood, V.-G.). Hence : — The clear surplus of an intestate's moveable estate is distributed Intestacy, among the persons entitled by the law of his domicil at the time of his death, as they are entitled by such law {Pipon v. Pipon, 1744, Ambl. 25 ; Tkorne v. Watkins, 1750, 2 Ves. 35 ; Ahd-ul- Messih v. Farra, supra; see, also, Bruce v. Bruce, 1790, 6 Bro. P. G. 566; Balfour v. Scott, 1793, 6 Bro. P. G. 550). («) Dicta of Lord Westbury in Enohin, v. Wylie, p. 180, above, and in Fartington V. Att.-Gen., 1869, L. K. 4 H. L. 119, contra; but see Swing and others v. Orr- Ewing ; Blackwood v. JJ., attpra. (a) When it is necessary for purposes of succession and distribution, an inquiry ■will be directed as to the testator's domicil, although he has been dead upwards of a century, and in a matter of administration his will has been acted upon for 100 years under the direction of the Court, on the assumption that his domicil was Digitized by Microsoft® 198 ADMINISTRATION. Pars legitima. The right of any person to a pars legitima in the estate of the deceased, or any claim of an analogous nature, is determined by the law of the domicil of the deceased at the time of his death {Hog V. Lashley, 1792, 6 Bro. P. C. 577 ; Doglioni v. Crispin, supm; McOibbon v. Abbott, 1885, 10 App. Cas. 653, P. 0. ; Be Tm/ort, supra; Abdullah v. Richards, 1888, 4 T. L. E. 622, Ohitty, J. ; see, also, T/iornton v. Curling ; Campbells. Beaufoy, supra). And the validity of a condition in restraint of marriage {Oni- maney v. Bingham, 1796, cited Bempde v. Johnstone, 3 Ves. 202 ; Somerville v. Somermlle, 5 Yes. 757 ; but of. also pp. 65, 93, supra). In the administration of the English estate here of a deceased domiciled abroad, foreign creditors are entitled to dividends pari passu with English creditors {ReKlcebe, 1884, 28 Oh. D. 175, Pear- son, J. ; Cook V. Grcgson, 1854, 23 L. J. Oh. 734) (6) ; and a creditor claiming an asset here need not account for the proceeds of a secu- rity obtained abroad in respect of another asset the claim to which is statute barred here {Re Bowes, W. N. 1889, p. 53). Conditions. MaruliaUing : lex fori and law of locality. Immoveables. Creditors. Eight of recoiirse. Immoveables (c). — But as against immoveable property, or the produce thereof, administration is, except in special circumstances, governed by the lex situs {Harrison v. Harrison, 1874, L. R. 8 Ch. App. 342, 346, Lord Selbome, L. C). So creditors will rank according to the lex situs {Hanson v. Walker, 1829, 7 L. J. Ch. 135). And the right of recourse of the heir of foreign immove- ables, or of a devisee apart from the will, against personalty in England in respect of debts, is determined by the lex situs of the immoveables {Bowaman v. Reeve, 1721, Pr. Oh. 577; Winclielseay. Gardty, 1838, 7 L. J. (N. S.) Oh. 99 ; Brummoiid v. I))~ummond, 1799, 2 Yes. & B. 132; JElliotf v. Minto, 1821, 6 Madd. 16). While, conversely, the liability of foreign immoveables to the pay- ment of debts, as between the heir and the pecuniary legatees, must be determined by the lex situs, and not by the law of the (b) Contra, Wilson v. Mummy, 1854, 23 L. J. Ch. 492, EomUIy, M. E. This case is in direct conflict with Re Klcebe, and with Slaekwood t. R. and otier autho- rities, cited p. 196, supra. It is supported by the dicta of Lord Westbury referred to p. 197, supra, note. In Re Klmbe Pearson, J., adopted Mr. Westlake's opinion : § 103. See, also, Story, §§ 524, 525, 528. (f) Distribution : Doc v. Vardill, and notes, above. Digitized by Microsoft® BKEMEE V. FREEMAN. 199 country in whicli the testator's general estate is being administered {Harrison v. Harrison, 1872, L. E. 8 Oh. App. 342). Though, nevertheless, a direction in the -will will, of course. Will. override the general rule, and the assets both moveable and Charitable . bequest. immoveable will be marshalled according to the intention of the testator {Maxwell v. Maxtcell ; Re Arnold ; and other cases cited, siqjra, pp. 193, 194, Interpretation and construction of testamentary documents, q. v.). Likewise, if the Court determines that there was an intention to Equities. devise immoveables, but the will, through non-compUanoe with the lex situs, is inoperative to pass them, the heir will be put to his election {Brodie v. Barry, 1813, 2 Yes. & B. 127 ; Trotter v. Trotter, 1829, 2 Bl. N. E. 502 ; Dewar v. Maitland, 1866, L. E. 2 Eq. 834, Stuart, V.-O. ; Orrell v. Orrell, supi~a, p. 193, Interpre- tation, &c., q. v.). And if there is a charitable bequest which by the lex situs is Charitable inoperative on immoveable property of the deceased, the assets, the lex domicilii permitting it, will, contrary to the strict English rule, be marshalled under such circumstance in favour of the charity {Macdonald v. Macdonald, 1872, L. E. 14 Eq. 60 ; see also in respect of charitable legacies Beaumont v. Oliveira, 1868, L. E. 6 Eq. 634 ; Re Arnold, supra; Re Duncan and Lawson, p. 148, supra). Where an intestate left immoveables in Scotland and moveables Hotch-pot ; in Scotland and England, and the law of Scotland excluded the immoveables, heiress of the land from a share in the moveables unless she collated the immoveables, it was held by the House of Lords, on appeal from the Court of Session in Scotland, that the heiress could both take the immoveables and her share of the moveables, without collating, since she claimed the share of the personal estate by the law of England where the deceased was domiciled at the time of his death {Balfmtr v. Scott, 1793, 6 Bro. C. P. 550) {d). In administration in an English Court, the interest (if any) Eate of payable on assets in the hands of executors or administrators will, ™ ^^^ ' {d) The Chancery jurisdiction to make vesting orders under the Trustee Acts extends to all property within the Queen's dominions, excepting Scotland : He Hewitt, 1858, 6 "W. E. 537 ; Re Steele, 1885, 53 L. T. 716 ; but the foreign law is better decided by the lex situs : Jenney v. Mackintosh, W. N. 1889, p. 94. Land in colonies made personal assets by statute will be admiaistered as such : Thomson v. Grant, 1826, 1 Euss. 540, n. (5 Geo. 4, c. 7, b. 4, West Indies) ; Stonj v. Fry, 1842, 11 L. J. Oh. 373 (9 Geo. 4, c. 33, India). Digitized by Microsoft® 200 ADMINISTRATION. as a general rule, be regulated by the lex fori {Malcolm v. Martin, 1790, 3 Bro. 0. C. 50, Axden, M. E. ; JBourke v. Eicketts, 1804, 10 Yes. 330, Grant, M. R. ; Samilton v. Balhs, 1878, 38 L. T. 215, Bacon, V.-C.) {d). But wbere a testator directed tbat a large sum— tbe subject of a legacy — sbould be remitted from abroad and invested here. Lord Eosslyn, L. C, beld tbat the case was distinct and specific, and so distinguisbable from the ordinary rule, and tbat upon the terms of the ■will and under tbe circumstances of tbe case the trust reposed in the executors would not be discharged till the legacy thereby bequeathed was paid with interest according to the course abroad, and his lordship ordered accordingly {Raymond v. Broadbelt, 1800, 5 Yes. 199) {d). CuiTency. Unless a contrary intention on the part of the testator is expressly stated or may be gathered from the context or the wiU as a whole, or from the situation of the fund or funds upon which a legacy is charged, the currency in which a legacy is paid should be that of the testator's domicil at the time of his death or at the date of the wiU as the law of his domicil at the date of his death may determine {Saunders v. Brake, 1742, 2 Atk. 465; Pierson y. Garnet, 1786, 2 Bro. Ch. 38 ; Malcolm v. Martin, 1789, 3 Bro. Ch. 50 ; Holmes V. Holmes, 1830, 8 L. J. Ch. 157 (e) ; interpretation and construction, supra). And if a legacy payable in the currency of the domicil has to be paid here, it would seem that such an amount of English money should be paid as would be equivalent to the sum payable in the currency of the domicil if paid there in the currency of the country {Cockerell v. Barber, 1810, 16 Yes. 461, Lord Eldon ; Campbell v. Graham, 1830, 1 Eu. & My. 453 ; see the same case 1831, 9 L. J. Ch. 234 ; and s. n. Campbell v. Sandford, 1834, 2 CI. & F. 450, per Lord Brougham) (/). Eeut-charge. Where there is an English will and settlement made thereby or an English settlement and an English will, moneys charged upon foreign lands must, in the absence of anything to show an intention [d) See, however, Westlake, } 111. Mr. Westlake does not cite Samilton r. Dallas -where reported above and on this point. On the other hand, Raymond v. Broadbelt was not, apparently, cited in Samilton v. Dallas. See, as to a settlement, Stapleton v. Gmway, 1750, 1 Ves. sen. 427. (e) Where the domicil at date of death is, as in this case, English, see now 1 Viet. 0. 26, s. 24. (/) See, also, the oases cited, rate of interest, supra. Digitized by Microsoft® ENOHIN V. WYLIK. 201 of the testator or settlor to the contrary, be paid in English money and according to the English value (Phipps v. Anglesea, 1721, 1 P. W. 696; 5 Vin. Ahr. 209; Wallis v. BrigMwell, 1722, 2 P. W. 88 ; Stapkton v. Conicay, 1750, 1 Ves. Senr. 427). For in this as in all other cases of the construction of wills and settlements intention is to furnish the ride of decision. Thus, where there was a power in a marriage settlement, executed in England where all the parties were domiciled, to grant to a wife an annual sum of money, or yearly rent-charge, to be tax free and without any deduction, and to be issuing out of and chargeable upon lands in Ireland, so that such rent-charge did not exceed, in the whole, the yearly sum of £3,000 of lawful money of Great Britain, it was held by the House of Lords, on appeal from the Lord Chancellor of L-eland, that a rent-charge appointed under this power was payable in Ireland in the currency of England, without any deduction in the nature of exchange. For so their Lordships collected the meaning to be from the words immediately applicable to the point, from the context, and from all parts of the settlement [Landndoicne v. Lmidsdotime, 1820, 2 Bligh. 60) (g). Principal and Ancillary Administrators (h). — The principal ad- Adminis- ministrator is the administrator appointed by the Court of the principal; domicil, and he is entitled, as a sreneral rule, to receive the clear ^<"^*'7- ... . . . . Residue. surplus remaining in the hands of the other, limited administrators {Hemes T. Sacon, 1880, 16 Ch. D. 407, Fry, J. ; affirmed, 1881, 18 Ch. D. 347, C. A.; see at p. 351, per Jessel, M.E.). These latter having only to administer the assets received by them in their own locality according to the law thereof {Preston v. Melville, 1841, 8 CL & F. 1, p. 197, supra). If the administrator or executor in England is satisfied that there are no obligations remaining to be discharged in England, he may consent to foreign administrators taking the fund {Emng and others v. Orr-Ewing and others,, 1885, 10 App. Gas. 453, 509, 610, Lord Selbome, 524, Lord Blackburn). Though, in some (g) As to the word "sterling," see this case at pp. 95, 96, and the oases cited, rate of iaterest, supra. (A) As te actions against foreign and English administrators or executors, see pp. 216 et seq., infra. Digitized by Microsoft® 202 ADMINISTRATION. Payment by debtor to foreign ad- ministrator. In England. Attorney. ciroumstanoes, it will be prudent to obtaia the sanction of the Court (J6.(0). Personal property of the deceased, whether actually situate within the jurisdiction at the time of the grant or no, passes to the administrator by the grant {Whyte v. Rose, 1842, 11 L. J. Ex. 457, Ex. Ch.; Att.-Gen. v. Bouwens, 1838, 7 L. J. N. S. Ex. 297 (negotiable instruments) ), unless it has theretofore been specifically •- appropriated to creditors or beneficiaries by the foreign administra- tor {Lou-e V. Fairlie, 1817, 2 Mad. 101 ; Logan y. Fairlie, 1825, 3 L. J. Ch. 152; Bond v. Graham, 1842, 11 L. J. Ch. 306), or in some other way has ceased to be part of the assets of the deceased (pp. 216, 217, infra). It would seem clear that one from whom a debt has been recovered by an administrator in a Court of competent jurisdiction cannot be compelled to pay it again to the administrator here (cf. Be Barlow's Will, 1887, 36 Ch. D. 287 ; but see 8Mw v. Staughton, 1670, 3Keble, 163(;fc)). But if, subsequent to the grant here, a debtor, without com- pulsion of law, pays an asset to the foreign administrator, it is doubtful whether the foreign administrator can give him a good discharge, more especially if the debt could not have been recovered within the foreign jurisdiction {Daniel v. Imker, 1571, Dyer, 805 ; Westlake, § 90; Story, §§ 515, 515a). And in England, at any rate, there could not, it would seem, be a valid payment without the production of an English probate or letters [Fernandes' Executors' Case, 1870, L. E. 5 Ch. 314 ; Ex parte Limehouse Board of Works, 1883, 24 Ch. D. 177). Though an attorney having obtained a grant here on behalf of the foreign administrator may safely transmit assets to the foreign administrator without the latter obtaining a grant in person ( Viesca V. Luhhoch, 1840, 10 Sim. 629 ; see also In Goods of Murgiiia, p. 213, infra). Administra- tion — probate. Administration — Probate. — Subject to three exceptions hereinafter noticed (pp. 203 — 206, infra (I) ), personal property of the deceased (i) Ab to English administrator paying to wrong person abroad by mistake of foreign law, see Leslie v. Baillie, 1843, 2 Y. & C. C. 0. 93 ; p. 216, infra ; see, also, lie Ewing, p. 220, infra, notes. (/t) See Godard v. Gray ; Sehiisby v. Wcsicnholx, and notes below. {!) These exceptions arc only apparent. In the case of Irish grants and Scotch Digitized by Microsoft® ENOHIN V. WYLIE. . 203 in this country can only be obtained through the medium of a repre- sentative in this country. If, therefore, one has died intestate having Necessity for personalty here, administration must be obtained here limited to gi-ant. the personal property here; or if one deceased has left a will dealing with personalty here probate must be obtained here {Enohin v. Wi/lic, above, Lord Cranworth, lb., 1858, 1 Sw. & Tr. 118 ; Be Wychoff, 1862, 32 L. J. P. 214 ; Price v. Dewhurst, 1838, 8 L. J. N. S. Oh. 57 ; Preston v. Melcille, 1841, 8 CI. & F. 1 ; Partington v. Att.-Gcn., 1869, L. E,. 4 H. L. 100 ; Fernandas' Exmutora' Case, 1870, L. E. 5 Oh. 314 ; Ex parte Limehouse Board of Works, 1883, 24 Ch. D. 177 ; Williams' Executors, p. 366, and cases there cited; p. 216, infra). But:— (1.) From and after 25th August, 1857, when any probate I™h grant. or letters of administration to be granted by the Court of Probate in Ireland shall be produced to, and a copy thereof deposited with, the registrars of the Probate Division in England, such probate or letters of administration shall be sealed with the seal of the said Division, and being duly stamped shall be of the like force and effect and have the same operation in England as if it had been originally granted by the said Division (20 & 21 Vict. c. 79, s. 95 ; Jud. Act. 1873, s. 16; Jud. Act, 1879). Letters of administration granted by the Court of Probate in Ireland shall not be resealed, under sect. 95 of 20 & 21 Vict. c. 79, until a certificate has been filed under the hand of a registrar of the Court of Probate in Ireland that bond has been given to the judge of the Court of Probate in Ireland in a siun sufficient in amount to cover the property in England as well as in Ireland in respect of which such administration is required to be resealed (21 & 22 Vict. c. 95, s. 29) {m). If this is not done, the administration will not be resealed, although there is attached to the letters a certificate from the confirmations, statutory enactments place the grantees in the position of persons obtaining grants here. In the other case the property has really ceased to belong to the estate of the deceased. {m) 22 & 23 Vict. c. 31, s. 25, contains a similar provision as to resealing English grant in Ireland. Security having been given to cover property in England only, additional security subsequently allowed to be given to cover property in Ireland, in order to apply for certificate of registrar that such security had been given : In Goods ofFotts, 1860, 2 L. T. 255. Digitized by Microsoft® 204 ADMINISTRATION. Inland Eevenue Office that the deceased has no personal estate within the jurisdiction, of the English Court to be affected hy the grant {In Goods of Roche, 1861, 7 Jnr. N. S. 784). A. died in Ireland possessed of personal property in England, and the Irish Court of Probate granted administration of his effects to B., no will having been found. Afterwards, 0. pro- pounded in the English Court a will of the deceased ; B. opposed it, and obtained a verdict upon issues raised by him. Upon the application of B., the Court ordered the Irish grant of adminis- tration to be delivered out of the registry, in order that it might be resealed by the English Court under the Act of 1857 {Bivenny v. Corcoran, 1862, 32 L. J. P. 26) (m). Scotch, con- (2.) Erom and after 12th November, 1868, it shall be com- potent to include m the inventory of the personal estate and effects of any person who shall have died domiciled in Scotland any personal estate or effects of the deceased situated in England or in Ireland, or both : Provided that the person applying for confirmation shall satisfy the Commissarj'^, and that the Commis- sary shall by his interlocutor find, that the deceased died domiciled in Scotland, which interlocutor shall, for the purposes of this Act, be conclusive evidence of the fact of domicil : Provided also, that the value of such personal estate and effects situated in England or Ireland respectively shall be separately stated in such inven- tory, and such inventory shall be impressed with a stamp corre- sponding to the entire value of the estate and effects included, therein, wherever situated within the United Kingdom. From and after the date aforesaid, when any confirmation of the executor of a person who shall in manner aforesaid be found to have died domiciled in Scotland, which includes, besides the personal estate situated in Scotland, also personal estate situated in England, shall be produced in the Probate Division in England, and a copy thereof deposited with the registrar, together with a certified copy of the interlocutor of the Commissary finding that such deceased person died domiciled in Scotland, such confirmation shall be sealed with the seal of the said Division, and returned to the person producing the same, and shall thereafter have the like . («) As to position of person obtaining resealing, of. Sood v. Barringtm, p. 203, infra. Digitized by Microsoft® ENOHIN V. WYLIE. force and effect in England as if a probate or letters of administra- tion, as the ease may be, had been granted by the said Division (21 & 22 Vict. 0. 56, sects. 9, 12, 17; Jud. Acts, supra) (o). The executors of a Scotch testator having obtained a confirma- tion, including the whole personal estate in Scotland, before 12th November, 1858, after that date obtained an additional con- firmation, including personal estate in England ; Sir C. CressweU held that the Act did not apply to the additional confirmation {In Goods of Gordon, 1859, 29 L. J. P. 67). And where the original confirmation does not extend to the property in England, the seal of the Court will not be affixed to an eik, or additional confirmation, including such property {In Goods of Wingate, 1861, 2 Sw. & Tr. 625; In Goods of Sutcheson, 1863, 32 L. J. P. 167). But when the inventory is made for the original confirmation, and that confirmation does include property in England, an eik or additional confirmation granted in Scotland on the subsequent discovery of property in England will be sealed here {In Goods ofByde, 1870, L. E. 2 P. & D. 86). The seal of the Court has been affixed to a duplicate confirma- tion {In Goods of Webster, 1859, 29 L. J. P. 66). The fact of one of three executors having declined to accept a confirmation in Scotland is no bar to his afterwards applying, the other executors having died, for a grant of probate in England {In Goods of Campbell, 1870, 23 L. T. 323). The person who has obtained the confirmation duly sealed, and then avails himself of the provisions of this statute, is in exactly the same position in England as though he were an English executor. So it was held by Lord Eomilly, M. E., that such an one could sell and dispose of leaseholds in England {Hood v. Bar- rington, 1868, L. E. 6 Eq. 218). Nevertheless, the Act is chiefly fiscal, and does not in any way affect the question of competent forum in matters of administration {Swing and others v. Orr-Ewing and others, 1885, 10 App. Cas. 453, 511, 523, 534), or conclude any (o) Sect. 13 makes similar provisions as to Ireland and Scotland. Sect. 14, English and Irish grants, domicil here, to have force and effect in Scotland. The note or memorandum on a probate mentioned in sect. 14 that the deceased died domiciled in England cannot be written after probate has once issued : In Goods of Muir, 1859, 28 L. J. P. 49 — Sir C. CressweU. The note, &o., can be written after probate has issued: In Goods of AlUaon, 1864, 34 L. J. P. 20— Sir J. P. WUde (considered judg- ment : In Goods of Muir, cited). Digitized by Microsoft® 205 206 GRANT OF PROBATE OR ADMINISTRATION. Consular Courts. issue as to domicil taken, for another purpose, in an English Court {Hawarden v. Bvnlop, 1861, 31 L. J. P. 17 ; cf. pp. 196, 197, siiimi). (3.) In certain cases, where administration or prohate is granted in consular or foreign jurisdiction Courts existing in non-Christian countries, there is no need for a grant here (see, e. g.. Re TooM's Trmts, 1883, 23 Ch. D. 332 ; cf. Abd-ul-Messih v. Farra, 1888, 13 App. Cas. 431). Grant of probate or of administra- tion. Unless will is incorporated by reference in a will entitled to probate here, there must be assets here. Similarly, there can be no grant of administration when no assets here. Fund in Court. Grant of Probate or of Administration (^). — Whether a testator died domiciled in England or ahroad, a will disposing only of a property in a foreign country is not, it would seem, entitled to pro- hate in this country (7); Goods of Fittock, 1863, 32 L. J. P. 157, Sir C. Cresswell; In Goods of Coode, 1867, L. E. 1 P. & D. 449, Sir J. P. Wilde ; contra. In Goods of Winter, 1861, 30 L. J. P. 56 (domicil). Sir C. Cresswell, on authority of Sjnrdt v. Harris, 183-3, 4 Hagg. N. E. 405, Sir J. Nicholl ; not cited iu lie Fittock or in He Coode) ; unless it he incorporated by reference in some will which is entitled to probate in England {In Goods of Niekalls, 1865, 34 L. J. P. 103 ; In Goods of Harris, 1870, L. E. 2 P. & D. 83; In Goods of Cole, 1869, 20 L. T. 894 {q) ; In Goods of Be la Saussaye, 1873, L. E. 3 P. & D. 42 ; In Goods of Hoicden, 1874, 43 L. J. P. 26). And, similarly, since the foundation of the jurisdiction of the Probate Division to grant administration is the existence of per- sonal property of the deceased in England, probate cannot be granted when the deceased had no personal property in this country {Erans v. Burrell, 1859, 28 L. J. P. 82 ; In Goods of Tucker, 1864, 34 L. J. P. 29). Thus the Court in Ireland refused to grant administration to the effects of an officer whose domicil was Irish, but who died in India, and whose only assets were some property in India and a sum of money in the hands of the Secretary of State for War {In Goods ofButson, 1882, 9 L. E. Ir. 21). But when it is doubtful whether the deceased was or was not entitled to a fund in Court, the Probate Division will grant admi- {p) See 20 & 21 Vict. o. 77 ; WiUiams, pp. 366 et seq. (?) Affidavit of contents of foreign will made part of probate with English wiU. Digitized by Microsoft® ENOHIN V. WYLIE. 207 nistration ad litem, in order that the grantee may appear or take proceedings in the proper Court {In Goods of Tnnier, 1864, 33 L. J. P. 180; see In Goods of Tucker, supra) . A claim on the estate of a deceased testator is an asset in the Claim on country where the testator was domiciled at the time of his death. And if that country was not England, the fact that some of the assets are in England does not affect the local situation of the claim {In Goods of Ewing, 1881, 6 P. D. 19, 22, 23, Sir James Hannen, P.). If a wiU. has been proved ahroad, probate of the codicils, if any. Codicils, will not be granted here, but an applicant will be left to obtain probate of the codicils in the Court which granted probate of the will {In Goods of Lucy, 1883, 8 P. D. 167, Hannen, P.). Where a testator having an English domicil of origin died in Two wills. Belgium possessed of property in England and in Belgium, and leaving two separate wills, one in the English form disposing of his property in this country, the other in the Belgian form dis- posing of his property in Belgium, both wiUs being executed in Belgium, Sir James Hannen, P., on the filing of an affidavit that, according to the law of Belgium, the Belgian will, by its terms, only applied to the property in that country, and that the executor named therein had renounced and consented to the grant applied for, granted to the English executor probate of the two wUls as together constituting the last will of the deceased {In Goods of Bolton, 1887, 12 P. D. 202). A testator made a will in England, and subsequently made another will abroad. A foreign advocate gave his sworn opinion that the later will affected only the deceased's property in the place where it was made. A motion was made on behalf of the execu- trixes of the English will for probate of that docimient only, and that the foreign will, which had been deposited in the registry, might be delivered out for the purposes of probate abroad. Sir James Hannen, P., allowed the motion on proof being given at the registry of the consents of all parties interested {In Goods of Smart, 1884, 9 P. D. 64). Where there is personalty in England, and the deceased died Foreign grant, domiciled abroad, a party to whom a grant has been made by the proper authority aceordiag to the law of the domicil will Digitized by Microsoft® 208 GRANT OF PROBATE OR ADMINISTRATION. De bonis uon Minors' guardian. Lis pendens alibi. Judicial administrator, Provisional executor. Executor according to the tenour. generally obtain from the Englisli Oonrt power to administer the assets here {In Goods of Sill, 1870, L. E. 2 P. & D. 89, 90, Lord Penzance ; In Goods of Smith, 1868, 16 W. E. 1130 ; In Goods of Rogerson, 1840, 2 Curt. 656 ; Enohin v. Wylie, 1858, 1 Sw. & Tr. 118 ; of. Burn v. Cole, 1762, Ambl. 415) (r). But the Court has a discretion, and may, in a proper case, refuse a grant to the person to whom a grant has been so made (see In Goods of Cosnahan, 1866, L. E. 1 P. & D. 183, 186, per Sir J. P. Wilde ; In Goods of Weaver; In Goods of Prohart ; In Goods of Duchess d' Orleans, pp. 209 et seq., infra). So, one appointed de bonis non by the Court of the domicil has received, for that reason, a grant here {In Goods of Sill, supra). Administration for the use and benefit of minor children of a domiciled Frenchman deceased was granted to their guardian, appointed by the French authorities {In Goods of Sartoris, 1838, 1 Curt. 910; see In Goods of BiancM, 1862, 3 S. & T. 16 ; p. 209, ^ infra). Administration limited to receiving the personalty in this country of a domiciled Spaniard deceased was granted to the judicial administrator appointed, pendente lite, by a Spanish Court {Viesca v. B'Aramburu, 1839, 2 Curt. 453). The Court will make a grant to a provisional executor, appointed by the proper Court of the domicil of the deceased, but it will hmit it for such time as the appointment by the Court of the domicil remains unrescinded and in force {In Goods of Steigencald, 1864, 10 Jur. N. S. 159). Where the Court of the domicil has appointed a party executor according to the tenour, who, according to the strict English practice, would only have been entitled to administration with the will annexed, the Court — acting now imder 20 & 21 Vict. o. 77 (q.v.) — will make the grant to such person one of administration with the will annexed {In Goods of Read, 1828, 1 Hagg. Const. 474 ; In Goods of Mackenzie, 1856, Deane, 17 ; In Goods of Cosnahan, 1866, L. E. 1 P. & D. 183 ; In Goods of Earl, 1867, L. E. 1 P. & D. 450) (s). (r) The present practice is to obtain a registrar's order for these grants : Tristram & Coote, p. 22S, ed. 10. As to the instrument to be produced to the Court here, see pp. 189, 190, supra. (a) As regards the grant where the -wiU is valid only as to immoveables, see lie Fogassieras v. Suport, p. 194, supra. Digitized by Microsoft® EKOHIN V. WYLIE. 209 But the Court refused to follow a foreign grant which. Was made Peraons not by the foreign Court to persons who were not entitled as of right, right, but who were nominated by the widow and next of kin for the purpose, there being nothing on, the face of the proceedings to shew that the widow had renewed the consent in their favour in respect of the administration of the English estate (In Goods of Weaver, 1866, 36 L. J. P. 41). A married woman died domiciled in the colony of the Cape of Nude right ; -Good Hope. On her marriage with B. an agreement was entered into between them which, according to the laws of the colony, excluded B. from all right and interest in her property, but did not deprive him of the right to administration of her personal estate and effects, in the event of her dying intestate, On her death, intestate, letters of administration were granted by the Supreme Court of the colony to the husband of her sister. The Court in England — the practice being to make a grant of administration only to a party interested— granted administration of her personal estate and effects in England to one of her brothers and next of kin resident in this country, without requiring B. to be cited {In Goods of Probart, 1866, 36 L. J. P. 71). And the Court wiU not grant administration to a person, Minor, although he has obtained a grant from the Court of the domicil, who by the law of England is incapacitated from taking upon him- self the duties of an administrator. It will, therefore, unless perhaps he would have practically no administrative duties to perform {In Goods of Ba Cunha, 1828, 1 Hagg. Ecc. 237), refuse to grant administration to a minor, although by the law of the domicil such a minor would be entitled to adniinister the estate of ;the deceased, and has been clothed with the proper authority by the Court of the domicil {In Goods of Buchesse d'Orlians, 1859, 28 L. J. P. 129)(<). Where there has not been any foreign grant but there are assets No foreign here, the Court wiU be prepared in the case of intestacy to grant, fntestaov. administration to the person beneficially entitled to the effects of the deceased, according to the law of the last domicil of the (t) In Goods of Da Ounha was not cited in In Goods of D' Orleans. In the former case it was said that by the law of her domicil the minor could not elect a guardian : see p. 209,'w/ra. T. have'alscf atteinpted' to" distinguish the two cases als above; w P Digitized by Microsoft® 210 GRANT OP PROBATE OR ADMINISTRATION. Executors. Limited iu time. ITniversal heir. Universal legatee. Nude execu- tor ; delay ; residuary- legatee. No represen- tation ; bene- ficdary taking direct. "Aotedefi- nitif." Minor ; giiardian. deceased {In Goods of Beggia, 1822, 1 Add. 340 ; In Goods of Da Cunha, supra ; In Goods of Stewart, 1838, 1 Curt. 904). If there is a -will and executors the Court will grant probate to the executors appointed by the will or according to the tenour {Enohin v. Wylie, above). But where an executor is appointed by a foreign will the nature and extent of the office conferred by the appointment are regulated by the law of the testator's domicil, even as to personalty actually situate in England. If, by the law of the domicil, the executor- ship lasts only for a limited period, the English Court will not, after that period has expired, grant probate to the executor {LaneuviUe v. Anderson, 1860, 30 L. J. P. 25). In the case of foreign wills which do not appoint an executor, the practice is to grant probate to an universal heir, and adminis- tration with the win annexed to an universal legatee {In Goods of Oliphant, 1860, 30 L. J. P. 82; LaneuviUe v. Anderson, supra). Where upwards of thirteen years had elapsed from the date of the decease of the testator, a domiciled Frenchman, the Court granted administration to the person entitled to the residue by the law of Erance, without citing the nude executor, who had been cited on an' earlier application but had never applied for the grant {In Goods ofBormoy, 1882, 3 Hagg. Ecc. 767). Where by the law of the domicil of the deceased representation of the estate of a deceased person was not recognised, but the person entitled beneficially to the property of a deceased took, directly from him, though by a decree of a competent Court, Sir James Hannen, P., directed that administration should be granted to a beneficiary limited to the property which was referred to as belonging to him in a duly authenticated copy of the foreign decree {In Goods of Dost Aly Khan, 1880, 6 P. D. 6). Where by the law of the domicil of the deceased his testamentary dispositions were of no effect, Butt, J., granted probate to the attorney for the son of the deceased with respect to property in this country of an " Acte definitif," made by the heirs and mem- bers of his family, which duly disposed of his property according to the law of his domicil {In the Goods of Prince Oldenburgh, 1884, 9 P. D. 234). Administration for the use and benefit of minor children will be Digitized by Microsoft® ENOHIN V. WYLIE. 21 1 granted to their guardian (see In Goods of d' Orleans ; In Goods of Sartoris; In Goods of Bianchi, supra). The next of kin of a minor, the universal legatee, were an uncle who was in India, an aunt who was in poor circumstances, and another aunt who had renounced. The Court granted letters of administration with will annexed for use and benefit of the minor to a guardian elected by her (In Goods of Gardiner, 1884, 9 P. D. 66 ; see In Goods of Batterhee, 1889, 14 P. D. 39). Where there were small assets here and large assets abroad, which were being duly administered by the executors there, who had not taken out probate here. Sir James Hannen, P., refused to make a grant to a legatee, the power of the Court being dis- cretionary where the applicant's rights are not derived, as those of the next of kin, from statute {In Goods of Ewing, 1881, 6 P. D. 19, 24, 25). The surviving executor having departed out of the jurisdiction Executor out and not having been heard of for more than seven years, Sir C. diction.™^"*" Oresswell granted limited administration with the will annexed to the administrator of a legatee (In Goods of Collier, 1862, 31 L. J. P. 63). Upon an application for a grant of administration de bonis non. Residuary it appeared that the residuary legatee resident abroad had had abroad: no informal notice by letter, and that he had no beneficial interest, gpee^g" there being in fact no residue : held, that the grant might be made legatee, to a specific legatee, without requiring the residuary legatee to be cited, or to renounce {In Goods of Wilde, 1887, 13 P. D. 1, Hannen, P.). Where the deceased died domiciled in British Guiana, and by Administra- the law of that colony the Administrator-Greneral of the Colony Coi'ony!^'^* '" was, at the time of the application, entitled to administer the whole estate of the testator, wheresoever, in fact, situate, and to apply for and take out letters of administration in this country, and no one could claim in opposition to him ; Butt, J., made a grant of adminis- tration with the will annexed to the attorneys of the Administra- tor-General for his use and benefit, until such time as the Adminis- trator-General or B., an executor resident here, and who had not renounced but apparently consented to the grant to the Adminis- p2 Digitized by Microsoft® 212 GRANT OF PROBATE OR ADMINISTRATION. trator-Q-eneral, should apply {In Goods of Black, 1887, 13 P. D. 5) («). . ■ ' ' '.; Creditor. A Creditor may obtain a grant in a proper case {In Goods of iTarawr, 1828, IHagg. Eco. 498). Nominee of And, apparently, a nominee of parties interested in the estate interested. (see Jw G*ooc?s o/" Cfa^/^ow, 1886, 11 P. D. 76). Delivering The Court has power in a proper case to order testamentary papers to ^ papers to be delivered out of the registry in order that they may euBto^. ^® placed in legal custody abroad {In the Goods of Napoleon £o«a- jaffritc, 1853, 2 Eobertson,Ecc.'606). Persona The children of the deceased, who died a widow and intestate, entitled Were resident in the State of Georgia, in America. In consequence communioated ^^ ^^ ^^^ ""^^ ^^^^ prevailing in the United States and blockade ■^t'l- of the Southern ports, there was no immediate prospect of being able to communicate with them from this country. The estate was not perishable, but chiefly consisted of money in the funds and in a savings bank. There were some small debts due from the deceased. Sir 0. OressweU refused to grant letters of administra- tion to a nephew of the deceased resident here, for the use and benefit of the children, or until one of them should apply {In Goods 0/ W^?fe, 1862, 31 L.J. P. 161). Queen's A domiciled foreigner died in a British ship on his voyage to Proctor . *^ - . England. He was possessed of property — chiefly biQs of exchange drawn on merchants in Liverpool — and entitled to a sum of money alleged to be in the hands of another person in this country. On arrival of the ship in the port of London, her owner took possession of the bills of exchange. There was no known relation of the deceased in this country, and communication with his relatives in the country of his domicil was difficult and uncertain, by reason of war there then prevailing and blockade of the coasts. Adminis-, tration was granted to the shipowner, limited to realize and collect the property which the deceased died entitled to within the juris- diction of the Court, and to invest the proceeds in -3 per cent, consols : Sir C. Cresswell intunating an opinion that it would be better that the Queen's Proctor should interpose for the protection (m) TTnder tte cirevimstances the Court was content with the bond of the attorneys, without requiring justifying sureties; Cf. with this case HervayW.'Fitzpatrieh; p. 218, infra. Digitized by Microsoft® ENOHIN V. WYLIE. 213 of the property in such circumstances {In Goods of Wyckoff, 1%Q2, 3 Sw. & Tr. 20). And in an earlier case, administration of the effects in this country of an intestate dying here but domiciled in America, limited to payment of debts and so forth, and transmitting the balance to the Treasury of the United States, was refused to the American consul, who claimed to be entitled by American law ; .the next of kin. not appearing, and the Crown opposing the grant, but making no claim. The Court being of opinion that the Crown was the right person to see that the goods of persons dying within the realm got into the proper hands {Aspinwall v. Queen's Proctor, 1839, 2 Curt. 241) («). A chain of representation cannot be continued except through Ctain of persons who have obtained a grant m this country [In Goods of tion. Gai/nor, 1869, L. E. 1 P. & D. 723; Tmjford v. Trail, 1834, 7 Sim. 92). But a wiU proved by the attorney of an executor is the same Attorney. thing as if- actually proved by tiie executor ; and, therefore, when the foreign executors or representatives have in due course obtained grants with the will annexed to attorneys for them here, the chain of- representation is -imbroken {In Goods of Murguia, 1884, 9 P. D. 236). In a proper case the Court may accept sureties resident without Without ■ . jurisdiction. the juiisdiction, although the attorneys are also resident without the jurisdiction {In Goods ofBallingall, 1863, 32 L. J. P. 138). An intestate died leaving personal estate to a small amount in this Ameuding country, and to a larger amount in Italy. The Italian Court refused satisfy forei"-n to grant the authority required to deal with the property within its ^o^'^*- jurisdiction, on the ground that the letters of administration granted by the Court here were, on the face of them, limited to the property in this coxmtry,.and that the Court here, if it had been aware of the full value of the estate, would have required greater security for its admiiiistration. The Court -allowed the letters of administration to be amended — ^the Board of Inland Revenue -having signified its- consent to accept the succession duty on the Italian property as probate duty — so as to state on the face of them that the larger- {*) See 24 & 26 Vict. o. 121, s. 4 ; but see thenote to that Act, p. 177, above, Digitized by Microsoft® 214 TRUSTS. Proxy — attorney : representa- tive. Receivers. Power to sue. Trusts. Charities. amount was also included {In Goods of Henleij, 1886, 11 P. D. 126). The Court, if satisfied on documentary evidence that the party applying is the bona fide representative of the person entitled to the grant abroad will make a grant to such party without the pro- duction of a strict power of attorney {In Goods of Weaver, 1866, 36 L. J. P. 71). Receivers. — The Court has jurisdiction to appoint a receiver of real and personal property abroad (Seton, p. 450, and cases there cited ; p. 151, supra; Jud. Act, 1873, sect. 25 (8) ). If a foreign receiver has, in virtue of his receivership, reduced a moveable belonging to the estate into his own possession, so that he has acquired a legal title thereto according to the lex situs, and it is afterwards found ia England, he may maintain an action for it in his individual capacity {Cagill v. Wooldridge, 8 Baxter (Tenn.) 580 ; Story, p. 735 ; cf. pp. 216, 217, infra). Trusts. — If a settlor is domiciled within the jurisdiction, a trust may be created of his moveable property wherever actually situate, and wOl be enforced by the Court (Lewin, p. 48, ed. 8) {y). But the Court will not settle a scheme for charitable funds to be administered abroad ; and if satisfied that the object of the settlor can be carried out abroad, wiU direct a transfer of the funds to the trustee or trustees selected by the settlor, and leave to the foreign Court the enforcement of the execution of the trust {Provost of Edinhurgh v. Aubery, 1754, Ambler, 236; Oliphant v. Rendrie, 1784, 1 Bro. C. C. 571 ; AU.-Gen. v. London, 1790, 3 Bro. 0. 0. 171 ; Att.-Gen. v. Lepine, 1818, 2 Sw. 181 ; Emery v. Hill, 1826, 1 Euss. 112; Mayor of Lyons v. East India Company, 1856, 1 Mo. P. C. 175. See also Minet v. VulUamy, 1819, 1 Euss. 113, note; Forbes v. Forbes, 1854, 23 L. J. Ch. 422 ; Att.-Gen. v. Sturge, 1854, 23 L. J. Ch. 495 ; Westlake, § 282). So where a testator gave certain funds to the President and Yice-President of the United States and the Grovemor of Penn- (y) The Court will not remove a trustee merely because he has gone out of the jurisdiction {Be Mais, 1852, 21 L. J. Ch. 875), but wiU appoint a new trustee in the place of one permanently resident abroad: Se Bignold, 1872, L. E. 7 Oh. 223. Wben a cestui que trust is resident abroad, service upon him of petition to appoint new trustees wUl be dispensed with in a proper case: Re Wilson, 1886, 31 Ch. D. 622. Digitized by Microsoft® ENOHIN V. WYLIE. 215 sylvania upon trusts mentioned in his will, and there was evidence tiiat the trust was unenforceable in that State, and the persons named declined to accept the trusts, Malins, Y.-C, held that ho had no power to enforce the trust or to settle a scheme for admi- nistration cy-pres, and that the funds fell into the residue (iVcw v. Bonaker, 1867, L. R. 4 Eq. 655). A testator, a native of Scotland, hut for many years resident in England, bequeathed the residue of his estate to his executors, and to trustees to be appointed by them, upon trust for the benefit of the blind ia Inverness-shire. The surviving executor declined to act in the trust, or even to appoint new trustees. Fry, J., held that, as a matter of convenience, the Attomey-Greneral, being a public officer with a continiuty of existence and a duty to the public to perform, and not the surviving executor, was the proper person to whom liberty ought to be given to apply to the Court of Session in Scotland for a settlement of a scheme for the charity (Be Fraser, 1883, 22 Ch. D. 827). As a general rule, new trustees, whether they are to be appelated Appointmont 01 TlflW under a power or by the Court, must be persons resident within trastees. the jurisdiction (Lewin, § 33). And the Court, upon the ground that they might transfer the fund abroad, so that it might become subject to foreign instead of English law, has refused to appoint persons resident out of the jurisdiction {Be Guibert, 1852, 16 Jur. 852 ; EomiUy, M. R. (power to invest in foreign funds) ). This rule, however, will be relaxed in very exceptional circum- stances ; and where the cestuis que trustent have been resident and, apparently, domiciled in a coimtry out of the jurisdiction, the Court has not only held that an appointment of persons resident in that country, although not expressly authorized by the settlement, was justifiable and valid [Meinertzhagen v. Davis, 1844, 1 Coll. 335 ; Be Smith's Trusts, 1872, 20 W. R. 695 ; Be Cunard's Trusts, 1878, 27 W. R. 52) ; but has itself made such an appointment {Be Amten\ Trusts, 1878, 38 L. T. N. S. 601 ; Be Drewe's Trusts, W. N. 1876, p. 168 ; Be Licldiard, 1880, 14 Ch. D. 310 ; Be Free- man's Trusts, 1887, 37 Ch. D. 148) (s). (z) See, also, Ee Long's Settlement, 1869, 17 W. R. 218, -where there was an intention to acquire a foreign domioil, but none had actually been acquired. Malins, V.-C, who afterwards decided £e Austen and Be Liddiard, supra, ia reported to have said that he was not aware of any case where the Court had Digitized by Microsoft® 216. ADMINISTRATION ACTIONS. In the last-oited case Stirling, J., required an undertaking by tlie trustees out of tlie jurisdiction that, in case .the power of appointing new trustees should become vested in them, they would not appoint any new trustees resident out of the jurisdiction with- out the consent of the Court. Toreignla-w. A trustee actiag reasonably, and in good faith, wiU not, in general, be liable if he makes a mistake as to foreign law {Leslie v. BailUe, 1843, 2 T. & C. C.'C. 91). Eut the safer course is to make inquiry (Lewia, p. 13. See also Ee Emng, p. 220, infra, note (costs) ). Actions. Action in right of representa- tion : English grant. E'oreign grant, qu. Foreign administrator reducing personalty into his own possession. Speoiflo legatee. Actions by and against Trustees, Executors, Administrators. — ^In order to maintain an action here in right of the representation of a deceased person ia respect of personalty in this country, it is neces- sary to have obtained a grant of probate or administration in this country, as the case may be, and a foreign grant is insufficient {Tourton y. Fhiver, V7^b, 3 P. W. 369; see also WhyteY.Eose, 1842, 11 L. J". Ex. 457, 458, per curiam; cases cited p. 203, supra). But, nevertheless, it has been held that a foreign administrator may maintain an action here, without a grant here, in respect of an asset which was within the jurisdiction of the foreign Court at the time of the grant {Huthwaite v. Phaire, 1840, 9 L. J. (N. S.) 0. P. 259). And, " if a foreign administrator has, in virtue of his adminis- tration, reduced the personal property of the deceased, there situated, into his own possession, so that he has acquired a legal title thereto according to the law of that country, if that property should afterwards be found in another country, or be carried away and converted there against his wUl, he may maintain a suit for it there in his own name and right personally, without taking out new letters of administration ; for he is to all intents and purposes the legal owner thereof, although he is so in the character of trustee for other persons" {Jefferson v. Glorm-, 46 Miss. 510). " In like manner, if a specific legacy of personal property is authorized the appointment of foreign trustees. Meinertehagen v. Davis, supra, was an earlier decision, in which the appointment of foreign trustees had been approved of, but the report does not mention it as cited. Digitized by Microsoft® ENOHIN V. WYLIE. ^^^ bequeathed in a foreign country, and the legatee has, under an administration there, been admitted to the full possession and ownership by the administrator, he may afterwards sue in his own name for any injury or conversion of such property in another country, where the property or wrongdoer may be found, without any probate of the will there " {^roicn v. Knapp, 79 N. Y. 136). "The plain reason of each of these cases is, that the executor and the legatee have, each in his own right, become full and perfect legal owners of the property by the local law ; and a title to personal property, duly acquired by the lex loci rei sitae, will be deemed valid, and be respected as a lawful and perfect title in every other country " (Story, § 516 ; Vanquelin v. Bouard, 1863, 33 L. J. 0. P. 78, per curiam) («). And the rule that in order to maintain an action in this country in respect of the personal rights or property of a deceased person, it must appear that the plaintiff has obtained probate or letters of administration in this country (pp. 203, 216, supra), does not apply, except where the party sues in right of a deceased person ; but if he sues in his own right, no administration need be taken out here {Vanquelin v. Bouard, supra; see Gnidici v. Kinton, 1843, 6 Beav. 517). So ia Ciirrie v. Bircham (1822, Dow. & Ey. 35), it was held in the King's Bench that an English administrator cannot recover from the agent in England of a Bombay administrator the proceeds, remitted hither by the latter, of effects of the intestate reduced into possession under the Bombay administration. And, however this may be, it is clear that where there has been Foreign a foreign judgment establishing a right in a foreign legatee or J^^S™^'''- administrator, such an one may sue here without a grant ( Vanquelin V. Bouard, supra ; Re Macnichol, 1874, L. R. 19 Eq. 81 ; see Godardv. Gray; Schibsby v. Fes^ew^ofe, and notes below). Conversely, the Court here will not make an order necessitating Administra. accounts and inquiries in an administration action without having exroutionof an English legal personal representative or his attorney or repre- trusts of will : sentative {b) before it {Tyler v. Bell, 1837, 6 L. J. (N. S.) Ch. 169, EnguV ""^ Lord Cottenham, L. C. (overruling on this point ^wcfersoK v. Gaunter', ^^° ^^' 1833, 2 My. & E. 763, Leach, Y.-C.) ; Bond v. Graham, 1842, a) Cf. Caimnell V. Sewell, and notes, aboye. i) See Chambers v. Brightwell, p. 219, infra. Digitized by Microsoft® 218 ADMINISTRATION ACTIONS. Specific ap- propriation. Death of accounting trustee — foreign executor. Power of English grantee to maintaia action. Executors who are also trustees. 11 L. J. Ch. 306; Weatherhy v. St. Giorgio, 1848, 2 Hare, 624). Nor can a claim be raised here under a vdU, or an executor be made liable here under a will which has not received an Enghsh admission to probate or its equivalent (b) {Fernandes' Executon' Case, 1870, L. E. 5 Ch. 314 ; Ex parte Limehouse Board of Works, 1888, 24 Ch. D. 177; see also Enohin v. Wylie, 1858, 1 Sw. & Tr. 118 ; Price V. Deivlmrst, 1838, 8 L. J. (N. S.) Ch. 67 ; Preston v. Melville, 1841, 8 CI. & F. 1 ; Partington v. A.-G., 1869, L. R. 4 H. L. 100) (c). But where a foreign executor set apart a sum, being the total amount of four legacies, and remitted it to T. H. in England, with directions to apply it to or for the benefit of the parties entitled to the said legacies under the will, and a bill was filed by three of the parties interested agaiast T. H. and the other parties interested. Lord Langdale, M. E., the fund being ascertained and appro- priated, considered the appearance of T. H., the consignee of the money in Court, sufficient {Arthur v. Hughes, 1841, 4 Beav. 506 ; feee also Bond v. Graham, supra, per Wood, V.-O. ; E. S. C. 1883, Order XVI. rule 46 and notes in Annual Practice). And where one of the parties — an accounting trustee in an administration action — died, and by his wiQ appointed an executor solely resident in Ireland, North, J., made an order, under Ord. L. r. 4 of the Greneral Orders, 1875, that the action should be con- tinued between the other parties and the executor, and gave leave to serve the order out of the jurisdiction {Jameson v. Marshall, 1882, 46 L. T. 480 ; see now Ord. XVII. r. 4 ; Ord. XVI. r. 46). If a grant has been obtained in England this is sufficient to enable the grantee — the administrator or executor — to maintain an action here in respect of personalty belonging to the estate wherever situate {Whi/te v. Ease, 1842, 11 L. J. Ex. 457— Ex. Ch.) ; and, in a proper case, against a foreign administrator {Sandilands v. Lines, 1829, 3 Sim. 268 ; Ttci/ford v. Trail, 1834, 7 Sim. 92 ; Sermjv. Mtzpatrick, 1854, 28 L. J. Ch. 364). By the mere fact of taking out probate, or obtaining a resealing under the Acts relating to grants or confirmations in Ireland and (J) See pp. 202 et seq., supra; p. 220, infra. {c) American decisions to the same effect will be found stated and criticised, Story, p. 731, note (4). Digitized by Microsoft® ENOHIN V. WYLIE. 219 Scotland respectively {d), executors, who are also trustees, accept the trusts of the wiU, as well as the office of legal personal repre- sentatives ; and the acceptance of those trusts extends to the whole property which, under the terms of the wiU, is the subject of the trust, real as well as personal, although the real estate cannot be, and part of the personal estate may not be, within the jurisdiction of the Probate Division {Eming and others v. Orr-Emng, 1883, 9 App. Gas. 34, 39, 40, per Lord Selbome, L. 0.) Actions against such executors, consequently, are within the ordinary principles concerning actions against trustees {lb.). And an attorney or representative (e) of the person prima facie Attorney, entitled to the grant, but resident abroad, obtaining as such attorney or representative a grant here, is suable here in all respects as though he were the person so entitled having obtained a grant here (Chambei's v. Brightwell, 1843, 2 Hare, 536; see also Att.-Gen. v. Eohler, 1861, 9 H. L. 0. 654 ; p. 213, supra). Apart from this, an English administrator will be liable to English account here for assets of the deceased reduced by him into reducing possession abroad, he not having obtained a foreign grant {Dom- into fosses-** dak's Case, 1604, 6 Eep. 46 b : sii,h mm. Richardson v. Doicdele, fon without ' ■■■ ' ' loreign grant Cro. Ja. 55 ; Atkins v. Smith, 1740, 2 Atk. 63 ; Westlake, § 95). accountable And if part of the assets are found in England in the hands of a i-oreio-n foreign administrator or executor or his agent, without specific administrator appropriation, such assets are liable to be administered here {Loice ^^ith assets in V. Fairlie, 1817, 2 Mad. 101 ; Logan v. Fairlie, 1825, 3 L. J. Ch. specifically 152) ; and if the administrator claims to remove such assets out of ^PP'^op^^ted. the jurisdiction a receiver may be appointed {Hervey v. Fitzpatriok, 1854, 23 L. J. Ch. 364) (/). But a foreign executor or administrator, being within the Not liable as jurisdiction, will not be liable as executor de son tort merely son tort because he has received a grant abroad {Jauney v. Sealey, 1686, 1 ^count°of Vem. 397; Hermj v. Fitzpatriok, 1854, Kay, 434; Beavan v. foreign grant. Hastings, 1856, 2 K. & J. 724) (/). The presence of a trustee within the jurisdiction is sufficient to Trustees 7 11- 1 1 • • jurisdiction in make him answerable m regard to his trust m our Courts in a case rersonam. (^ See pp. 203—206, supra. (e) See In Goods of Werner, p. 214, supra. (/) And see p. 201, supra. Digitized by Microsoft® 220 ADMINISTRATION ACTIONS. When order ■will be Umited. Domioil and bulk of assets in England : injunction against pro- ceeding abroad. Foreign and English executors : administra- tion by Court residue. where he would be answerable by the ordinary course of the law of England (/). Where by the instrument, administration of the trusts of which is claimed, different ■ sets of trustees have been appointed to ad- minister the assets in England and abroad (g), or where there has been a grant of probate or administration limited to assets in England, the Court will so limit the order. Butj otherwise, unless the questions between the parties can bfe properly determined without it, or unless by reason of the bulk of the assets being abroad (cf. He Lane, p. 412; infra), and it appear^ ing to the Court that the plaintifE's interests will be properly protected in the foreign Court, a prima facie case in favour of administration in a foreign Court is made out, the English Coifft will make a general order for the administration of the whole of the trust assets (E. S. C. 1883, Ord. LY. r. 10 ; ■ Stirling Maxwell V. Cartun-ight, 1879, 11 Ch. D. 522 — C. A.; Ewing and others v. Orr-Eicing, 1883, 9 App. Cas. 34 — H. L. (E) ; Ewing and others v. Orr-Eieing and others, 1885, 10 App. Cas. 453 — H. L. (So.) (A) ; see also Innes v. Mitchell, 1857, 26 L. J. Ch. 719). Where the deceased dies domiciled in England, and the bulk of the assets are in England, but there is property abroad subject to the trusts of the English wiU, the English Court, on the apphca- tion of the executors, wiU grant an injimction restraining parties proceeding abroad {Hope v. Carnegie, 1866, L. E. 1 Ch. 320 ; Baillie V. Baillie, 1867, L. E. 5 Eq. 175). A testator directed his debts to be paid, and appointed executors in England, and other executors in Italy, directing the English executors to transfer the residue to the Italian executors, and bequeathing such residue amongst classes of persons alleged to reside in Italy. Held, by Wigram, V.-C, that the sum to be" paid over, being the residue, after payment of 'debts, the" Italian (/) See, however, p. 214, supra. (g) See, however, Wealherby v. St. Giorgio, infra. (h) The law on this point is ftJly discussed by the highest authorities in these two cases. In considering the English case, as regards an infant plaintifP, and generally, see now B. S..C. 1883, Ord.ljV. r. 10, and note thereto, Annual Practice. - Wten trustees or executors or administrators are without the jurisdiction, see service out of the jurisdiction, pp. 409, 412, infra, and cases there cited. If it is necessary to approach the English Court for directions as to the advisability of proceeding elsewhere, the costs properly incurred will be allowed out of the estate : £e Ewing, Times, 13th June, 1888. Digitized by Microsoft® ENOHIN V. WYLIE. 221 executors must be regarded as simply trustees of that fund, and not as executors holding it charged with debts ; and that, therefore, since the Court, in such circumstances, would pay the property not to the trustees, but to the cestuis que trustent, inquiries must be directed to ascertain the persons beneficially entitled under the bequest {Weatherby v. St Giorgio, 1843, 2 Hare, 624; see also Meiklan v. Campbell, 1857, 24 Beav. 100, EonuUy, M. E. ; Enohin V. Wylie, above; but compare p. 201, supra, and authorities there cited). If the accounts of a foreign administrator or executor are being Commission, taken in the English Court, and the foreign jurisdiction allows him a commission on the assets collected by him, he will be allowed such commission as regards the assets collected within such juris- diction {ChethamT. Aiidley, 1798, 4 Ves. 72; Cockerelly. Barber, 1826, 5 L. J. Ch. 77 ; see also Sovey v. Blaheman, 1799, 4 Ves. 596 (commission not due imder foreign law) ; Freeman v. Fairlie, 1817, 3 Mer. 24 (satisfaction by legacy) ). Digitized by Microsoft® 222 A foreign corporation may sue in England, and by the name ■which it has by reputation. HENRiaUES V. DUTCH WEST INDIA COMPANY. In the House of Lobds. 23rd April (a), 1730. [Reported 1 Strange, 611 ; 2 Strange, 807 ; 2 Lord Raymond, 1532; Cooke's Rep. Pr. Ca. in 0. P. 44.] One borrowed money of the Dutch West India Company, which he by articles covenanted to pay at Amsterdam. The Dutch West India Company sued those articles here, and called themselves Generahs Societas Belgica Privilegiata ad Indos Occidentales Negotiandum. Upon the trial it appeared that the company had never sued by this name before, or ever had any particular name given to them by any act of the States-General ; but the jury found that this was the same company that lent the money, and the plaintifEs had given in evi- dence the proper instruments whereby they were created a corporation in Holland by the law of Holland. It was insisted for the defendants that the law of England takes no notice of any foreign corporation, and that no foreign corporation in their corporate name and capacity can maintain any action at common law in this kingdom, and that, at any rate, it was necessary to set out the proper names of the persons con- cerned, who make the company, and how constituted or privileged. It was answered for the company that, where an action is brought by a corporation they need not show how they were incorporated, because the name argues a corporation ; but upon the general issue pleaded the plaintiffs must prove they are a corporation. The House afBrmed the judgment of the King's Bench in error, upholding the unanimous opinion of the Common Pleas in favour of the company. (a) 25th April, Ld. Ey. Digitized by Microsoft® ATTORNEY-GENERAL V. ALEXANDER. 223 THE ATTORNEY-GENERAL r. ALEXANDER AND OTHERS. In the Cotjet op Exoheqttee. 20th November, 1874. [Reported L. E. 10 Ex. 20 ; 44 L. J. Ex. 3 ; 31 L. T. 694 ; 23 W. R. 255.] Case stated under 22 & 23 Vict. c. 21, s. 10, in a proceeding Income tax- brought by the Attorney-General against the defendants, who were "Person agents in England for the Imperial Ottoman Bank, for a penalty of ^ft^°^jjg 50^., under sect. 55 of 5 & 6 Vict. c. 35, for neglecting to deliver a United proper return of profits under the Income Tax Acts. Kingdom" — The Imperial Ottoman Bank was a corporation created by Turkish Foreign law. Its seat was fixed, by the concession and the statutes which con- '{°I^^}'^T stituted it, at Constantinople, with power to establish branches and ^ gj ^ g'" agencies at other places. It was the State bank of Turkey, where it Soted. D.' was a bank of issue, and was charged with the collection of the revenue, and with certain operations relating to the currency, and with the payment of interest on the public debt, and received from the State a subsidy on account of the public business transacted by it. On its creation, it took over and continued to carry on the business of an English bank in London; and since its creation in 1863, the annual meetings of shareholders had always been held, and dividends declared, in London, though by its statutes the annual meetings might be held at any place which the committee of management might fix. The question for the opinion of the Court was, whether the bank were bound to make a return of and were chargeable upon all its annual profits, whether made in the United Kingdom or elsewhere, or whether they were only bound to make a return of and were charge- able upon the profits made in the United Kingdom, and of so much of the profits made abroad as were remitted to this country for distribu- tion in London. Sir R. Baggallay, A.-G. (Holker, S. G.,, and Pinder with him), for the Crown, cited Newhy v. Coifs Patent Firearms Manufacturing Co. {a) ; Sulley v. Attorney-General (b). Matthews, Q. C. (Arthur Wilson with him), for the defendants, cited Sulley V. Attorney- General (c) ; Bank of Augusta v. Uarle (d) ; Ohio and Mississippi By. Co. v. Wheeler (e) ; Baltimore and Ohio Ry. Co v. Glenn {/) ; Blackstone Manufacturing Co. v. Inhabitants of Black- stone {g) ; Newhy v. Coifs Patent Firearms Manufacturing Co. (A) ; Kilkenny and Great Southern and Western Ry. Co. v. Feilden («') ; Adams {a} L. R. 7 Q. B. 293. 5 H. & N. 711 ; 29 L. J. Ex. 461. (c) Vbi supra. \d) 13 Peters, 519, 588, 589. \e) 1 Black. 286, 295. {/) 28 Maryland Rep. 287. (o) 13 Gray (17 Mass. Rep.) 488. (A) L. R. 7 Q. B. 293. (i) 6 Ex. 81; 20L. J. Ex. 141. Digitized by Microsoft® 224 CORPORATIONS. 1874. \. Great Western Ry. Co.{k); Shiels v. Great Northern Ry. Co. {I); Brown V. London and North Western Ry. Co. (ot). Holher, S. G., in reply. Kelly, 0. B. : The question in this case is, whether the defendants, ■who represent a banking corporation called the Imperial Ottoman Bank, are liable to be assessed to the income tax in respect, not only of the profits realized by the branch or agency of the bank established in London, amounting to 40,000^., as to which they admit their liability, but upon the whole profits of the corporation realized in England, France, Turkey, or elsewhere, which amount to no less than 278,395^. ; and this question is, no doubt, one of great importance to the Imperial Ottoman Bank, and other corporations similarly situate. It is contended on behalf of the Crown that they are liable to be assessed in respect of the whole of their profits, on the ground that the corporation comes within the first clause of Schedule D. to 16 & 17 Vict. e. 34, s. 2, which provides that income tax shall be payable " for and in respect of the annual profits or gains arising or accruing to any person residing within the United Kingdom, from any profession, trade, employment, or vocation, whether the same shall respectively be carried on in the United Kingdom or elsewhere ;" and the question, therefore, is, whether this corporation, the Imperial Ottoman Bank, can be said, on the facts stated, to reside within the United Kingdom. Now, I am clearly of opinion that upon the case now before the Court, the Impe- rial Ottoman Bank cannot be said to be resident in this country ; that the business carried on in London is a mere branch or agency, and not the bank itself ; and that London is not the chief seat of carrying on the business of the bank. This is, I think, conclusively settled by the language of what we may term the charter of incorporation, that is, the convention relating to the concession, the sixth article of which is as follows : — " The seat of the bank shall be at Constantinople ; with the authority of the government it shall establish as many branch establishments and agencies as it may judge convenient;" in con- formity with which the statutes of the bank provide, Art. 4 : — "The society has its seat at Constantinople, it can establish as many branches and agencies as it may think fit." If, therefore, this corporation can be said to be resident anywhere, I am of opinion that it must be resi- dent in Constantinople, where alone it has its "seat," under the express terms of its charter ; and the branches or agencies which it establishes in London, Paris, or elsewhere are not the establishment, the bank itself, but only branches of that bank which has its seat at Constan- tinople. Beyond the language of the concession, which is plain and clear enough, and cannot well admit of any other construction, it may be observed that the establishment in London is throughout alluded to in the case not as the chief seat of the society, or as the corporation itseK, but as an agency. Thus, in the return made by the defendants it is stated (and there is nothing in the case to control or qualify the language used), " The London Agency act in the character of agents (A) 6 H. & N. 404 ; 30 L. J. Ex. 124. IS) SOL. J. Q. B. 331. (m) 4 B. & S. 326 ; 32 L. J. Q. B. 318. Digitized by Microsoft® ATTORNEY-GENEKAL V. ALEXANDER. for the Imperial Ottoman Bank, which resides at Constantinople, in 1874. the Empire of Turkey ; " so that the establishment in London is described, and, having reference to the charter or concession, is correctly described, as "the London agency" merely. I think, therefore, that we cannot hold that this is a corporation residing in the United Kingdom within the first clause in Schedule D. It is important to observe the distinction between the liability of a person and that of a corporation. If a person residing in London derived profits from some business carried on either in the United Kingdom or elsewhere, he would be liable only for the profits which he himself personally acquired. If he had a banking house at London, another at Paris, and another at Constantinople, he would, of course, be entitled to the aggregate profits of the whole three, and would be liable to assessment in respect of the aggregate amoimt. But if he carried on business in this way in partnership he would be liable, not for the whole profits of the undertaking, but only for his share of the profits, whatever it might be. If, however, we were to hold this corporation to be a person residing in the United Kingdom, then the corporation, acquiring the whole aggregate profits, would be liable to assessment upon the aggregate amount. If, then, this corporation is not within the first clause of Schedule D, I do not think it is necessary to say more than that the second clause is one which may well be held to provide for the case. Here, there- fore, a branch establishment existing within the United Kingdom, and a profit to the extent of 40,000^. a-year being realised at this branch, the corporation, as represented by the defendants, are liable to assess- ment on that amount, and no more. CiiEASBT, B. I am of the same opinion. The question arises upon the first branch of Schedule D. The word "person" is used both in the first and the second branches ; but we must recognise a corporation as coming within the meaning of the word " person " in both branches, because, by the 5 & 6 Vict. c. 35, s. 40, an oflB.cer is appointed to make the return in respect of a corporation, which return has been so made in the present case. It has not been contended — it cannot be said — that the whole business of the corporation is "carried on" in London. Some of the paragraphs of the case, indeed, shewing that the annual general meetings of shareholders have always been held in London, seem to point in that direction ; but that proposition has not been contended for. Therefore we have to deal with this question merely upon the words " any person residing in the United Kingdom." Now, if residence could not be predicated of a corporation, if the idea were not applicable to a corporation under this Act of Parliament, then, of course, the first branch of the schedule could not apply. The iarg^ment, however, is not put upon that ground; and we have to consider whether it is made out, not only that the word " person" is fulfilled by this body, which is a corporation, but whether the terms "residing within the United Kingdom" are also satisfied. Now, no doubt, in speaking of a corporation, which is a different thing from the persons composing it, there is a difficulty in dealing with the question of residence; but without defining the word "residence," which I should not attempt to do, there are in the Act certain clauses which limit its meaning, and give us some guide in considering whether a N. Q Digitized by Microsoft® 225 226 CORPOEATIONS. 1874. person does or does not come -within the words " residing in the United Kingdom." The learned counsel for the defendants has referred us to the case of Sulley V. Attorney- General {n), as if it decided that a partnership which carried on a business in England could not be regarded as resident here. But, in point of fact, the case does not decide that, because what was held in that case was, that there was no business at aU in England which was liable to income tax. I do not, therefore, regard that case as having any bearing oh the present, in which, undoubtedly, business is carried on here. But to what do the learned counsel for the Crown refer as showing that this corporation can be regarded as residing in England ? _ They refer to the various sections of the case, which show that certain acts were done here ; but, following the course taken by the Lord Chief Baron, it appears to me sufficient to say that, looking at the consti- tution of the Imperial Ottoman Bank, we can see it did not carry on business in England in such a sense that we should be justified in saying it resided here. The Ottoman Bank of London had un- doubtedly carried on its business in England, and had resided here ; but that bank transferred its business to the Imperial Ottoman Bank, which was quite a different institution ; and when we refer to what it is, we find that it is established as the state bank for the Ottoman Empire, that its seat is fixed at Constantinople ; that the concession grants to it, in addition to the right of carrying on the ordinary busi- ness of bankers, the exclusive privilege of issuing in Turkey notes payable to bearer on demand, payable at Constantinople or at the branches, which notes must be in the Turkish language, and must bear the seal of the high commissioner of the government. Then the concession charges them with the receipt of aU the revenues of the empire ' coming to the imperial treasury at Constantinople, and the payment of all drafts issued by the minister of finance ; and, as a bank, they are to be paid in a particular way in respect of all these matters. It certainly appears to me that it would be most unreasonable to say that the bank, when it issued notes in the Turkish language constitut- ing the currency of Turkey, could be regarded in any sense as carry- ing on its business in London ; and in the same way it would be wholly unreasonable to regard a bank, the business of which was to receive all the revenues of the empire coming to the imperial treasury at Constantinople, and to pay all drafts there for carrying on the govern- ment, as carrying on its business in London, so as to be regarded as resident there. This is really sufficient for my judgment in this case, which is, that it is not made out that the Imperial Ottoman Bank is resident in England, or is even carrying on its business here, although some of its business is carried on here ; and the judgment of the Court must therefore be for the defendants. Amphlett, B. : I am of the same opinion. The question entirely depends on whether or not, under the circumstances of this case, the Imperial Ottoman Bank is a "person residing within the United Kingdom" within the meaning of this Act of Parliament. Now, the way in which the Attorney-G^eneral first proposed to argue (though («) 5 H. & N. 711 ; 29 L. J. Ex. 464. Digitized by Microsoft® ATTOKNEY-GENEEAL V. ALEXANDEK. 227 lie afterwards very fairly retreated from tliat position) was this, tliat 1874. a person CEirrying on business in London or elsewhere might be said to reside where he was carrying on business ; so that, if he had two or three establishments in different countries, he might be said to reside in any of these countries. But, on my putting to him whether, in the case of a person, say, for example, M. Lafitte, living in the ordinary sense only in Paris, but having an establishment in London carried on in his name by his agents, he could say that such a person could be regarded as residing in London as well as in Paris, so as to be chargeable with the whole of the profits which he made, not only in London, but in Paris, he said that he did not wish to carry his argument so high; and, indeed, this would be attended with such monstrous injustice, that I was not surprised he did not insist on it. But if that is so — if any individual cannot be said to reside wherever he carries on his business, how can a foreign corporation be said to reside within the kingdom for no other reason than that it carries on business there ? It must foUow the same rule. What, then, is the reasonable meaning of a corporation residing anywhere ? It appears to me that it is this — that a corporation may be said to reside wherever it has its seat. Now, here, anyone looking not only at the language of the concession which establishes the bank abroad, but at the duties which it has to discharge, would, I think, hesitate to say that this bank, which exists only as a corporation in Turkey, and is not a corporation anywhere else, and which has its seat in Constantinople, resides in the United Kingdom. "We should be putting a very great strain on language if we were to hold that because a foreign corporation is, not only in language but according to the fa,cts, carrying on a branch business in London, — the main part of its business, and the most important part, being in Constantinople, where it is the Imperial Bank,— that corporation is residing as a corporation within the United Kingdom. I'or these reasons I think the first part of the question must be answered in the negative. Judgment for the defendants. Residence. — Since it exists only as a creature of law, a corpora- Residence and tion cannot, in fact, be resident anywhere ; and if it can be said to '^''""cil. have a domicil at all, it can only have a domicil of origin in a country where it came into being ; for it cannot acquire any other, wanting both residence and animus. It is, however, for some purposes convenient to speak of the domicil of a corporation, and for others of its residence. For the purposes of securing recognition in this country a corpo- Recognition. ration is domiciled in the country of its creation {Citij of Berne v. Sank of England, 1804, 9 Ves. 347 ; General Steam Navigation DigitizectU^ Microsoft® 228 CORPOKATIONS. Trading corporation Registration. Principal residence. Co. V. Guilhn, 1843, 13 L. J. Ex. 168 ; Aldridge v. Caio, 1872, L. E. 4 P. C. 313) (o). And this is probably also true for the purposes of sect. 11 of the Customs and Inland Eevenue Act, 1885 (p). A trading corporation is considered to have its principal resi- dence where its substantial business, not the form or shadow of business, but the real trade and business, is carried on {Att.-Gen. v. Alexander, above ; Cesena Sulphur Co. v. Nicholson, Calcutta Jute Milk V. Same, 1876, 1 Ex. D. 428, 446, 452, 454 ; Imperial and Continental Gas Association v. Nicholson, 1877, 37 L. T. 717; Alexandria Water Co. v. Musgrave, 1883, 11 Q. B. D. 174, C. A.). And the registration of a company is not conclusive of its residence as distiQguished from its domiciL {Ih.). In general, therefore, the place in which the governing body, the directors, meet, and where the shareholders at large hold their general and special meetings and exercise their power of trans- acting the business, is the place in which the company may be said to be principally resident. Pier company. So a pier company, whose objects were the erection and maiate- nance of a pier and the reception of toUs at Aberystwith, but whose offices were at Westminster, where the general business of the company and its affairs were carried on, was held to have its principal residence at Westminster and not at Aberystwith {Aberyst- with Co. V. Cooper, 1865, 35 L. J. Q.B. 44). And where an insurance company, whose registered office was in Scotland, and whose secretary resided there, but which also had agencies and a chief office within the jurisdiction, issued a poHoy through an agent within the jurisdiction, to whom the premiiuns were paid, and the company refused to pay a claim on the policy, it was held, by a Queen's Bench Divisional Court, that the com- pany was not domiciled or ordinarily resident within the jurisdic- tion, and that leave to issue a writ for service out of the jurisdic- tion, under Ord. XI. r. 1 (c), could not be granted (g') {Jones v. Scottish Accident Insurance Co., 1886, 17 Q. B. D. 421). But where the registered office of a company and the office of (o) And see Senriques v. Dutch West India Co., above; and pp. 229 et seq., infra (cases cited). (i)) P. 243, infra. { q) See, further, p. 238, infra. Insurance company. Manufaotur- Digitized by Microsoft® ATTORNEY-GENERAL V. ALEXANDER. 229 its secretary -were in London, and the meetings of its directors ^^^^ were held there, and all the business for the regulation and guid- ance of the undertaking was there transacted; but they sold, at Keynsham, in Somerset, a certain material, which they there manu- factured, to a person to whom they there delivered it ; it was held by Pollock, C. B., Bramwell and Channell, BB., that the company dwelt and carried on business at Keynsham within the meaning of 9 & 10 Vict. c. 95, s. 128 {Keynsham Co. v. Baker, 1863, 33 L. J. Ex. 41 (r) ; see also Adams v. G. W. R., 1861, 30 L. J. Ex. 124 ; Kilkenny, 8fc. Co. v. Flelden, 1851, 20 L. J. Ex. 141 ; Minor v. L. 8f N. W. R., 1856, 26 L. J. 0. P. 39 ; Corbett v. General Steam Navigation Co., 1859, 28 L. J. Ex. 214 ; Brown v. L. ^ N. W. R., 1863, 32 L. J. Q. B. 318 ; 8hiels v. G. N. R., 1861, 30 L. J. Q. B. 331 ; Taylor v. Crowland Gas Co., 1855, 24 L. J. Ex. 233 ; Le Tailkur v. S. E. R., 1877, 3 C. P. D. 18 ; Rogers v. L. C. 8^ D. R., 1878, 26 "W. E. 192 ; Carron Iron Co. v. McClaren, 1855, 5 H. L. 0. 416; Dicey, pp. 110 et seq.). Corporations, other than trading corporations, are resident in the Non-trading. places where their functions are discharged (Dicey, p. 110). And a corporation sole may thus be domiciled or resident, as Sole, such, in a place where the person exercising its functions by virtue of his office, is not domiciled or resident in his private capacity {Ih. p. 112; see p. 29, supra). A corporation may have a residence in any particular country Corporation without necessarily having either its domicil or its principal resi- more than one dence there {Carron Iron Co. v. McClaren, supra). residence. So a corporation having a registered office within the Jmisdic- tion is resident here for the purpose of founding jurisdiction, though it is domiciled abroad {Buenos Ayres Co. v. Northern Ry. Co. of Buenos Ayres, 1877, 2 Q. B. D. 210). Foreign Corporations : Recognition : Jurisdiction : Powers. — The Foreign existence of a foreign corporation duly created under the laws of recognition : any country should be recognised in other countries {Bateman v. p^ers! '°° " Service, 1881, 6 App. Cas. 386). And the existence of a foreign corporation duly created under the law of any foreign State recog- (»■) But see The Cesena Co.*s Case, and other cases cited aboye. Digitized by Microsoft® 230 CORPORATIONS. nised by the Crown {City of Berne v. Bank of Englaiid, 1804, 9 Yes. 347) is on and in accordance witli suck general principle recognised by our Courts {Bateman v. Service, supra; Oilhertson y. Fergusson, 1879, 5 Ex. D. 57, 74, per Pollock, B.) (r). So wbere it was sougM, by an action brought in Western Aus- tralia, to make the defendant, a sbarebolder and one of the directors of a trading corporation, duly created in Victoria, where the organi- zation and government of the company were, where its directors aU resided, and where it had its principal place of busiaess, per- sonally liable for a debt which had been contracted in Western Australia by an agent of the company in that colony, and it was contended that, according to sect. 4 of the Joint Stock Companies Ordinance, 1858 (Western Australia), there was a several right of action against the defendant in consequence of non-compliance with the conditions prescribed by the said Ordinance, the Judicial Committee advised her Majesty that the Judgment of the acting Chief Justice of Western Australia, in favour of the defendant, should be affirmed. Sir Eichard Couch, by whom their lordships' judgment was delivered, saying, in the course of it, "The 4th section is : — ' If more than ten persons shall, after the 1st day of January, 1860, carry on in partnership any trade or business having gain for its object, unless they are registered as a company under this Ordinance, or are iacorporated or otherwise legally con- stituted by or in pursuance of some private ordinance, royal charter, or letters patent, every person so acting shall be severally Hable for the payment of the whole debts of the partnership, and may be sued for the same without the joinder in the action or suit of any other members of the partnership.' These words are not descrip- tive of a corporation carrying on business in Western Australia by its agent. You cannot say that a corpo^'ation is ten persons or more carrying on business. It may or may not be that the corporation which was formed in Victoria consists of more than ten persons. That is not a matter to be inquired into in Western Australia. The whole enactment appears to be appHcable to a case where per- sons intended to commence business ia Western Australia in part- nership. . . . It is not to be presumed that there was an intention (»■) Of., also, oases cited Taxation, p. 241, infra; Gilbertsm v. Fergusson, affirmed, 1881, 7 Q. B. D. 662— C. A. Digitized by Microsoft® ATTORNEY-GENERAL V. ALEXANDER. 231 contrary to the comity of nations, to prevent a foreign incorporated company carrying on business at all in the colony, because there would be so many difBoulties in the way of a foreign incorporated com- pany registeriag its members in accordance with the provisions of this Ordinance, that practically it could not do so " {Bateman v. Service, supra, at pp. 390, 391). Similarly, apart from other difficulties which might arise, a foreign company, actually complete and existiag iu a foreign country, cannot be registered under the English Companies Acts [Bulkeley v. Bchiitz, 1871, L. E. 3 P. 0. 764 ; see Buckley, 5th ed. p. 4). And it is submitted that a limited company, duly incorpo- rated under the law of a foreign country, can trade in this country without exposing its members to individual liability for its debts and contracts. That is to say, that a foreign corporation has a status recognised in our Courts, and has consequently, in the same way as any other person, and so long as they do not conflict with the general principles of private international law, all the rights and duties in England which are conferred or imposed upon it by the foreign law {Bulkeley v. Schutz ; Bateman v. Service, svpra ; see Buckley, ubi supra, and at pp. 9 and • 205 ; Chadwyck Healey, 2nded. p. 9) (r). So a foreign corporation has a right to the protection of its trade Trade mark, mark in the Courts of this country {Collins Co. v. Brown, 1857, 3 K. & J. .423 ; 3 Jur. N. S. 929 ; Collins Co. v. Eeeves, 1858, 28 L. J. Ch. 56) (.s). There can be no doubt that a foreign corporation can sue as Actions. plaintiffs {Henriques v. Dutch West India Co., above; Newby v. ■'^ plamtifEs. (r) See, also, Lindley, vol. ii., appendix; Dicey, pp. 198, 199; Story, p. 175, note, and American cases cited lb., p. 328, note (a). Compare with the Ordinance referred to in Satcman y. Service, sect. 4 of the Companies Act, 1862 ; and see West- lake, § 287. See, also, the following conventions and regulations : — Austria. — Principal provisions of Austrian decree as to foreign joint stock and limited liability company (except insurance) transacting business in Austria : London Gazette, 16th Jan. 1866, p. 261. Belgium, — Convention with Great Britain, 13th Nov. 1862, as to position of joint stock company : L. G. 9th Dec. 1862, p. 5266. France.— Convention with, &o. : L. G. 23rd May, 1862, p. 2671. Germany.— Declaration, &c., 27th March, 1874: Pari. Paper, 1874 (C. 942). Italy.— Declaration, &c. : L. G. 10th Deo. 1867, p. 6763. Uexico. — Rules for protection of commercial associations of mixed nationality : L. G. 25th April, 1854, p. 1294. Spain. — Laws as to joint stock company in the Spanish colonies : L. G. 24th Sept. 1869, p. 5191. Convention with Great Britain, 29th Jan., 1883, as to position of joint stock companies in the two countries : L. G. 6th I'eb. 1883, p. 643. (*) See, further, p. 328, infra. Digitized by Microsoft® 232 CORPORATIONS, Registered in England. As defen- dants. Fonmi. Foreign judgment. Von Oppen and CoWh Co., 1872, L. E. 7 Q. B. 293, 294, per Blackburn, J., delivering considered judgment of Queen's Bencli ; see also Bank of St. Charles v. Be Bernales, 1825, E. & M. 190 ; 1 C. & P. 569 ; Alivon v. Furniml, 1834, 1 0. M. & E. 277, 296 ; Bianca Nationale Sede di Torino v. Hamburger, 1863, 2 H. & 0. 330 ; Story, p. 175, note, and p. 780, note, and American cases cited). A company registered in England is clearly suable bere, though it may be domiciled abroad {Buenos Ayres Co. v. Northern Co. of Buenos Ayres, 1877, 2 Q. B. D. 210). And although there is (perhaps) (r) no case in which it has been held that a foreign corporation could be sued in this country {Nutter 8f Co. V. Messageries Maritimes de France, 1885, 1 T. L. E. 644, 645, per Lord Coleridge, C. J.), yet the better opinion is that a foreign corporation resident or carrying on business in England, or having contracted to have a domicil for the purpose of being sued within the jurisdiction {SocidtS Industriale v. Compantia Portugueza, 1889, W. N. 1889, p. 32), may be sued as defendant in an English Court in respect of a cause of action which arose within the jurisdiction {Newhy v. Von Oppen, per Blackburn, J., supra; Westman v. Aktieholaget, 8fc. Fabrik, 1876, 1 Ex. D. 237, 240, per Bram- well, B.) (s). If this jurisdiction exists it must be governed by ordinary prin- ciples. So, in Carron Iron Co. v. Maclaren (1855, 5 H. L. C. 416), the injunction of the Master of the EoUs restraining the appellants, a Scotch corporation domiciled and principally resident in Scotland, from suing the respondents in Scotland as well as in England, was dissolved on ordinary principles of convenience, it being considered that the appellants were entitled to sue in their own country, and to take the benefit of their own law (see Newby v. Von Oppen, supra). And if disputes between members of a foreign corporation have been adjudicated upon by a foreign court of competent jurisdiction, the decision will be regarded here, and the Court will not declare (/) See, further, pp. 240 et seq., infra. [s] See also Story, p. 780, note ; Lindley, appendix. Queere, also, if Westman V. Aktieholaget (q. v.) could have been decided as it was without holding that a foreign corporation is suable here ? Of. winding up (cases cited), pp. 240 et seq., infra. Digitized by Microsoft® ATTORNEY-aENERAL V. ALEXANDER. 233 contrary to tlie opinion of the foreign tribunal {Sudlotv v. Butch Co., 1855, 21 Beav. 43). Nor will the Court make against a foreign corporation an order Foreign law. which it cannot enforce (lb.). And directors of a foreign company, which is domioUed and prin- pireotors— cipally resident abroad in the country of its creation, will be liable to the Courts here, when so as trustees beiag within the jurisdiction {Pickering v. Stephenson, 1872, L. E. 14 Eq. 322; cf. Letvis v. Baldwin, 18^8, 11 Beav. 153). Service on Foreign Corporation. — " In the absence of any statu- Service, tory provision regulating service of process, every writ of summons issued against a corporation aggregate may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer, or sec- retary of such corporation; . . . and where by any statute pro- vision is made for service of any writ of summons, bUl, petition, summons, or other process upon any corporation, or upon any society or fellowship, or any body or number of persons, whether corporate or unincorporate, every writ of summons may be served in the manner so provided." (E. S. C. 1883, Ord. IX. r. 8 ; see Annual Practice, and notes to the rule). So, if a foreign corporation is suable here (t), then, in the absence of any statutory provision regulating service of process, service of the writ on the head officer of a foreign corporation resident in England is sufficient {Newby v. Von Oppen, 1872, L. E. 7 Q. B. 293 ; Mackereth v. Glasgow Co., 1873, L. E. 8 Ex. 149 ; Palmer v. Gould's Co., W. N. 1884, p. 63 ; Ifutter v. Messageries Co., 1885, 1 T. L. E. 644 ; 54 L. J. Q. B. 527 ; Lhoneux, Limon 8f Co. v. Hong Kong, 8fc. Corporation, 1886, 33 Ch. D. 446; Woody. An- derston Co., 1888, 4 T. L. E. 708 ; W. N. 1888, p. 180 ; 85 L. T. Jo. 247) (m). Newby v. Von Oppen & Colt's Co. supra. — The defendant com- pany was an American company, incorporated by American law, but had a place of business in England ; and de facto carried on (<) See p. 232, supra. («) As to service upon companies registered tinder the Companies Acts, see this case; £uenos Ai/res Go :y. Northern By. Co. ofSumos Ayres, p. 229, supra; Annual Practice, notes, I. c. supra. Digitized by Microsoft® 2^* CORPORATIONS. business in this country just as an English corporation might do, though their principal place of business and head office was in America. The contract which the plaintiff alleged to have been broken was, as he alleged, made in England by the foreign corpo- ration carrying on business here as above-mentioned. The writ was served on the manager of the company's business in England, who appeared to be the head officer, and indeed the only officer, of the English branch, but who certainly was not the head officer of the American corporation in the United States. It was held by the Court of Queen's Bench — subject to the corporation being per- mitted, if so advised, and after appearing on the record, to raise the question of jurisdiction over them as defendants, which, how- ever, seemed to the Court to follow from corporations being per- mitted to sue as plaintiffs — that the service was good. Mackereth v. Glasgow Co., siipra. — The defendants were a Scotch corporation, with running powers over an English railway to Carlisle. Their only officer in England was a booking clerk at a station in Carlisle, whose sole duty was to issue tickets to travellers. The station at Carlisle was wholly under the control of the Enghsh company. The defendants' head office was in Scotland. It was held by the Court of Exchequer, that the service of the writ, if not good under the Common Law Procedure Act, 1852 (15 & 16 Vict, c. 76, sect. 16) (»), was not good at common law; and that it was not good under that statute, the booking clerk not being a head officer or clerk of the defendants within the meaning of the Act. Palmer v. Gould's Co., stijjra, was an action brought claiming damages for non-delivery of certain machines by the defendants, an American corporation. The contract was made in Eussia, through one Dyer. The writ was served upon Dyer, who was the general European manager of the defendants, at the place of business in London of the defendants. It was contended on behalf of the defendants (the plaintiffs relying on Neiclij v. Von OpiMn), that they had no place of business in this country; that one [x) Every writ of summons issued against a corporation aggregate may be sei'ved on the mayor or other head officer, or on the town clerk, clerk, treasurer, or secretary of such corporation. Of. Ord. IX. r. 8, mpra. Digitized by Microsoft® ATTOENEYrGENERAL V. ALEXANDER. 235 Cliurohill had the exclusive right of selling their machines in England, and was in this country a principal ; and that Dyer did not represent the defendants in England, hut only looked after all the European agents for them. Field, J., said, " The question is whether the plaintiils can serve the defendants here. If the defendant is here he can he served, whoever he is and wherever the cause of action arose. The question is whether Gould's Oo. are here. They have a real domicil in New York ; hut it does not follow that they have not a good domicil [residence] here for purposes of husiness and service. They have an office in London, where all the paper and envelopes are stamped ' Gould's Company,' as residing and carrying on busiuess there. At this place anybody can go and look at samples of the goods ; and if an order is given the machines will be supplied. Can any one doubt that this is a carrying on business by the defendants in this country ? Then Mr. Dyer, who is called the general European manager, was served, and I cannot imagine any one more distiuotly representing the defendants than he does. It is alleged that Churchill sells these goods on commis- sion ; it is unnecessary to say whether that affects the question, but the transaction out of which this action arose was expressed to be a sale by Grould's Oo. I, therefore, have no doubt that Gould's Co. have a place of business here and do carry on business in this country, and that this service was perfectly good." Nutter v. Messageries Co., supra. — This was an application on the part of the defendants to a Queen's Bench Divisional Court to set aside service of a writ which had been served upon one Bertrand. The defendants were a French corporation, having their seat in Paris and their working directorate at Marseilles, with agents in all the principal ports in Europe and the East. There were 150 of these agents, and Bertrand had the agency in London. It was stated on behalf of the company that these agents had nothing to do with its general business, and had only to look after the boats ; though on the part of the plaintiffs this was disputed, and it was said that the agents were in fact the general agents of the company. It was stated, however, on the other side, that the company had in London, as agents to the freight, a firm of brokers, Gellatly, Hankey and Oo. ; and in the bills of the company : " London Digitized by Microsoft® 236 CORPORATIONS, agency, M. Bertrand, 97 Cannon Street; sub-agents, Grellatly, Hankey and Co. For freight, &c., apply to the company's loading brokers, Gellatly and Co." The plaintiffs had for some time made shipments through GeUatly and Co., and made the shipment out of which the action arose through them, though the shipment was at Antwerp, and the freight was received there and the bill of lading dated there, though sent over signed to this country. Lord Cole- ridge, C. J., said that the company could not be sued in this country. The rule as to corporations was that the process might be served on the mayor, town clerk, or other head officer or clerk. For this purpose there must be a district office or place of business of the company in the country, with a head officer or head clerk, and Mr. Bertrand, the London agent of the company, was not in such a position. The company had its seat in Paris and head offices in Marseilles and Bordeaux, but had only an " agent " in London. There was no case in which it had been held that a foreign corporation could be sued in this country (y), and certainly it could not be sued by serving such an agent as this. It was necessary, according to the authorities, that the company should have a place of business in this country, whereas here it only appeared that an agent had a place of business here, which was very different. This was a foreign corporation, with no place of business of its own in London, and having no more an office here than in any other of the 150 places in which it had agents. A. L. Smith, J., concurred : " The service was wrong, because the London agent was not the 'head officer' of the corporation, and would not be so even if the company had its seat and head office in London." The service was ordered to be set aside. Lhoneux, Limon, & Co. v. Hong Kong and Shanghai Banking; Cor- poration, supra. — ^Action against a bank incorporated under an Ordinance of 1866 of the colony of Hong Kong, the head office, directorate, and secretary, being at Hong Kong. By their Ordinance the bank was prohibited from establishing a " branch " in England without the sanction of the Lords of the Treasury being first obtained; but there was no prohibition against their establishing an " agency." The London office, or agency, was at {y) But see note, p. 232, supra, Digitized by Microsoft® ATTOENEY-GENEEAL V. ALEXANDEE. 237 31, Lombard Street, the business there being conducted by a manager, assisted by the usual staff, and the bank's name appearing on the doors and windows of the office without any notice that the business there carried on was an " agency." The cheques and letter paper used at the office were also headed with the name of the bank and the London address. The writ was served on the manager at 31, Lombard Street. Motion to set aside service. Bacon, Y.-C, refused the motion, hdlding that the defendants were carrying on a mercantile undertaking in London (z). Wood V. Anderston Foundry Co., supra. — The defendants were a company formed under the Companies Acts, 1862 — 1883, and having their registered office at Glasgow, in which town they had large works, where they carried on business. They had also branch works at Middlesbrough, where they also carried on an extensive business. In an action which had been brought at some other time by the present defendants against the present plaintiffs, the company had described themselves as residing at Middlesbrough and Glasgow. The present writ was served by leaving it with a director of the company at Middlesbrough, the manager there, and a copy was posted to the office at Glasgow, The defendants moved to set aside this service. Stirling, J., said that it seemed to him that the two clauses of Ord. IX. r. 8 (p. 233, supra), provided for different cases — where there was statutory provision, and where it was absent ; and that the mode of service provided by the last clause was not cumulative nor additional to that in the first clause. Service upon foreign corporations was therefore divided into two heads, as above. The company was registered under the Act of 1862, and sect. 62 of that Act provided that any summons or other document required to be served upon a company might be served by leaving the same or sending it through the post in a prepaid letter addressed to the company at their registered office. His Lordship thought, therefore, that this being a corporation as to which there was statutory provision for service, the summons must be served in the manner provided, and there was no choice given to the plaintiff. This did not conflict with Lhoneiix, 8fc. v. Song Kong Bank (tibi (a) Cf. Saillie v. Goodwin, fc. Co., 1886, 33 Ch. D. 604 ; p. 418, infra; but the Order is not the same. Digitized by Microsoft® 238 CORPORATIONS. Service out of jurisdiotion. Form. Difficulty of determining' ■whether a foreign association is a corporation or not. supra) or Baillio v. Goodwin and Co. {ubi supra). His Lordsliip had consulted Wills, J., wlio, witli Day, J., decided Watson v. iSheather (1886, 2 T. L. E. 708), wlio had informed him they simply held that there had, under the circumstances, heen good service under the Act of 1862, and had not held that a limited company could he served otherwise than as directed by the Act of 1862. The service must be set aside, but if the plaintiff should desire to make any application for leave to serve the 'writ out of the jurisdiction, that question wotdd be treated as quite unaffected by the present application («). If a foreign corporation is suable here (S), then it can, in a proper case (c), be served out of the Jurisdiction with notice of the writ in the same way as any other person ( Westman v. Aktiebolaget, ^•c. Fahril; 1876, 1 Ex. D. 237 ; Scott v. Royal Wax Candle Co., 1876, 1 Q. B. D. 404; Jones v. Scottish Accident Insurance Co., 1886, 17 Q. B. D. 421 ; Be Burland, p. 414, infra). A writ issued against a foreign company having no oflSce within the United Kingdom must be in the Form Nos. 5 or 6 of Part I. of the Appendix to E. S. 0. 1883 ; and a writ issued in Form No. 2 will be set aside {Sedgwick v. Tedras Co., W. N. 1887, p. 94; 35 W. E. 780; TJie W. A. Sholten, 1887, 13 P. D. 8; Soditi Industriale v. Companhia, 8fc., p. 232, supra ; see also Ord. II. r. 5, Annual Practice, notes; cf. p. 410, infra). It will often be a nice and difficult question to determine whether a foreign association is, by the law of its own country, a corpora- tion or not {Newbyy. Von Oppen, 1872, L. E. 7 Q. B. 293, 294; see General Steam Navigation Co. v. Guillon, 1843, 13 L. J. Ex. 168 ; Ingate v. Austrian Lloyd's Co., 1858, 27 L. J. 0. P. 323; Aldridge V. Cato, 1872, L. E. 4 P. 0. 313) (d). In Liverpool Insurance Co. v. Massachusetts (10 Wall. 566), the judgment of the Supreme Court of the United States lays down that a foreign company trading in America might be held to be a {a) See also Ee Megent V. S. Stores, W. N. 1878, p. 10 ; Se Vrm Slate Co., ib. p. 70 ; and, further, Annual Practice, notes to the rule cited; and as to service out of jurisdiction, pp. 408 et seq., infra. (4) See p. 232, supra. (c) See service out of the jurisdiction, pp. 408, 414 ei seq., infra. (d) A colonial governor and government are not, in ordinary circumstances, a corporation: Sloman v. The Governor and Government of New Zealand, 1876, 1 0. P. D. 663—0. A. See also on the general question. Story, p. 176, notes. Digitized by Microsoft® ATTORNEY-GENERAL V. ALEXANDER. 239 corporation there, thougli not a corporation by the law of the country under which and where it had its origin. It would seem, however, that the question whether an association or company is a corporation or no should be determined for all purposes by the law of that country under which it came into existence as a body corporate or unincorporate, or as a society {Newby v. Von Oppen, supra; Bateman v. Service, 1881, 6 App. Gas. 386; p. 230, supra) ; and the facts before the Court did not require the enunciation of the principle as above (see per Bradley, J., pp. 576, 577). If it is established to the satisfaction of the Court that there is Mode and form of a foreign corporation, then, on a matter of substantive law, the action. results will follow according to the law of the domioU; but since it is well established that forms and remedies, and modes of pro- ceeding are regulated solely by the lex fori ; and since, therefore, it is no objection to a suit instituted in a proper form here that it would have been instituted iu a different form in the Court of the country where the cause of action arose or to which the defendant belongs, — a plea merely that in the Courts of the country of the defendant's domicil the mode of proceeding would be to sue him jointly with the other shareholders of a company, under the name of their association, is bad {General Steam Navigation Co. v. Cfuillon, 1843, 13 L. J. Ex. 168, 173). So it has been decided that where a company formed in a colony is empowered by an Act of the colonial legislature to sue and be sued in the name of a public oflBcer, and an action is brought against that officer ia the colony, and judgment is recovered against him there, such judgment may be enforced in this country against a member of the company resident here, although he was not in fact himself a party to the proceedings in the colonial court. (Lindley, appendix ; Bank of Australasia v. Harding, 1850, 19 L. J. C. P. 345 ; Bank of Australasia v. Mas, 1851, 20 L. J. Q. B. 284; Kehally. Marshall, 1856, 26 L. J. C. P. 19). And if a judgment has been obtained abroad against a company. Foreign either according to its articles of association or to the law of the ^^ ^^^^ foreign country concerning a foreign company, such judgment is enforceable here against a member of the company, although the judgment may have been obtained without actual notice to the de- fendant ( Vallei V. Bumergue, 1849, 18 L. J. Ex. 398 ; Copin v. Digitized by Microsoft® 240 CORPORATIONS. Company to operate abroad, or members foreigners : registration. Adamson, 1874, 1 Ex. D. 17 ; see Sheehy v. Professional Life As- surance Co., 1857, 26 L. J. C. P. 301 ; 27 L. J. 0. P. 233). That the scene of a company's operations is to be ahroad, or that the persons applying to have it registered are foreigners resident and apparently domiciled abroad, is no objection to its being con- stituted here under the Companies Acts {Princess of Beuss v. Boss, 1871, L. E. 5 H. L. 176). Winding-up. Company registered here. Foreign company. Jurisdiction exercised on general principles. Lis pendens. Winding-up. — If a foreign company has complied with all the requirements of the Companies Acts in respect of registration, and in contemplation of some description of management, and some description of business in this country, has been registered in this country, it may be wound np under the Acts; although in point of fact it has done no business here, and all its registered shareholders are foreigners {Princess of Reus v. Boss, supra ; Buctley, p. 205). And where a company has once received a certificate of regis- tration under the Acts, it can only come to an end in the manner indicated by the Acts, that is, by being wound up under the Acts {Ihid. ; and of. Re Madrid and Valencia Co., 1849, 19 L. J. Ch. 260 ; Be Factage Parisien, Limited, 1864, 34 L. J. Ch. 140 ; Re Permian Railways Co., 1867, L. E. 2 Ch. 617). The Court has jurisdiction, under sect. 199 of the Companies Act, 1862, to wind up a joint stock company formed abroad, and incor- porated under foreign law, or unincorporated, and having its prin- oipal place of business in a foreign country, but a branch office in England {Re Dendre Valley Co., 1850, 19 L. J. Ch. 474; Re Com- mercial Bank of India, 1868, L. E. 6 Eq. 517; Be Matheson Brothers, Limited, 1881, 27 Ch. D. 225 ; Re Commercial Bank of South Australia, 1886, 33 Ch. D. 174). But this jurisdiction will be exercised in accordance with the general principles of private international law {lb.). So, although the pendency of proceedings in a foreign jurisdiction does not oust the jurisdiction of the Court to make a winding-up order, yet the proceedings here will generally be made ancillary to the proceedings in the country in which the principal office of the company is {Be Matheson Brothers ; Be Commercial Bank of South Australia, supra; lb. 1887, 36 Ch. D. 522) {d). {fi) On the hearing of a claim -in the winding up the Court declined to hear counsel for the colonial liquidator : lb. Digitized by Microsoft® ATTOENEY-GENEEAL V. ALEXANDEE. 241 And a winding-up order may be refused here on the ground of convenience and as a matter of discretion {Be Union Sank of Cal- cutta, 1850, 19 L. J. Ch. 388 ; see, also, Be Queensland Mercantile Agency Co., 1888, 4 T. L. E. 389 ; W. N. 1888, p. 62 ; Ex parte Australian Investment Co., 1888, 58 L. T. 878). Similarly, the question whether or no a company has dissolved Dissolution, will be determined by the law of its domicil {Be Madrid and Valencia Co.; Be Bendre Valley Co., supra). There is no jurisdiction to wind up a foreign company— a com- Neither pany not registered here — ^which has no branch office or residence readenThCTe'': here, but has merely carried on business here by means of agents, y° j™"^^^"' in the same way as any foreign merchant might do {Be Lloyd Generale Italiano, 1885, 29 Ch. D. 219), When a company is in liquidation here, creditors who are here and who have proved in the winding up will not be allowed to retain assets attached by them abroad {Be Oriental Co., 1874, L. E. 8 Ch. 557) ; and a creditor may be restrained from proceeding against the company or the official liquidator elsewhere in the United Kingdom, or, if a British subject, in any other country {Be Int. Pulp Co., 1876, 3 Ch. D. 594 ; Be Loog, 1887, 36 Ch. D. 502 ; Be N. Carolina Co., W. N. 1889, p. 53). Taxation (e). — ^A corporation "residing within the United King- Taxation. dom " is liable to income tax on its entire profits, in the same way Company^^' as a natural person {Cesena Sulphur Co. v. Nicholson, Calcutta Co. "•X^'^'^?f -^ , v. Same, 1876, 1 Ex. D. 428 ; Imperial and Continental Gas Asso- Kingdom." elation v. Nicholson, 1877, 37 L. T. 717 ; Alexandria Water Co. v. Musgrave, 1883, 11 Q. B. D. 174). And it may be that a corporation registered in England must be Eeg-istered in deemed to be so resident (same cases ; pp. 227 et seq., supra). Ki^Aom. A corporation, whether British or foreign, resident abroad, is Corporation liable to income tax, in the same, way as a natural person, in exercising respect of the profits of any profession, trade, employment, or voca- o™^o°ation* tion exercised within the United Kingdom {Att.-Gen. v. Alexander, tere. above ; Gilbertson v. Fergusson, 1881, 7 Q,. B. D, 562, C. A. ; Erichsen v. Last, 1881, 8 Q. B. D. 414, C. A.). Wherever a person habitually does and contracts to do a thing When a capable of producing profit, and for the purpose of producing profit, Sere?"^ («) See, 242 COEPOKATIONS. Telegraph company. Carriers. Bankers. Payment of dividends. he carries on a trade or business {Erichsen v. Last, supra, at pp. 418, 420, per Brett and Cotton, L. JJ.). A foreign company, domiciled in Oopenhagen, having three marine cahles in connection with Aberdeen and Newcastle, com- municating with the telegraph lines of the post office in the United Kingdom, having work rooms with clerks in London, Aberdeen, and Newcastle, and forwarding messages over their cables to Den- mark, exercise a trade within the United Kingdom, and are charge- able to income tax accordingly {Erichsen v. Last, supra). A company who regularly undertake in this country the carriage of goods abroad for money as part of their ordinary business, exer- cise a trade ia this country, although the whole of the carriage is done abroad {lb. 417, per Jessel, M. E.). If a railway company, with a station at Dover and a station at Calais, carry passengers from Dover to Calais as a regular practice^ the company exercise a trade in Dover so far as regards the passengers carried from Dover to Calais {lb.). A foreign corporation, domiciled abroad, exercising the trade of bankers at a branch office in England, is liable in respect of the profits of such business carried on in England {Att.-Qen. v. Alex- ander, above). The dividends of the above-mentioned company were payable, at the option of the shareholders, abroad or by the London agency. In a particular year the London agency earned an amount of profits which enabled them to pay all dividends de- manded of them in that year without requiring or obtaimng any remittance from the company abroad. The London agency were assessed to income tax under Schedule D. on the profits earned in the United Kingdom on an average of the three preceding years, the amount on which they were so assessed being less than the amount actually earned by them in that year. They further made a return under 16 & 17 Yict. c. 34, s. 10, that no interest, dividends, or other annual payments payable out of or in respect of the stock, funds, or shares of the company had been intrusted to them for payment in the United Kingdom, and appealed against an assess- ment of the commissioners, whereby they were assessed in respect of the dividends paid by them: — ^It was held by the Court of Appeal, affirming the judgment of the Exchequer Division (5 Ex. D. 57), that the London agency were intrusted with the payment Digitized by Microsoft® ATTOENEY-GENEEAL V. ALEXANDEE. 243 of dividends ia the United Kingdom, within the meaning of 16 & 17 Vict. c. 34, s. 10, and that they were liahle to be assessed on the full amount of the dividends they so paid in the year, hut that since the dividends were payable out of the general earnings of the company, consisting of profits partly made in the United King- dom and partly elsewhere, and the London agency had already been assessed to income tax on the former under Schedule D., they ought not to he further assessed under 16 & 17 Yiot. c. 34, s. 10, and ought not, therefore, to pay income tax in respect of that por- tion of the dividends which represented profits arising out of the United Kingdom {Gilbertson v. Fergusson, 1881, 7 Q. B. D. 662). A corporation, whether British or foreign, is liable, wherever Immoveables, domiciled or resident, to pay income tax in respect of the property in aU lands, tenements, hereditaments, and heritages in the United Kingdom (16 & 17 Yict. c. 34, s. 1, sched. A.), and is liable gene- rally to taxes and rates in respect of immoveable property, unless it is for any particular reason exempt (p. 384, infra ; see Exchange Assurance Co. v. Vaiighan, 1757, 1 Burr. 155 ; 1 Ld. Ken. 320 ; Coxy. RahUts, 1878, 3 App. Oas. 473) (/). The duty imposed upon bodies corporate or unineorporate by the Customs and Customs and Inland Eevenue Act, 1885 (48 & 49 Vict. c. 51), s. 11, Revenue Act, is expressed to be granted in lieu of legacy, succession, or probate ^^^®* duties. The liability of natural persons to pay these duties is determined by different principles {Thomson v. Adv.-Gen., and notes, below). It is apprehended that the general test of liability win be domicil. But it may be that any moveable within the jurisdiction is affected by the duty {lb.). And if the property of a corporation or body unineorporate within the meaning of the Act is vested in such corporation or body unineorporate by virtue of an English, Scotch, or Irish settlement or trust, or if the corpora- tion or body unineorporate is itself the creature of British or Irish law, the corporation or body unineorporate will be liable under the Act, although in the former case it may be domiciled, and in the latter have its head office and carry on its business abroad {lb., especially pp. 376 et seq., infra; p. 227, supra) (g). (/) It is probable that an exemption would be held to operate in favour of a foreign corporation, otherwise ivithin the scope of the exemption, if the words of any Act granting the exemption and particular circumstances enabled this to be done. But the case is unlikely to arise. (ff) Prom the nature of .the exceptions in the Act it is very unlikely that any case involving any question or ques®^;ilfegdfvj6)5)8 IW/©in9lSeifl^aw wiU arise under it. k2 244 GUEPRATTE v. YOUNG. In the Cotjbt of the Vioe-Chanoelloe oe ENaLAjro. lOih February, 1851. [Reported 4 De G. & S. 217.] Capacity to The principal question in this case was as to the validity of a famUy contract de- arrangement entered into on the 28th of Novemher, 1844, under the pends "poi following circumstances : — domicU of the ^^ *^® ^^^^ ^^^^ ^^- Barretto married Miss Emily Potts. Both were parties ; but, resident in England, and were there domiciled. The marriage took unless a con- place in England. trary inten- Before and in' consideration of the marriage, a deed of settlement tiiTlaw^orthe "^^^ executed in England, dated the 20th September, 1819, whereby place where it certain moveable property was settled as therein mentioned. And the is made regu- settlement gave a power of appointment to the survivor of the marriage lates the form in favour of one or more of the children or issue. of the con- j^ ^324 Barretto died, leaving his widow, one son, and two daughters married '^^ surviving. woman, In 1828 the widow married Mr. Young. domiciled in In July, 1844, the eldest daughter, being then a domiciled Enghsh- Franoe, woman, married (in France) M. Guepratte, a domiciled Erenchman. entered into Upon this marriaare a contract of marriage was entered into which a contract m ^ -• t • j • -i7i_ England re- was made and Signed in Erance . ^ • . 1. spectingher On the 28th November, 1844, an agreement was entered into by a reversionary written memorandum purporting to be made between J. A. Barretto interest in ^^he son, a domiciled Englishman), of the first part, M. and Madame moveables Guepratte (domiciled in Erance, but then resident in England), of the settied i^er second part, and L. E. Barretto (the other daughter, a minor, domiciled an English in England), of the third part. trust. The By this agreement the parties thereto mutually agreed (so that any contract was ^^^g qj, ^^q of them might be entitled to maintain an action thereon if Bubstantially ■Jjj.qJ^qjj^ ^q divide equally among them, on the death of their mother, of France although beyond the power of the married woman by English law ; but was not entered into in the manner prescribed by the law of Prance. JTeld, that the French law gave capacity to make the contract ; but, that the English law regulated the form of it, it being made in England, and that therefore the contract was vaUd, and it was declared accordingly. Digitized by Microsoft® GUEPEATTE V. YOUNG. 245 the property comprised in the above-mentioned settlement of the 20th .1851. September, 1819. This agreement was signed in London by J; A. Barretto and the Gueprattes, about the time it bore date, and by L. E. Barretto, after she had attained the age of twenty-one ; but there was only one part of it, and, in this respect, it did not conform to the law of Prance, which requires, in such a case, that there should be as many original instruments as there are distinct parties (a). In May, 1848, Mrs. Young appointed the whole fund to J. A. Barretto. This suit was instituted by the Gueprattes to give effect to the agree- ment of November, 1844. There had been references to the Master to inquire and state what were the rights of the pai'ties under the contract of July, 1844, accord- ing to the French law. The case now came on upon exceptions to the Master's report, and on further directions. The Vice-chancellor, Knight-Bruce, after examining the evidence of the French advocates, came to the conclusion that the agreement of November, 1844, was entered into by Madame Gu^pratte, was within her power and capacity by the law of France and the contract of July, 1844, and continued (jb) : — "There, then, are aU the conditions that the French law requires. Page 230. inasmuch as the agreement of November was planned in England, composed and written in England in the English form and language, and signed in England by every one of the parties to it (two, at least, of them being English), was, from its nature, necessarily intended to be performed in England, as relating wholly to English funds, vested in English trustees, under the English marriage settlement of an Englishman and Englishwoman. Lo. effect, the French law (the law of the country of the marriage contract of M. and Madame Gu6pratte and of their domicil) was competent to give, and did here give, the capacity, but permitted to the English law the form, which form was pursued and abided by Viewing this question as raised in England, where the disputed subjects of the suit are, directly for the purpose of affecting the distribution of those subjects, and assuming that the transaction of November was of a nature either expressly authorized by the contract of July, 1844, or allowed by the law of France, I do not see how Mr. Barretto's case as to the transaction can be more than this : A foreigner resident but not domiciled in England makes in England a contract with a native and domiciled Englishman concerning certain goods, also here. The contract is oral merely, but such and so made that, were both the contractors English, it would clearly bind them both. Afterwards, one of the two, repenting of the bargain, refuses to abide by it, and breaks the contract. Being there- upon sued by the other in an English Court, the defendant pleads and offers to prove in his defence that, according to the laws and customs (a) Code CivU, art. 1325. (b) His honour assumed, for the purposes of the judgment, that by English law alone the Gueprattes had not, jointly or severally, power to affect any part of the capital under the settlement of 1819 in the event of M. Guepratte (the husband) Burriving Mrs. Young : p. 229 of the report. Digitized by Microsoft® 246 CONTRACT. 1851. of tlie foreigner's country, there cannot be an efEectual and valid con- tract concerning such goods, orally, or -without certain ceremonies, ■which in the particular case were omitted, though of a simple and easy nature. " Such a defence, every one knows, must fail. Every one knows that such a case would be decided here with reference to the English law only. Nor (assuming, I say, the agreement of November to have been authorized expressly by the contract of July, 1844, or allowed by the law of Prance) have I the least doubt that if Mrs. Young were no more, and the question was raised directly in this Court between all proper parties, whether the agreement should be enforced as between the persons who signed it and their representatives, this Gourt would so enforce it. "For the purposes of that litigation, the state of the English law with respect to the rights and powers of married women and their husbands on the subject of unsettled personalty belonging to the former by way of reversionary interest would be immaterial as concerning M. and Madame Guepratte ; and so would the 1325th Article of the Civil Code. For (their domicil being French, and' the place of the agree- ment of November, 1844, being, as well as some of the parties to it, English) the only questions touching that agreement, as concerning the French parties, would be these : First, were they by any express contract which (according to the law of France, or according to the law of England) was efEectual, and bound them, enabled to enter into the agreement ? and, secondly, if not, whether by the law of France they were enabled to enter into it ? These two questions, or the latter of them, I have already, so far as my opinion extends, answered." His Honour then, after referring to the opinions of foreign writers as decisive of the views he took, stated the terms of the order, whereby the Master's report was confirmed ; and it was declared that, according to the French law, the plaintiffs, M. and Madame Guepratte, had, at the time of executing the indenture of the 28th November, 1844, power thereby effectually to bind the interest of each of them under the indenture of the 20th September, 1819, in the manner expressed in the indenture of the 28th November, 1844 ; and that by the French law such last-mentioned indenture was binding on them and each of them. Digitized by Microsoft® LLOYD V. GUIBEET. 247 LLOYD V. GUIBERT AND OTHERS. In the Exoheqtjbe Chamber. 27th November, 1865. [Eeported L. E. 1 Q. B. 115 ; 6 B. &S. 100, 120.] Ebeoe. from the judgment of the Court of Queen's Bench in favour of The rights of the defendants, on demurrers, to a plea and replication. the parties to Eeclaration that the defendants were the owners of the ship OHvier, ?■ contract are of which J. F. Lemaire was duly appointed hy the defendants master ; ^^ that law and the plaintifi, while the ship was in the West Indies, shipped on -jvrhioh they board a cargo of goods, of the value of 3,000^., to be carried thence intended, and delivered to the plaintifi at Liverpool, the dangers of the seas and which wiU navigation only excepted, for certain freight to be by the plaintiff paid often be that to the defendants. That the ship on her voyage sustained damage t^gy ^^„ i^g from stormy weather, and was obliged to put into Payal for repairs, justly pre- That the ship was repaired, and that the master there borrowed, to pay sumed to" for the repairs, &c., a sum amounting, with interest, to 2,400Z., under J"^"*"® ^°y-T^^ circumstances justifying such borrowing and hypothecation, upon three -yy-here the' bottomry bonds upon the ship, freight, and cargo, conditioned for the contract of payment of principal and interest ten days after due completion of the affreightment voyage. That the defendants had notice of th« premises, and in con- does not sideration thereof promised the plaintiff to indemnify him, as owner P';°'"'^^ other- of the cargo, against any consequent loss. That the ship afterwards between the sailed, and arrived safely with the cargo at Liverpool. That the parties to the money not being repaid, the bonds were put in suit in the Court of contract, in Admiralty, and that the plaintiff, in order to save the cargo from being ^^spect of sea sold by the Court, was compelled, to become a party to the suit, and jts'^radrnts was compelled to pay 1,500/., being less than the value of the cargo, the law of the and over and above the freight payable in respect thereof, together country to with 200Z. costs. That although aU things, &c., have happened to which the entitle the plaintiff, as owner of the cargo, to be indemnified, yet the ship belongs defendants have not repaid the said sums, &c. ^ ^^ ^j^g y^^ First plea : That the cargo was loaded under a charter-party made to which between the plaintiff and the master at the Island of St. Thomas, in they have the "West Indies, by which it was provided that the master should siihmitted freight the ship, called in it a French ship, then in St. Thomas's, for Thrplalntiff a voyage from St. Marc, in Hayti, to Havre, in France, or London, or a BrSish sub- Liverpool, at the plaintiff's option. That the ship was a French ship, ject, chartered a French ship, belonging to French owners, at a Danish West India port for a voyage from St. Marc, in Hayti, to HaTre, London, or Liverpool, at charterer's option. The charter-party was entered into by the master in pursuance of his general authority as master. The plaintiff shipped a cargo at St. Marc for Liver- pool, with which the vessel sailed. On her voyage she sustained sea damage, and put into Fayal, a Portuguese port, for repairs. There the master properly borrowed money on bottomry of ship, freight, and cargo, and repaired the ship, and she completed her voyage to Liverpool. The bond- holder proceeded in the Court of Admiralty against the ship, freight, and cargo. The ship and freight were insufficient to satisfy the bond ; and the deficiency with costs fell on the plaintiff as owner of the cargo, for which he sought indemnity against the defendants, the French shipowners. The defendants gave up the ship and freight to the shipper, so that, by the alleged law of France, the abandonment absolved them from all further liability on the contract of the master. Meld, that the parties must be taken to have submitted themselves, when making the charter- party, to the French law as the law of the ship, and therefore that, assuming the law of France to be as alleged, the plaintiff's claim was absolutely barred. Digitized by Microsoft® 248 CONTRACT. 1865. and the defendants, the owners, French suhjects ; and according to the laws of France, it is lawful for the owners of a French ship, in aU cases, to free themselves from the acts and engagements of the master, in all that concerns the ship and cargo, by the abandonment of the ship and freight. That the bottomry bonds were executed by the master without any express authority from the defendants ; and they have refused to ratify, and never did ratify, the act of the master; and that, but for the bottomry bonds and the suit, the goods woidd have been duly delivered to the plaintiff at Liverpool. That, on the suit in the Court of Admiralty, the ship was sold, and the proceeds, together with the freight, applied towards payment of the bonds. That the defendants did not appear in the suit, but in order to obtain the protection afforded to shipowners by the law of France, they abandoned the ship and freight. That by such abandonment the defendants became released, according to the laws of France, from aU liability to the plaintiff, in respect of the cargo not being delivered to him at Liverpool, and the acts of the master in executing the bonds, and the consequences thereof ; and the defendants, except as aforesaid, did not promise to the plaintiff to indemnify him against any loss as owner of the cargo. Demurrer and joinder. Second replication to the first plea : That after the making of the charter-party, and before the maMng of the bottomry bonds, and of the promise of indemnity in the declaration mentioned, the plaintiff exercised his option, and fixed Liverpool as the port of discharge. That the law in force in St. Thomas's, where the charter-party was made, and in Hayti, where the cargo was shipped, and in Fayal, where the bottomry bonds were made and the promise of indemnity given, is not the law of France, but is the general maritime law, and similar to the law of England in respect of Sie premises. That no part of the voy- age, and no part of the charter-party, or of the said promise, was to be or was performed in France, or in any other part of the world in which the laws of France are in force. Demurrer and joinder. The Court of Queen's Bench gave judgment for the defendants, on the ground that the power of the master to bind his owners personally is but a branch of the general law of agency, and that the flag of the ship was notice to the plaintiff that the master's authority to bind his owners was subject to the limitation stated in the plea to be imposed by the law of France (a). The case was argued after Trinity Term by Orompton Hutton, for the plaintiff; J. H. Hodgson, for the defendants (b). Cur adv. vult. Nov. 27.— The judgment of the Court (Erie, 0. J., Pollock, C. B., Martin, B., Willes and Keating, JJ., and Pigott, B.), was deH- vered by Willes, J. The facts disclosed by the record are as follows : — The plaintiff below, a British subject, at St. Thomas, a Danish West India Island, chartered the ship Olivier, belonging to the defendants, who (a) See the report of the case in the Court below, 33 L. J. Q. B. 241 ; 6 B. & S. (*) The arguments will be found in 6 B. & S. 120—127. Digitized by Microsoft® LLOXD y. GUIBEET. are Frenchmen, for a voyage from St. Marc, in Hayti, to Havre, 1865. London, or Liverpool, at tlie charterer's option. The plaintiff must h^ve known that the ship was French. The charter-party was entered into by the master in pursuance of his general authority as master, and not under any special authority from the owner. The plaintiff shipped a cargo at St. Marc for Liverpool, with which the vessel sailed. On her voyage she sustained damage from a storm, which compelled her to put into Fayal, a Portuguese port, for repair. There the master properly borrowed money upon bottomry of the ship, freight, and cargo, and repaired the ship, which proceeded with the cargo, and arrived in safety at Liverpool. The bondholder proceeded in the Court of Admi- ralty against the ship, freight, and cargo. The ship and freight were insufficient to satisfy the bond : the deficiency and costs fell upon the plaintiff as owner of the cargo, and in respect thereof he seeks to be indemnified by the defendants as shipowners. The defendants abandoned the ship and freight, and it must be taken as a fact (because it is alleged and not denied) that, by the law of France, they abandoned in time, and in such manner, and under such circimistances as are required by the French law, and that accord- ing to such law, abandonment, by which we understand a giving up of the ship and freight to the shippers (see Bahin v. Oxley (c)), absolved them from liability. This law, if applicable, is one which furnishes an absolute bar to the plaintiff's claim by way of satisfaction or dis- charge, and affected the validity of the claim, and not merely the mode of proceeding to enforce it. Whether the French law permits aban- donment under such exceptional circumstances is a question of fact not before us, and which for the present purpose we must assume to be answered in the affirmative (see, however, Devilleneuve et Masse, Dic- tionnaire du Oontentieux Commercial, titre Ai-mateur, ss. 23, 25). By the English law, a shipowner, under such circumstances, is liable personally, and not merely to the value of the ship and freight. And it is alleged, and not denied, that the Danish, Portuguese, and Haytian laws agree in this respect with our own. The law of Hayti was not, however, relied upon in argument. TJpon these facts, it was insisted for the plaintiff that the decision ought to proceed upon either what was called the " general maritime law," as regulating all maritime transactions between persons of different nationahties at sea; the Danish law, as that of the place where the contract was made ("lex loci contractus") ; the Portuguese law, because the bottomry bond, which in one sense caused the question to arise, was given in a Portuguese port, and the riile that the place governs the act (" locus regit actum ") was supposed, there- fore, to furnish a solution ; or the English law, as being that of the place of the final act of performance by the delivery of the cargo (" quasi lex loci solutionis "), in either of which alternatives the liability of the defendants was established. And it was argued, that, the charter- party having been entered into bona fide in the ordinary course of business by the master, within the scope of his ostensible authority to contract for the employment of the vessel, which the owner, by appointing a master and sending him abroad in command, allows him to assume, the right of the charterer could no more be narrowed by a provision of foreign law unknown to him than by secret instructions (c) 15 C. B. N. S, 646; 37 L. J. C. P. 115. Digitized by Microsoft® 249 250 CONTRACT. 1865. from the owners, -which, would clearly be inoperative — a proposition which needs no authority in oiu" law ; and for which French authorities ■will he found in Paillict's edition of the Code de Commerce, art. 216, in the note. For the defendants it was answered, that by the French law they are absolved : and that that law, as being that of the ship, governs the case, either because the character of the transaction itsefi, showing that the plaintiff impliedly submitted his goods to the operation of the law of the ship, or because the master, who entered into the contract (although his doing so was within the scope of the authority which he was allowed by the owners to assume), was disabled by the French law from binding his owners, otherwise than with the exception expressed or implied of exemption from liability by abandonment, and that of such disability, or lack of authority, his flag was sufficient notice. Upon this latter ground, the Court of Queen's Bench gave judgment for the defendants, not expressing any opinion upon the former ; whereupon the plaintiff brought error, and the case was well argued at the sittings after Trinity Term last, before Erie, C. J. ; PoUock, C. B. ; Martin, B. ; Keating, J. ; Pigott, B. ; and myself, when we took time to consider. In determining a question between contracting parties, recourse must first be had to the language of the contract itself, and (force, fraud, and mistake apart) the true construction of the language of the contract (lex contractus) is the touchstone of legal right. It often happens, however, that disputes arise, not as to the terms of the contract, but as to their application to unforeseen questions, which arise incidentally or accidentally in the course of performance, and which the contract does not answer in terms, yet which are within the sphere of the relation established thereby, and cannot be decided as between strangers. In such cases it is necessary to consider by what general law the parties intended that the transaction should be governed, or rather to what general law it is just to presume that they have submitted them- selves in the matter. A familiar illustration of this will be found in the rule, that the lawful usages of a market are as much part of a contract entered iato there, which does not expressly exclude them, as if they were set down at large. The binding force of such usages does not depend so much upon the knowledge of the parties as upon implied acquiescence: for whoso goes to Eome must do as those at Home do. So, in the absence of express provision or special usage, the general law itself, in many points of view only a more extended usage, sup- plies the gaps which the parties have left, and in doing so sometimes modifies the construction of general words in the contract. For in- stance, a common carrier, while on the one hand he is bound by strin- gent rules for the protection of his customers, on the other is allowed certain exemptions from liability, even upon an express contract, if it do not exclude such exemptions : thus, by the common law of Eng- land a person who expressly contracts absolutely to do a thing, not naturally impossible, is not excused for non-performance because of being prevented by the act of God, or the king's enemies {Paradine v. Jane [d)); and yet, in consideration of the risks to which common car- (rf) Aleyn, 26. Digitized by Microsoft® LLOYD V. GUIBEET. 251 riers are exposed, such prevention is, in their case, an implied excep- 1865. tion. And in the case of ordinary bailees intrusted with the custody of goods, whether by express contract or not, the exceptions of over- whelming force (vis major), and accident without fault (casus for- tuitus), are implied. In the case of carriers by sea, these latter exceptions (vis major and casus fortuitus) are now, as to British ships, stipulated for by the common exception in the charter-party, or bill of lading ; whilst in foreign contracts of affreightment, even when made in British ports, such express stipulation is sometimes omitted ; as, for instance, in the Spanish charter in Blasco v. Fletcher (e) ; because by the law of many countries such an exception is implied (see Oasaregis Disc, xxiii. ; Codigo de Comercio, Art. 935 ; Allgemeines Deutsches Handels- gesetzbuch. Art. 703). So that, in the case just referred to, if the lex loci contractus were to prevail, the owner of a Spanish vessel, chartered in Liverpool for the Havana, might lose the protection which the owners of an English vessel would of course have stipulated for. And this diversity (or conflict) upon a point so important shows that the present and like questions affect not only contracts entered into by masters of ships, the law of whose country distinguishes between the obligations of a contract by the master as such, and that of the owner himself, or his broker, or of the master acting with a plenary autho- rity, but touch all contracts of affreightment entered into in respect of any vessel in a port foreign as to her, whether the master happens to be an owner or not. Hitherto we have viewed the question generally ; but in order to its satisfactory solution, as applied to the present case, we must deal with the operative facts, that the contract of affreightment was made by persons of different nationalities in a place where both of them were foreigners, to be performed, partly there by breaking ground in order to start for the port of loading, a place where both parties would also have been foreigners ; partly at the latter port by taking the cargo on board ; and partly on board a ship at sea, subject there to the laws of her own country, and never out of its jurisdiction as to acts done by those on board ; and partly by final delivery in the port of discharge ; that the principal subject-matter of the contract was the employment of a foreign ship for a voyage across the high seas, and that the ques- tion in dispute arose in consequence of sea damage to the ship, and its ordinary result. In the diversity or conflict of laws, which ought to prevail, is a question that has called forth an amazing amount of ingenuity, and many differences of opinion. It is, however, generally agreed that the law of the place where the contract is made is prima facie that which the parties intended, or ought to be presumed to have adopted, as the footing upon which they dealt, and that such law ought therefore to prevail in the absence of circumstances indicating a different intention ; as for instance, that the contract is to be entirely performed elsewhere, or that the subject-matter is immoveable property situate in another country, and so forth ; which latter, though sometimes treated as distinct rules, appear more properly to be classed as exceptions to the more general one, by reason of the circumstances indicating an inten- tion to be bound by a law different from that of the place where the («) U C. B. N. S. 147 ; 32 L. J. C. P. 284. Digitized by Microsoft® 252 CONTRACT. 1865. contract is made ; wMcli intention is inferred from tlie subject-matter and from the surrounding circumstances, so far as they are relevant to construe and determine the character of the contract. The present question does not appear to have ever been decided in this country, and in America it has received opposite decisions equally entitled to respect (/). We must, therefore, deal with it as a new question, and endeavour to be guided in its solution by k steady appli- cation of the general principle already stated, viz., that the rights of the parties to a contract are to be, judged of by that law by which they intended, or rather by which they may justly be presumed to have bound themselves. We must apply this test successively to the various laws which have been suggested as applicable ; and, first, to the alleged general mari- time law. We can understand this term in the sense of the general maritime law as administered in the English Courts, that being in truth nothing more than English law, though dealt out in somewhat different measures in the Common Law and Chancery Courts, and in the peculiar jurisdiction of the Admiralty ; but as to any other general maritime law by which we ought to adjudicate upon the rights of a subject of a country which, by the hypothesis, does not recognise its alleged rule, we were not informed what may be its authority, its limits, or its sanction. Passing over the common ground of ethics, and the elementary ideas of natural law (jus gentium), such as the rights of prior occupancy and self-preservation, the privileges and exemption of necessity, the com- mon duties of humanity, of more or less perfect obligation, the idea of property, including the obligation of contracts, and those obligations, for the most part conventional, upon which is based the modem system of international law (jus inter gentes), inasmuch as these supply no precise rule for the matter in hand — it would be difficult to maintain that there is, as to such questions as the present, depending in a great measure upon national policy and economy, any general, in the sense of universal, law, binding at sea, any more than upon land, nations which either have not assented or have withdrawn their assent thereto. Moreover, we are not satisfied that there is any such general con- currence of mankind, that shipowners should be absolutely answerable personally for the acts of the master. [His lordship gave illustrations from French and Spanish authorities and continued : — ] This is sufficient to show that there is no general uniform rule in maritime law upon the subject ; indeed, looking at home, there seems little, if any, difference in principle between the French law under con- sideration, and our own statutory provisions for limited liability, in respect of obligations by reason of collision, which latter have now by express enactment been extended to collision between British and foreign vessels (25 & 26 Vict. c. 63, s. 54 ; The AmaUa{g)). In truth, any general, much more any universal, maritime law, bind- ing upon all nations using the highway of the sea in time of peace, except when limited as administered in some Court, is easier longed for than found. Accordingly, we obsei-ve that both the very learned judge (f) Bee Arroyo v. Currell, 1 Louis. Eep. 628; and Fope v. Nickerson, 3 Story's ^^j ?Moo. P. C. N. S. 471 ; 32 L. J. P. M. & A. 191. Digitized by Microsoft® LLOYD V. GUIBEET. 253 of the Coui-t of Admiralty, and the Judicial Committee of the Privy 1865. Council, in deciding, in the case of The Hamburg {Duraniy v. Hart) (h), — — that the validity of a bottomry bond given in a foreign port was to be determined by the general maritime law, and not by the law of the ship or the port where the bond was given, added to the expression "the general maritime law" this qualification, viz., "as administered in England." That ease was cited as an authority, and at first sight it appeared to be one for applying English law to the present case, but upon consideration it appears altogether distinguishable. The alleged agency of the master in that case was founded upon necessity alone, and it was incumbent upon the bondholder to establish such necessity by evidence, and in order to do that he was bound (according to the rule prevailing since the case of The Bonaparte (i) ) to show a communication with the owner of the cargo, that being, as the Court held, reasonably practicable. So that the lex fori was undoubtedly supreme upon the question which then arose, it being one of evidence and procedure. Had the decision been intended to go further, the Judicial Committee of the Privy Council would probably have con- sidered and compared the case of Cammell v. Sewell (Jc), and pointed out the distinction in this respect between a hypothecation in case of necessity, and a sale in case of necessity, which, according to the deci- sion of the majority of the Court in Cammell v. Sewell {k), against the opinion of Byles, J., depends for its validity upon the law of the place where the sale was made, and not the general maritime law as administered in England ; upon which, however, we ofPer no opinion. In one other point of view the general maritime law as administered in England, or (to avoid periphrasis) the law of England, viz., as the law of the contemplated place of final performance or port of discharge, remains to be considered. It is manifest, however, that what was to be done at Liverpool (besides that it might, at the charterer's option, have been done at Havre) was but a small portion of the entire service to be rendered, and that the character of the contract cannot be deter- mined thereby. It is true that, as to the mode of delivery, the usages of Liverpool would govern, as those of Algiers did in Rohertson v. Jackson (J), and as, in the mode of taking on board the cargo, the usage of the port of loading would be regarded (see Hudson v. Clementson (m), and the custom set out in the pleadings in Gattorno v. Adams {n), which custom was proved at the trial at Guildhall sittings after Michaelmas Term, 1862, and made an end of the ease). And in this point of view it seems impossible to exclude the law of England, or even that of Hayti, from relevancy in respect of the manner of perform- ing that portion of the service contracted for, which was to be rendered in their respective territories ; because the ship must needs, for the time being, conform to the usages of the port where she is. And for a like reason, the adjustment of a general average at the port of dis- charge, according to the law prevailing there, is binding upon the shipowner and the merchant, who must be taken to have assented to (h) 2 Moo. P. C. N. S. 289 ; 33 L. J. P. M. & A. 116. (i) 8 Moo. P. 0. 459. h) 5 H. & N. 728 ; 29 L. J. Ex. 350 ; above, p. 157. m 2 0. B. 412. \m) 18 C. B. 213 ; 25 L. J. C. P. 234. (n\ 12 C. B. N. S. 560. Digitized by Microsoft® 254 CONTRACT. 1865. adjustment being made at tlie usual and proper place, and, as a consequence, according to the law of that place : Simonds t. White (o). It is unnecessary, however, to discuss this point further, because we have been anticipated, and the question set at rest, in an instruc- tive judgment of the Judicial Committee, delivered by the Lord Justice Turner, since the argument of the present case, in that of The Penin- sular and Oriental Company v. Shand{p), where a passenger in an English vessel from Southampton to Mauritius, where French law prevails, sued the shipowners for the loss of his luggage upon an alleged liability by French law, from which liability the shipowner was exempt by the English law ; and the passenger obtained judgment in his favour in the Mauritius Court, which judgment was reversed upon appeal by the Judicial Committee, their Lordships holding that the law of England governed the case. Next, as to the law of Portugal : the only semblance of authority for resorting to that law, as being the law of the place where the bottomry bond was given, is the case already referred to of Cammell v. Sewell{q) ; and we consider that the judgment in that case, if applic- able at all, as to which we say nothing, could only aflFeot the validity of the bottomry, and not the duties imposed upon the shipowner towards the merchant by the fact of the bottomry, which duties must be traced to the contract of affreightment and the bailment founded thereupon. The law of Hayti was not mentioned nor relied upon in argument ; and there remain only to be considered the laws of Denmark and of France, between which we must choose. In favour of the law of Denmark, there is the cardinal fact that the contract was made within Danish teiTitory ; and, further, that the first act done towards performance was weighing anchor in a Danish port. For the law of France, on the other hand, many practical considera- tions may be suggested ; and, first, the subject-matter of the contract, the employment of a sea- going vessel for a service, the greater and more onerous part of which was to be rendered upon the high seas, where, for all purposes of jurisdiction, criminal or civil, withrespect to aU persons, thiags, and transactions, on board, she was, as it were, a floating island, over which France had as absolute, and ifor all pur- poses of peace as exclusive, a sovereignty as over her dominions by land, and which, even whilst in a foreign port— according to notions of jurisdiction adopted by this country (18 & 19 Vict. c. 91, s. 21 ; 24 & 25 Vict. c. 94, s. 9), and carried to a greater length abroad (Ortolan, Dipiomatie de la Mer, c. xiii., the work of a French naval officer, but of which a jurist might well be proud)— was never completely removed from French jurisdiction. Further, it must be remembered that, although bUIs of lading are ordinarily given at the port of loading, charter-parties are often made elsewhere ; and it seems unhkely to have been within the contem- plation of the parties that their rights or liabilities in respect of the identical voyage should vary, first, according as the vessel was taken up at the port of loading or not ; and secondly, if she were taken up elsewhere, according to the law of the place where the charter-party io\ 2 B. & 0. 805. f «1 Privy Council, 20th July, 1865 ; 11 Jurist, N. S. 771 ; 3 Moo. P. C. N. S. 272. {q) 5 H. & N. 728 ; 29 L. J. Ex. 350 ; above, p. 157. Digitized by Microsoft® LLOYD V. GUIBERT. 255 was made, or even ratified. If a Frenchman had chartered The Olivier 1865. upon the same terms as the plaintiff did, it would seem strange if he could appeal to Danish law against his own countryman because of the charter-party heing made or ratified in a Danish port, though for a service to be rendered elsewhere, by a transient visitor, for the most part within French jurisdiction. Moreover, there are many ports which have few or no sea-going vessels of their own, and no fixed maritime jurisprudence, and which yet supply valuable cargoes to the ships of other countries. Take Alexandria, for instance, with her mixed population and her maritime commerce almost in the hands of strangers. Is every vessel that leaves Alexandria with grain under a charter-party or bill of lading made there, and every passenger vessel leaving Alexandria or Suez, be she English, Austrian, or French, subject to Egyptian law ? As to not a f ew hali-savage places in Africa and Asia, with neither sea-going ships nor maritime laws, a similar question — ^What is the law in such cases, or is there none except that of the Court within whose jurisdiction the litigation first arises ? Again, it may be asked, does a ship which visits many ports in one voyage, whilst she undoubtedly retains the criminal law of her own country, put on a new sort of civil liability, at each new country she visits, in respect of cargo there taken on board ? An English steamer, for instance, starts from Southampton for Gibraltar, calling at Vigo, Lisbon, and Cadiz. A Portuguese going in her from Southampton to Vigo woidd naturally expect to sail subject in all respects to English law, that being the law of the place and the ship. But if the locality of the contract is to govern throughout, an Englishman going from Vigo to Lisbon on the same voj'age would be under English law as to crimes and all obligations not connected with the contract of carriage, but under Spanish law as to the contract of carriage ; and a Spaniard going from Lisbon to Cadiz during the same voyage would enjoy Portuguese law as to his carriage, and be subject to English law in other respects. The eases which we have thus put are not extreme nor exceptional ; on the contrary, they are such as would ordinarily give rise to the question. Which law is to prevail ? The inconvenience and even ab- surdities which would follow from adopting the law of the place of contract in preference to that of the vessel, are strong to prove that the latter ought to be resorted to. No inconvenience comparable to that which would attend an oppo- site decision has been suggested. The ignorance of French law on the part of the charterer is no more than many Englishmen contracting in England with respect to English matters might plead as to their own law, in case of an unforeseen accident. Nor can we allow any weight to the argument that this is an impo- litic law, as tending to interfere with commerce, especially in making merchants cautious how they engage foreign vessels. That is a matter for the consideration of foreigners themselves, and nothing short of a violation of natural justice or of our own laws could justify us in holding a foreign law void because of being impolitic. No doubt the French law was intended to encourage shipping by limiting the liability of shipowners, and in this respect it goes somewhat further than our own, but whether wisely or not is matter within the compe- Digitized by Microsoft® 256 CONTRACT. 1865. tence and for the consideration ol the French legislature, and upon which, sitting here, we ought to pronounce no opinion. Exceptional cases, should they arise, must be dealt with upon their own merits. In laying down a rule of law, regard ought rather to be had to the majority of cases upon which doubt and litigation are more likely to arise, and the general rule that, where the contract of affreight- ment does not provide otherwise, there, as between the parties to such contract, in respect of sea damage and its incidents, the law of the ship should govern, seems to be not only in accordance with the probable intention of the parties, but also most consistent and intel- ligible, and therefore most convenient to those engaged in commerce. In order to preclude all misapprehension, it may be well to add that a party who relies upon a right or an exemption by foreign law is bound to bring such law properly before the Court, and to establish it in proof. Otherwise, the Court, not being entitled to notice such law without judicial proof, must proceed according to the law of England (see Brown v. Gracey, note to Lacon v. Higgins) (r). For these reasons, we have arrived at the same conclusion as the Court of Queen's Bench ; and without examining the grounds upon which that Court proceeded, we are of opinion that the judgment was right, and ought to be affirmed. Judgment affirmed. Capacity to Capacity to Contract («). — It has been doubted whether the per- sonal competency or incompetency of an individual to contract depends on the law of the place where the contract is made, or on the law of the place where the contracting party is domiciled. Perhaps in this country the question is not finally settled, though the preponderance of opinion here, as well as abroad, seems to be in Lex domicilii, favour of the law of the domioil {Cooper v. Cooper, 1888, 13 App. Cas. 88, 99, 100, 105, 108 ; Giiepratte v. Young, above ; Cosio and Pineyro v. Bernaks, 1824, Ey. & M. 102; 1 G. & P. 266; Sotto- mayor v. Be Barros, above, p. 81) ; and there is an express Eng- lish decision to that effect {Re Cooke's Trusts, 1887, 3 T. L. E. 558 ; 66 L. J. Ch. 637; 56 L. T. 737; W. N. 1887, p. 89). It may be that all cases are not to be governed by one and the same rule. But when the contract is made in the place where the person whose capacity in question is domiciled, there can be no (r) D. & E. N. P. 41, n. (s) As to this, see further, p. 67, supra; and see Male v. Soberts there cited and considered. As to the effect of the rules as to procedure on the obligation and enforcement of contracts, see J)e la Vega t. Vianna, and notes, belo-w. As to bills of exchange and negotiable instruments, see pp. 280 et seq., infra. Digitized by Microsoft® 257 GUEPEATTE V. YOUNG. room for dispute. He cannot confer capacity, on himself by con- templating a different country as the place where the contract is to be fulfilled or performed, or by contracting in view of an alteration of personal status which would bring with it a change of domicil. And the intention of the parties has nothing to do with the ques- tion of capacity. For the argument assumes a binding contract, and if one of the parties was under an incapacity the whole foun- dation of the argument fails {Cooper v. Cooper, supra). So, if there was no capacity to contract by the law. of the domicil of one of the parties at the time of entering into the alleged cout tract, it makes no difference that the contract was valid by the law of the place where it was made, and that the party whose capacity is in question intended immediately to acquire a domicil in that place {Be Cooke's Trusts, supra). And if one, being by the law of his domicil at the time without capacity to contract, jenters, in Epgland, into an executory contract, the contract, as regards the capacity of such a party, has, probably, only that effect in- England (if any) that it has by the law of the domidl. ,,.-... But if under a contract a title to a moveable and the property Lex situs. therein has been duly acquired and transferred by the lex situs, the title will, probably, be held good in England, although a party to the contract was under an incapacity to contract by the law of his domicil (pp. 67, 68, supra; Cammell v, Seioell, and notes, above) {t). Formalities of Contract. — PrimS, facie and as a general rule the FormaKties. formalities of a contract relating to moveables required by the law of the place where it is made are necessary and sufficient for its external and formal validity in England. But if a contract is in- tended by the parties thereto to be an English contract and trans- action, or a contract and transaction of any other country, it will be a good contract and enforceable in England if it complies with the formalities required, if so intended to be an English contract, ]by.the law of England, or, if so intended to be a contract of some other country, with the formalities required by the law of such (0 As to personal capacity to convey an immoveable, see p. 147, supra. Digitized by Microsoft® 258 CONTBACT. country {Qiiipratte v. Young, above ; Ahes y. Hodgson, 1797, 7 T. E. 241 ; Leroux v. Broim, 1852, 22 L. J. 0. P. 1 ; Van Gmtten V. Bighy, 1862, 32 L. J. Oh. 179 ; Re Marseilles Extension Co., 1885, 30 Ch. D. 598 ; Story, § 260) [u). A married woman domiciled in France, and with capacity to make the contract by the law of that country, entered, in England, into a contract relating to moveables in England settled under an English trust. A formality required by the law of France had not been complied with. It was declared that the contract was enforce- able in England {Guipratte v. Young, above). A., resident in England, contracts at Calais with B., a British subject resident at Calais, to employ B. to collect eggs and poultry at Calais, and to send them over to England. The contract com- plies with the formal requirements of the French law, but not with those of the law of England. The contract is enforceable in Eng- land (see Leroux v. Broim, supra, at p. 4, judgment of Jervis, 0. J.). A contract made in France between a French subject there domiciled and an English lady there resident, in contemplation of (w) The qualification I have ventured to state to the general rule must be care- fully considered. For it is generally laid down in the books that the formalitiea required for a contract by the law of the place where it is made are necessary for its validity in England. It is submitted, however, that the statement of the law in the text is correct, and supported not only by the two oases last above cited, but by the reasoning of the judgments in Lloyd v. Guibert; Chartered Xank of India v. Netherlands Co. ; Jaeohs v. Credit Lytmnais ; Chamierlain v. Napier, and other cases cited pp. 268 et seq., infra. Story (p. 345) bases the rule as to formalities as laid down by him on that which he approves as to the essential validity of a contract, that is, that such validity is to be decided by the law of the place where the contract is made, unless the contract is to be performed in another country, when the law of the place of performance is to govern. It is submitted, therefore, that when he lays down an absolute rule as to formalities, it must be taken only as a general ride. And if his rule as to essentials requires restating to be true for English law, then the rule as to formalities, which, as he says, naturally flows from the other rule (§ 260), must be restated and qualified in like manner. In another place, indeed {§ 261), Story says, with regard to his rule as to formalities, that the true ground of the doctrine is, perhaps, that the law of the place of the contract acts upon it, independently of any volition of the parties, in virtue of the general sovereignty possessed by every nation to regulate all persons and property and transactions within its own territory. If this doctrine is correct, it is difficult to see why it should not equally apply to essential validity and to capacity. In Eichards v. Goold, 1827, 1 MoUoy, 22, Hart, L. C. of Ireland, is reported to have said that a contract void by operation of law in the place where it was made could not be set up in any other place. But this was only a dictum. See p. 260, infra, note ; and see contra to this dictum, James v. Catherwoodf-^v Abbott, C. J., cited in the next note. "The place where a contract is signed is not necessarily the place where the contract in contemplation of law is made, for it may not be the intention of the parties that it should go into effect there : " note to Story, p. 379, citing a number of American cases, q. v. Digitized by Microsoft® GUKPRATTE V. YOUNG. 259 marriage, and two English trustees, by wliioh stock in the English funds, which the said trustees have power under a settlement to pay to the lady as a marriage portion, is assigned to the trustees upon the usual trusts, and it is provided that any power of appoint- ment executed under the settlement made by the contract shall he deemed well and sufficiently executed, if executed either according to the law of the place where the appointor shall then be resident, or according to the English law in the case of persons domiciled in England. The contract is not executed in the manner required by the law of France. The contract is good and effectual in England {Van Ch-utten v. Bigby, 1862, 32 L. J. Ch. 179). " The settlement," said Eomilly, M. R., giving judgment on the above facts, " had no legal operation or effect in France ; the evi- dence in that respect is unquestionable. But that does not dispose of the case ; for in England the law is, that if a foreigner and an Englishwoman make an express contract previous to marriage, on the faith of which it is duly solemnized, that contract, if it relates to the regulation of property subject to the laws and within the jurisdiction of this country, this Court will apply the law to the circumstances the same as if the whole transaction was to be regu- lated by English law. The first consideration is whether the con- tract is French or English : whichever it may be, the law of that country must govern it. That does not mean the place merely where the contract was made. Englishmen, when abroad, may undoubtedly contract, and daily do enter into contracts which are to be governed by the laws of this country. So, also, foreigners may and do enter into contracts to be governed exclusively by the laws of their own country Assuming that the settlement is not and never could have been valid in France, still the provisions of the settlement itself, and the evidence, establish that the contract was, that this property should not be subject to the French law, but that it should be subject to EngKsh law, and governed accord- ingly" {Ih. at pp. 181, 182; see also Be Marseilles Extension Co., supra). A written contract made in a country by the law of which it is Stamps. void for want of a stamp is prima facie unenforceable in England (Cleggv. Levy, 1812, 3 Camp. 167, per Lord Ellenborough ; p. 257, stipra; see also Alves v. Hodgson, 1797, 7T. E. 241). But a con- DigitizsQ by Microsoft® 260 CONTKACT. tract is not rendered unenforceable in England, by reason only that wanting a stamp, or being insufficiently or improperly stamped, it would be inadmissible in evidence by the adjective law of the country in wHch it was made (see Bristow v. Secquevilk, 1850, 19 L. J. Ex. 289 ; De la Vega v. Vianna, and notes, below) (a;). ImmoveaUes. ^ contract made in England, but dealing with immoveables abroad, is enforceable in England if it complies with the formalities required by the law of the place where the immoveables are situate and is enforceable by that law, and it is immaterial that such a contract does not comply with the formalities required by the law of England {Adams v. CluUerbuck, 1883, 10 Q. B. D, 403, Cave, J.). A contract made abroad, but dealing with immoveables in Eng- land, is unenforceable in England if it does not comply with the formalities required by the law of England {lb.). A contract made in England according to the formalities re- quired by the law of England, but dealing with immoveables abroad, is not enforceable in England if it . does not comply with the formalities required by the law of the country where the immoveables are situated {Ih.) {y). [x) In Alves v. Sodgson, supra, it was said by Lord Kenyon that the plaintiff could not recover upon a promissory note made in Jamaica, and wanting the stamp imposed by the law of that island. The case is often cited as though it was prored that the Jamaican law rendered the note void in the circumstances. But this does not appear from the report. In Clegg v. Zevt/, supra, Lord Ellenborongh, on the assumption that the local law made the contract void without the stamp, gave his unhesitating opinion that, if so, it could not be enforced here, since, he said, a contract must be available by the law of the place where it was entered into* Ih James v. Catherwood, 1823, 3 JDowl. & By. 190, the Court of King's Bench admitted unstamped receipts given in France in order to prove the loan of money between English persons transiently resident in that country. The receipts were alleged to be invaM by the law of France, but the 'Court rejected the proof of the foreign law on the ground that they could nojb iake notice of the revenue laws of a foreign country: see p. 26C, infra. Abbott, C. J., however, said: — "It would be pro- ductive of prodigious inconvenience if, in every case in which an instrument was executed in a foreign coiuitry, we were to receive in evidence the law of that country, in order to ascertain whether the instrument was or was not valid." See also Wynne v. Jackson, 1826, 2 Euss. 352, per Leach, V.-C. ; but it does not appear whether the foreign law made the contract void or merely tiie instrument inadmis- sible. In Bristow v. SecqMville it was not necessary to decide the point, as not only was the question, in this respect, merely whether a certain payment had beSn made abroad but the foreign law was held insufficiently proved. But there is no doubt as to the correctness of the latter portion of the proposition above. («) See further, pp. 146, 147, supra. The first proposition in the text embodies the decision in Adams v. CluUerbuck. The decision is opposed to a dictum of Hart L. 0. of Ireland, in Richards v. Goold, 1827, Molloy, 22, on appeal from the EoUs' Court in that country. This case, however, which was not cited it.. Adams v. ' Clutterhuek went off on other grounds. The decision of Cave, J., on the other hand can also be supported, and was by iim in part'and in the alternative rested Digitized by Microsoft® LLOYD V. GUIBERT. 261 Evidence of Contract. — A contract is admissible in evidence in Evidence, an English Court, although it is not evidenced, in the manner required by the law of the place where it was made {Bristotv v. Secquemlle, 1850, 19 L. J. Ex. 289, 290, per Eolfe, B. ; De La Vega v. Vianna, and notes, below). A contract made abroad may be valid in England, but, although it is evidenced in the manner required by the law of the place where it was made, no action can be maintained upon it in an English Court unless it is evidenced in the manner required by the law of England {Leroux v. Brown, 1852, 22 L. J. C. P. 1 ; Be La Vegay. Vianna, and notes, below), Essential Validity of Contract. — A contract wherever made or to Essential be performed, and whatever the domicil or allegiance of any of the ^ {' parties to it, and whether it be good and lawful by the law of the Contract place where it was made, by the law of the place where it is to be ^^^^^ by law performed, by the law of the place governing its obligation, or by any other law or no, is deemed an " illegal contract " in the Courts of this country, and is subject to the law of England regarding an illegal contract if it or any part of it as to that part, as the case may be (s), is opposed to or contemplates a violation of the law of England, or is opposed to the poHoy of the law of England, or is considered by the law of England contra bancs mores (s) {Biggs v. Laurence, 1789, 3 T. E. 454 ; Clugas v. Fenaluna, 1791, 4 T. E. 466 ; Waymell v. Read, 1794, 5 T. E. 599 ; 8. P. Bernard v. Read, 1 Esp. 91 ; Lightfoot v. Tenant, 1796, 1 B. & P. 551 ; Sope v. Sope, 1856, 26 L. J. Ch. 417— Knight-Bruce and Turner, L. J J. ; Esposito V. Bowden, 1857, 27 L. J. Q. B. 17— Ex. Ch. ; Grell v. Lcru, 1864, 16 C. B. N. S. 73 ; 9 L. T. 721 ; Santos v. Illidge, 1859, 28 L. J. 0. P. 317 ; 1860, 29 L. J. C. P. 348— Ex. Ch. ; Rousillon V. Rousillon, 1880, 14 Oh. D. 351— Fry, J. ; Story, § 258, and cases there cited; lb. § 259 : see also pp. 167, 168, supra) (a). on otter reasoning. But the case was argued before the learned judge on the point with which we are here concerned, and he was clearly of opinion that the omitted requirement of the law of England being part of the lex looi aqd not of the lex fori, the omission was immaterial in a contract relating to foreign immoveables. (z) As to the effect, by the law of England, of illegality upon contracts in which it exists — the consideration — when the contract is divisible, — and so forth, reference must be made to the books on contract. ( D. 237. Digitized by Microsoft® TEERITOKIAL WATERS JURISDICTION ACT, 1878. 297 between tlie person maJdng the arrest and the alleged .criminal, to make the arrest lawful {lb. ; The Constitution, p. 404, infra). Criminal Jurisdiction generally. — Subiect to the exceptions men- p"™!?^'! . . . , . jurisdiction tioned below, a crime against the law of England committed by co- extensive any person within the realm of England is justiciable in England, ^ ^™ °'^' and an act done out of England is not justiciable as a crime in England {Att.-Gen. of Hong-Kong v. Kivok-a-Sing, 1873, L. R., 5 P. 0. 179, 199, 200 ; as to Territorial Waters of England, see pp. 294 et seq., supra). (1.) Personal exceptions. It is sometimes suggested that foreign Personal sovereigns, ambassadors, and ministers, and persons attached to j-preiffn their stiite, are exempt from the criminal jurisdiction of the English sovereigns, . , ambassadors, Courts, though they may have committed offences in England. &o. There is little, if any, direct authority as to this, for it is submitted that the case of Don Pataleon Sa, an account of which will be found in a note to the second volimie of Christian's Blackstone, cannot be of any great authority as a precedent, since, apart from other considerations, there is nothing to show that Sa was officially a member of any embassy (c). It would appear, however, on the principles upon which the law as to civil jurisdiction in this respect is supported, that such persons are exempt, at any rate if they be not by allegiance subjects of the Queen (d). In like manner it is said that there may be an exception as to Prisoners of alien-enemies prisoners of war in this country {R. v. Depardo, 1807, 1 Taunt. 26) ; the reason given being that such an one coming here unwilHngly owes no allegiance. This, however, is clearly untenable (see M. v. Lopes, B. v. Sattler, 1858, 27 L. J. M. 0. 48 ; R. V. Carr, 1882, 10 Q. B. D. 76). (2.) Local Exceptions, (a) On the high seas. The criminal Local excep- law of England does not apply, without more, to foreigners on ^\. board a foreign ship unlawfully in the custody of an English ship seas. of war {R. v. Serva, 1845, 1 Den. C. C. 104 ; 2 C. & K. 53). And semble this law, unless by special statutory provision (e), does not {c) See 5 How. St. Tr. 461. id) See 2 St. Hist. 4 ; as to civil jurisdiction, pp. 391 et seq., infra. le) See, also, 28 Hen. 8, u. 15 ; 39 Geo. 3, c. 37 ; 3 & 4 Will. 4, c. 36, s. 22 ; 7 Will. 4 & 1 Vict. 0. 36, 8. 39 (post ofEce offences) ; 7 & 8 Vict. c. 2 ; and the CriminallLaw ConaoMation Acts of 1861 ; Merchant Shipping Act, 1864 (17 & 18 Digitized by Microsoft® 98 CRIME. apply to foreigners on foreign ships on the high seas at all {B. v. Leu-is, 1857, 26 L. J. M. 0. 104). Though the liahility of hoth foreigners and British suhjects to the criminal law of England when on looard an English ship on the high seas is now clearly established {B. v. Lopes, su^ira ; B. v. Lesley, 1860, 29 L. J. M. C. 97; B. v. Peel, 1862, 32 L. J. M. C. 66 ; B. T. Anderson, 1868, L. E. 1 0. C. R. 161 ; B. v. Armstrong, 1875, 13 Cox, 0. C. 185 ; B. v. Budkij, 1884, 14 Q. B. D. 273, 281). foreign teiTi- (h) Eoreign Territorial Waters. It would appear that both foreigners and British subjects when on board a British ship within the territorial waters of a foreign State are subject to the criminal law of England (see B. v. Armstrong and other cases cited immediately above and the note thereto). But, nevertheless, it is a good defence to an indictment in respect of an act alleged to have been done on a British ship by a British subject to foreigners within the territorial waters of the sovereign authority of those foreigners that the act was done by the British subject as the agent and by the authority of such sovereign {B. v. Lesletj, supra). And, apparently, the sovereign authority of that State is a sufficient justification for any act, whether on board of or external to any ship done within the territorial waters of any State and as the agent of its sovereign (lb. ; cf. Dobree v. Napier, 1836, 5 L. J. (N. S.) C. P.273). 3n land with- (e) On land out of England. Treasons, misprisons of treason. Treason &c " ^'^^ Concealments of treasons committed by any person (/) or persons out of this realm of England contrary to the laws and statutes of England are triable in England (35 Hen. VIII. c. 2). Vict. c. 104, s. 267) ; and statutes cited Index to the Statutes, titles — Sea, Wild Birds, Sea Ksheries, adding in respect of this last 46 & 47 Vict. o. 22 (North Sea) ; 51 & 62 Vict. c. 18 (Coopering). The Submarine Telegraph Act, 1885 (48 & 49 Vict. u. 49), provides, with the sanction of criminal penalties, for the protection of submaiine telegraph cables. To prove for the purposes of this jurisdiction that a ship is a British ship it is sufficient to show orally that she belongs to British owners, and carries the British flag: M. v. Von Seierg, 1870, L. E. 1 C. C. K. 264 ; E. T. Armstrong (hulk moored), sMpra; M. v. Allen, 1866, 10 Cox, C. C. 405 ; Jf. v. Dudley, supra (ship's boat) ; see, also, M. v. Bjornsen, 1865, 34 L. J. M. C. 180, where, although the ship was registered as a Britidi ship and sailed under the British flag, it was held by the C. C. C. E. that the proof, upon the facts, failed to show that the ship was a British ship. (/) Quaere if "any person" includes a person not a British subject. Ci. Att.- Gen.for Bong-Kong v. Kwoh-a-Sing, 1873, L. E. 5 P. C. 179, 199 ; Opinion of the Judges, Tri^ of Queen Caroline, Vol. I., pp. 4, 6, London, 1821, T. Kelly. Digitized by Microsoft® TEEEITORIAL WATERS JURISDICTION ACT, 1878. 299 By 24 & 25 Vict. c. 100, s. 9, where any murder or man- Murder slaughter shall be committed on land out of the United Kingdom, slaughter, whether within the Queen's dominions or without, and whether the person killed were a subject of her Majesty or not, every offence committed by any subject of her Majesty in respect of any such case, whether the same shall amount to the offence of murder or of manslaughter, or of being accessory to murder or man- slaughter, may be dealt with, inquired of, tried, determinedj and punished in any county or place in England or Ireland in which such person shall be apprehended or be in custody, in the same manner in aU respects as if such offence had been actually committed in that county or place : provided that nothing herein contained shall prevent any person from being tried in any place out of England or Ireland for any murder or manslaughter committed out of England or Ireland, in the same manner as such person might have been tried before the passing of this Act. By sect. 10, where any person, being feloniously stricken, poisoned, or otherwise hurt upon the sea, or at any place out of England or Ireland, shall die of such stroke, poisoning, or hurt upon the sea, or at any place out of England or Ireland, every offence committed in respect of any such case, whether the same shall amount to the offence of murder or manslaughter, or of being accessory to murder or manslaughter, may be dealt with, inquired of, tried, determined, and punished in the county or place in England or Ireland in which such death stroke, poisoning, or hurt shall happen, in the same manner in all respects as if such offence had been wholly committed in that county or place {g). Whosoever, being married {h), shall marry any other person Bigamy, during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland, or else- where, shall be guilty of felony .... and any such offence may be dealt with, inquired of, tried, and determined in any country or place in England or Ireland where the offender shall be, in the same manner in all respects as if the offence had been actually (jr) Former provisions ; 9 &eo. 4, u. 31, s. 7— which repealed 33 Hen. 8, o. 23, and 43 Geo. 3, in this behalf — and sect. 8 : see, also, E. v. Ealing or Bhj, 1 East, P. 0. 370 ; Car. 0. L. 105 ; S. v. Sawijer, 1815, R. & R. C. C. 294 ; 2 C. & K. 101 ; Eex V. Mattos, 1836, 7 0. & P. 458 ; Jl. v. Azzopardi, 1843, 1 C. & K. 203 ; JR. v. Lewis, 1857, 26 L. J. M. C. 104 ; and JR. v. MeUham, 1830, 4 C. & P. 394. {h) See JK. v. Lolley, and notes thereto, pp. 129 et seq., above. Digitized by Microsoft® 300 CRIME. Ignorantia legis. Transactions by letter, &c. committed in that country or place : provided that nothing m this section contained shall extend to any second marriage contracted elsewhere than in England or Ireland by any other than a subject of her Majesty (24 & 25 Yict. o. 100, s. 57) (i). It is no defence in behalf of a foreigner charged in England with a crime committed in England, that he did not know he was doing wrong, the act not beiag an ofEence in his own country {R, V. Mop, 1836, 7 C. & P. 456) {k). H. wrote and posted at N., ui England, a letter addressed to Gr., at a place out of England, containing a false pretence, by means of which he fraudulently induced G. to transmit to,N. a draft for 100/., which he there cashed. It was held by the Court for the Consideration of Crown Cases Eeserved, that there was juris- diction to try H. at N., that the pretence was made at N., where also the money obtained by means of it was receiyed. It was said, also, by Lord Coleridge, C. J., that it might be that if only one necessary ingredient in the offence had taken place at Nottingham it would be sufficient (i2. v. Holmes, 1883, 12 Q. B. D. 23; of. Adams v. People, 1 Const. 173 ; Story, p. 842, note ; JR. v. Jacohi, 1881, 46 L. T. 595, n. ; B. v. Nillins, 1884, 53 L. J. M. 0. 157; and the note below). Extradition. Extradition. — The law of extradition is now based upon the (i) Repealing 9 Geo. 4, c. 31, s. 22; as to wliicli see S. v. Topping, 1856, 25 L. J. M. C. 72. As to accessories in England to crimes committed abroad, and as to conspiracies in England to commit crimes abroad, see 2 Step. Hist. pp. 13, 14, and 60 & 51 Vict. p. 28, s. 11, p. 337, infra (trade marks and description). As to the difficulty sometimes arising as to what is the place in which a crime is committed, see pp. 299, 300, supra (murder and manslaughter and bigamy), and cases cited p. 297, note, supra; and, further, R. \. Lesley, 1860, 29 L. J. M. 0. 97; S. v. Armstrong, supra; The M. Moxham, 1876, 1 P. D. 107, \li; S. v. Holmes, and cases cited above. A number of offences under the Foreign Enlistment Act, 1870 (33 & 34 Vict. c. 90, q. v.), may be committed by British subjects -without the Queen's dominions. As to the offences by governors, &o. of British colonies, &c., see U Will. 3, 0. 12 ; 42 Geo. 3, c. 85 ; 10 Geo. 3, c. 47; 13 Geo. 3, c. 63 ; 24 Geo. 3, sess. 2, c. 20 ; 26 Geo. 3, o. 7. As to offences against Slave Trade Acts, see M. v. Zulueta, 1843, 1 C. & K. 215 ; Santos v. Illidge, 1860, 29 L. J. 0. P. 348. The effect of the Foreign Jurisdiction Acts (6 & 7 Vict. c. 94 ; 28 & 29 Vict. c. 1 1 6 ; 29 & 30 Vict. c. 87 ; 37 & 38 Vict. c. 27 ; 38 & 39 Vict. o. 86 ; 39 & 40 Vict. c. 46, s. 4 ; 41 & 42 Vict. c. 67 ; 44 & 45 Vict. c. 69, ss. 23, 36) is to give the Queen in Council power to legislate by orders in Council for her subjects in many places outside her own dominions : 2 Step. Hist. pp. 68 et seq. For orders, see index to Zondon Gazette, title. Foreign Jurisdiction Acts ; and subsequent to 1883 see L. R. Digest. (Jc) Tet, continues the head note, it is a matter to be considered in mitigation of punishment. Most likely it would be if the Court believed the defence. But there is nothing whatever to tliis effect in the report, and as the prisoner was found not guilty the point could not have arisen for consideration. As to plea of autrefois acquit abroad, see p. 368, infra. Digitized by Microsoft® TERRITORIAL WATERS JURISDICTION ACT, 1878. 801 Extradition Act, 1870 (33 & 34 Yiot. o. 52), and the amending Act of 1873 (36 & 37 Vict. c. 60). The practical effect of these statutes is, as between her Majesty and those countries with which arrangements have been made, to apply the principle of extradition to all serious crimes which are recognized as crimes by English law, and which are not of a political nature (see 2 Steph. Hist, pp. 65 — 74; Kitchener, Extradition; Clarke on Extradition, where the subject is fully treated). An arrangement is not confined to the extradition of the subjects of the sovereign state with which it is made, but will in general apply to persons of other nationalities committing offences in such state, if their extradition is requested {Re Oanz, 1882, 9 Q. B. D. 93) (0. (J) See, as to asoertaimnent of nationality, Guerin v. Bank of France, 1889, 5 T. L. E. 160 ; Be Guerin, 1889, ii. 188. Digitized by Microsoft® 802 INTEENATIONAL COPYEiaHT ACT, 1886. (49 & 50 Vict. c. 33.) An Act to amend the Law respecting International and Colonial Copyright. [25th June, 1886.] Whereas by the International Copyright Acts her Majesty is autho- rized by Order in CouncU to direct that as regards literary and artistic works first published in a foreign country the author shall have copy- right therein during the period specified in the order, not exceeding the period during which authors of the lite works first published in the United Kingdom have copyright : And whereas at an international conference held at Berne in the month of September one thousand eight hundred and eighty-five a draft of a convention was agreed to for giving to authors of literary and artistic works first published in one of the countries parties to the convention copyright icusuch works throughout the other countries parties to the convention : And whereas, without the authority of Parliament, such convention cannot be carried into effect in her Majesty's dominions and con- sequently her Majesty cannot become a party thereto, and it is expedient to enable her Majesty to accede to the convention : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the auhority of the same, as follows : Short titles 1. — (1.) This Act may be cited as the International Copyright Act, and con- 1886. (2.) The Acts specified in the first part of the First Schedule to this Act are in this Act referred to and may be cited by the short titles in that schedule mentioned, and those Acts, together with the enactment specified in the second part of the said schedule, are in this Act collectively referred to as the International Copyright Acts. The Acts specified in the Second Schedule to this Act may be cited by the short titles in that schedule mentioned, and those Acts are in this Act referred to, and may be cited collectively as the Copyright Acts. (3.) This Act and the International Copyright Acts shall be con- strued together, and may be cited together as the International Copy- right Acts, 1844 to 1886. Digitized by Microsoft® Btruotion. INTERNATIONAL COPYRIGHT ACT, 1886. 303 2. The following provisions shall apply to an Order in Council Amendment under the International Copyright Acts : — as to extent (1.) The order may extend to all the several foreign countries a'lf o^eotof named or described therein : Intematfonal (2.) The ordermay exclude or limit the rights conferred by the Copyright International Copyright Acts in the case of authors who are Acts. not subjects or citizens of the foreign countries named or described in that or any other order, and if the order contains such limitation and the author of a literary or artistic work first produced in one of those foreign countries is not a British subject, nor a subject or citizen of any of the foreign countries so named or described, the publisher of such work, unless the order otherwise provides, shall for the purpose of any legal proceedings in the United ICingdom for protecting any copy- right in such work be deemed to be entitled to such copyright as if he were the author, but this enactment shall not prejudice the rights of such author and publisher as between them- selves : (3.) The International Copyright Acts and an order made there- under shall not confer on any person any greater right or longer term of copyright in any work than that enjoyed in the foreign country in which such work was first produced. 3. — (1.) An Order in Council under the International Copyright Sinmltaneous Acts may provide for determining the country in which a literary or publication, artistic work first produced simultaneously in two or more countries, is to be deemed, for the purpose of copyright, to have been first produced, and for the purposes of this section "country" means the United Eangdom and a country to which an order under the said Acts applies. (2.) Where a work produced simultaneously in the United Kingdom, and in some foreign country or countries is by virtue of an Order in Council under the International Copyright Acts deemed for the purpose of copyright to be first produced in one of the said foreign countries, and not in the United Kingdom, the copyright in the United Kingdom shall be such only as exists by virtue of production in the said foreign country, and shall not be such as would have been acquired if the work had been first produced in the United Kingdom. 4. — (1.) Where an order respecting any foreign country is made Moclifioation under the International Copyright Acts the provisions of those Acts of certain with respect to the registry and delivery of copies of works shall not P^'ovisions of apply to works produced in such country except so far as provided by Copyrie-ht"* the order. _ Acta. (2.) Before making an order in council under the International Copyright Acts in respect of any foreign country, her Majesty in council shall be satisfied that that foreign country has made such provisions (if any) as it appears to her Majesty expedient to require for the protection of authors of works first produced in the United Kingdom. 5. — (1.) Where a work being a book or dramatic piece is first pro- Eestriotionon duced in a foreign country to which an order in council under the translation. International Copyright Acts applies, the author or publisher, as the case may be, shall, unless otherwise directed by the order, have the same right of preventing the production in and importation into the United Kingdom of any translation not authorised by him of the said Digitized by Microsoft® 304 . COPYRIGHT. Application of Act to existing ■works. Evidence of foreign copy, right. Application of Copyright Acts to colonies. work as lie has of preventing the production and importation of the original work. (2.) Provided that if after the expiration of ten years, or any other term prescribed by the order, next after the end of the year in -which the work, or in the case of a book pubKshed in numbers each number of the book, was first produced, an authorised translation in the English language of such work or number has not been produced, the said right to prevent the production in and importation into the United Kingdom of an unauthorised translation of such work shall cease. (3.) The law relating to copyright, including this Act, shall apply to a lawfully produced translation of a work in like manner as if it were an original work. (4.) Such of the provisions of the International Copyright Act, 1852, relating to translations as are unrepealed by this Act shall apply in like manner as if they were re-enacted in this section. 6. Where an order in council is made under the International Copy- right Acts with respect to any foreign country, the author and publisher of any literary or artistic work first produced before the date at which such order comes into operation shall be entitled to the same rights and remedies as if the said Acts and this Act and the said order had appHed to the said foreign country at the date of the said production : Provided that where any person has before the date of the publication of an order in councU lawfully produced any work in the United King- dom, nothing in this section shaU diminish or prejudice any rights or interests arising from or in connection with such production which are subsisting and valuable at the said date. 7. Where it is necessary to prove the existence or proprietorship of the copyright of any work first produced in a foreign country to which an order in council under the International Copyright Acts applies, an extract from a register, or a certificate, or other document stating the existence of the copyright, or the person who is the proprietor of such copyright, or is for the purpose of any legal proceedings in the United Kingdom deemed to be entitled to such copyright, if authenticated by the official seal of a Miaister of State of the said foreign country, or by the official seal or the signature of a British diplomatic or consular officer acting in such country, shall be admissible as evidence of the facts named therein, and all Courts shall take judicial notice of every such official seal and signature as is in this section mentioned, and shall admit in evidence, without proof, the documents authenticated by it. 8. — (1.) The Copyright Acts shall, subject to the provisions of this Act, apply to a literary or artistic work first produced in a British possession in like manner as they apply to a work first produced in the United Kingdom : Provided that — («) the enactments respectiag the registry of the copyright iu such work shall not apply if the law of such possession provides for the registration of such copyright ; and (i) where such work is a book the delivery to any persons or body of persons of a copy of any such work shall not be required. (2.) Where a register of copyright in books is kept under the authority of the government of a British possession, an extract from that register purporting to be certified as a true copy by the officer keeping it, and authenticated by the public seal of the British Digitized by Microsoft® INTERNATIONAL COPYRIGHT ACT, 1886. 305 possession, or by the official seal or the signature of the governor of a British possession, or of a colonial secretary, or of some secretary or minister administering a department of the government of a British possession, shall be admissible in evidence of the contents of that register, and all Courts shall take judicial notice of every such seal and signature, and shall admit in evidence, without further proof, all docu- ments authenticated by it. (3.) Where before the passing of this Act an Act or ordinance has been passed in any British possession respecting copyright in any literary or artistic worts, her Majesty in council may make an order modifying the Copyright Acts and this Act, so far as they apply to such British possession, and to literary and artistic works first produced therein, in such manner as to her Majesty in council seems expedient. (4.) Nothing in the Copyright Acts or this Act shall prevent the passing in a British possession of any Act or ordinance respecting the copyright within the limits of such possession of works first produced in tibat possession. 9. Where it appears to her Majesty expedient that an Order in Application of Council under the International Copyright Acts made after the passing Intornational of this Act as respects any foreign country, should not apply to any ^°Py"gl»t British possession, it shall be lawful for her Majesty by the same or colonies. any other Order in Council to declare that such Order and the Inter- national Copyright Acts and this Act shall not, and the same shall not, apply to such British possession, except so far as is necessary for preventing any prejudice to any rights acquired previously to the date of such Order ; and the expressions in the said Acts relating to her Majesty's dominions shall be construed accordingly ; but save as pro- vided by such declaration the said Acts and this Act shall apply to every British possession as if it were part of the United Kingdom. 10. — (1.) It shall be lawful for her Majesty from time to time to Making of make Orders in Council for the purposes of the International Copyright Orders in Acts and this Act, for revoking or altering any Order in Council pre- '^°™io"- viously made in pursuance of the said Acts, or any of them. (2.) Any such Order in Council shall not affect prejudicially any rights acquired or accrued at the date of such Order coming into operation, and shall provide for the protection of such rights. 11. In this Act, unless the context otherwise requires — Definitions. The expression "literary and artistic work" means every book, print, lithograph, article of sculpture, dramatic piece, musical compo- sition, painting, drawing, photograph, and other work of literature and art to which the Copyright Acts or the International Copyright Acts, as the case requires, extend. The expression "author" means the author, inventor, designer, engraver, or maker of any literary or artistic work, and includes any person claiming through the author ; and in the case of a posthumous work means the proprietor of the manuscript of such work and any person claiming through him ; and in the case of an encyclopaedia, review, magazine, periodical work, or work published in a series of books or parts, includes the proprietor, projector, publisher, or con- ductor. The expressions ''performed" and "performance" and similar words include representation and similar words. The expression "produced" means, as the case requires, published N. ~- -- X - Digitized by Microsoft® 306 COPYRIGHT, Repeal of Acts. or made, or, performed or represented, and the expression "produc- tion" is to be construed accordingly. The expression " book published in numbers" includes any review, magazine, periodical work, work published in a series of books or parts, transactions of a society or body, and other books of which different volumes or parts are. published at different times. The expression " treaty " includes any convention or arrangement. The expression "British possession" includes any part of her Majesty's dominions exclusive of the United Kingdom; and where parts of such dominions are under both a central and a local legis- lature, all parts under one central legislature are for the purposes of this definition deemed to be one British possession. 12. The Acts specified in the Third Schedule to this Act are hereby repealed as from the passing of this Act to the extent in the thii-d column of that schedule mentioned : Provided as follows : (a) Where an Order in Council has been made before the passing of this Act under the said Acts as respects any foreign country the enactments hereby repealed shall continue in full force as respects that country until the said Order is revoked. (b) The said repeal and revocation shall not prejudice any rights acquired previously to such repeal or revocation, and such rights shall continue and may be enforced in like manner as if the said repeal or revocation had not been enacted or made. PIEST SCHEDULE. International Copyeigiit Acts. Part I. Session and Chapter. Title. Short Title. 7 & 8 Vict. c. 12 15&16Vict. c. 12- 38 & 39 Vict. c. 12 ■ An Act to amend the law relating to international copyrigM. An Act to enable her Majesty to carry into effect a convention with Prance on the subject of copyright, to extend and ex- plain the International Copy- right Acts, and to explain the Acts relating to copyright in engravings, An Act to amend the law relating to international copyright. The International Copyright Act, 1844. The International Copyright Act, 1852. The International Copyright Act, 1875. Digitized by Microsoft® INTERNATIONAL COPYRIGHT ACT, 1886. Part II. 307 Session and Chapter. Title. Enactment referred to. 25 & 26 Vict. c. 68 - An Act for amending the law relating to cdpyriglit in works of the fine arts, and for re- pressing the commission of fraud in the production and sale of such works. Section twelye. SECOND SCHEDULE. CoPYBiGHT Acts. 8 Geo. 2, o. 13- 7Geo.3, c. 38- 15 Geo. 3, c. 53 17 Geo. 3, 0. 57 An Act lor the encouragement of the arts of designing, engra-^-ing, and etching, historical, and other prints by vesting the properties thereof in the inventors and en- gravers during the time therein mentioned. An Act to amend and render more efiectual an Act made in the eighth year of the reign of King George the Second, for encouragement of the arts of designing, engraving, and etching, historical and other prints, and for vesting in and se- curing to Jane Hogarth, widow, the property in certain prints. An Act for enabling the two uni- versities in England, the four uni- versities in Scotland, and the several colleges of EtoUi Westminster, and Winchester, to hold in perpetuity their copyright in boots given or bequeathed to the said universities and colleges for the advancement of useful learning and other pur- poses of education ; and for amend- ing so much of an Act of the eighth year of the reign of Queen Anne, as relates to the delivery of books to the warehouse keeper of the Stationers' Company for the use of the several libraries therein men- tioned. An Act for more effectually securing the property of prints to inventors and engravers by enabling them to sue for and recover penalties in certain oases. X 2 Digitized by Microsoft® The Engraving Copy- right Act, 1734. The Engraving Copy- right Act, 1766. The Copyright 1775. Aot, The Prints Copyright Act, 1777. 308 COPYRIGHT^ 54 Geo. 3, c. 56 3Wm.4,c. 15- 5 & 6 WiU. 4, c. 65. 6 & 7 Will. 4, c. 69. 6 & 7 "Will. 4, c. 110. 5&6Vict.c.45 10 & 11 Vict, c. 95. 25 & 26 Vict. 0.68. An Act to amend and render more effectual an Act of Ms present Ma- jest j[ for encoTiragiag the art of makiag new models and casts of busts and other tMngs therein men- tioned, and for giving further en- couragement to such arts. An Act to amend the laws relating to dramatic literary property. An Act for preventing the publica- tion of lectures without consent. An Act to extend the protection of copyright in prints and engravings to Ireland. An Act to repeal so much of an Act of the fifty-fourth year of King George the Third, respecting copy- rights, as requires the delivery of a copy of every published book to the libraries of Sion College, the four universities of Scotland, and of the King's inns in Dublin. An Act to amend the law of copy- right. An Act to amend the law relating to the protection in the Oolonies of works entitled to copyright in the United Kingdom. An Act for amending the law relating to copyright in works of the fine arts, and for repressing the com- mission of fraud in the production and sale of such works. The Sculpture Copy- right Act, 1814. The' Dramatic Copy- right Act, 1833. The Lectures Copy- right Act, 1835. The Prints and En- gravings Copyright Act, 1836. The Copyright Act, 1836. The Cop3rright Act, 1842. The Colonial Copy- right Act, 1847. The Pine Arts Copy- right Act, 1862. THIED SCHEDULE. Acts Eepealed, 7&8Vict.c. 12 15 & 16 Vict, c. 12. 25 & 26 Vict. An Act to amend the law relating to international copyright. An Act to enable her Majesty to carry into effect a convention with France on the subject of copyright, to ex- tend and explain the International Copyright Acts, and to explain the Acts relating to copyright en- gravings. An Act for amending the law relating to copyright in works of the fine arts, and for repressing the com- mission of fraud in the production and sale of such works. Sects, fourteen, seven- teen, and eighteen. Sections one to five both inclusive, and sections eight and eleven. So much of section twelve as incorpo- rates any enactment repealed by this Act. Digitized by Microsoft® INTERNATIONAL COPYRIGHT CONVENTION. Exclusive of the Order in Council of the 24th September, 1886 (L. Gr. 1886, p. 4724), which is revoked thereby, the order here following, and an Order of 10th August, 1888, extending its provisions to the Grand Duchy of Luxembourg (L. Gr. 1888, p. 4345), are the only orders which have been made under this Act. («) At the Court at "Windsor, the 28th day of November, 1887. Present : The Queen's most Excellent Majesty. Lord President. Lord Stanley of Preston. Secretary Sir Henry Holland, Bart. Whereas the Convention, of which an English translation is set out in the First Schedule to this order, has been concluded between her Majesty the Queen of the United Kingdom of Great Britain and Ire- land and the foreign countries named in this order, with respect to the protection to be given by way of copyright to the authors of literary and artistic works : And whereas the ratifications of the said Convention were exchanged on the fifth day of September one thousand eight hundred and eighty- seven, between her Majesty the Queen and the governments of the foreign countries following, that is to say : Belgixim, Prance, Germany, Hayti, Italy, Spain, Switzerland, Tunis. And whereas her Majesty in Council is satisfied that the foreign countries named in this order have made such provisions as it appears to her Majesty expedient to require for the protection of authors of works first produced in her Majesty's dominions : Now, therefore, her Majesty, by and with the advice of her Privy Council, and by virtue of the authority committed to her by the Inter- national Copyright Acts, 1844 to 1886, doth order; and it is hereby Ordered, as follows : 1. The Convention as set forth in the Pirst Schedule to this order, shall, as from the commencement of this order, have full effect throughout her Majesty's dominions, and aU persons are enjoined to observe the same. 2. This order shall extend to the foreign countries following, that is to say : Belgimn, Prance, Germany, Hayti, Italy, Spain, Switzerland, Tunis ; and the above countries are in this order referred to as the foreign countries of the Copyright Union, and those foreign countries together with her Majesty's dominions, are in this order referred to as the countries of the Copyright Union. 3. The author of a literary or artistic work which, on or after the commencement of this order is first produced in one of the foreign countries of the Copyright Union shall, subject as in this order and in the International Copyright Acts, 1844 to 1886, mentioned, have as respects that work throughout her Majesty's dominions, the same right of copyright, including any right capable of being conferred by (fl) London Gazette, 2nd December, 1887, pp. 6703—6707. Digitized by Microsoft® 309 31Q COPYRIGHT. an Order in Council under section two or section five of tlie Interna- tional Copyright Act, 1844, or under any other enactment, as if the work had been first produced in the United Kingdom, and shall have such right during the same period ; Provided that the author of a literary or artistic work shall not have any greater right or longer term of copyright therein, than that which he enjoys in the country in which the work is first produced. The author of any literary or artistic work first produced before the commencement of this order shall have the rights and remedies to which he is entitled under section six of th& International Copyright Act, 1886. 4. The rights conferred by the International Copyright Acta, 1844 to 1886, shall, in the case of a literary or artistic work first produced in one of the foreign countries of the Copyright Union by an author who is not a subj ect or citizen of any of the said foreign countries, be limited as follows, that is to say, the author shall not be entitled to take legal proceedings in her Majesty's dominions for protecting any copyright in such work, but the publisher of such work shall, for the purpose of any legal proceedings in her Majesty's dominions for pro- tecting any copyright in such work, be deemed to be entitled to such copyright as if he were the author, but without prejudice to the rights of such author and publisher as between themselves. 5. A literary or artistic work first produced simultaneously in two or more countries of the Copyright Union shall be deemed for the purpose of copyright to have been first produced in that one of those countries in which the term of copyright in the work is shortest. 6. Section six of the International Copyright Act, 1852, shall not apply to any dramatic piece to which protection is extended by virtue of this order. 7. The orders mentioned in the Second Schedule to this order are hereby revoked ; Provided that neither such revocation, nor anything else in this order, shall prejudicially affect any right acquired or accrued before the commencement of this order, by virtue of any order hereby revoked, and any person entitled to such right shall continue entitled thereto, and to the remedies for the same, in like manner as if this order had not been made. 8. This order shall be construed as if it formed part of the Inter- national Copyright Act, 1886. 9. This order shall come into operation on the sixth day of Decem- ber, one thousand eight hundred and eighty-seven, which day is in this order referred to as the commencement of this order. And the Lords Commissioners of her Majesty's Treasui-y are to give the necessary orders herein accordingly. C. L. Peel. FIEST SCHEDULE. Copyright Convention. Convention for protecting effectively and in as uniform a manner as possible the rights of authors over their literary and artistic works. Made on the fifth day of September, one thousand eight hundred and eighty-seven, between her Majesty the Queen of the United Kingdom of Great Britain and Ireland, Empress of India; his Majesty the Digitized by Microsoft® INTEKNATIONAL COPYIUGIIT CONVENTION. German Emperor, King of Prussia ; his Majesty the King of the Bel- gians ; her Majesty the Queen Regent of Spain, in the name of his Catholic Majesty the King of Spain; the President of the French Eepublic ; the President of the Eepublic of Haiti ; his Majesty the King of Italy ; the Federal Coimcil of the Swiss Confederation ; his Highness the Bay of Tunis. [The following is an English translation of the Convention, with the omission of the formal beginning and end.] Aeticle I. The contracting States are constituted into an Union for the protec- tion of the rights of authors over their literary and artistic works. Article II. Authors of any of the coimtries of the Union, or their lawful repre- sentatives, shall enjoy in the other countries for their works, whether published in one of those countries or unpublished, the rights which the respective laws do now or may hereafter grant to natives. The enjoyment of these rights is subject to the accomplishment of the conditions and formalities prescribed by law in the country of origin of the work, and cannot exceed in the other countries the term of protection granted in the said country of origin. The country of origin of the work is that in which the work is first published, or if such publication takes place simultaneously in several countries of the Union, that one of them in which the shortest term of protection is granted by law. For unpublished works the country to which the author belongs is considered the country of origin of the work. Article III. The stipulations of the present Convention apply equally to the pub- lishers of literary and artistic works published in one of the countries of the Union, but of which the authors belong to a country which is not a party to the Union. Article IY. The expression " literary and artistic works " comprehends books, pamphlets, and all other writings ; dramatic or dramatico-musical works, musical compositions with or without words ; works of design, painting, sculpture, and engraving ; lithographs, illustrations, geo- graphical charts, plans, sketches, and plastic works relative to geo- graphy, topography, architecture, or science in general ; in fact, every production whatsoever in the literary, scientific, or artistic domain which can be published by any mode of impression or reproduction. Article V. Authors of any of the countries of the Union, or their lawful repre- sentatives, shall enjoy in the other countries the exclusive right of making or authorizing the translation of their works until the expira- tion of ten years from the publication of the original work in one of the countries of the Union. For works published in incomplete parts ("livraisons"), the period of ten years commences from the date of publication of the last part of the original work. For works composed of several volumes published at intervals, as Digitized by Microsoft® 311 312 COPYRIGHT. ■well as for buUetiiis or coUections ("cahiers") published by literary or scientific societies, or by private persons, each, volume, buUetin, or collection is, with, regard to the period of ten years, considered as a separate work. In the cases provided for by the present article, and for the calcula- tion of the period of protection, the thirty-first December of the year in which the work was published is admitted as the date of publication. Abtiole VI. Authorized translations are protected as original works. They con- sequently enjoy the protection stipulated in Articles II. and III., as regards their unauthorized reproduction in the countries of the Union. It is understood that, in the case of a work for which the translating right has fallen into the public domain, the translator cannot oppose the translation of the same work by other writers. Abtiole VII. Articles from newspapers or periodicals published in any of the countries of the Union may be reproduced in original or in translation in the other countries of the Union, unless the authors or publishers have expressly forbidden it. For periodicals it is sufficient if the pro- hibition is made in a general manner at the beginning of each number of the periodical. This prohibition cannot in any ease apply to articles of political dis- cussion, or to the reproduction of news of the day or current topics. Abtiole VIII. As regards the liberty of extracting portions from literary or. artistic works for use in publications destined for educational or scientific pur- poses, or for chrestomathies, the matter is to be decided by the legisla- tion of the different countries of the Union, or by special arrangements existing or to be concluded between them. Abtiole IX. The stipulations of Article II. apply to the public representation of dramatic or dramatico-musical works, whether such works be pub- lished or not. Authors of dramatic or dramatico-musical works, or their lawful representatives, are, during the existence of their exclusive right of translation, equally protected against the unauthorized public repre- sentation of translations of their works. The stipulations of Article II. apply equally to the public perform- ance of unpublished musical works, or of published works in which the author has expressly declared on the title page or commencement of the work that he forbids the public performance. Article X. Unauthorized indirect appropriations of a literary or artistic work of various kinds, such as adaptations, arrangements of music, Sfc, are specially included amongst the illicit reproductions to which the present Convention applies, when they are only the reproduction of a particular work, in the same form, or in another form, with non- essential alterations, additions, or abridgments, so made as not to confer the character of a new original work. Digitized by Microsoft® INTERNATIONAL COPYRIGHT CONVENTION. 313 It is agreed that, in the application of the present Article, the tribunals of the various countries of the Union wUl, if there is occasion, conform themselves to the provisions of their respective laws. Article XI. _ In order that the authors of Tvorks protected by the present Conven- tion shall, in the absence of proof to the contrary, be considered as such, and be consequently admitted to institute proceedings against pirates before the Courts of the various countries of the Union, it wiU be sufficient that their name be indicated on the work in the accus- tomed manner. For anonymous or pseudonymous works, the publisher whose name is indicated on the work is entitled to protect the rights belonging to the author. He is, without other proof, reputed the lawful represen- tative of the anonymous or pseudonymous author. It is, nevertheless, agreed that the tribunals may, if necessary, require the production of a certificate from the competent authority to the effect. that the formalities prescribed by law in the country of origin have been accomplished, as contemplated in Article II. Article XII. Pirated works may be seized on importation into those countries of the Union where the original work enjoys legal protection. The seizure shall take place conformably to the domestic law of each State. Article XIII. It is understood that the provisions of the present Convention cannot in any way derogate from the right belonging to the Government of each country of the Union to permit, to control, or to prohibit, by measures of domestic legislation or police, the circidation, representa- tion, or exhibition of any works or productions in regard to which the competent authority may find it necessary to exercise that right. Article XIV. Under the reserves and conditions to be determined by common agreement (5), the present Convention applies to aU works which at the moment of its coming into force have not yet fallen into the public domain in the country of origin. Article XV. It is understood that the Governments of the countries of the Union reserve to themselves respectively the right to enter into separate and particular arrangements between each other, provided always that such arrangements confer upon authors or their lawful representatives more extended rights than those granted by the Union, or embody other stipulations not contrary to the present Convention. Article XVI. An international office is established, under the name of the " Office of the International Union for the Protection of Literary and Artistic Works." (A) See paragraph 4 of Final Protocol, Digitized by Microsoft® 314 COPYKIGHT. _ This office, of which the expenses will be home hy the administra- tions of all the countries of the Union, is placed under the high authority of the superior administration of the Swiss Confederation, and works under its direction. The functions of this office are determined by common accord between the countries of the Union. Article XVII. The present Convention may be submitted to revisions in order to introduce therein amendments calculated to perfect the system of the Union. Questions of this kind, as well as those which are of interest to the Union in other respects, will be considered in conferences to be held successively in the countries of the Union by delegates of the said countries. It is understood that no alteration in the present Convention shall be binding on the Union except by the unanimous consent of the countries composing it. AUTICLB XVIII. Countries which have not become parties to the present Convention, and which grant by their domestic law the protection of rights secured by this Convention, shall be admitted to accede thereto on req^uest to that effect. Such accession shall be notified in writing to the Q-overnment of the Swiss Confederation, who will communicate it to all the other countries of the Union. Such accession shall imply fuU adhesion to all the clauses and admission to all the advantages provided by the present Convention. Abticle XIX. Countries acceding to the present Convention shall also have the right to accede thereto at any time for their colonies or foreign posses- sions. They may do this either by a general declaration comprehending all their colonies or possessions within the accession, or by specially naming those comprised therein, or by simply indicating those which are excluded. Article XX. The present Convention shall be put in force three months after the exchange of the ratifications, and shall remain in effect for an indefinite period until the termination of a year from the day on which it may have been denounced. Such denunciation shall be made to the Government authoiized to receive accessions, and shall only be effective as regards the country making it, the Convention remaining in full force and effect for the other countries of the Union. Aeticle XXI. The present Convention shall be ratified, and the ratifications exchanged at Berne, within the space of one year at the latest. Additional Article. The Convention concluded this day in no wise affects the maintenance of existing Conventions between the contracting States, provided always Digitized by Microsoft® INTEKNATIONAL COPYRIGHT CONVENTION. 315 tliat such Conventions confer on authors, or their lawful representatives, rights raore extended than those secured by the Union, or contain other stipulations which are not contrary to the said Convention. Final Protocol. 1. As regards Article IV. it is agreed that those countries of the Union where the character of artistic works is not refused to photo- graphs, engage to admit them to the benefits of the Convention con- cluded to-day, from the date of its coming into effect. They are, how- ever, not bound to protect the authors of such works further than is permitted by their own legislation except in the case of international engagements already existing, or which may hereafter be entered into by them. It is understood that an authorized photograph of a protected work of art shall enjoy legal protection in aU the countries of the Union, as contemplated by the said Convention for the same period as the principal right of reproduction of the work itself subsists, and within the limits of private arrangements between those who have legal rights. ■ 2. As regards Article IX. it is agreed that those countries of the Union whose legislation implicitly includes choregraphic works amongst dramatico-musical works expressly admit the former works to the benefits of the Convention concluded this day. It is, however, understood that questions which may arise on the appKcation of this clause shall rest within the competence of the respective tribunals to decide. 3. It is understood that the manufacture and sale of instruments for the mechanical reproduction Of musical airs which are copyright, shall not be considered as constituting an infringement of musical copy- right. 4. The common agreement aUudod to in Article XIV. of the Con- vention is established as follows : — The application of the Convention to works ■which have not fallen into the public domain at the time when it comes into force, shall operate according to the stipulations on this head which may be con- tained in special Conventions either existing or to be concluded. In the absence of such stipulations between any countries of the Union, the respective countries shall regulate, each for itself, by its domestic legislation, the manner in which the principle contained in Article XIV. is to be applied. 5. The organization of the International Office established in virtue of Article XVI. of the Convention, shall be fixed by a regulation which shall be drawn up by the Government of the Swiss Confederation. The official language of the International Office will be French. The International Office will collect all kinds of information relative to the protection of the rights of authors over their literary and artistic works. It wiU arrange and publish such information. It will study questions of general utility likely to be of interest to the Union, and, by the aid of documents placed at its disposal by the different adminis- trations, wiU edit a periodical publication in the French language treating questions which concern the Union. The Governments of the countries of the Union reserve to themselves the faculty of authorizing, Digitized by Microsoft® 316 COPYRIGHT. by common accord, the publication by the office of an addition in one or more other languages if experience should show this to be requisite. The International Office -will always hold itself at the disposal of members of the Union, with the view to furnish them with any special information they may require relative to the protection of literary and artistic works. The administration of the country where a Conference is about to be held wiU prepare the programme of the Conference with the assist- ance of the International Office. The director of the International Office will attend the sittings of the Conferences, and wiU take part in the discussions without a deliberative voice. He will make an annual report on his adminis- tration, which shall be communicated to all the members of the Union. The expenses of the office of the International Union shall be shared by the contracting States. Unless a fresh arrangement be made, they cannot exceed a sum of sixty thousand francs a year. This sum may be increased by the decision of one of the Conferences provided for in Article XVII. The share of the total expense to be paid by each country shall be determined by the division of the contracting and acceding States into six classes, each of which shall contribute in the proportion of a certain number of units : — First class 25 units. Second class 20 ,, Third class 15 ,, Fourth class 10 ,, Fifth class 5 ,, Sixth class 3 ,, These co-efficients wUl be multiplied by the number of States of each class, and the total product thus obtained will give the number of units by which the total expense is to be divided. The quotient will give the amount of the unity of expense. Each State wiU declare, at the time of its accession, in which of the said classes it desires to be placed. The Swiss Administration wiU prepare the Budget of the office, superintend its expenditure, make the necessary advances, and draw up the annual account, which shall be communicated to all the other Administrations. 6. The next Conference shall be held at Paris, between four and six years from the date of the coming into force of the Convention. The French Government wiU fix the date within these limits after having consulted the International Office. 7. It is agreed that, as regards the exchange of ratifications contem- plated in Article XXI., each contracting party shall give a single instrument, which shall be deposited with those of the other States, in the Government archives of the Swiss Confederation. Each party shall receive in exchange a copy of the proces-verhal of the exchange of ratifications, signed by the plenipotentiaries present. The present final Protocol, which shall be ratified with the Conven- tion concluded this day, shall be considered as forming an integral part of the said Convention, and shall have the same force, effect, and duration. Digitized by Microsoft® INTERNATIONAL COPYRIGHT CONVENTION. SECOND SCHEDULE. Orders in Council Revoked. Orders in Council of the dates named below for securing the privi- leges of copyright in her Majesty's dominions to authors of works of literature and the fine arts and dramatic pieces, and musical composi- tions, first produced in the following foreign countries, namely : — 317 Foreign Country. Prussia Saxony Brunswick The States of the Thuringian Union. . Hanover Oldenburg . . . , France Anhalt, Dessau, and Analt Bernbourg Hamburgh Belgium Prussia, Saxony, Saxe "Weimar Spain The States of Sardinia Hesse, Darmstadt Italy German Empire Date of Order. 27th August, 1846. 26th September, 1846. 24th April, 1847. 10th August, 1847. 30th October, 1847. 11th February, 1848. 10th January, 1852. 11th March, 1853. 25th November, 1853, and 8th July, 1855. 8th February, 1855. 19th October, 1855. 24th September, 1857, and 20th November, 1880. 4th February, 1861. 5th February, 1862. 9th September, 1865 (5). 24th September, 1886. The Order in Council of 5th August, 1875, revoking the application of sect. 6 of 15 & 16 Vict. c. 12 to dramatic pieces referred to in the Order in Council of 10th January, 1852, with respect to works first published in France. As regards the above convention : — Article II., see Avanzo v. Mudie, 1854, 10 Ex. 203 ; Cassell v. Stiff, 1856, 2 Kay. & J. 279. Article V. (first part), and Article VI., see Murray v. Bogiie, 1853, 22 L. J. Ch. 457. Article V. (latter part), see Low v. Ward, 1868, L. E. 6 Eq. 415. Article YII., see sect. 7 of 15 & 16 Yict. c. 12. Articles IX. and X., see Wood v. Boosey, 1868, L. E. 3 Q. B. 223— Ex. Ch. ; Fairlie v. Boosey, 1879, 4 App. Cas. 711 Authorities illustrative of certain articles of the International Copyright ConveDtion. (J) A reference to the earlier treaties under -which the ahove Orders were made win be found in the index to the Gazette, s. t. Copyright Abroad. Digitized by Microsoft® 3.18 COPYRIGHT. Operation of Act and Convention. Rights of foreigners (musical compositions — expert evidence desirable — ib. 727, per Lord Blaoktum) ; Wood v. Chart, 1870, L. E. 10 Eq. 193 (dramatic work). The operation of this Act and order is practically to extend the protection afforded to th.e owners of the copyright in books and works of art first published in tliis country to the author of a literary or dramatic work first published in any country of the Copyright Union. This, however, is not tbe only recognition of tbe rights of imder earUer foreigners in this respect. For, although in Jpffcnjs v. JBooseij, "*'• 1854, 4 H. L. C. 815 ; 24 L. J. Ex. 81 (c), it bad been beld by tbe House of Lords that the statute 8 Anne, c. 19, did not extend to foreigners resident abroad at tbe time of tbe publication of tbeir works in this country, even though such works should have been pubHshed here before they were published abroad; it bad been before held by Knight-Bruce, V.-C. {Ollendorff; y. MacJc, 1850, 20 L. J. Oh. 165), that a foreigner who, during a temporary residence in England, had published in England a work for the first time, was entitled to the usual injunction to restrain a bookseller from selling pirated copies of this work ; and it has since been held by the House of Lords (d) {Routledge v. Lou; 1868, L. B. 3 H. L. 100), that an alien friend who, during the time of his temporary resi- dence in a British colony, publishes, in the United Kingdom,^ a book of which he is the author, is, under the 5 & 6 Yict. c. 46, entitled to the benefit of English copyright. (See also Loic v. Ward, 1868, L. E. Eq. 416). Conversely, in Boucicault v. Belafield (1864, 33 L. J'. Ch. 38) it was held by Wood, Y.-C, that sect. 19 of the 7 & 8 Vict. e. 12, (c) Per Lord Cran worth, IJ. G., Lord Brougham, and Lord St. Leonards. The date of publication -was 1831. In Buxton v. James, 1851, 5 De Gex & Sm. 80, Parker, V.-C, it was held that the Act 5 & 6 Viot. o. 45, protested the British assignee, who published in 1844 in this country, of an alien friend resident and simultaneously publishing abroad. The Vice- Chancellor, however, expressly followed Jefferys v. Boosey, in the Exchequer Chamber, which was reversed in the House of Lords, and his attention does not seem tp have been called to the fact that he was construing a later statute. (<^ Lord Cairns, L. C, Lord Cranworth, Lord Chelmsford, Lord Westbury, and Lord Colonsay. Per Lord Cairns, L. C, and Lord Westbury : — The protection Of the statute is given to every author who first publishes in the United Kingdom, where- soever he may then be resident (dub. Lord Cranworth and Lord Chelmsford ; and it was unnecessary to express any opinion : Lord Colonsay) . See and consider, also, Naturalisation Act, 1870, s, 2; but note sub-ss. (2), (3), p. 48, SMprn ; ' ScrUtton, Copyright, s. 1.57. Digitized by Microsoft® INTERNATIONAL COPYRIGHT ACT, 1886. 319. which enacts " that neither the author of any hook, nor the author or composer of any dramatic piece or musical composition, nor the inventor, designer, and so on of any work of art which shall after the passing of the Act be first published out of her Majesty's dominions, shall have any copyright therein respectively, or any exclusive right to the public representation or performance thereof, otherwise than such (if any) as he may become entitled to under this Act," applies to a British subject equally with a foreigner, and so that B., a British subject, having brought out a drama in New York and afterwards representing it here — having duly registered it here — ^had no exclusive right of performing it here, since there was no arrangement between her Majesty and the United States (see also Boueicault v. Chatterton, 1876, 5 Oh. D. 267 — 0. A.). On and after the 1st July, 1842, it is not lawful for any person. Prohibition not being the proprietor of the copyright, or some person autho- pSrtation of rized by him, to import into any part of the United Kingdom, or British^ ^°*° into any other part of the British dominions, for sale or hire, any dominiona. printed book first composed or written or printed and published in any part of the United Kingdom, wherein there shall be copyright, and reprinted in any country or place whatsoever out of the British dominions. And if any person, not being such proprietor or person authorized as aforesaid, shall import or bring, or cause to be imported or brought, for sale or hire, any such printed book into any part of the British dominions, contrary to the true intent and meaning of the 5 & 6 Vict. c. 45, or shall knowingly sell, publish, or expose to sale or let to hire, or have in his possession for sale or hire, any such book, then every such book shall be forfeited in the manner provided by the said statute, and every person so offending shall forfeit the penalties mentioned in the said statute in the manner therein provided (5 & 6 Yict. c. 45, s.l7)(e). Subject to the proviso therein contained as to notice to the Com- missioners of Customs, any books wherein copyright shall be sub- sisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, are by [e) As to British assignee of alien friend, and simultaneous publication hero and abroad by the assignee and the alien respectively, see Buxton v. James, p. 318, supra, note. Digitized by Microsoft® Colonies. COPYRIGHT. the 9th sect, of 8 & 9 Yict. c. 93, absolutely prohibited to be imported into the British possessions abroad. But the Colonial Copyright Act, 1847 (10 & 11 Vict. o. 95), s. 1, enacts that in case the legislature or proper legislative authorities in any British possession shall be disposed to make due provision for securing or protecting the rights of British authors in such possession, and shall pass an Act or make an ordinance for that purpose, and shall transmit the same in the proper manner to the Secretary of State, in order that it may be submitted to her Majesty; and in case her Majesty shall be of opinion that such Act or ordinance is sufficient for the purpose of securing to British authors reasonable protection -within such possession, it shall be lawful for her Majesty, i£ she think fit to do so, to express her royal approval of such Act or ordinance, and thereupon to issue an Order in Council declaring that, so long as the provisions of such Act or ordinance continue in force •withia such colony, the pro- hibitions contained in the above-cited statutes respectively, or the prohibitions contained in any other Acts agaiust the importiag, selling, letting out to hire, exposing for sale or hire, or possessing foreign reprints of books first composed, written, printed, or pub- lished in the United Kingdom, and entitled to copyright therein, shall be suspended so far as regards such colony ; and thereupon such Act or ordinance shall come into operation, except so far as may be othervsdse provided therein, or as may be otherwise directed by such Order in Council, anything in the 8 & 9 Yict. c. 93, or in any other Act to the contrary notwithstanding. Sect. 2 provides as to laying the Order in Council and the Colonial Act or ordinance, when approved, before Parliament. Orders in Orders in Council imder this Act, and under the 8 & 9 Yict. CoknTal™ c. 93, suspending the operation of the Imperial Copyright Acts in Copyright ^j^^ colouy named during the continuance of the colonial ordinance, providing for the protection of British authors, the name of which in the list below follows the colony, have been made : — Antigua, Copyright Ordinance, No. 601, L. G. 25th June, 1850, 1782. Bahamas, British Authors' Eights Act, No. 1208, L. G. 5th June 1849, 1831. ' Barbadoes, Act, No. 936, L. G 29th December, 1848, 4708. Digitized by Microsoft® INTERNATIONAL COPYRIGHT ACT, 1886. 321 Bermuda, Books Importation Act, No. 699, L. Gr. 2nd March, 1849, 708. British Guiana, Ordinance No. 14 of 1851, L. G. 4th November, 1861, 2867. Canada, Copyright Act, No. 780, L. G. 24th December, 1850, 3475. 0. C. 7th July, 1868 ; and see the Canada Copyright Act, 1875 (38 & 39 Vict. c. 53). Cape of Good Hope, Act No. 4 of 1854, L. G. 16th March, 1855, 1090. Grenada, Act No. 477, L. G. 13th January, 1854, 108. Jamaica, Act No. 3924, L. G. 13th January, 1864, 107; Act No. 4170, L. G. 3rd July, 1867, 2327 ; Act, c. 21 of 1858, L. G. 26th April, 1859, 1723. Mauritius, No. 24 of 1851, L. G. 15th April, 1853, 1097. Natal, Ordinance No. 14 of 1866, L. G. 22nd May, 1857, 1804. Nevis, Act No. 237, L. G. 16th March, 1855, 1089. New Brunswick (/), an Ordinance, L. G. 8th September, 1848, 3313. Newfoundland Books Importation Act, No. 74, L. G. 7th August, 1849, 2449. Nova Scotia (/), an Ordinance, L. G. 8th September, 1848, 3314. Prince Edward's Island (/), an Act to regulate the importation of Books, and to protect the British author, L. G. 3rd November, 1848, 3919. St. Christopher, Books Importation Act, L. G. 20th November, 1849, 3471. St. Lucia, Copyright Ordinance, No. 8, L. G. 19th November, 1850, 3039. St. Vincent, No. 602, L. G. 27th August, 1862, 2329 ; No. 805, L. G. 4th November, 1864, 5165 ; Ordinance No. 34, 1878, L. G. 2nd September, 1881, 4531. Trinidad, 0. 0. 17th March, 1875. As regards sect. 8 of the International Copyright Act, 1886 International (p. 302, above), it is to be observed that clause 1 of the Order of AotfT^e. 28th November, 1887 (p. 309, above), made under the Inter- national Copyright Acts, 1844 to 1886, orders that the Inter- national Copyright Convention, as set forth in the first schedule to the Order, shall, as from the date of the commencement of the Order — that is, 6th December, 1887 — bave full effect throughout her Majesty's dominions. This is subject, apparently, to sub- sect. (3) of sect. 8, and to sub-sect. 4 of the Act of 1886. No order has been made under sub-sect. 3 (see, also, Art. xix. of the (/) See Canada, uii supra, and Canada Statutes, 1881, p. ix. ^' Digitized by Microsoft® ^ 322 PATENTS. Convention above ; and cf . as to construction of Act and Con- vention, i. c. of Order, Me Califomian Fig Syrup Co., 1888, 40 CL D. 620). Patents, Designs, and Trade Marks. Act of 1883 [g). Patents. Communica- tions from abroad. Novelty. Description in book or document in foreign tongue. Eevooation : Patents, Designs, and Trade Marks. Patents (§'). — "Any person, whether a British suhject or not, may make an application for a patent" (Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Yict. c. 57), sect. 4 (1) {g) ). " A patentee may assign his patent for any place in or part of the United Kingdom or Isle of Man as effectually as if the patent were originally granted to extend to that place or part only" (/&. sect. 36). It has long heen settled that the first actual importer into this country is the true and first inventor {Edgehiiry v. Stevens, temp. Holt, 2 Salk. 447; Nichek v. Ross, 1849, 8 C. B. 679, 723; Plimpton V. Malcolmson, 1876, 3 Ch. D. 531, 555). Subject to sect. 103 of the Act of 1883 [q. v. p. 331, in/ra), a patent is invalidated if there has been previous publication in England. It has been laid down by Cotton and Lindley, L. JJ., in a recent case in the Court of Appeal, in which all earlier cases relating to this point wiU be found cited and considered, that in order to show that a patentee is not the true and first inventor of his patented invention it is not necessary to show that he learnt it from a prior publication in this country. It is sufiicient to show that the invention was described in some book or document in this country, as that some English people may be fairly supposed to have known it {Harris v. Rothwell, 1887, 35 Ch. D. 416, 429 ; cf. Blanli v. 'Footman Co., 1888, 39 Ch. D. 678). A., a subject of the United States, and resident there, gave a [g) See also the Amending Acts, 1885, 1886, and 1888 (48 & 49 Vict. c. 63 ; 49 & 50 Vict. c. 37 ; 51 & 52 Vict. o. 50). The Act came into operation 1st January, 1884. For the rules under it, see W. N. 5 January, 1884, and Aston, p. 4. As regards the repealing section (sect. 113), and the saving therein contained, see Daw v. Eley, 1867, L. R. 3 Eq. 497, on the construction of sect. 25 (2) of 15 & 16 Vict. c. 83, ■which made the continuance of letters patent granted here in respect of any inven- tion first invented in a foreign country dependent on the continuation of the patent in the foreign country. Sects. 39 and 57 of the Act of 1883, and 49 & 50 Viot. c. 37 s. 3, make p;covision as to protection at international exhibitions at home and abroad. The notes to this Act are only intended to call attention to salient decisions thereon immediately afEeoting foreigners, &c., and to International and Colonial arrangements. Digitized by Microsoft® PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883. 823 power of attorney to W., his agent in England, with instructions sect. 25 of to obtain a patent in this country. "W". employed L. as his suhstitute under the power of attorney to ohtain the patent, and L. took out a patent in his own name for the invention, together with some improvements which he had made himself, without stating in the specification that it or any part of it was a communication from -abroad, and made a statutory declaration that he was him- self the first and true inventor. L. had no fraudulent intention in taking out the patent in this form, and acted under the advice of a competent patent agent. A petition was presented under sub- sect. 4 (c) of sect. 26 of the Act of 1883 {h) by K., an attorney appointed by A., alleging that the patent was granted "in fraud of the rights of A.," and asking for the revocation of the patent, and a declaration that A. was the first and true inventor. It was held by the Co^rt of Appeal (affirming the decision of Stirling, J.), that even if the patent was void by reason of the non-disclosui-e in the specification of the communication from abroad — as to which the Court gave no opinion, since, the petition containing no allegation that A. was the true and first inventor, it was apparent that it could only be dealt with under (c) — yet, as there was no proof of any intention on the part of the patentee to deprive A. of his rights, the petition could not be sustained under clause (c) {Ee Avcrifs Patent, 1887, 36 Ch. D. 307 (?) ). " There is no decision that a patent taken out as an original Non-dis- invention, when in fact the invention patented was communicated taklnc^out from abroad, is void, though there is, in the case of MuUician patent of _ ° communica- V. Marsh (1856, 2 Jur. N, S. 1083), what appears to be a tionfrom dictum of Page- Wood, Y.-C, to that effect. Nor is there any decision that where an invention is partly origiaal and partly com- municated from abroad, the part communicated from abroad ought to be distinguished in the specification ; but in the case of Renard V. Levinstein (1864, 10 L. T. N. S. 177), Knight Bruce, L. J., expressed great doubt upon the point" {Re Averi/'s Patent, at p. 316, per Stirliag, J.). {h) Sub -sect. 4 enacts (inter alia), that a petition for revocation of a patent may be presented by (0) any person alleging that the patent was obtained in fraud of his "rights : (d) any person alleging that he, or any person under or through whom he claims, was the true inventor of any invention included in the claim of the patentee. ()) See, also, Aston, p. 4. y2 Digitized by Microsoft® 324 PATENTS. Importation from abifoad and user in England of article patented in England. For export. For experi- ment. The importation and using or vending in England of apparatus manufactured abroad according to the specification of an English patent is an infringement of that patent [Caldwell v. Van Vlissengen, 1851, 2i L. J. Ch. 97 ; Walton y. Lamfer, 1860, 29 L. J. C. P. 275 ; JElmslie v. Boiirsier, 1869, L. E. 9 Eq. 217 ; Von Heyden v. ■Neustadt, 1880, 14 Ch. D. 230, 0. A.). And in a simple case of importation, without any proof of know- ledge of the article heing patented or of the infringement, the fact that the defendant had imported and sold would, it has been said, be sufficient evidence of the infringement {Walton v. Lavater, at p. 279, per Brie, C. J. ; Nobel's Explosive Co. v. Jones, 1882, 8 App. Cas. 5, 11, 12, per Lord Blackburn). So, also, importation for export, where the article has, while in this country, been applied to the purpose for which it was manu- factured, is an infringement {Betts v. Neihon, 1868, L. R. 3 Ch. 429, Lord Chelmsford, L; C. ; United Telephone Co. v. Sharpies, 1885, 29 Ch. D. 164, 167, Kay, J.). Though where the respondents were only Custom House agents for the importers, and not themselves the importers, but merely passed the article through the Custom House, and obtained per- mission (as required by statute in that behalf) for landing and storing it in magazines belonging to the importers, it was held by the House of Lords, affirming the decision of the C. A., that having neither possession of nor control over the goods, their acts did not amount to an exercise or user of the patent, and that no action could be maintained against them for an infringement of the patent [Nobel's Explosice Co. v. Jones, 1882, 8 App., Cas. 5). " If a man makes things merely by way of bonS. fide experiment, and not with the intention of selling and making use of the thing so made for the purpose of which a patent has been granted, but with the view of improving upon the invention the subject of the patent, or with the view of seeing whether an improvement can be made or not, that is not an invasion of the exclusive rights granted by the patent" {Frearson v. Loe, 1878, 9 Ch. D. 48, 66, 67, per Jessel, M. R.). And it may be that an importation for user in this manner, without more, is no in- fringement. But to purchase and import an article made Digitized by Microsoft® PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883. 325 fibrbad wMch is an infringement of an English patent for the purpose of instructing pupils who are learning the importer's business, to let them use and experiment with it, to let them, if they please, pull it in pieces, for the purpose of saving the expense of using the patented English article, and experimenting with or pulling that to pieces, or to import such an article for the purpose of being used by such pupils merely, is a user for the purpose of advantage, and one that will be restrained as an infringement {United Telephone Co. v. Sharpies, supra). Where the owner of an English patent manufactures and sells Manufacture the patented article in a foreign country as well as in England, patentee in the sale of the article in one country implies a licence to the ^&i^° ^"^^ purchaser to import it into and use it in the other ; though such a sale could not defeat the rights of a previous assignee of the patent {Beits v. Willmott, 1871, L. E. 6 Oh. 239, per Lord Hatherley, L. 0.). But if the owner of a patent in England and in a foreign Licence to use country grants a licence to use the patent in the foreign country, country, such grant does not, without more, imply permission to sell the manufactured article in England in violation of the English patent {Societi Anonyme des Manufactures de Glaces v. Tilghman's Co., 1883, 25 Ch. D. 1, 0. A.). " A patent shall not prevent the use of an invention for the Foreign pilrposes of the navigation of a foreign vessel within the jurisdic- British"' tion of any of her Majesty's Courts in the United Kingdom, or ■^^.'^rs. Isle of Man, or the use of an invention within that jurisdiction, provided it is not used therein for or in connexion with the manu- facture or preparation of anything intended to be sold in or exported from the United Kingdom or Isle of Man. " But this section shall not extend to vessels of any foreign state of which the laws authorize subjects of such foreign state, having patents or like privileges for the exclusive use or exercise of inven- tions within its territories, to prevent or interfere with the use of such inventions in British vessels while in the ports of such foreign state, or in the waters within the jurisdiction of its Courts, where such inventions are not so used for the manufacture or preparation of anything intended to be sold in or exported from the territories Digitized by Microsoft® 326 DESIGNS. Extension of term of patent. Account of foreign patents. of such foreign state " (Patents, Designs, and Trade Marks Act, 1883, sect. 43) (Jc). An English patentee obtaining a patent abroad for his inven- tion, in addition to his English patent, will not be prejudiced with respect to any application he may make for a renewal of the EngUsh patent {Ee Beits' Patent, 1862, 1 Mo. P. C. N. S. 49 ; Re Johnson'' s Patent, 1871, L. E. 4 P. C. 75, 79, 80), and may make out a case for the renewal of his patent {lb.). But the Lords of the Council must have regard to all the circumstances of the case, and, except in peculiar circumstances {Re Poole's Patent, 1867, L. R. 1 P. C. 514), it is the duty of a patentee applying for a prolongation to produce accounts of all the profits received under foreign patents in respect of his invention {Re Johnson's Patent, ra ; Re Newton's Patents, 1884, 9 App. Gas. 592, J. C). Designs. Designs {I). — " The comptroller may, on application by or on behalf of any person claiming to be the proprietor of any new or original design not previously published in the United Kingdom, register the design under this part (Part III.) of this Act" (Patents, Designs, and Trade Marks Act, 1883, sect. 47 (1) {I)). " If a registered design is used in manufacture in any foreign country, and is not used iu this country within six months of its registration in this country, the copyright in the design shall cease" {lb. sect. 54). Proprietor. In May, 1885, Gr., who was acting as the sole agent and con- signee in the United Kingdom, during the year 1885, of toys manufactured in the United States by an American company, and consigned to him by them, registered in his own name the designs in accordance with which some of such toys were manufactured. The company had authorized him to register the designs in his own name, but had not assigned to him the designs, or the right to apply them to goods, the only arrangement between them and Gr. being that G. should sell in the United Kingdom goods manu- factured and consigned to him by the company ; it was held by Pearson, J., that Gr. was not the proprietor of the designs within (/6) For foreign laws, see p. 330, infra, note. In a case to wHoli the section does not extend, see Galdwell v. Van Vlissengen, p. 293, supra. [I) See Part III. of the Act ; and see note, p. 322, supra. Digitized by Microsoft® PATENTS, DESIGNS, AND TKADE MARKS ACT, 1883. 327 sect. 61 of the Act of 1883 — the section containing a definition of proprietor in this respect — and that the registration in his name was therefore wrongful and should be expunged {Re Quiferman's Designs, 1886, 55 L. J. Oh. 309) ; semble, Q-. could have registered in the name of the company {lb. p. 311, per Pearson, J.). If the inventor discloses his design to a party jointly interested Publication, with him in the possible sale of the article to be manufactured, or if he consvdts a person experienced in the trade, likely to advise him well and whom he can trust, in the first case certainly, and in the second probably, he has done nothing amounting to a publica- tion {Blank v. Footman, 1888, 39 Oh. D. 678, 680, Kekewich, J.). -And if the person in whom the inventor has so reposed confidence, being entrusted also by the inventor with the duty of soliciting orders and ascertaining from likely purchasers whether orders could be got for the manufactured article, when it had been regis- tered, shows the design to a large customer to get his advice, this is not necessarily a publication {Ih. 681). But if there is a further delegation of confidence, if two other customers are consulted by the person in whom confidence was first reposed and give orders, whether to be executed before registration or after not appearing, and receive samples, so that there is no reason why, if they had been disposed to act badly, they should not have had articles manufactured from the designs for themselves, then there has been done that which amounts to publication {Blank v. Footman, 1888, 39 Oh. D. 678, Kekewich, J.). For the Act is not intended to protect a man who says, " I will design and I will spend my time and my money when I am quite satisfied that I shall find a market" {lb. at p. 684, per Kekewich, J.). So if the inventor sends the design to a shop that it may be used there by a workman in strict confidence for a single purpose, this disclosure would not amount to publication (see lb. at p. 682 ; of. Sumpherson v. Syer, 1887, 4 Eep. Pat. Gas. 407, 413, per Bowen, L. — Bubjects, or resident, or even present in France when the suit began, so as to he bound by reason of allegiance, or temporary presence, by the decision of a French Court, and they did not select the tribunal and sue as plaintiffs, in any of which cases the determination might have possibly bound them. They were mere strangers who put forward the negligence of the defendant as an answer, in an adverse suit in a foreign country, whose laws they were under no obligation to obey." It will be seen from this, that those very learned judges, besides expressing an opinion conformable to ours, also expressed one to the effect that the plaintiffs in that suit did not put themselves under an obligation to obey the foreign judgment, merely by appearing to defend themselves against it. On the other hand, in Simpson v. Foffo (m), where the mortgagees of an English ship had come into the Courts of Louisiana, to endeavour to prevent the sale of their ship seized under an execution against the mortgagors, and the Courts of Louisiana decided against them, the Vice-Chancellor and the very learned counsel who argue in the case seem all to have taken it for granted that the decision of the Court in Louisiana would have bound the mortgagees, had it not been in contemptuous disregard of EngHsh law. The case of General Steam Navigation Company v. Guillon {x) was not referred to, and, therefore, cannot be considered as dissented from ; but it seems clear that they did not agree in the latter part of the opinion there expressed. We think it better to leave this question open, and to express no opinion as to the effect of the appearance of a defendant, where it is so far not voluntary that he only comes in to try to save some property in the hands of the foreign tribunal. But we must observe that the decision in De Cosse Brissac v. Eathhone (y) is an authority that where the defendant voluntarily appears and takes the chance of a judgment in his favour he is bound. In Douglas v. Forrest (z) the Court, deciding in favour of the party suing on a Scotch judgment, say : " We confine our judgment to a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judg- ments were given, protected. The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it." Those circumstances are aU. negatived here. We should, however, point out that, whilst we think that there may be other grounds for holding a person bound by the judgment of the tribunal of a foreign country than those enumerated in Douglas v. Forrest (a), we doubt very much whether the possession of property, locally situated in that country and protected by its la"ws, does afford such a ground. It should rather seem that, whilst every tribunal may very properly execute process against the property within its jurisdiction, the existence of such property, which may be very small, affords no (m) 1 John. & H. 18 ; 29 L. J. (Ch.) 657 ; 1 Hem. & M. 195 ; 32 L. J. (Cli.) 249. Sx) 11 M. & W. 877. \y) 6 H. & N. 301 ; 30 L. J. (Ex.) 238. (z) 4 Bing. at p. 703. (») Ibid. Digitized by Microsoft® SCHIBSBY V. WESTENHOLZ. 351 suffiuient ground for imposing on the foreign owner of that property a 1870. duty or obligation to fulfil the judgment. But it is unnecessary to decide this, as the defendants had in this case no property in France. As to this, see London and North Western Railway Company v. Lindsay {V). We think, and this is all that we need decide, that there existed nothing in the present case imposing on the defendants any duty to obey the judgment of a French tribunal. We thijik, therefore, that the rule must be made absolute. Rule absolute. Writ. — ^Iii an action upon a foreign judgment (c) the writ of in action summons may be specially indorsed under R. S. 0. 1883, Ord. III. j'udgmen?^ r. 6, and, subject to the provisions of Ord. XIV., the plaintiff may ■writ_may be obtain an order under Ord. XIV. empowering him to sign final indorsed, judgment {Grant v. Easion, 1883, 13 Q. B. D. 302—0. A. ; Mangm- v. Rodrigues, 1889, 5 T. L. R. 271). Where the plaintiff sues on a foreign judgment recovered for a Amount sum certain in the currency of the foreign country he ought, appa- gho™ld rently, to recover in sterling a sum which, according to the rate of ''^'=°^^''- exchange between England and the foreign country at the time of the judgment, would at that time be equal to the sum if paid in the currency of that country [Scott v. Sevan, 1831, 9 L. J. K. B. 162). An action upon a foreign judgment may be treated as an action Nature of in either debt or assumpsit ; the liability of the defendant arises f^^^?" ^P°5 ^ ' •' loreign judg- upon the implied contract to pay the amount of the foreign judg- ment. ment {Grant v. Easton, supra, at p. 303, per Brett, M. R.). And a foreign judgment does not operate as a merger of the ' original ep-use of action {Maule v. Murray, 1798, 7 T. R. 470 ; Eall V. Odber, 1809, 11 East, 118 ; Re. Henderson, 1887, 37 Ch. D. 214, 250, per Cotton, L. J.) ; but the plaintiff may, if he pleases, rely on the original cause of action, of which the foreign judgment will then be evidence, the prim^ facie effect of which may be met in the same manner as defences may be offered to the obligation (i) 3 Macq. 99. (e) " Foreign" includes, as generally, Scotch or Irish, but see further as to these. Annual Practice, notes to Ord. XTiII. r. 28, Judgments Extension, and Se Dundee Ey. Co., 1888, 58 L. J. Ch. 5 ; 37 W. K. 50 ; "W. N. 1888, p. 205 ; Fontaine's Case, 1889, 41 Ch. D. 118. Digitized by Microsoft® 352 FOREIGN JUDGMENTS. quasi ex contractu upon which the plaintiff relies if he sues upon the foreign judgment [lb. ; see also Hawhsford v. Giffard, 1886, 12 App. Cas. P. C. 122, 126 {d) ; Aboulqf v. Oppenheimer, 1882, 10 Q. B. D. 295, 300, per Coleridge, C. J.). Judgment in rem or in personam. In rem or in personam.—" It is really the form of the proceedings (ahroad) which must be looked at to ascertain whether it is a pro- ceeding in rem or in personam " {The City of Mecca, 1881, 6 P. D. 106, 113, per Jessel, M. E.). " We may observe that the words as to an action being in rem or in personam, and the common statement that the one is binding on third persons and the other not, are apt to be used by English lawyers without attaching any very definite meaning to those phrases. We apprehend the true principle to be that indicated in Story, sect. 592 — that the principle ' is applied to all proceedings in rem as to moveable property within the jurisdiction of the Court pronouncing the judgment.' We think the inquiry is, first, whether the subject-matter was so situated as to be within the lawful control of the State under the authority of which the Court sits ; and, secondly, whether the sovereign authority of that State has conferred on the Court juris- diction to decide as to the disposition of the thing, and the Court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world " {Casfrique v. Imrie, 1870, L. E. 4 H. L. 414, 429, per Blackburn, J., delivering opinion of judges). These remarks of two so eminent lawyers and the manner of their application iu the cases cited (q. v. and con- sider), show that the test is, had the Court jurisdiction over and did its judgment proceed on the " res " rather than inter partes ? In the former case the foreign judgment wiU be treated as in rem, in the latter as in personam (e). Foreign Foreign judgment in personam. — A foreign judgment in personam perSmam.'" which is final and conclusive upon the merits inter partes is, {d) The arguments of appellant's counsel are reported 56 L. J. P. 0. 10. Note that the order appealed from gave the plaintiff larger rights than the English judgment on which he sued. See p. 353, infra. (e) As to decisions on status, see p. 366, infra (legitimacy) ; p. 366, infra (marital relations). See also as to in rem or in personam, The Longfwd, 1889, 14 P. D. 34. Digitized by Microsoft® GODARD V. gray; SCHIBSBY V. WESTENHOLZ. 353 whether relied upon by the plaintiff in England or by the defendant in England, recognized as valid in England as between the parties thereto and their privies Htigating the same issue in England; provided only that the judgment is the judgment of a Court of competent jurisdiction and was obtained without fraud on the part of the party relyiag thereon {Godard v. Oi'ay; Schibsby v. Westmi- hoh, above; see infra). " Foreign judgment." — There seems no reason to suppose, as is Foreign sometimes stated, that the judgment must be the judgment of a foreign court of record. There is no reference to such a require- ment in the more modern cases, and it would seem sufficient that the Court should sit under the lawful authority of the State in which it sits, or that it is recognized as a lawful Court in the Courts of this country (see per Blackburn, J., in Castrique v. Imrie, supra ; and as to consular Courts, Barber v. Lamb, 1860, 29 L. J. C. P. 234 ; Messina v. Petrococchino, 1872, L. E. 4 P. C. 144, 157) (/). " Final and conclusive inter partes." — Thus, an action cannot be Final and maintained on a foreign interim decree as to costs, which might ^termrt^s be varied or rescinded from time to time {Patrick v. Shedden, 1853, 22 L. J. Q,. B. 283), or upon an order to pay money into Court pendiug decision {Paul v. Roy, 1851, 15 Beav. 433 ; 21 L. J. Ch. 361). So also the foreign judgment must be for a sum certain {Obicini v. Bligh, 1831, 1 M. & Scott, 477 ; 8 Bing. 335) ; and an action will not lie on a decree of a foreign Court whereby the defendant is ordered to pay a certain sum of money to the plaintiff on a certaiu day, first deducting thereout the defendant's costs, to be taxed by the proper officer, where the defendant's costs have not been taxed either at his own request or upon an ex parte proceeding at the instance of the plaintiff {Sadler v. Robins, 1808, 1 Camp. 253) {g). Similarly, plea of limitation or prescription merely barriag the remedy and judgment thereon in a foreign country is not, without more, any bar to action in England {Harris V. Quine, 1869, L. E. 4 Q.. B. 653) ; for, in such circumstances, the (/) See, however, SolinsmY. Bland, 1760, 1 W. Bl. 249, 260 (Court of Honour); Qage v. BulkeUy, 1744, 3 Atk. 315. (a) As to collateral order as to costs, see also Sheehy v. The Frofessional, fc. Co., 1857, 26 L. J. 0. P. 301, 306 ; ii. 27 L. J. 0. P. 233. ^^ Digitized by Microsoft® 354 FOEEIGN JUDGMENTS. foreign Court does not determine the matter, but merely decides that the plaintiff's remedy is barred as a matter of procedure in the foreign Court ilb.; of. The Delta, 1876, 1 P. D. 393, 404). Again, in a very recent case, it appeared that the judgment which was sought to be enforced was what was called a " renate " judgment obtained in "executive" or summary proceedings at Seville, in Spain ; that ia " executive " proceedings the defence admitted the original right of action, and must be that for certain reasons the plaintiS had lost his original right ; that a judgment in such proceedings could never be relied on to found a plea of res judicata in Spaia, and was no bar to further " ordinary " proceed- ings, otherwise called " plenary " or " declarative " proceediags by either party, and the Court of Appeal held that an action would not lie on the decision in such proceedings, for the order teas not final in the sense of being a decision as to the rights of the parties (In re Henderson, Noumon v. Freeman, 1887, 37 Ch. D. 244, 251, reversing North, J., 35 Ch. D. 704, where the cases will be found fully examined) [h). But if the foreign judgment is final and conclusive on the merits, and it is only urged va. bar that the judgment is liable to be reversed on appeal, then, though the pendency of an appeal in a foreign Court might afford ground for the equitable interposition of the English Court, to prevent the possible abuse of its process, and on proper terms to stay execution in the action («), it could not be a bar to the action itself {Scott v. Pilkington, 1862, 31 L. J. Q. B. 81, 89, per curiam ; see also Sail V. Odher, 1809, 11 East, 118 ; Alivon v. Furniml, 1834, 3 L. J. (N. S.) Ex. 241 ; Henderson v. Henderson, 1843, 3 Hare, 100 (colonial judgment — appeal to P. C.) ). And where the Court of a foreign country imposes a duty to pay a smn certain in that respect, an action will lie for the recovery of costs awarded by a foreign Court of competent jurisdiction {Russell v. Smyth, 1842, 11 L. J. (N. S.) Ex. 308). So, in the course of his judgment ia Re Henderson, supra, it was (h) Including Flummer v. Woodhume, 1825, 4 L. J. K. B. 6 ; Frayes v. Worms, 1861, 10 0. B. (N. S.) U9 ; Smith t. NicoUs, 1839, 8 L. J. (N. S.) C. P. 92 ; Ostell V. Lepage, 1851, 6 De G. & Sm. 95 (judgment diasolring partnership, and directing accounts still pending — not final) ; to which add Doglioni v. Crispin, 1866, L. E. 1 H. L. 301 ; and see also SenUy v. Soper, 1828, 2 M. & E. 153 ; 8 B. & 0. 16 ; Henderson v. Henderson, 1844, 6 Q. B. 288 ; 13 L. J. Q. B. 274, in which two cases judgment, being for ascertained balance, was enforced, (j) See further, pp. 368, 369, infra. Digitized by Microsoft® GODARD V. GKAY; SCHIBSBY V. WESTENHOLZ. 356 said by Lindley, L. J. : — " The test of finality and conclusiveness of any judgment is to be found in the view taken of it by the tribunals of the country in which it is pronounced, and if a judgment leaves the rights of the parties uninvestigated and imdetermined, and avowedly leaves those rights to be determined in some other proceeding, the judgment cannot be treated here as imposing an obligation which our tribunals ought to enforce. "The tribunals of this country go further than any others in enforcing foreign judgments. But English Courts have never yet gone so far as to recognise as a good cause of action a foreign judgment obtained in a proceeding in which the rights of the parties have not been, and could not have been, investigated or determined. Such judgments are provisional and not final, although it may be true that they must be obeyed, and are final to that extent, just like an order to pay money into Court to abide the result of further inquiry " (37 Ch. D. at pp. 255, 256). " Upon the merits inter partes." — See as to this, Sarris v. Qm'ne, Upon the and Re Henderson, supra ; and Yalid in England — Court of Com- ^r"es "^ petent Jurisdiction, p. 356, infra et seq. The plaintiff in England cannot, when the foreign judgment is relied on as his cause of action, obtain a greater benefit here than the foreign judgment gave him {Ee Henderson, supra ; Hawlisford V. Giffard, 1886, 12 App. Gas. 122; and see Novelliy. Rossi, 1831, 2 B. & Ad. 757, so explained, Castrique v. Imrie, 1870, L. E. 4 H. L. 435 ; The Delta, 1876, 1 P. D. 393). '.'Inter partes" — "As between the parties thereto and their inter partes— privies litigating the same issue in England." — " When a tribunal, fhe parties no matter whether in England or a foreign country, has to deter- their prf^es mine between two parties, and between them only, the decision of litigating the same issue in that tribunal, though m general bmdmg between the parties and England. privies, does not affect the rights of third parties, and if, in execu- tion 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 third person setting up his claim to that thing ; for the tribunal neither has jurisdiction to determine, nor did determine, anything more than Digfti^d by Microsoft® 356 FOREIGN JUDGMENTS. that the litigant's property should be sold, and did not do more than sell the litigant's interest, if any, in the thing " {j) {Castrique V. Inirie, 1869-70, L. E. 4 H. L. 414, 427, 428, Blackburn, J., delivering opinion of judges ; see also Tarleton v. Tarleton, 1815, 4 M. & S. 22 (A-) ; Poioer v. Wliitmore, 1815, ib. 150 (k) ; Callandar V. Dittrich, 1842, 4 M. & G. 68; Hunter \. Stewart, 1861, 31 L. J. Ch. 346, Westbury, L. C, reversing Wood, V.-C, 1 H. & M. 226, who had relied on Henderson v. Henderson, 1843, 3 Hare, 115 ; Tiyhe v. Tighe, 1877, 11 Ir. E. Oh. 203 ; Homtoun v. SUgo, 1885, 29 Ch. D. 448 ; Hawhsford v. Giffard, 1886, 12 App. Cas. 122, 126, J. 0. ; and Novelli v. Rossi, explained Castrique v. Imrie, iiM Siqyra). Whether relied upon by the plain- tifB or by the defendant. " Whether relied upon by the plaintiff or by the defendant." — The majority of the reported cases have arisen where the plaintiff has been seeking to enforce a foreign judgment, and they need not be more particularly here referred to. As regards pleading a foreign judgment in bar, see Burrows v. Jemino, 1726, 2 Str. 733, King, L. C; Fhmmer v. Woodhurne, 1825, 4 L. J. K. B. 6; Henderson v. Henderson, supra, at p. 117, per Wigram, V--C. ; M'Leod v. SchuUze, 1844, 13 L. J. Ex. 321 ; Ricardo v. Garcias, 1845, 12 01. & F. 368 ; The Griefswald, 1859, Swabey, 435 ; and also Smith v. Nicolls, 1839, 8 L. J. (N. S.) 0. P. 92 ; Bank of Australasia v. Harding, 1850, 19 L. J. 0. P. 345 ; General Steam Navigation Co. v. Guillon, 1843, 13 L. J. Ex. 168, Valid in England : Court of competent jxirisdiction. "Valid in England — Court of Competent Jurisdiction." — "The principle on which an action can be brought on a foreign judgment is that the rights of the parties have been already investigated and determined by a competent tribunal, or that if such rights have not been in fact investigated and determined, it is because the parties, or one of them, have made default and not availed themselves of the opportunities afforded them by the foreign tribunal. In an action on a foreign judgment not impeached for fraud, the original cause of action is not re-investigated here, if the judgment was (j) This applies only to judgments in personam ; see the remarks of the learned judge, 1. 0., and p. 366, infra. As to who are privies, see 2 Sm'. L. C. 845. (*) But as to some of the reasoning in these two cases, qusere. Digitized by Microsoft® GODAED V. GKAY; SCHIBSBY V. WESTENHOLZ. 357 pronounced by a competent tribunal having jurisdiction over the litigating parties {Godard v. Grmj; Schibsbi/ y. Westciihoh). The judgment is treated as res judicata, and as giving rise to a new and independent obligation which it is just and expedient to recognise and enforce " (/« re Henderson, 1887, 37 Oh. D. 244, 256, per lindley, L. J. (as to plaintiEB suing on original cause of action, see p. 35, supra) ; see also, in addition to the cases referred to in judgments in G. v. G. and S. v. W., and the cases cited pp. 351 — 356, supra, Vanqiielin v. Bouard, 1863, 33 L. J. 0. P. 78). The judgment of a foreign Court of competent jurisdiction Foreign Court cannot be questioned here on the ground that the foreign Court own law. has mistaken the law of its own country, or has come, on the evi- dence, to an erroneous conclusion as to the facts {Scott v. Pilldngton, 1862, 31 L. J. G. B. 81 ; De Cosse Brissac v. Rathhone, 1861, 30 L. J. Ex. 238 ; Henderson v. Henderson, 1844, 13 L. J. Q. B. 274, 277) ; and a foreign judgment, so made with jurisdiction, binds, notwithstanding the discovery of fresh evidence, and although the whole of the facts were not before the foreign tribunal at the time it delivered its decision ; for the Courts of this coimtry do not sit to hear appeals from foreign tribunals, and if the judgment of a foreign Court is erroneous, the regular mode, provided by every system of jurisprudence, of procuring it to be examined and reversed, ought to be followed. . Neither do the Courts of this country sit to rehear causes which have been tried abroad. Every system of jurisprudence provides a mode by which a judgment may be reviewed and a cause reheard on the discovery of fresh evidence ; and to the regular mode so provided recourse Qught to be had {In re Trufwt, Trafford v. Blanc, 1887, 36 Ch. D. 600, 617, per Stirling, J. ; Be Cosse Brissac v. Rathbone, ubi supra ; Bank of Australasia v. Nias, 1851, 20 L. J. Q. B. 284). However, where, on a special case stated, it was found as a fact that the foreign tribunal had mistaken its own law, the English Court held that it was not called upon to give effect to the judgment, since it clearly appeared that the foreign Court had gone manifestly wrong {Meyer v. Ralli, 1876, 1 0. P. D. 358, 370, 371) {k). {h) It may be respectfully doubted if this case is good law. Archibald, J., who delivered the judgment of the Court, consisting of himself, Lord Coleridge, C. J., and Grore, J., relied on a dictum of Lord Tenterden in Becguet v. M'Carthy, 1831, Digitized by Microsoft® 358 FOREIGN JUDGMENTS. EiTOneoua construction of English law. Disregard of English law. It does not affect the validity of an obligation imposed by a foreign judgment in personam that the judgment proceeded on an erroneous construction of English law [Qodurd v. Gray ; In re Trufort, supra) ; at all events, if the party who seeks to impeach the judgment has failed to bring to the knowledge of the foreign tribunal the provision of the English law on which he relies {Godard v. Gray, Hannen, J. ; In re Trufort, p. 616). But when the foreign judgment in personam is not itself sued upon in England, but is merely relied upon iu England as evidence in bar of the plaintiff's claim, then, although the plaintiff was a party to the litigation abroad, a judgment in the foreign Court ia which the claim of the plaintiff in England — a party iuter- veniug to protect his property abroad — was, as agaiust the party plaiatiff in the foreign suit, disregarded, will not operate against the party plaintiff iu England iu favour of a party — an assignee of the rights in a chattel awarded by the foreign judgment to the party plaintiff abroad — defendant in England, when such judg- ment is that of a Court which ignored, as a rule of its own law, the English law properly applicable to the case, and which would, if received in the foreign Court, have established the English plaintiff's claim {Simpson v. Fogo, 1862, 32 L. J. Oh. 249; Castrique V. Imrie, 1870, L. E. 4 H. L. 436). Simpson v. Fogo may also be cited to support a proposition that a foreign judgment proceeding on the face of it in contemptuous disregard of English law properly applicable to the case will not, in any circumstances, be recognised as of effect in England. But it is submitted that the facts of the case did not call for so sweep- ing a rule (see, however, lAverpool Marine Credit Co. v. Stmter, 2 B. & Ad. 961, which only hy implication suggests that the foreign judgment might he said to be erroneous if very plainly so, and on a similar reservation of Blackburn, J., in Castrique v. Imrie, 1870, L. E. 4 H. L. 430, expressed with that learned judge's usual caution. The tribunal in question was IVench, and it was said, ' ' The foreign tribunal has not professed to declare what is the law of Austria. If it had, though equally wrong, we might have been bound by Castrique v. Imrie to have given effect to it : " p. 371. This, in effect, is to say that since the foreign tribunal finds English or other extraneous law as a fact, an English Court is not competent to say that its judgment in that respect is erroneous ; but since the foreign Court deola,res its own law as law, the English Court may ignore it on the ground that it is erroneous ; which appears to be a doctrine supported by applying a rule of English procedure to the procedure of foreign Courts, and to lead to results which are repugnant to good sense ; e. g., an Enghsh Court may not say that a foreign tribunal has mistaken the law of England, but it may say that such tribunal has gone manifestly wrong as to its own law. See, further, p. 427, infra ; and also Sociite Generate de Paris v. Dreyfus Brothers, 1887, 37 Ch. D. 215. Digitized by Microsoft® GODARD V. GEAY; SCHIBSBY V. WESTENHOLZ. 359 1868, L. R. 3 Ch. 479, 484, per Lord Chelmsford, L. 0. ; but of. p. 362, tiifm). The case is also supportable on the ground of involuntary appearance (see Voiiiet v. Barrett, p. 362, infra; Schibsbi/ y. Wesfenhok). It is sometimes said that a foreign judgment is not enforceable Natpal ITlstlCfi in England if contrary to natural justice, — that is, to the natural sense of what is right and wrong ( Volnet v. Barrett, 1885, 55 L. J. Q. B. 39, 41, per Lord Esher, M. E.). Natural justice, however, or the natural sense of what is right and wrong, are things difficult to define or ascertain, and even in the mouth of Lord Ellenborough the term has been condemned as mere declamation, and attributed to the hurry of nisi prius {ScUhshj v. Westenholz, p. 349, above) ; and although it may be that when the foreign judgment shocks notions of morality or public policy generally accepted amongst English people its operation here will be denied on some such principle ("Westlake, § 309), it appears that what is generally meant is a repugnancy to what is deemed fitting by the English Courts in reference to the conduct or mode of procedure of the foreign tribunal (/), and not in reference to the merits of the action {Crawley v. Isaacs, 1867, 16 L. T. 529), or (and this is the manner in which the principle receives practical application in England) that the foreign Court, although it affected to decide on the merits, was, in view of the English law, without jurisdiction. This is illustrated by Schibsbi/ v. Westenholz, and the cases now about to be considered. It will have appeared, from a perusal of Schibsbi/ v. Westenholz, Jurisdiction, that it is not sufficient that the foreign Court has deemed itself to have a competent jurisdiction in the matter, but the competency must, under the circumstances in each case, be admitted by our Courts. " As has often been stated, the Courts of this country will not enforce a judgment obtained in a foreign country against a subject of this country, who is not resident in the country in which the judgment is obtained, who has had no notice of the (1) See Voinet v. Barrett, 1885, 55 L. J. Q. B. 39, 42—0. A., where the Coiait seems to hayo considered -whether the proceedings of the foreign Court were contrary to what was called "natural justice" or no. A mere irregularity will certainly not invalidate the judgment here : lb. ; see, also, Sheehy v. The Professional Life Assurance Co., 1857, 27 L. J. Q. B. 233. Digitized by Microsoft® 360 FOREIGN JUDGMENTS. proceedings, and has not been served with any process ; so that, although the judgment so obtained may he good in that foreign Court, it will not be enforced here, because to do so would be contrary to natural justice, — that is, to the natural sense of what is right and wrong " ( Voinet v. Barrett, 1885, 55 L. J. Q.. B. 39, 41, per Lord Esher, M. E.) ; or rather, because such subject was not imder any obligation which our Courts can recognise to submit to a jurisdiction thus created solely by the motion of the foreign Court" {Schihsby \. Fes^c«^ofe, p. 349, above). But " the Courts of this country consider the defendant bound where he is a subject of the foreign country in which the judgment has been obtaiaed ; where he was resident in the foreign country when the action began; where the defendant in the character of plaiatifE has selected the forum in which he is afterwards sued ; where he has voluntarily appeared ; where he has contracted to submit himself to the forum ia which the judgment was obtained, and, possibly, if Becguet v. MacCarthy (1831, 2 B. & Ad. 951) be right, where the defendant has real estate within the jurisdiction, in respect of which the cause of action arose whilst he was within that juris- diction " {Rousillon V. Roimllon, 1880, 14 Oh. D. 351, 371, Fry, J.). As to want of residence, process, or notice, see, further, Buchanan V. RucJcer, 1807, 1 Camp. 63 (constructive notice held not binding on one who had never been even temporarily resident) ; Smith v. mcolk, 1839, 8 L. J. (N. S.) C. P. 92 ; Henderson v. Henderson, 1847,. 17 L. J. Q. B. 209 (service on defendant in jurisdiction- appearance and defence by attorney — judgment supported) ; Becquet v. MacCarthy, uU supra (service on public officer, see Don V. Lippmann, 1837, 5 CI. & F. 21 ; and qu. if Becquet v. MacCarthy can be supported except on ground advanced by Fry, J., above ; cf. Schibshy v. Westenholz) ; Reynolds v. Fenton, 1846, 16 L. J. C. P. 15 (presumption in favour of proper notice, cf. Taylor v. Ford, 1873, 29 L. T. 392 ; 22 W. E. 47) ; and also Camn v. Stewart, 1816, Stark. 525 ; and other cases cited ia Reynolds v. Fenton, uU supra ; Buflos v. Burlingham, 1876, 34 L. T. N. S. 688 (m). {m) Though an English Court will not enforce a decree of a foreign Court obtained against a party in his absence and without notice, yet where it finds that Digitized by Microsoft® GODAED V. gray; SCHIBSBY V. WESTENHOLZ. 361 Declaration on an Irish judgment. Plea, that the defendant Substituted was never served with any writ of summons, nor had he any notice of the action. Eeplication, that the Court, under the provisions of an Act of Parliament in that behalf, and upon an affidavit of the plaintiff's attorney, made an order directing that personal service of the writ of summons in the action on the defendant's attorney, and the transmission of copies thereof, and of the order, in a registered letter to the defendant, addressed to his place of business in London, should be deemed good service ©f the writ upon him, unless cause was shown to the contrary in six days after service of the rule making the order on his attorney, and that such service and transmission were effected as directed by the Court, and that the rule of Court making the order was made absolute. Ee joinder, that the order of the Court was obtained on the strength of the affidavit of the plaintiff's attorney, which affidavit was untrue, and that the plaintiff never had any right of action against the defendant in respect of the cause of action in respect of which the judgment was obtained. Held, that the rejoinder was bad, and that the replication was good {Crawley v. Baacs, 1867, 16 L. T. 529). Subject — ^Resident. — In Schibsby v. Westenhoh (p. 349, above). Subject: these two grounds are put upon principle (see also Buchanan v. Mucker; Cavan v. Steicart, ubi supra; Cowan v. Braidicood, 1840, 10 L. J. C. P. 42 ; and Douglas v. Forrest, cited in Schibsby v. Westenhoh). Eesidenee here probably includes domicil (see Westlake, § 302 ; and the cases cited infra — Contract to Submit) . Defendant having selected Forum. — Qu., if this should not run Defendant where the defendant, in the character of plaintiff, has selected the selectfd forum, and is afterwards sued upon a judgment obtained as the *°"™- result of such selection. It is based on Schibsby v. Westenhoh, p. 349 (see also Westlake, p. 308, who clearly gives the words in Schibsby v. Westenhoh this meaning, or possibly a more limited one). the proceedings in the foreign Court were rendered necessary by his resistance to a .proper demand, it will order him to pay the costs of those proceedings by way of damages : Griffin v. Brady, 1869, 39 L. J. Ch. 136, per James, V.-C. ' Digitized by Microsoft® 362 FOREIGN JUDGMENTS. Voluntary appearance. Appearance to protect property . Prom appre- hended Voluntary Appearance. — 'The appearance of a defendant merely to protect property of his ■whicli has heen already seized by the foreign Court, so that he only appears in order to get his property released, is involuntary, and is not sufficient to confer jurisdiction on the foreign Couxt, so as that the foreign judgment will hind the defendant in England ( Voinet v. Barrett, 1885, 55 L. J. Q. B. 39, 42, per Bowen, L. J. ; and see that ease generally ; also Simpson v. Fogo, 1862, 32 L. J. Ch. 249, p. 359, supra ; General Steam Navigation Co. v. Guillon, 1843, 13 L. J. Ex. 168 ; Be Cosse Brissae v. Rathbone, 1861, 30 L. J. Ex. 238). But if the defendant entered an appearance to the process of the foreign Court in order to protect from apprehended seizure property of his which may he or may thereafter come into that country, such an appearance is voluntary, and the judgment will be supported against him ( Voinet v. Barrett, 1885, 55 L. J. Q. B. 39 ; 34 W. E. 161 ; 2 T. L. E. 122, C. A. ; Be Cosse Brissae v. Rathbone, ubi supra) («). Possession of property ■widiin juris- diction. Possession of property within jurisdiction. — If the appearance of the defendant merely to protect property which has already been seized by the foreign Court is not sufficient to confer jurisdiction on the foreign Court, so as that the foreign judgment will bind the defendant in England {Voinet v. Barrett, ubi supra), it is clear that the mere possession of moveable property withia the jurisdiction is not sufficient to bind him. And, in addition to what was said in Schibsby v. Westenhoh (p. 349, above), it has since been laid down by Blackburn, J., in the course of the argument iu Buflos v. Burlingham (1876, 34 L. T. N. S. 688, 689), that property in foreign jurisdiction is not sufficient to give jurisdiction. But so far as regards immoveables, it is possible that the possession of such property within the jurisdiction may, under certain circumstances, be held sufficient to bind the defendant in England, especially if he have, though indirectly, notice of the proceedings ; for the {n) A Britieli ship mortgaged in England by British subjects to British subjects, ■was arrested at New Orleans by creditors of the mortgagor, also British subjects resident in England, and as the Courts of New Orleans do not recognize such a mortgage, the mortgagees, in order to protect the ship from sale, gave bonds for the amount claimed by the creditors. The mortgagees afterwards iUed a bUl in England to restrain the creditors from suing on these bonds : Held, no duress, and bill could not be maintained : Liverpool Marine Credit Co. v. Hunter, 1868, L. E.. 3 Ch. 479, Lord Chelmsford, L. C, affirming Wood, V.-O. ; of. Simpson t. Fogo, supra. Digitized by Microsoft® GODAED V. gray: SCHIBSBY V. WESTENHOLZ. 363 foreign Court would be the most -fitting tribunal to decide questions concerning immoveable property within its jurisdiction (o), and it may be that the defendant, possessing immoveable property in a foreign state, is under a quasi-contract to submit to the jurisdiction of that state (/)). (And see Becquet v. McCarthy; RousiUon v. Rousillon, supra.) Contract — Contract to submit to jurisdiction. — It is not sufficient Contract to to support a foreign judgment, so as that it will bind the defendant jvirisdiotion. in England, that the judgment was obtained on a contract which was made in the country of the foreign tribunal {Rousillon v. Rousillon, 1880, 14 Ch. D. 351, Fry, J.). But, as regards contract generally, there seems nothing to prevent its being held in any given case that, as regards the contract, the defendant undertook to submit to the jurisdiction of any given Court, and that then the judgment of that Court wiU bind the defendant if the procedure of that Court has been duly followed (q). This has, in effect, been so decided in Copin v. Adamson, 1875, 1 Ex. D. 17, C. A. (see also Vallie V. Dwhergue, 1849, 18 L. J. Ex. 398; Bank of Australasia V. Harding, 1850, 19 L. J. C. P. 345 ; Banlt of Australasia v. Nias, 1851, 20 L. J. Q. B. 284 (all these being similar to Copin v. Adamson, and on same question of shareholder in foreign company : see pp. 239, 240, supra : and see also Kehall v. Marshall, 1856, 26 L. J. C. P. 19 ; Laio v. Garrett, p. 371, infra ; and cf. Societe Industriale v. CompanJiia Portugueza, p. 232, supra). " Fraud on part of party relying on judgment." — " If the judg- Fraud on ment upon which the action is brought in England was procured rdyino' on ^ from the foreign Court by the successful fraud of the party who is i^. 3 C. A. ; and of. Tozier Y.Hawkins, clause (f), above; Young v. Bras, 1875, 1 Cb. D. 277, and notes to rule 2, above; Shearman v. Mtidi 1883, 32 W. E. 122 (libel— damages only proved witbin jurisc tion — insufficient) ; Neiv Chile, 8fc. v. Blanco, supra, p. 403 (agai comity) ; JRe Bur land, p. 414, supra). Tbe facts on wbicb tbe application depends sbould be sta fully and fairly to tbe Court, but a leave to issue or serve will w difficulty be set aside on tbe ground only of incorrect stateme in the affidavit, if tbe defendant bas lain by for a long time {R nolds V. Coleman, 1887, 36 Cb. D. 453, 462 ; Tozier v. Hatekins, supra; and see as to tbis, and as to tbe form and contents of ■ affidavit and otber points of practice. Annual Practice, notes tbis rule, and autborities there cited and referred to, and rule 6 a note, infra). As to the discretion allowed by tbis Order and review, see Bi nolds V. Coleman, 36 Ch. D. 465 ; Societi, 8fc. v. Dreyfus, supra; and cf. KnowlesY. Roberts, 1888, 38 Ch. D. p. 271. 5. Any Order giving leave to effect such service or give such not shall limit a time after such service or notice within which such def( dant is to enter an appearance, such time to depend on the place country where or within which the writ is to be served or the not given. As to tbe practice under this rule, see Annual Practice, no thereto. Under Ord. XIII. r. 2 — which requires that before taki proceedings upon default of appearance to a writ of summons, \ plaiutifE shall file an affidavit of service, or of notice in lieu service, as tbe case may be — the Court, where notice of tbe w is served out of the jurisdiction, has no power to allow a cei ficate of service to be filed iu lieu of an affidavit, even where appears that by tbe foreign law tbe process-server cannot me an affidavit as prescribed by that Order and rule {Ford v. Miesc 1885, 16 Q. B. D. 57 ; as to wbicb decision, see further, p. 4i infra). iji) Ab regards the special circumstances of these two cases and foreign ju menta, see pp. 373, 374, aupra. Digitized by Microsoft® PARTNERS. 417 6. When the defendant is neither a British subject nor in British dominions, notice of the writ, and not the writ itself, is to he served upon him. Fonps; see A. P. notes to rule. As to British subjects, see pp. 45 et seq., supra; Bacon y. Turner, 1876, 3 Ch. D. 275 ; British dominions, pp. 294, 296, supra. Service of the writ instead of notice upon one "who is not a British subject nor in British dominions is a nullity, and not a mere irregularity ; and the order for service of the writ and all subsequent proceedings will be set aside on summons on behalf of the defendant [Hewitson v. Fahre, 1888, 21 Q. B. D. 6 ; see also James v. JDespott, 1884, 14 L. E. Ir. 71, Q. B. D.). 7. Notice in lieu of service shall be given in the manner in which writs of summons are served. That is, personal service, unless a case can be shown for substitu- tion. See pp. 409, 410, sujora. Form, Practice ; see A. P. notes to rule. Partners. — Ord. XVI. r. 14 : Any two or more persons claiming Partners : or being liable as co-partners may sue or be sued in the name of regardin^^ the respective firms, if any, of which such persons were co-partners ^^^^^ °* r 1 J ^ r i. process. at the time of the accruing of the cause of action. . . . Ord. IX. r. 6 : Where persons are sued as partners in the name of their firm, the writ shall be served either upon any one or more of the part- ners, or at the principal place within the jurisdiction of the business of the partnership upon any person having at the time of service the control or management of the partnership business there ; and subject to these rules, such service shall be deemed good, service upon the firm. Eule 7. Where one person carrying on business in the name of a firm apparently consisting of more than one per- son shall be sued in the firm name, th& writ may be served at the principal place within the jurisdiction of the business so carried on upon any person having at the time of service the control or management of the business there ; and such service, if sufficient in other respects, shall be deemed good service on the person so sued. (See Bullock v. Caird, 1875, L. E. 10 Q. B. 276 ; A. P. notes hereto ; and Leese\. Martin, 1871, L. E. 13 Bq. 77 ; 0' Weil v. Clason, 1876, 46 L. J. Q. B. D. 191.) N. Digitized by Microsoft® ^ ^ 418 EXAMINATION ON COMMISSION. As to the other rules, see tHs Order. In PolUxfm ^ Co. Sibson ^ Co., 1886, 16 Q. B. D. 792, the defendants, who w an American partnership carrying on business in the Uni States, were sued in the name of their firm for breach of contri One member of the firm, happening to be in England on busin was served with the writ, which was the ordinary eight day w Wills, J., set aside the service as irregular. But, on appeal, it ^ held by Mathew and A. L. Smith, JJ., that the appeal must allowed, and the order of Wills, J., rescinded ; for Eule 6 appliec a foreign firm as well as to an English partnership. The offices a mere agent — not a servant — are not a place of business of a fi for the purposes of Eule 6 {Baillie v. Goodwin 8f Co., 1886, Ch. D. 604, North, J.) (s). Garnishee. Garnishee — Partner. — Ord. XLV. r. 1, makes provision garnishee orders as regards persons within the jurisdiction. . Eule 10 of the same Order («), it is provided that "any otl person," in Eule 1, shall include a firm any member of whicl resident within the jurisdiction, and a garnishee order may made against any such firm in the name of the firm; and a appearance by any member then within the jurisdiction, pursui to any order made under this rule, shall be a sufficient appearai by the firm. Examination of witnesses abroad. Examination of Witnesses. — Ord. XXXVII., r. 5. The Co- or a judge may, in any cause or matter, where it shall appear nee sary for the purposes of justice, make any order for the exami: tion upon oath before the Court or judge, or any officer of 1 Court, or any other person, and at any place, of any witness person, and may empower any party to any such cause or mat to give such deposition in evidence therein, on such terms, if ai as the Court or a judge may direct. (See A. P. notes hereto. («) Cf. pp. 233 et seq., supra, and cases there cited. Some expressions in the jui ment in Baillie v. Goodwin seem to show that the learned judge's attention was called to the difference hetween the principal place of business within the juriB( tion and the place of business. The decision, as the learned judge points out, be supported on the short ground that, even if the service was effected at the ri place, it was not effected on the right person — a clerk of the agent, and not' agent himself, having been served. (») R. S. 0. August, 1888, 2 ; W. N. 1888, 439. Digitized by Microsoft® R. S. C. 1883, ORD. XXXVII. R. 5. 419 to taking evidence by commission in India and the colonies, and elsewhere in her Majesty's dominions, see 13 Geo. 3, o. 63 ; 1 Will. 4, c. 22 ; 19 & 20 Yict. c. 113 ; 22 Vict. c. 20 ; 48 & 49 Vict. c. 74 ;. Camphell v. Att-Gen., 1867, L. E. 2 Oh. 571 ; Simpso)i v. Hazard, W. N. 1887, p. 115 ; Wilson y. Wilson, 1883, 9 P. D. 8.) A commission to examine witnesses abroad is not granted ex debito justitise, but the grant is a matter of judicial discretion, and the commission ought only to be granted on reasonable grounds being shown for its issue. The matter being one of discretion, it is impossible to lay down any general rule as to when a commis- sion wlU. be granted. It must depend on the circumstances of the particular case. The Court must take care, on the one hand, that it is not granted when it would be oppressive or unfair to the oppo- site party, and, on the other hand, that a party has reasonable faci- lities for making out his case, when from the circumstances there is a difficulty in the way of witnesses attending at the trial. All the circumstances of each particular case must be taken into con- sideration. With regard to the case of a plaintiff asking for a commission to examine himself, that is also a matter of discretion, but the discretion will be exercised in a stricter manner, and the Court ought to require to be more clearly satisfied that the order for a commission ought to be made (Coch v. Allcoch, 1888, 21 Q. B. D. 178, 181, per Lord Esher, M. E., Lindley and Lopes, L. JJ., concurring). So in a case where the amount in dispute was small, and it was shown that witnesses were out of the jurisdiction, and that their examination on a commission abroad would be much less expensive than bringing them to the trial in England, and some of them ■were in the plaintlS's employ, and their evidence was material, the C. A. affirmed the order of the Q,. B. D. that a commission for the examination of these witnesses and of the plaintiff himself should issue {lb.). Where Fry, J., was suspicious of the witness, owing to his conduct and circumstances, he refused to allow the commission to go, since, under the commission, there would not have been any opportunity for examination and cross-examination of the witness after the English practice {Re Boyse, Crqfton v. Crofton, 1882, 20 Ch. D. 760). For, although the Court will not, on an application Digi^SSby Microsoft® 420 EXAMINATION ON COMMISSION. of this kind, inquire into the merits of the cause, it will regard possibility of the witness not being a credible witness, and ^ consider, to that end, the nature of the case {Berdan v. Greenm 1880, 20 Ch. D. 764, note, C. A.) ; and if satisfied that the i reason is that cross-examination may be avoided, or that no si cient reason has been shown why, under the circumstances, witness should not come here, will refuse the commission {Lan V. Tate, 1883, 24 Ch. D. 522, 528, per Cotton, L. J. ; Armour Walker, 1883, 25 Ch. D. 673, C. A.; Lawson v. Vacuum Bral;e ( 1884, 27 Ch. D. 137, C. A.). Thus, since he is an interested pa: and has only his own will to consult whether he shall come to trial or no, an application that the plaintiff may be examii abroad will be viewed with great suspicion {Re Boyse, sujri Berdan v. Greenwood; Langen v. Tate, supra; The Parisian, 18 13 P. D. 16 ; Light v. Governor of Anticosti, 1888, 58 L. T. i 4 T. L. E,. 430). Neither should the Court grant a commiss involving a considerable amount of expense and trotible unl satisfied that the evidence sought to be obtained is material to issue raised {Laicson v. Vacuum Co., supra; Mouton v. Schweiti W. N. 1868, p. 161). The name of the witness need not necessarily be disclosed the application {Nadin v. Bassett, 1883, 25 Ch. D. 21, C. A.). See also, as regards this subject, Valentine v. Hall, W. N. 18i ■v p. 50 ; Imperial Land Company of Marseilles v. Masterman, W. 1873, p. 223; Ongley v. Hill, W. N. 1874, p. 157; Bam Franco-Egyptienne v. Lutcher, 1879, i;8 W. E. 133; Proctor Tyler, 1887, 3 T. L. E. 282 ; Fraser v. Nevins, 1888, 4 T. L. 448 (colony : request to colonial judge) ; Lewis v. Kingsbury, 18f lb. 626 (defendant) (6) : and as to an, application to exami witnesses as to foreign law abroad, The M. Moxham, 1876, 1 P. 115, C. A. (commission refused : Spain) ; Armour v. Walker, 18i 25 Ch. D. 673, C. A. (commission granted — United States M. Moxham not cited). As to procedure in foreign Court acting on requisition, i Hitchins v. Hitchins, 1866, L. E. 1 P. & D. 153 ; Campbell A.-G., 1867, L. E. 2 Ch. 671. (i) As to Kemp v. Tennant, 1886, 2 T. L. E. 304, see Coch v. Allcock, supra. Digitized by Microsoft® LUNACY. 421 It is also now provided that if in any case the Court or a judge shall so order, there shall be issued a request to examine witnesses in lieu of commission (Ord. XXXVII. r. 6a. See A. P.). In a case where there has been delay, see Sheppard v. Dalbiac, Delay. 1885, 30 Sol. J". 46 ; Butterfield v. Financial Neus, 1889, 5 T. L. E. 279. Lunacy (c). — A person becoming insane while residing in this Lunacy, country, and having property here, is entitled to the protection of property.^ the Crown through the jurisdiction in lunacy {Re £ariatinski, 1843, 13 L. J. Ch. 69, Lord Lyndhurst, L. C). And so an inquiry as to lunacy will be directed here iu the ease of a person resident here but domiciled abroad, and, if the person be found lunatic, an order may be made that he be delivered into the custody of his guardian or committee by the law of his domioil {Re Sottomaior, 1874, L. E. 9 'Ch. 677). But even when requested thereunto by the Court of the domicil, Inquiry an inquiry will not be directed here beyond the common inquiry ^y foreign as to the lunatic's present state of mind, such inquiry not being ^°^'- required for the purpose of any proceedings in England, and when the finding might be prejudicial to third parties {lb.). If it is proposed to apply English legislation to a lunatic or CommisBion a committee, or if the lunatic is resident here, it is generally desirable that a commission should issue here {8ylva v. Da Costa, 1803, 8 Ves. 316). And where an alleged lunatic, having property here, is resident Permission to „ 1 . . ,. ,. . . -n 1 • J , 1 n bring lunatic out or the jurisdiction, permission will be given to take all proper here for steps to bring him to England for inquiry before a jury, when "'^^'T- necessary {Re Scott, 1874, 22 W. E. 748 (Lunacy Eegulation Acts, 1852 and 1863) ). Where an inquiry was directed concerning the lunacy of an Dispensed _ ■with : service alleged lunatic resident abroad, but havmg property here, and abroad. whose presence was dispensed with owing to the state of her health, service of the order to that effect was directed to be made upon her and upon her step-father, with whom she was residing, by registered letter {Re Lanwarne, 1882, 46 L. T. 668, C. A.). {c) See pp. 27, 28, supra (domicil) ; pp. 70, 71, 72, supra (status — foreign curator or committee) . Digitized by Microsoft® 422 INFANTS. Foreign conuuiBsion, Irish. Appointment of committee resident abroad. Land in Ire- land: lunatic trustee: Test- ing order. The issuing of a commission in lunacy abroad has heen held Lord Eldon no bar to issuing one here upon the lunatic com: into England {E'e Houstoun, 1826, 1 Euss. 312). But where an order in lunacy has been made in Ireland by ( haying jurisdiction for that purpose, and a transcript of the reo has, under the provisions of sect. 52 of the Lunacy Eegulat Act, 1853 (16 & 17 Vict. c. 70), been transmitted to this count the order, unless, perhaps, in some extraordinary case of fraud accident, will be treated here as a binding order, and there is jurisdiction to entertain an application either for the purpose setting aside the proceedings in Ireland or for a supersedeas ( Talbot, 1882, 20 Ch. D. 269, 0. A.). A committee resident out of the jurisdiction may be appoini in a proper case {Re Brnere, 1881, 17 Ch. D. 775). Where a trustee of land in Ireland becomes a lunatic, i judges of the Court of Appeal in England can, on a petiti intituled in the Chancery Division and in Lunacy, appoint a ni trustee under their jurisdiction iu lunacy, and make a vesti order under their jurisdiction as additional judges of the Chance Division {Re Smyth, 1886, 55 L. T. 37; 34 W. E. 493, C. A.) (< Infants. Infants.— The Supreme Court {Re Goldsicorthy, 1876, 2 Q. ! D. 75) exercises the parental authority of the Crown, iri speotive of locality, over all iafants who are British subjec {Sope v. Hope, 1854, 23 L. J. Ch. 682, Lord Cranworth, L. C Allegiance. And by reason of that temporary allegiance and correlati protection, which is imposed and conferred by presence within t' jurisdiction, the same authority is exerciseable over alien infar Temporary, being within the realm ; although, when the presence is mere temporary, it will not be exercised except under extraordina: circumstances. For in both cases this jurisdiction is discretional {Hope V. Mope, supra; Brown v. Collins, 1883, 25 Oh. D. 5 Kay, J. ; Re Montagu, 1884, 28 Ch. D. 82, Bacon, V.-C. ; J Willoughby, 1885, 30 Ch. D. 324, C. A.). Property. The fact that there is property within the jurisdiction in whi( they are interested does not, in itself, give the Court any jurisdi {el) Be Lamotte, 1876, 4 Ch. D. 325 ; Re Davies, 1854, 3 M. & G-. 278. Digitized by Microsoft® PLAINTIFF ABROAD. 423 tion over the guaordiansliip of alien infants {Re Bourgoise, 1888, 68 L. T. 431 ; 4 T. L. E. 195 ; W. N. 1888, p. 3). And it is very Fund in doubtful whether the caiTying of a fund to the separate account of an alien infant in an action to which the infant is not a party will do so {Broken v. Collins, supra). Plaintiff Abroad — Security for Costs. — Subject to the law as to Plaintiff alien enemies (pp. 41 ct seq., supra), a person may bring an action security for in England although he is resident out of the jurisdiction. But ''°'''*^-_ then he may be ordered to give security for costs (e). Discovery in Aid of Foreign Court. — An action for discovery in Discovery in aid of a foreign Court is not in accordance with the practice of the Court. High Court, and a statement of claim for such discovery will be struck out under Ord. XXV. r. 4 {Bent v. Young, 1838, 7 L. J. (N. S.) Ch. 151, Shadwell, V.-C. ; Dreyfus v. Feruvian Chiano Co., 1889, 41 Ch. D. 151, Kay, J.). (e) As to which, see Darnell's Chancery Practice, pp. 79 — 84 ; Daniell's Chancery Forms, p. 837 ; Annual Practice, notes to Ord, LXV. rr. 6 and 6 a ; and as to amhassadors and their servants, p. 402, supra; foreign sovereigns and sovereign states, p. 406, supra. See also Fontaine's Case, 1889, 41 Ch. D. 118. Digitized by Microsoft® 424 DE LA VEGA v. VIANNA. In the Cotjet of Kma's Bench. 6th July, 1830. [Reported 1 B. & Ad. 284 ; 8 L. J. K. B. 388.] Procedure The defendant being arrested on mesne process, a rule had beei and remedy obtained, calling upon the plaintiff to show cause why he should no are dependent ^tQ discharged out of custody upon filing common bail. The foUowinj f^_ facts were relied upon m support of that rule : The plaintiff and defendant were foreigners. The cause of actioi was in respect of a contract entered into between them in Portugal By the law of that country the person of a debtor is not liable t( arrest, either before or after judgment. There was no cause of actioi accruing to the plaintiff in tlus country. Campbell, in Trinity Term, showed cause, admitting that, in con struing a foreign contract, the law of the country in which it was mad( is to be regarded ; but that, in the form of proceeding to enforce it the law of the country in which it is sought to enforce it must prevail For this distinction, the opinion of Mr. Justice Heath, in Melan v The Duke of Fitzjames {a), though against that of the rest of the Oour of Common Pleas, was relied on ; and this opinion appeared to b( sanctioned by that of the Court of King's Bench in Imlay v Ellefsen (5). The reason given is, that as the plaintiff may not have by the laws of this country, every advantage which he would have ii the foreign country, he is not to be deprived of any which the mode o: proceeding in this country gives him. In many cases the Courts o: this country could not give a plaintiff such advantage. If, for instance a plaintiff were suing upon a contract made in Turkey, and the creditor should have a right to cause a number of blows to be inflicted iipor the foot of the debtor, this Court has no officer whom they would thinl of ordering to impose such a punishment. The plaintiff must take th( laws of this country as he finds them, so far as regards the mode o; proceeding ; and the defendant has a right to escape any inconvenience to which he would be subject in the foreign Court, but which canno be thrown upon him in this. Denman, contr^, relied upon Melan v. TAe Duke of Fitzjames, anc Talleyrand Y. Boulanger [d). (a) 1 Bos. & Pul. 138. (i) 2 East, 453. («) 3 Ves. jun. 447. Digitized by Microsoft® DE LA VEGA V. VIANNA. 425 • The Court took time to consider ; and on this day their opinion was 1830. delivered by — Lord Tenteeden: [After stating the facts, and the question, his lordship thus proceeded :] It was contended, on the authority of Melan_ V. The Duke of Fitzjames, that the defendant was entitled to the relief now sought. "We are, however, of opinion that he is not. In the case just mentioned, the distinction taken by Mr. Justice Heath, who differed from the other judges, was that, in construing contracts, the law of the country in which they are made must govern, but that the remedy upon them must be pursued by such means as the law points out where the parties reside. And we think, on consideration of the present case, that the distinction laid down by Mr. Justice Heath ought to prevail. A person suing in this country must take the law as he finds it ; he cannot, by virtue of any regulation in his own country, enjoy greater advantages than other suitors here ; and he ought not, therefore, to be deprived of any superior advantage which the law of this country may confer. He is to have the same rights which all the subjects of this kingdom are entitled to ; and the defendant is to have the advantages, if any, which the form of proceeding in this country may give to every defendant. Rule discharged. The older view exemplified by Talleyrand y. Boulangcr {d) is sup- ported, in addition to Melan v. Fifzjames, relied on in the argument above, by Flack v. Rolm, 1820, 1 J. & W. 405, 417, 418, and Younrjv. Wildeij, 1835, 4 L. J. (N. S.) O.P. 253 ; the last-mentioned case being a shortly-reported unconsidered judgment of the Com- mon Pleas, and not precisely in point. The decision in Be la Vega V. Vianna, on the other hand, is supported, beyond the authorities cited at the bar above, by Brettilot v. Sandos, 1837, 4 Scott, 201, and by the remarks of Lord Chelmsford, L. C, in Liverpool Marine Credit Co., v. Hunter, 1868, L. E. 3 Ch. at pp. 486, 487. And it Procedure is now well settled that whatever relates to the remedy to be en- i^^^^^*^ °^ forced must (as to actions concerning moveables (e) ) be determined by the lex fori, the law of the country to the tribunals of which the cause is brought {Don v. Lippmann, 1837, 5 CI. & F. 1, 13, per Lord Brougham; Story, Chap. xvii. (/)). So the terms of prescription and limitation depend on the Presoription lex fori {British Linen Co. v. Drummond, 1830, 9 L. J. K. B. 213 ; t^l^'*"" (d) As to priorities and marshalling ia administration and in bankruptcy, see pp. 170, 198, supra. («) Immoveables ; p. 147, supra. If) See, also, Cope v. Soherty, 1858, 4 K. & J-. 367 ; Suchnahoye v. Mottichund, 1853, 8 Mo. P. C. 4. Digitized by Microsoft® 426 PEOCEDUEE. Don V. Lippmann, sitpi-a ; Huber v. Steiner, 1835, 2 Bing. N. C. 2C Fergusson v. i?|//e, 1841, 8 01. & F. 121 ; Earris v. Qm^c, 18' L. E. 4 Q. B. 653 ; Alliance Bank v. Carey, 1880, 5 C. P. D. 45 see also Cooper v. Waldegrave, 1840, 2 Beav. 282). Wlierefore is no answer to a plea of the Statute of Limitations, that the c( tract upon which the plaintiff sues is a foreign contract ; and tl by the law of the country which governs the contract (gr), i plaintiff's proceeding to enforce the contract would be in time save the operation of that part of the foreign law which is ana gous to the statute in this country {British, 8fc. v. Dritmmond, supr and conversely, an action can be maintained here if not barred the law of England, although such action would be prescribed the country of the obligation {Suber v. Steiner ; Sarris v. Qui Lawextin- supra). But if the local law applicable to the obligation ] right. merely barred the remedy, but extinguished the right, it would otherwise, for such a law would not be' merely of procedure 1 substantive {lb.) (h). Set-ofE. Set-off, also, is only matter of procedure and not of the si stance of an obligation, and is therefore governed by the lex f {Macfarlane v. Norris, 1862, 31 L. J. Q. B. 245, 247, per Coi burn, 0. J. ; Allen v. Kemble, 1848, 6 Mo. P. C. 314, explaii Boicquette v. Overmann, 1875, L. P. 10 Q. B. at p. 541, per curia: Meyer v. Dresser, 1864, 33 L. J. 0. P. 289). But if a plea s out not merely set-off, but that there were mutual credits wh: by the law of the place of the obligation have been dischargi such plea is good in the forum actionis ; for this amounts to pj * ment, and payment is governed by the law of the obligati {Macfarlane v. Norris, supra). Lien. The same principle applies to a question of lien, which is, the fore, determined by the lex- fori {Maspons v. Mildred, 1882, Q. B. D. at p. 543, C. A., per curiam («) ; but see T/ie Liviei 1883, 8 P. D. 209 (priority of claims on ships) ). Time. The lex fori determines all questions of time {Lopez v. Bursl 1843, 4 Mo. P. 0. 300), the mode of suing, and title of the act {Bullock V. Caird, 1875, L. E. 10 Q. B. 276). (g) As to this, see p. 266, siipra (contract). (h) See, however, as to immoveables, p. 147, supra. [i) See thid case, p. 276, supra. Digitized by Microsoft® DE LA VEGA V. VIANNA. 427 A disability to sue imposed by a foreign forum does not operate Disability, against a party to an action in England {Worms v. Be Valdor, 1880, 49 L. J. Cb. 264; W. N. 1880, p. 16) {k). Tbe manner of proving the facts is matter of evidence, and, Proof, therefore, is matter of procedure, and dependent on the lex fori {The Oaetano, 1882, 7 P. D. 137, 144, per Brett, L. J. ; Bain v. Whitehaven Rail. Co., 1850, 3 H. L. C. 1, 19 ; Yates v. Thomson, 1835, 3 01. & F. 544 ; Brown v. Thornton, 1837, 6 L. J. (N. S.) K. B. 82) ; but the facts to be proved are not matters of procedure, but are merely the matters with which procedure has to deal {The Gaefano, ubi supra). So a certificate of a marriage in a foreign country, not purport- ing to be a copy of an entry in the register of marriages kept by the law of that country, but only containing a reference to the register, cannot be received as evidence of the marriage, although it would be evidence of the marriage in the foreign Courts {Finlay V. Finlay, 1862, 31 L. J. M. 149) ; but a copy of a duly kept entry duly certified will be, for that would be evidence in this coimtry {Abbott V. Abbott, 1860, 29 L. J. M. 57; 14 & 15 Vict. c. 99). And a contract sued upon here must be evidenced in the manner required by the law of England {Leroux v. Brown, 1852, 22 L. J. C. P. 1), and need not be evidenced in the manner required by the law of the place where it was made {Bristow v. Secqueville, 1850, 19 L. J. Ex. 289) {I). While, on the other hand, whether, in a given case, there was present a necessity which, according to Eng- lish law, gave a master a right to hypothecate his ship's cargo without communication with the owners, is a thing to be proved, and cannot be the evidence of itself, and is not a matter of proce- dure to be governed by the law of the forum {The Gaetano, ubi supra). As regards a transaction taking place in England, the question Estoppel, whether there has been any estoppel must be determined by the law of England {Williams v. Colonial Bank, 1888, 38 Oh. D. 388, 399). Illode of proving Foreign, Indian, and Colonial Acts of State, Foreign, Indian, and {k) See p. 66, supra, note. {I'j See and of. p. 261, mpra. Digitized by Microsoft® 428 MODE OF PROVING FOREIGN, Colonial acts of state, pro- clamations, judgments, &c. Mode of proof. Judgments, &c. {in). — All proclamations, treaties, and other acts state, of any foreign state, or of any Britisli colony, and all juc ments, decrees, orders, and other judicial proceedings of any Ooi of Justice in any foreign state, or in any Britisli colony, and affidavits, pleadings, and other legal documents filed or deposit in any such Court, may be proved in any Court of Justice, or hefc any person having by law, or by consent of parties, authority hear, receive, and examine evidence, either by examined copies by copies authenticated as hereinafter mentioned ; that is to say. If the document sought to be proved be a proclamation, treai or other act of State, the authenticated copy to be admissible evidence must purport to be sealed with the seal of the foreii State or British colony to which the original document belongs ; And if the document sought to be proved be a judgmei decree, order, or other judicial proceeding of any foreign or colon: Court, or an affidavit, pleading, or other legal document filed deposited in any such Court, the authenticated copy, to be adm sible in evidence, must purport either to be sealed with the seal the foreign or colonial Court to which the original docume belongs; or, in the event of such Court having no seal, to signed by the judge ; or, if there be more than one judge, by ai one of the judges of the said Court ; and such judge shall atta to his signature a statement in writing on the said copy that t Court whereof he is a judge has no seal ; but if any of the afoi gaid authenticated copies shall purport to be sealed or signed hereinbefore respectively directed, the same shall respectively admitted in evidence in every case in which the original docume could have been received in evidence, without any proof of t seal where a seal is necessary, or of the signature, or of the tru of the statement attached thereto, where such signature and stai ment are necessary, or of the judicial character of the pers {)») As to protate, see, also, p. 189, supra (immoveables-), and Waite v. Bingt 1882, 21 Ch. D. 674, where, for the purposes of the usual preliminary judgment i partition action, letters testimonial of the Supreme Court of the Colony of Victo] Prohate Jurisdiction, setting out the will verbatim, were accepted by" Hall, V.- as sufBoient proof of a will made in Victoria of land in England ; and pp. 187 et t supra (probate). Cases anterior to 14 & 15 Vict. c. 99, s. 7, above recited— fore: documents : JBristow v. Secgueville, 3 C. & K. 64 ; B. v. Newman, 22 L. J. .Q. B. 41 Marshall v. Farlcer, 2 Camp. 69 ; Ganer v. Lanesborough, Peake, 18 ; Henry v. A 3 East, 221 ; Aires v. Sunbury, 4 Camp. 28 ; and see Suber v. Steiner, 4 Mo. & 828. Colonial documents : Cavan v. Stewart, 1 Star]^. S25 ; AppUton v. Braybrc 6 M. & S. 34 ; Suchanan v. Buclcer, 1 Camp. 63 ; Faulkener v. Daniel, 3 Hare, 221 Digitized by Microsoft® INDIAN, AND COLONIAL ACTS OP STATE, ETC. 429 ■^^ appearing to have made such signature and statement (14 & 15 Vict. c. 99, s. 7— A.D. 1851). The certificate of the clerk or other proper officer of a legislative Colonial law. body in any colony to the effect that the document to which it is attached is a true copy of any colonial law assented to by the governor of such colony, or of any bill reserved for the signification of her Majesty's pleasure by the said governor, is primcl facie evidence that the document so certified is a true copy of such law or bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the governor ; and any pro^ clamation purporting to be published by authority of the governor in any newspaper in the colony to which such law or bill shall relate, and signifying her Majesty's disallowance of any such colonial law, or her Majesty's assent to any such reserved bill as aforesaid, is primS, facie evidence of such disallowance or assent (28 & 29 Yict. c. 69, s. 6— a.d. 1865) («). In a nisi prius ease anterior to the j)assing of the above Act, in support of a plea of discharge by a Jamaica Court of Insolvency, a printed copy of a Colonial Act, from the Colonial Office, was received with evidence that there was an Insolvent Debtors' Court in that island {Clarke v. Emery, 1858, 1 F. & F. 446). An order of a foreign Court made ex parte on a shareholder of an insolvent company to contribute to the assets, is an order or other judicial proceeding within sect. 7 and sect. 11 of the 14 & 15 Vict. c. 99, and may be proved by a certified copy {Leishman v. Cochrane, 1863, 1 Mo. P. C. N. S. 315). Where the proceedings in an Austrian Court were tendered, and it was proved that the Court out of which the proceedings issued used a seal, and the documents tendered had the seal impressed upon them for the double purpose of cancelling the stamps affixed to the documents and for authentication : — Held, that this was sufficient to make them admissible in evidence here {Loibel v. (m) "Colony" in this Act includes all her Majesty's possessions abroad having an authority, other than the Imperial Parliament or her Majesty in Council, com- petent to make laws for such colony, except the Channel Islands, the Isle of Man, and India. " Colonial law " includes laws made for any colony by such authority as aforesaid or by her Majesty in Council : lb. s.l. Digitized by Microsoft® 430 FOEEIGN AFFIDAVITS. Copy of patent. Keport of foreign judge to foreign Court. India. Strampfer, 1867, 16 L. T. 720). But if the seal had teen aff for purposes of cancellation only, qu. {lb.). Where a document purported to be an official copy of a Belj patent sealed with the Belgian seal, it was admitted without p: of its being an examined copy or proof of the seal, inasmuch i came within the words " or other act of state," in the section parte Betts, 1863, 7 L. T. 577, P. C). Apart from statute, public documents made abroad will received here when they would be admissible if English (see Sh V. Freccia, 1880, 5 App. Cas. 623 ; and cases cited ante, p. 4 note). So copies of registers of baptisms in India are admiss: in evidence {Queen's Proctor v. I&i/, 1879, 4 P. D. 230), as proper entries of marriages {Ratcliff v. RatcNff, 1 S. & T. 4 p. Ill, above; cases cited p. 427, supra). A report made by an Irish judge to a Divisional Court Ireland, to be used on an application to, set aside the verdici evidence in an English action between the same parties of w took place at the trial and what the judge decided {Houstow Sligo, 1885, 29 Ch. D. 448). A book containing the Acts of the Legislative Council of Inc produced by a clerk from the India Office, has been held Blackburn, J., sufficient evidence of the Acts therein contaii {Gardner v. Wright, 1866, 15 L. T. 325). Affidavita, &c., taken abroad. E. S. C. 1883, Ord. XXXVIII., r. 6 (o).— All examinatio (o) See, also, 18 & 19 Viot. c. 42, ss. 1, 2, and A. P. notes to this rule; TurnbuU t. Mureton, 1819, 1 Chitt. Rep. 721 (J. P. in Scotland— verification) ; parte Heneage, 1834, 3 L. J. (N. S.) C. P. 206; seai. JSx parte Sutehinson, 1848, Li. J. C. P. Ill (acknowledgment by married woman abroad) ; Haggitt y It 1855, 24 L. J. Cb. 120 ; 5 D. M. & a. 910 (notary public) ; He Davis' Trusts, IS L. R. 8 Eq. 98 (notary — verification) ; Ee Earl's Trust, 1858, 4 K. & J. 300 (not — verification — consent); Levitt v. Levitt, 1865, 2 H. & M. 626 (oommissione] deeds — verification) ; Me Kenar's Trusts, 1807, 15 "W. R. 781, M. R. Ir. (notar verification) ; Mayne v. Butter, 1864, 13 W. R. 128 (notary— fimd very sma verification dispensed with on personal undertaking of solicitor) ; Lees v. Lees W. 1868, p. 268 (suit uncontested); Lyle v. EUuiood, 1872, L. R. 15 Eq. 66 (distanc notary — verification dispensed witb by consent) ; Bell v. Turner, 1874, lb. 17 ' 439 (same) ; and also Lane's Trusts, 1873, 22 "W. R. 39 ; Smith v. Davis, "W. 1868, p. 269; and judge's direction necessary, A. P. note to rule. See, a De Leon v. Subbard, W. N. 1883, p. 197, vrhere it was not stated that the affida were taken before any foreign or local magistrate or other person having autho: to administer an oath— they were sworn before a notary ; nor does it appear clei from the report that there was no British consul or vice-consul within reasons distance ; Field, J., refused an order to file : of. especially Cooper v. Moon, p. i infra. Digitized by Microsoft® E. s. c. 1883, OKD. xxxviir. e. 6. 431 affidavits, declarations, affirmations, and attestations of honour in causes or matters depending in the High Court, and also acknowledg- ments required for the purpose of enrolling any deed in the Central Office, may he sworn and taken in Scotland or Ireland, or the Channel Islands, or in any colony, island, plantation, or place under the dominion of her Majesty in foreign parts, hefore any judge. Court, notary public, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respec- tively, or before any of her Majesty's consuls or vice-consuls in any foreign parts out of her Majesty's dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature, as the case may be, of any such Court, judge, notary public, person, consul, or vice-consul, attached, appended, or subscribed to any such examinations, affidavits, affirmations, attes- tations of honour, declarations, acknowledgments, or to any other deed or document. This rule is almost a copy of 15 & 16 Vict. c. 86, s. 22 {])) — extended to the Isle of Man by 16 & 17 Vict. c. 78, s. 6 — and like that Act does not abrogate the practice which previously prevailed. Since, therefore, as to the swearing of affidavits in foreign parts out of her Majesty's dominions, there is no special provision when by reason of long distance or otherwise the affidavit cannot be sworn before a consul or vice-consul, in such a case the oath or so forth may be made before a proper foreign officer (Ord. LXXII., r. 2 ; Coolce v. Wilhj, 1884, 26 Ch. D. 769 (notary public— distance) ; Brittlehank v. Smith, 1884, 60 L. T. 491 (clerk of Circuit Court, U. S. A. — distance) ). And, further, in cases where it is necessary to obtain affidavits, declarations, or affirmations to be used in the High Court of Justice from persons residing in foreign parts out of her Majesty's dominions, the same may be sworn, declared, or affirmed before every consul-general or consul appointed by her Majesty at any foreign port or place, and every British ambassador, envoy, minister, charg^ d'affaires, or secretary of embassy or legation exercising his functions in any foreign country, and every British vice-consul, acting consul, pro-consul, or consular agent (as well as {p) See note (o), supra. Digitized by Microsoft® 432 FOREIGN AFFIDAVITS. every consul-general or consul) exercising his functions in foreign place ; provided tliat in places where there are none of above-mentioned persons such affidavits, declarations, or affi: tions may he made, declared, and affirmed hefore any foreign . magistrate or other person having authority to administei oath (21 & 22 Vict. c. 95, s. 31 ; 36 & 37 Yict. c. 66, s. 76 ; Cc V. Moon, W. N. 1884, 78, Field, J. ; Re FarrelPs Trusts, 1 30 S. J. 485). If the consul or other person is unable, by reason of the la^ the foreign country, to adniinister an oath, he is reckoned as available, and so within the equity of the proviso, and the ( may be sworn before the proper foreign authorities {Be Fan 1884, 9 P. D. 241, Sir James Hannen; and per Field,' J., A note to rule ; cf. Ford v. Miescke, p. 416, supra). Where, however, an affidavit or other instrument is sworn be a foreign functionary within this exception, -or that establis by Cooke v. Wilby, verification is required {Cooper v. Moon, W. 1884, p. 78 ; Re Fawcus, supra ; Ex parte Magee, 1885, 15 Q,. B. 332 ; and see oases cited p. 430, supra, note) . Seal of notary The Court will take iudicial notice of the seal of any not public. . . . . •' public in the Queen's dominions {Cole v. Sherrard, 1855, 11 '. 482; Brooke v. Brooke, 1881, 17 Ch. D. 833). But a not public in a colony regulated by English law has no power, by common law, to certify to the execution of a deed in such a wa;; to make his certificate evidence, without more, that the deed ■ executed, and that it was attested in the manner in which the d professes to be attested {Nye v. Macdonald, 1870, L. E. 3 P, 331, 343 ; and see Brown v. Thornton, 1837, 6 L. J. (N. S.) K B. (as to foreign notarial contract) ) . In bank- ruptcy. Bankruptcy. — By sect. 135, Bankruptcy Act, 1883, subject general rules, any affidavit to be used in a bankruptcy Court n be sworn .... in the case of a person residing in Scotland Ireland, before a judge ordinary, magistrate, or justice of peace, or in the case of a person who is out of the kingdom Ghreat Britain and Ireland, before a magistrate or justice of peace, or other person qualified to administer oaths in the eoun where he resides (he being certified to be a magistrate or justice Digitized by Microsoft® DE LA VEGA V. VIANNA, 433 the peace, or qualified as aforesaid by a British minister or British consul, or by a notary public). By rule 58 the Court is to take Judicial notice of the seal or signature of any person authorized by or under the Act to take affidavits or to certify to such authority. The concluding provision of the section is intended to meet the case where the person qualified to administer the oath is so qualified by foreign law, and in that case a certificate is required. But where the affidavit is sworn before a British consul or vice-consul, or other like person authorized by the law of England to administer an oath, no certificate is required beyond the consular seal {Ex parte Magee, 1885, 15 Q. B. D. 332— Cave, J.). The rule that no person is compellable to answer any question Answer ■,.11 . . . 1 criminating, which has a tendency to expose him to a criminal charge, penalty, or forfeiture, applies where the criminal charge, penalty, or for- feiture may be incurred abroad. But that such charge, penalty, or forfeiture may be so incurred by the foreign law must be proved as a fact, if it is not admitted {United States v. McRae, 1867, L. R. 3 Oh. 79, explaining King of Two Sicilies v. Willcox, 1 Sim. N. S. 301). An act done abroad will not have any greater validity or effect Eormal act 1 . abroad. here than it has in the place where it was done, merely because it would have had greater force or validity if done in England. (See Nye V. MacdonaM, 1870, L. E. 3 P. C. 331, 343, 344.) But in Alliame Bank of Simla v. Carey (1880, 5 C. P. D. 429), —where, however, the opinion of the Judicial Committee (|)), as expressed in Nye v. MacdonaM, was not referred to — Lopes, J., held that if a document, executed abroad, is under seal, an English Court cannot ignore this, and must give to it the effect that in this country belongs to it {p). Proof of Foreign law. — " The rule of English law, that no Proof of foreign law {p) Present : Lord Cairns, Sir James Colvile, and Sir Joseph Napier. By the lex fori the document was, on the face of it, properly evidenced, but it was not admitted as such because the act, where it was done, had not that validity which it woijd have had if done in the loons actionis. Consider the judgment below, which was affirmed. Ajs to Banlc of Simla v. Carey, it is submitted, with respect, that the dictum of Lopes, J., cited above, was vmuecessary to the decision. The instrument executed under seal was, for all that appeared to the contrary, a bond or speciality by the law of the country where it was made: cf. p. 441, infra. It came therefore within 3 & 4 Will. 4, c. 42, s. 3, and it did not matter that by the law of that country the remedy upon it had been barred by efflux of time : supra, pp. 426, 427. N. Digitized by Microsoft® f f 434 FOEEIGN LAW, knowledge of foreign law is to be imputed to an English juc sitting in a Court of only English jurisdiction {q), is undoubte( well founded. And as oases arise in which the rights of pari litigating in English Courts cannot he determined withi ascertaining, to some extent, what is the foreign law applicable such cases, the foreign law and its application, Hke other results knowledge and experience in matters of which no knowledge imputed to the judge, must be proved, as facts are proved, appropriate evidence, «.e., by properly quahfied witnesses,- or witnesses who can state, from their own knowledge and experien gained by study and practice, not only what are the words in wh the law is expressed, but, also, what is the proper interpretation those words, and the legal meaning and effect of them as appli to the case in question" {Nelson v. Bridport, 1845, 8 Beav. 5x 536, per Lord Langdale, M. E.). Question of Foreign law being a question of fact must be proved as a other fact, to the satisfaction of the jury, if there is one, under t direction of the judge. But, strictly speaking, no one can spe to a question of law as a fact, but his evidence must be merely i expression of his opinion that such is the law. The witness, the] fore, must be an expert, and if there is a variance or want clearness in the evidence, the Court must use its general reasoni powers, and may look to the words of a foreign law (r), and otl sources, as far as the evidence properly leads {Id., and cases the cited ; Sussex Peerage Case, 1844, 11 CI. & F. 114 ; De Bode v. 1 1845, 8 Q. B. 208), and must, of course, put its own construeti upon the evidence (see Batthany v. Wal/ord, 1887, 36 Ch. ] 269 ; Concha v. Murrieta, 1889, 40 Ch. D. 543) {r). [q) When the House of Lords is sitting as the ultimate Court of Appeal fr( Courts in England, Ireland, and Scotland, it is not only competent, but incumbi upon that House, as the commune forum of the three countries, to give its deoisi as matter of law, and not aa upon a matter of fact, upon any question of le| issue, without regard to evidence in the Court below ; for it is not competent their lordships to divest themselves of their judicial knowledge of the law of eitl country: Cooper ^r. Cooper, 1888, 13 App. Cas. 88; Douglas v. Drown, 1831, 2 D & CI. 171 ; Macpherson v. Macpherson, 1852, Macq. at p. 248. Semble, the Judit Committee must take judicial notice of the law of any country from which then an appeal to her Majesty ia Council : of. Nye v. Mdedonald, 1870, L. E.. 3 P. 331. International law is part of the common law. The Probate, Divorce, a Admiralty Division (Divorce) wUl take judicial notice of certain powers of i Roman See in Koman Catholic countries : Sottomayor v. De Barros, 2 P. D. 86, i Sir K. PhiUimore, sed qu., see p. 92, supra, note. ()•) See also Breemer v. Freeman, p. 174, supra, loo. oit. The older oases i Digitized by Microsoft® DE LA VEGA V. VIANNA. 435 The expert in giving his testimony may, if he thiak fit, refer to Reference to laws or treatises for the purpose of aiding his memory upon the ^°^^°®^' suhject of his examination. But the evidence must he the witness's own opinion, formed on his general knowledge of and practical aoquaiatance with the foreign law. And although citations used hy the witness may be material, and require the most careful attention of the other party, who may avail himself of them for the purpose of correcting any error, or supplying any defects in the opinion of the witness already examined, hy means of other witnesses to he afterwards examined for that purpose, yet the other party cannot read other passages from the works cited as, hy them- selves, evidence of the existing law {Nelson v. Bridjjorf, supra; Sussex Peerage ; Be Boife v. M. ; Cocks v. Purday, 1846, 2 0. & K. 269). Although a point of foreign law has been proved in this country, Proved and acted upon in reported cases, the law must he proved afresh in ® °^°' each case as it arises, like any other matter of fact {WCormkli V. Garnett, 1854, 23 L. J. Oh. 777). Though in a proper case, simple verification that the law is as stated in a former opinion will he sufficient {Id.). There is not, without more, any objection to a joint opiuion ; Joint opinion, but, on the contrary, a concurrent opinion, formed upon deliberate and conscientious consideration, is the more likely to be correct and satisfactory {Wekon v. Bridpori, at page 545). In Macdonald v. Macdonald (1872, L. E. 14 Eq. 60), Bacon, V.-C, Incidental. acted upon an affidavit, which was in evidence, by a foreign advocate referring to an opinion upon a case — connected with the same issues — which had been submitted to him, in which there was, by necessary implication, an expression of opinion upon the point of foreign law. It has been decided, in Bristow v. Secqiieville (1850, 19 L. J. Ex. Experts. 289, which case was followed in Re BoneJK, 1875, 1 P. D. 69), that the law of a foreign country cannot be proved by a person whose knowledge of it is derived solely from his having studied it at a university in another country. But in Vanderdonckt v. Thelusson collected and criticized in De Bode v. iJ. " There is a great and obvious danger that any attempt to construe the written code of a foreign law without the aid of foreign lawyers to construe it might lead to error : " Castrique v. Imrie, 1870, L. R. 4 H. L. 414, 430, per Blackburn, J. DlglttzBd by Microsoft® 436 FOEEIGN LAW. (1849, 19 L. J. 0. P. 12), a person who, from his advocation ahr should have been conversant with mercantile law in the countr which he had carried on business, was admitted to give evid with regard to a point of mercantile law in that country. Anc the same case, some very pertinent remarks fell from the Bene the effect that what the Court has reaUy to see is merely that witness has, prima facie, sufficient knowledge to enable hin give evidence, of the weight of which the jury can form their • opinion (see also per Jervis, C. J., It. v. Pove^, infra). It se( indeed, hard to understand that a juiis-consult who had stu( Prussian law at the University of Leipsic, and had been sele by the Prussian consul here as his adviser on questions of Prus law, should be deemed incompetent to express an opinion that Code Napoleon prevailed at Cologne, and that, by that Cod certain receipt was inadmissible, because imstamped (see Bristoi Secqiieville, supra). Certificate The certificate of a foreign ambassador or minister under or legation. Seal of the embassy or legation has been received as sufficient dence of foreign law in several probate cases {Re Klingemann, li. 3 S. & T. 18 ; Re Bormoy, 1832, 2 Hagg. Ecc. 767 ; Re Dost . Khan, 1880, 6 P. D. 6 ; Jw Goods of OldenUirgh, 1884, 9 P. 234). Official A witness may be deemed sufficiently skilled by virtue of CV1Q6TLCG office. So a Eoman Catholic bishop, holding the office of coadii to a vicar-apostolic in this country, is, in virtue of his office, tc considered as a person skilled in the matrimonial law of Bo: and, therefore, his testimony is admissible in proof of that ' {Sussex Peerage Case, supra). English An English barrister, practising before the Judicial OommH of the Privy Council, is not an expert to give evidence in the H Court as to the law of a country from whose courts there is appeal to her Majesty in Council {CaHwright v. Cart-wright, 18 26 W. E. 684— Sir James Hannen). Private The evidence of a mere private person with no particular lik hood of knowledge, is quite inadmissible [Clegg v. Lemj, 1815 Camp. 166; iJ.v. Povey, 1852, 22 L. J. M. 0. 19 ; Sussex Peerc ra). Digitized by Microsoft® BEITISH AND COLONIAL LAW ASCERTAINMENT ACT, 437 The two following statutes make provision for the sending of Foreign and . , . . Colonial Law cases tor the opinion of British and foreign Courts. Ascertain- ment Aots^ BEITISH COUETS. 22 & 23 Vict. c. 63. An Act to afford Facilities for the more certain Ascertainment of the Law administered in one Part of Her Majesty's Dominions when 'pleaded in the Courts of another Part thereof. [13th August, 1859.] Whereas great improvement in the administration of the law would ensue if facilities were afforded for more certainly ascertaining the law administered in , one part of her Majesty's dominions when pleaded in the Courts of another part thereof : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present ParHament assembled, and by the authority of the same, as follows : 1. If in any action depending in any Court within her Majesty's Courts in one dominions, it shall be the opinion of such Court that it is necessary or P^^t of ^er expedient for the proper disposal of such action to ascertain the law ^^niona applicable to the facts of the case as administered in any other part may remit a of her Majesty's dominions on any point on which the law of such case for the other part of her Majesty's dominions is different from that in which opinion in the Court is situate, it shall be competent to the Court in which such ?'*'^of ^^ Court action may depend to direct a case to be prepared setting forth the mrtttiereof! facts, as these may be ascertained by verdict of a jury or other mode . competent, or may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the Court for that purpose in the event of the parties not agreeing, and upon such case being approved of by. such Court or a judge thereof, they shall settle the questions of law arising out of the same on which they desire to have the opinion of another Court, and shall pronounce an order remitting the same, together with the case, to the Court in such other part of her Majesty's dominions, being one of the Superior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act ; and it shaR be competent to any of the parties to the action to present a petition to the Court whose opinion is to be obtained, praying such last-mentioned Court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel ; and the Court to which such petition shall be presented shall, if they think fit, appoint an early day for hearing parties or their counsel on such case, and shall thereafter pronounce their opinion upon the questions of law as administered by them which are submitted to them by the Court ; and in order to their pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper. Digitized by Microsoft® 438 FOEEIGN LAW. Opinion to be authenticated and certified copy given. Opinion to be applied by the Covirt making the remit. Her Majesty in Council or House of Lords on appeal may adopt or re- ject opinion. Interpreta- tion of terms. 2. Upon such opinion being pronounced, a copy thereof, cert: by an officer of such Court, shall be given to each of..the parties to action by whom the same shall be required, and shall be deemed held to contain a correct record of such opinion. 3. It shall be competent to any of the parties to the action, a having obtained such certified copy of such opinion, to lodge the s with an officer of the Court in which the action maybe depend who may have the official charge thereof, together with a notic( motion, setting forth that the party will, on a certain day namec such notice, move the Court to apply the opinion contained in e certified copy thereof to the facts set forth in the case hereinbe; specified, and the said Court shall thereupon apply such opinior such facts, in the same manner as if the same had been pronounced such Court itself upon a case reserved for opinion of the Court upon special verdict of a jury ; or the said last-mentioned Court si if it think fit, when the said opinion has been obtained before ti order such opinion to be submitted to the jury with the other fact the case as evidence, or conclusive evidence as the Court may think of the foreign law therein stated, and the said opinion shall be submitted to the jury. 4. In the event of an appeal to her Majesty in Council or to House of Lords in any such action, it shall be competent to br under the review of her Majesty in Council or of the House of Lc the opinion pronounced as aforesaid by any Court whose judgmt are reviewable by her Majesty in Council or by the House of Loi and her Majesty in Council or that House may respectively adopt reject such opinion of any Court whose judgments are respeotiv reviewable by them, as the same shall appear to them to be y founded or not in law. 6. In the construction of this Act, the word " action " shall inch every judicial proceeding instituted in any Oom-t, civil, criminal, ecclesiastical; and the words "Superior Courts" shall include, England, the Superior Courts of Law at "Westminster, the Lord Chi cellor, the Lords Justices, the Master of the EoUs or any Vi Chancellor, the judge of the Court of Admiralty, the judge ordini of the Court for Divorce and Matrimonial Causes, and the judge the Court of Probate (s) ; in Scotland, the High Court of Justicia and the Court of Session acting by either of its divisions ; in Irela: the Superior CoTirts of Law at Dublin, the Master of the Eolls, i the judge of the Admiralty Court; and in any other part of ] Majesty's dominions, the Superior Courts of Law or Equity therein 22 & 23 Vict. c. 63. FOEEIGN COUETS. 24 ViOT. 0. 11. An Act {t) to afford Facilities for the better Ascertainment of the L of Foreign Countries when pleaded in Courts within Her Majest Dominions. [17th May, 1861." "Whebeas an Act was passed in the twenty-second and twenty-th years of her Majesty's reign, intituled An Act to afford Facilities U) See Judicature Act, 1873, s. 76. [t) Portions applied to the Mayor's Court: L. G. 20th Nov. 1863, 5559—53 Act extended witn variations to the Ottoman dominions : li, 12th May, 1882, 22 Digitized by Microsoft® FOREIGN LAW ASCERTAINMENT ACT. 439 the more certain Ascertainment of the Law administered in one part of her Majesty's Dominions when pleaded in the Courts of another part thereof : And whereas it is expedient to afford the like facilities for the better ascertainment, in similar circumstances, of the law of any foreign country or state with the government of which her Majesty may be pleased to enter into a convention for the purpose of mutually ascertaining the law of such foreign country or state when pleaded in actions depending in any Courts within her Majesty's dominions and the law as administered in any part of her Majesty's dominions when pleaded in actions depending in the Courts of such foreign country or state : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows ; viz., 1. If, in any action depending in any of the Superior Courts within Superior her Majesty's dominions it shall be the opinion of such Court that it ^°"^*2 y'*^™ is necessary or expedient, for the disposal of such action, to ascertain ^o^j^o^g * the law applicable to the facts of the case as administered in any may remit a foreign state or country with the government of which her Majesty case, with shall have entered into such convention as aforesaid, it shall be com- queries, to a petent to the Court in which such action may depend to direct a case ^°^F* °* f'"?' to be prepared setting forth the facts as these may be ascertained by ^i^h^hloh^ verdict of jury or other mode competent, or as may be agreed upon by her Majesty the parties, or settled by such person or persons as may have been may tave appointed by the Court for that purpose in the event of the parties not ™^'i? ^ ^°°- agreeing ; and upon such case being approved of by such Court or a that pui-pose judge thereof, such Court or judge shall settle the questions of law for asoertain- arising out of the same on which they desire to have the opinion of ment of law another Court, and shall pronounce an order remitting the same, of such state, together with the case, to such Superior Court in such foreign state or country as shall be agreed upon in said convention, whose opinion is desired upon the law administered by such foreign Court as applicable to the facts set forth in such case, and requesting them to pronounce their opinion on the questions submitted to them ; and upon such opinion being pronoimced, a copy thereof, certified by an officer of such Court, shall be deemed and held to contain a correct record of such opinion. 2. It shall be competent to any of the parties to the action, after Court in having obtained such certified copy of such opinion, to lodge the same which action with the officer of the Court within her Majesty's dominions in which ^ppi such the action may be depending who may have the official charge thereof, opmMu to the together with a notice of motion setting forth that the party will, on facta set forth, a certain day named in such notice, move the Court to apply the in cases, &o. opinion contained in such certified copy thereof to the facts set forth in the case hereinbefore specified, and the said Court shall thereupon, if it shall see fit, apply such opinion to such facts, in the same manner as if the same had been pronounced by such Court itself upon a case reserved for opinion of the Court, or upon special verdict of a jury ; or the said last-mentioned Court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be sub- mitted to the jury with the other facts of the case as conclusive evi- dence of the foreign law therein stated, and the said opinion shall be so submitted to the jury : provided always, that if after having ob- tained such certified copy the Conrt shall not be satisfied that the facta Digitized by Microsoft® 440 FOEEIGN LAW. Courts in ter Majesty's dominions may pro- nounce opinion on case remitted by a foreign Court. Interpreta- tion of terms. tad been properly "understood by the foreign Court to which the cas was remitted, or shall on any ground whatsoever be doubtful whethe the opinion so certified does correctly represent the foreign law a regards the facts to which it is to be applied, it shall be lawf ul_ fo such Court to remit the said case, either with or without alteration or amendments, to the same or to any other such Superior Court ii such foreign state as aforesaid, and so from time to time as may b necessary or expedient. 3. If in any action depending in any Court of a foreign countr or state with whose government her Majesty shall have entered inti a convention as above set forth, such Court shall deem it expedient t ascertain the law appKcable to the facts of the ease as administered ii any part of her Majesty's dominions, and if the foreign Court in whicl such action may depend shall remit to the Court in her Majesty' dominions whose opinion is desired a case setting forth the facts an( the questions of law arising out of the same on which they desire t have the opinion of a Court within her Majesty's dominions, it sha] be competent to any of the parties to the action to present a petitio] to such last-mentioned Court, whose opinion is to be obtained, prayinj such Court to hear parties or their counsel, and to pronounce thei opinion thereon in terms of this Act, or to pronounce their opinio] without hearing parties or counsel; and the Court to which sue] petition shall be presented shall consider the same, and, if they thin] fit, shall appoint an early day for hearing parties or their counsel o: such case, and shall pronounce their opinion upon the questions of la\ as administered by them which are submitted to them by the foreigi Court ; and in order to their pronouncing such opinion they shall b entitled to take such further procedure thereupon as to them shal seem proper, and upon such opinion being pronounced a copy thereoi certified by an officer of such Court, shall be given to each of thi parties to the action by whom the same shall be required. 4. In the construction of this Act the word " action" shall includi every judicial proceeding instituted in any Court, civil, criminal, o ecclesiastical; and the words " Superior Courts" shall include, ii England, the Superior Courts of Law at Westminster, the Lord Chan cellor, the Lords Justices, the Master of the Eolls, or any Vice-Chan cellor, the judge of the Court of Admiralty, the judge ordinary o the Court for Divorce and Matrimonial Causes, and the judge of th Court of Probate ; in Scotland, the High Court of Justiciary, and th Court of Session, acting by either of its divisions; in Ireland, th Superior Courts of Law at Dublin, the Master of the EoUs, and th judge of the Admiralty Court (m); and in any 'other part of he Majesty's dominions, the Superior Courts of Law or Equity therein and in a foreign country or state, any Superior Court or Courts whicl shall be set forth in any such convention between her Majesty and th government of such foreign country or state. Judicial dis- Where a point of foreign law is in issue, there may be judicis stay pending discretion to stay proceedings pending the decision of that poiii deoisfrai. ^^ ^ ^^^^^ instituted suit between the same parties in the foreig: (m) See Judicature Act, 1873, s. 76. Digitized by Microsoft® DE LA VEGA V. VIANNA. 441 country (see Phosphate Co. v. Molhson, 1876, 1 App. Oas. 780, 787, per Lord Seltorne, H. L. So.) (o). The burden of proving what a foreign law is, is upon the party Burden of relying on it {Broim v. Gracey, 1821, Dow. & Ey. N. P. 41, note ; SmUh V. GouM, 1842, 4 Mo. P. 0. 21 ; see Hart v. Gumpach, 1872, L. E. 4 P. 0. 439, 465). And if no evidence is offered of the foreign law, it is presumed, as regards general principles, to be the same as the English {lb. ; Pickering v. Stephenson, 1872, L. E. 14 Eq. 322, 340 ; Be Cleremont v. Brasch, 1885, 1 T. L. E. 370), or is disregarded as a fact alleged, but not proved {Male v. Roberts, 1800, 3 Esp. 163 ; see United States v. Macrae, 1867, L. E. 3 Oh. 79, 84, 85). But this presumption is not pressed as to rules pecu- liarly English {lb. ; Westlake, s. 334 ; and cf . Cocherell v. Dickens, 3 Mo. P. 0. 98, 133, with Beaumont v. Oliveira, L. E. 6 Eq. 534, 539) {x). In construing a foreign document the Judge or Court must first Construction obtain a translation of the document ; secondly, an explanation of document, any terms of art used in it ; thirdly, information on any special law ; and, fourthly, on any peculiar rule of construction of the foreign state affecting it {Bi Sora v. Phillips, 1863, 10 H. L. 0. 124; 33 L. J. Oh. 129, per Lord Oranworth). (f) As to lis pendens, see pp. 368 et seq., supra. {x) Which cases, and Jenney v. Maeleintosh, W. N. 1889, p. 68 ; affirmed, ib. p. 94, see as to foreign law and immoveables, p. 147, supra. See also Story, pp. 863 — 870, notes. An oath may be administered in such form and with such ceremonies as the person to whom it is to be administered shaU declare to be binding : 1 & 2 Vict. c. 105. Digitized by Microsoft® Digitized by Microsoft® INDEX. "ACTE DEFINITIF," grant of probate of, 210. ACTIONS, mode of suing, matter of procedure, lex fori, 426. by and against alien eneiny. See Alien Enemies. foreign sovereigns. See Foreign Sovereigns. ambassadors and public ministers. See Diplomatic Service. foreign corporations. See Corporations. administration actions. See Administration. ACTS, formal, done abroad, effect, 433. proof of, 427-^30. ADMINISTEATION, Enohin V. Wylie, 178—186. grant of. See Probate. chain of representation, 213. Distribution, and Succession on Intestacy, beneficial succession, distribution by lex domicilii, 196, 197. legal representation, collection, administration, law of locality, 196, 197. foreign judgment as to beneficial rights, 197. grant of probate not conclusive as to domicil, 197. or essential validity of will, 197. Court of distribution must ascertain domicil, 197. pars legitima, 198. condition in restraint of marriage, 198. marshalling, lex fori, 198. creditor claiming here not accountable as to asset received abroad statute barred here, 198. interest, rate, 199, 200. currency, in what legacies payable, 200. rent-charge, in what currency payable, 200, 201. commission by law of locality, allowed for assets collected there, 221. lm,moveableB, administration governed by lex situs, 198. creditors rank by, 198. right of recourse depends on, 198. liability to debts, 198, 199. charitable bequest, foreign immoveables marshalled ia favour of, 199. Digitized by Microsoft® 444 INDEX. ADMINISTEATION— cojiWnaed!. Immoveables — contiimed . intention of testator, 199. equities, devise defeated by lex situs, election, 199. hotch-pot, 199. vesting orders, jurisdiction in Chancery, 199. And see Immove- ahles. Principal and Ancillary Administrators, administrator appointed by Court of domicil, principal adminis- trator, 201. is generally entitled to surplus, 201. limited administrators have only to administer assets received in own locality, 201. English administrator or executor, when may consent to foreign administrator taking surplus, 201, 202, 221. moveables pass by grant, 202. negotiable instruments, 202. unless specifically appropriated, 202. payment by debtor to foreign administrator, 202. by process of law, 202. voluntarily, 202. in England, 202. attorney, may safely transmit assets to his principal, 202. Actions hy and against Trustees, Executors, Administrators, trusts of immoveables, enforcement of, 150, 151. action in right of representation, 202 ei seq., 213, 216. necessity for English grant, 202 et seq., 213, 216. foreign grant held sufficient, 216. foreign representative suing in own right, 216, 217. or having reduced asset into possession, 216, 217. or specific legatee with asset in possession, 216, 217. or right established by foreign judgment, 217. no necessity for English grant, 216, 217. administration action, necessity for presence of English grantee, 217, 218. or his attorney, 219. exception when specific appropriation, 218. English grantee, may maintain action in respect of foreign assets, 218. action against, 218. reducing foreign assets into possession without foreign grant, 219. foreign grantee, not liable merely on account of foreign gi-ant, 219. here with assets not specifically appropriated, 219. executor who is also trustee, 218, 219. accepts trusts with probate, 218, 219. death of accounting trustee, 218. action continued with foreign executor, 218. personal jurisdiction over trustees, 150, 219, 220. when order will be limited, 220. domicil and bulk of assets in England, 220. foreign suit restrained, 149, 151, 220. foreign and English executors, residue, 220, 221. commission allowed by law of locality, 221. See Testamentary DisposiUons ; Probate ; Trust; Trustee; Receiver, ADMINISTEATOE-GENEEAL, in colony, gxant of probate or administration to, 211, 212. Digitized by Microsoft® INDEX, 445 ADOPTION, considered, 19. AFFIDAVITS, sworn abroad. See Foreign Affidavits; Notary PiMic; Oath. AFFEEIGHTMENT, contract of. See Contract. AGENCY— AGENT, extent of agent's authority, by what law determined, 276. exercise of agency, by what law regulated, 276. foreign piincipal, law as to, 276, 277. commission merchant, 276, 277. Factors' Acts, 277. of foreign sovereign. See Foreign Sovereign. ALIENATION, of immoveables. See Immoveables. of moveables. See Moveahles. capacity to aliene. See Capacity. ALIENS, Acts since Union relating to, apply to Ireland, 45. and writ of habeas corpus. See Habeas Corpus. naturalized. ") not entitled to jury de mediatate linguse. [ See Briiiah Subjects. capacity to own property. ) ALIEN ENEMIES (capacity to trade), The Indian Chief, 34—40. actions — contracts, subject of hostile state is enemy from allegiance, 41, 42. effect of residence, 44, 45. in case of British subject, 44, 45. of neutral, 44, 45. of service with enemy, 44, 45. cannot maintain action, 42. imless by virtue of Order in Council, 42. or licensed, 42. or in Queen's peace pro hac vice, 42. action cannot be maintained in favour of, 42. in name of EngUsh agent, 42. burden on to show persona standi, 42. can defend action, 44. contract, of partnership, 42. made after outbreak of war, 42. before war, 42. of insurance against capture by British ship, 43. or by co-belligerent, 43. no return of premium if made before war, 43. which tends to aid enemy, unenforceable, 43. made before war, 42, 43. right of action revives on peace, 43. unless statute-barred, 43. or enforced to use of Crown, 43. alien enemy may prove for dividend durante bello as regards debt arising out of, 43. but if declaration of war renders contract illegal it is avoided, 43, Digitized by Microsoft® 446 INDEX. ALIEN ENEMIES— conimuecZ. Licence to Trade in Time of War, residence here relied on. as evidence ol, 42. must be shown to be ■with privity and sanction of Crown, 42. Crown may grant to alien enemies, 44. to Britisn subject, 44. unless resident in enemy country, 44. enables licensee to maintain and defend action on contract withia scope of, 42, 44. is construed liberally, 44. legalises commerce therein mentioned, 44. and all usual and requisite contracts, 44. including insurance, 44. licence to import does not protect shipments made by licensee personally as foreign merchant, 44. licence limited in point of time protects adventure protracted by events beyond control of licensee, 44. See Commercial Domicil ; Prisoner of War ; Briiiah Subjects. ALLEGIANCE, distinct from domicil. ' as test of civil rights. in time of war. Bee Aliens; Commercial Domicil. ' j See Domicil. Ah fXotLm of. ! S«« S"t^'^ S^Vecie. AMBASSADOES AND PUBLIC MINISTEES, generally. See Diplomatic Service. nationality of children born of, in service of Crown abroad. See British Subjects. criminal jurisdiction in regard to. See Criminal Law and. Juris- diction. AMERICAN CASES, citation of. See Be Missouri Steamship Co., 2'75. ra^way securities, j ^®® Foreign Bonds, Stock and Sliare Certificates. ANGLO-INDIAN DOMICIL. See Domicil. " AEEIVED SHIP," ship when, by what law ascertained, 276. ASSIGNMENT, of moveables. See Moveables. of immoveables. See Immooedbles. of contractual obligation, 277, 278. ATTOENET, of foreign administrator, may transmit assets to, 203. suable here, 219. chain of representation continued through, 213. strict power not requisite, 214. sureties without jurisdiction, 213. ATTOENING TO JUEISDICTION, in case of foreign sovereign. See Foreign Sovereign. ambassador. See Diplomatic Service. person served with writ or notice out of. See Jurisdictioii. Digitized by Microsoft® INDEX. 447 BANKRUPTCY, Sill V. Worswiok, 153—157. proof of debt on foreign judgment, iu, 366, 367. alien enemy, righ.t to prove for dividend. See Aliens. and immoveables. See further Immoveables. marital rights on, 109, 110. Jurisdiction, act of bankruptcy, 162 et seq. B. A. 1883, ss. 4, 6, considered, 163—166. debtor's petition, 164. Effect of Bankruptcy within the Queen's Dominions, interritorial enforcement of orders in United Kingdom, 166, 167. Courts throughout Queen's dominions to act in aid of each other, 167. vests in assignee all property vested by lex fori, 167. including immoveables, 167, 168. under B. A. 1883 . . 167, 168. creditor recovering debt abroad seeking to prove here, 168, 170. Effect of Banhruptcy tvithout Queen's Dominions, in domicil, 168. elsewhere, 168. on petition of debtor, 169. on collusive petition, 169. immoveables, 169. foreign assignee or creditor in England, position of, 168, 169. debtor who has paid by process of law, position of, 169. delstor remitting to bankrupt in Ireland, 168. Ir. B. A. 1857 . . 168. Two or more Adjudications, effect generally given to earlier in date, 169. exceptions, 169, 170. party recovering in foreign bankruptcy, seeking to prove here, 169, 170. when allowed, 170. stay, 170, 374, 375. adjudication here, when improper, 170, 171 . Ireland and Scotland, special provision, 171 . estate will be administered by lex fori, 170. Effect of Discharge in Bankruptcy, under B. A. 1883... 171. discharges debtor throughout Queen's dominions, 171. in other cases, 171. discharge by lex actfts, 171, 172. law of obligation, 172. as to frauds and oflences against local bankrupt laws, 171. Distribution and Administration, lex fori prevails, 170, 172, 173. Service and Notice, of petition, 173. disclaiming notice, 173. of order to attend examination, 173. personal service on firm, 173. generally, 173. attestation of petition out of England, 173. affidavits, &c., sworn abroad, 432, 433. receiving order, 173 : Be Wendt, 22 Q. B. D. 733. BANNS OF MAEEIAGE, publication of, in Scotland,, 104. Digitized oy Microsoft® 448 INDEX. BELGIUM, conventions with, as to mixed marriages, 94. fisheries convention with, to whom protection afforded, 59. [Other conventions with, are indexed generally imder the re- spective subject-matters.] BIGAMY, with adultery, as ground for divorce, 114, 128 el aeq. as criminal offence, 128 et seq. And see Criminal Law and Juris- diction. BILLS OP EXCHANGE AND PEOMISSOEY NOTES, BiUs of Exchange Act, 1882 . . . 280—282. conflict of laws, form, 280. stamp, 280. interpretation, 280. duties of holder, 280. amount, 280. due date, 281. inland bill, 281. foreign biU, 281. dishonour abroad, 281. bankruptcy rules, 282. common law rules, 282. inland note, 282. foreign note, 282. dishonour of foreign note, 282. protest, 282. BONDS. See Foreign Bonds, Stock and Share Certificates. BOTTOMEY. See Master. BRITISH NATIONALITY. See British Subjects. BRITISH POSSESSIONS, meaning of, in International Copyright Acts, 300. BRITISH SHIPS. See Ships. BRITISH SUBJECTS, The Indian Chief, 34—40. alienage and nationaKty (quasi) by conduct, 59. natural-born subjects, who are, 45, 46. persons born within Queen's dominions, 45. unless children of alien enemies, 45. persons bom abroad whose fathers or grandfathers were natural- bom subjects, 46, 47. unless father attainted of treason, &c., 46, 47. status conferred by statutes not transmissible to descendants, 46, 47. children born abroad of ambassadors in service of Crown, as to, ' 46, 47. of soldiers, 46, 47. persons bom On British ships, 47. division of succession to Crown, effect of, on nationality, 47. cession of territory, 47. King's children bom abroad, capacity to inherit, 47. issue of Princess Sophia, nationality of, 47. Digitized by Microsoft® INDEX. 449 BRITISH SUBmOTS— continued, naturalization, British, subject naturalized in country of alien enemy, and residing tnere, cannot maintain action, 45. Naturalization Act, 1870 . . . 47—56. statute not retrospective, 53, 56. tow to be interpreted, 56. status of aliens in United Eingdom, 47 et seq. capacity of an alien as to property, 47, 66. does not qualify for office or franchise, 47, 48. or to privxlege as British subject, 48. power of naturalized aUens to divest themselves of their status in certain cases, 48, 57. form of declaration of alienage, 48. how British subject may cease to be such, 48, 57, 59. alien not entitled to jury de medietate linguse, 48. expatriation, capacity of British subject to renounce allegiance, 48, 49, 57. becoming naturalized in foreign state, 48, 49, 57. to make declaration of British nationality, 49, 57. form and manner of, 49. naturalization and resumption of British nationality, 49, 50, 57. certificate of naturalization, 49, 50, 57. power of Secretary of State, 49, 50, 57. places on same footing as British subject, 49, 50, 57. qualification as to old nationality, 49, 50, 57. certificate of re-admission to British nationality, 50. qualification as to old nationality, 50, 57. form of oath of allegiance, 50. oath means declaration or affirmation in the case of persons per- mitted by law to declare or affirm, 57. regulations as to registration, 51, 62, 58. evidence, 52. saving of letters of denization, 63. as to ownership of British ships, 53. of aUegianoe prior to expatriation, 63. power of colonies to legislate with respect to naturalization, 53, 69. definition of terms, 63. repealing schedule, 53 et seq. national status of married women and infant children, 61, 57, 68. married woman follows nationality of husband, 61, 67, 58. British-born widow, alien by marriage, statutory alien, 51, 57, 58. child follows nationality of father or widow-mother, 51, 57, 58. saving as to proprietary rights of married woman, 67, 58. See Alien ; Oommercial Domicil ; Denization ; Ships. CAPACITY, to contract. See Contract. to marry. See Marriage. to be legitimated. See Legitimacy and Illegitimacy. as concerns testamentary dispositions. See Testamentary Dispositions to aliene immoveables. See Immoveables. moveables. See Moveables. to acquire domicil. See Domicil. to sue, incapacity or capacity, matter of procedure, 66, 427. penal disability, 65, 66, 93. See Majority and Minority. N. ^ ^ Digitized by Microsoft® 450 INDEX. CARGO, mode of loading, usages of port, 253. hypothecation, 427. See Master ; Contract. CAEEIAGE, contract of. See Gontrad. CERTIPIGATE, of naturalization, 49. of baptism, 430. of marriage, 427, 430. stock and share. See Foreign Bonds, Stock and Share Certificates. diplomatic, of foreign law, 436. OHAEITIES— CHARITABLE BEQUEST, Court will not settle scheme for charitable funds to be administered abroad, 214, 215. how dealt with in such a case, 214, 215. See Immoveables ; Administration, s. t. Immoveables ; Tritsts ; Trustees. CHARTER-PARTY. See Contract. stamp on. See Taxation. CIVIL SERVANTS, domicU of. See Domicil. CLERGYMAN", domicil of. See Domicil. CODICIL. See Testamentary Dispositions; Administration; Prolate. COLLUSION, as affecting exterritorial effect of bankruptcy, 169. foreign decree of divorce, 114, 133. And see Divorce. foreign judgment. See Foreign Judgment. COLONIES, newly settled, how far common law prevails in, 95, 147. application of Copyright Acts to. See Copyright. and patents, designs, trade marks. See Industrial Property. charge on revenue of, income tax, 385. power to legislate with respect to naturalization, 53, 59. colonial, administrator-general, grant of probate or administration, 211, 212. government, whether suable, 151, 152, 403. petition of right, 151, 152. not a corporation, 238. Copyright Acts, Orders in Council under. See Copyright. law,' ascertainment Act, 437, 438. t . law or ordinance, mode of proof of, 427 — 430. notary public, judicial notice of seal of, 432. judgments, proclamations, &c., mode of proof of, 427 — 430. law establishing validity of marriage, 104. land, grant of, law applicable to, 147. made personal assets by statute administered as such, 199. judge, request.to, to examine witnesses, 418, 420. governors, &c., offences by, 300. Digitized by Microsoft® INDEX. 451 COMMERCIAL DOMIOIL IN TIME OF WAR, The Indian Chief, 34—40. distinction between, and domioU proper, 40. principle, 40. residence and protection, 40. presence of property, 40. without will of owner, 40. active measures of transfer on outbreak of war, 41. temporary residence, 41. does not involve in liability, 41. residence in exterritorial community, 38, 39. consul, foreign, resident in Britisb. territory, 37 et seq. not exempt from duty not to trade witb enemy, 37 et seq. de facto protection of British arms imposes liability, 37 et seq. See Aliens. COMMISSION, allowed by law of locality on collection of assets, 221. merchant. See Agency. to take evidence abroad. See Examination of Witnesses. COMMITTEE of person of unsound mind. See Person of Unsound Mind. COMMON LAW, how far carried to new settlements. See Colonies. COMPANY. See Corporations. CONSULAR COURTS, grant of probate or administration in. See Probate. iudgments of. See Foreign Judgments. CONSULS AND CONSULAR SERVICE, as aflecting domicil. See Domicil. trading in time of war. See Commercial Domicil. affidavits sworn before. See Foreign Affidavits. jurisdiction over consuls. See Diplomatic Service. grant of probate, foreign consul will not obtain, 213 ; but see 178. m.arriage before. See Marriage. CONTRACT, Guepratte v. Young, 244—246. Lloyd V. Guibert, 247—256. Capacity, depends on lex domicilii, 245, 256, 257. not dependent on lex loci solutionis, 256, 257. or on law governing the contract, 256, 257. acquisition of title by lex situs, 256, 257. Formalities, prima facie lex loci actiiis must be satisfied, 246, 257. but formalities required by governing law sufficient, 257 — 259. examples, 258, 259. stamp, contract void by lex actus for want of, 259. prima facie unenforceable, 259. inadmissible in evidence, immaterial if not English, 260. immoveables, lex sitils, 260. See Immoveables. Evidence, matter of procedure, and dependent pn lexJori, 261,427. Digitized by Microsoft® 452 INDEX. OO'NT'RA.GT— continued. Essential Validity, oontraot illegal by law of England, unenforceable, 261 — 265. examples, oases considered, 261 — 265. contrary to order of Court, 262, 263. as to coUusive proceedings in divorce, 262, 263. solicitor to share profits of suit, 263. sale of slaves, 263, 264. . ia restraint of trade, 264, 265. contrary to international law, 265. as to smuggling contracts, 261, 262. gaming contracts, 261, 262. British revenue laws, breach, of, 261, 262. revenue laws of foreign states, 266j_ country, law of which governs contract, 266. iUegality by governing law — contract unenforceable, 266. lex actfis — immaterial, 266. Obligation and Construction, principles on which governing law ascertained, 247 et seq., 268 — 277. law of flag, 247 et seq., 266—268. is law of country to which ship belongs, 267. See Arrived Ship ; Cargo; General Average; In- surance; Master. contract of carriage, 275. part of contract may be construed by one law and part by another, 108, 109, 275, 276. so as to interpretation, 108, 109, 275, 276. construction of foreign document, 268, 441. Immoveables, contract relating to, 277. governed and construed on ordinary principles, 277. but difference from nature of subject-matter, 277. interpretation, 108, 109, 277. And see Immoveables. See also Agency ; Assignment ; Discharge of Contractual Obligations ; Debt; Interest; Marriage and Proprietary Bights; Obligations quasi ex Contractu. CONVENTIONS, interpretation of, as to persons protected, 59. [Conventions with foreign countries and declarations of foreign countries are indexed generally under the respective subject- matters.] COPTEIGHT, International Copyriglit Act, 1886 . . . 302—308. International Copyriglit Convention, 309 — 317. eflect of orders under International Copyright Acts, 303. simultaneous publication, 303, 318. restriction on translation, 303, 304. application of International Copyright Act to then existing works, 304. evidence of foreign copyright, 304. application of Copyright Acts to colonies, 304. International Copyright Acts to colonies, 304, 305. definitions in International Copyright Act, 305, 306. schedule of repealed provisions, 308. orders under Act, 309. countries to which convention extends, 309. Copyright Union, 309. rights of authors in, 309 — 311. Digitized by Microsoft® INDEX. 453 COPYrnQBT— continued. provisions of conTention, 309 — 314. saving of existing conventions, 314, 315. orders revoked, 315, 316. International Office, 315, 316. older cases illustrative of certain articles of convention, 317, 318. rights of foreigners under earlier Acts, 318, 319. prohibition against importation of repriats into British dominions, 319. construction of International Copyright Acts with International Copyright Convention, 321, 322, 326. Colonial Copyright Act, 1847 . . 320. Orders in Council under, 320, 321. COEPOEATIONS, Henriques v. Dutch West India Co., 222. Att.-Gen. v. Alexander, 223—227. company may he registered though scene of operations ahroad, 240. and members foreigners, 240. residence and domicil, 227. for purpose of recognition corporation domiciled in country of creation, 227, 239, 241. trading corporation, domicil of, 228. registration not conclusive as to, 228. principal residence, 228. pier company, 228. insurance company, 228. na.anufacturing and vending, 228. railway, 228. non-trading, 229. sole, 229. corporation may have more than one residence, 229. BecogniUon ; Jurisdiction ; Powers, registered office here sufficient for jurisdiction, g29, 232. foreign corporation duly created under own law should be recog- nized here, 229— 231. actually complete in foreign coiintry cannot be registered here, 231. may trade without exposing members to individual liability, 231. entitled to protection of trade mark, 231. conventions and regulations with and of foreign countries, as to joint stock companies, 231. can sue, 222, 231. be sued (prolDably), 232. service of process on, 233 et seq. out of jurisdiction in regard to, 238. See Jurisdiction and Watkins v. Scottish Imp. Ins. Co., 5 T. L. E. 511. forum, for suing and being sued, 232. foreign judgment regarding internal affairs of foreign corpora- tion, 232, 233. Court will not make order it cannot enforce, 233. directors of foreign company may be liable as trustees, 233. difficulty of determining whether foreign association corpora- tion or no, 222, 233, 239, 241. mode and form of action, lex fori, 239. foreign jjidgment obtained in accordance with articles of associa- tion or'lex domicilii enforced against shareholders, 239, 240, 363. Digitized by Microsoft® 454 INDEX. CO'EPO'RATIONB— continued. Winding-up, company registered here, 240. foreign company, 240, 241. jurisdiction, 240. lis alibi pendens, 240. discretion of Ooiirt, 241. creditors proving in, cannot retain assets attached abroad, 241. creditors proceeding abroad — injunction, 241. dissolution, 240, 241. service abroad of notice of proceedings, 241. Taxation, income tax, corporation "residing -within United Kingdom," 241. registered here, 241. trading here, 223—227, 241, 242. telegraph company, 242. ■ carriers, 242. bankers, 242. payment of dividends, 242, 243. in respect of immoveables, 243. Customs and Inland Eevenue Act, 1885 . . 228, 243. duties imposed upon bodies corporate and unincorporate, 228, 243. And see Taxation. COSTS, security for, plaintiff resident abroad, 423. in case of foreign ambassador, 402. ambassador's servant, 402. foreign sovereign, 406. whether foreign sovereign should ask for, 406. •whether order for, can be made against co-respondent domiciled foreigner, being without the jurisdiction, 115, 123. foreign order as to, when enforceable, 353, 354, 355. of action on foreign judgment, 360, 361. defendant may be ordered to pay, though successful, 360, 361. CEEDHOE, residence abroad to avoid. See Domicil. grant of administration to, 212. claiming in administration, 198. in bankruptcy, 168, 170. OEIMINAL LAW AND JUEISDIOTION, Territorial Waters Jurisdiction Act, 1878 . . 294—296. declaration of Queen's jurisdiction over British waters, 294. offences within territorial waters justiciable here, 294. consent of Secretary of State required to institution of proceedings, 294. provisions as to procedure, 294, 295. saving as to jurisdiction, 295. as to piracy, 295. definitions, "jurisdiction of the admiral," 295. " United Bjngdom," 295. "territorial waters," 295. "offence," 296. "ship," 296. " foreign ship," 296. British ship, 297, 298. Digitized by Microsoft® INDEX. 455 CEIMINAL LAW AND JUBISDlCTIOT'f— continued. Franconia Case -wrongly decided, 296. foreign public skips, crimes on board, in Britist waters, 296, 297. criminal jurisdiction, co-extensive with territory, 297. personal exceptions, foreign sovereigns, 297. diplomatists, 297. prisoner of war, 297. not an exception, 297. local exceptions, on the high seas, 297, 298. foreign territorial waters, 298. on land out of England, treason, &c., 298. murder, 299. manslaughter, 299. bigamy, 299, 300. plea of no offence by law of prisoner's country, 300. is no defence, 300. is considered in mitigation of punishment, 300. transactions by letter, &c., 300. venue, 297, 298, 300. conspiracies in England to commit crimes abroad, 300. accessories in England to crimes committed abroad, 300. Foreign Jurisdiction Acts, effect of, 300. •Submarine Telegraph Act, 298. Foreign Enlistment Act, 300. Slave Trade Acts, 300. Merchant Shipping Acts, 296. offences by governors, &c., of colonies, 300. post office offences, 297. sea fisheries, 298. wild birds, 298. See Extradition. CEOWN, of England, is imperial, 399. grant of colonial land by, 147. provision for resumption, 147. division of succession to, effect of, on nationality, 47. Queen is resident in every country of her dominions, 152. in relation to alien enemies — contacts — licences to trade. See Aliens. See also Royal Family ; Petition of Right. OUEEENCY, in what, legacies payable, 200. rent-charge payable, 200, 201. sterling, 201. CUSTOMS AND INLAND EEVENUE ACT, 1885, duties imposed by, upon bodies corporate and unincorporate, 228, 243. See Taxation. DAMAGES, action for. See Tort. for breach of contract. See Contract ; Procedure. measure of, in relation to foreign securities, 285. Digitized by Microsoft® 456 INDEX. DEATH, duties. See Taxation. place of, presumption as to domicil. See Domicil. in itinere and domicil. See Domicil. distiibution oi property on. See Administration ; Testamentary Dis- positions. rights of husband and wife on, by what law determined, 110. DEBT, recovered in England, amount payable, 279. assignment of. See Assignment. discharge of. See Discharge. DECIDED OASES, on private iaternational law, important not to depart from, 8, 9. Scotch, in H. L., 15. American. See Re Missouri Steamship Go., cited 275; and Ewing v. Orr-Ewing, 10 App. Oas. 513. DENIZATION— DENIZEN, grant of letters of, not affected by Naturalization Act, 53. by letters patent, 58. no period of residence necessary, 58. British nationality dates from date of, 58. denizen not capable to be of Privy Council, 58. to enjoy any office, 68. to take interest in any hereditaments on grant from Crown, 58. DESIGNS. See Industrial Property ; Copyright. DIPLOMATIO SERVICE, 7 Anne, c. 12 . . . 391, 392. Taylor v. Best, 392—399.. domicil, as affecting. See Domicil. privileges of ambassadors and public ministers, 391, 400. Statute of Anne declaratory of common law, 400. ■ambassador or minister, 400. criminal jurisdiction. See Criminal Law and Jurisdiction. trading, 401, 402. suite, 400. exceptions in statute as to traders, 400. registration, 400. service must be bona fide, 400, 401. chargi d'affaires, 401. secretary, 392—399, 401. chorister, 401. physician, 401. chaplain, 401. interpreter, 401. land-waiter, 401. person.in Queen's service, 401. secretary's wife, 401. diplomatic change, 401, 402. consuls, not, as such, within statute, 402. security for costs, 402. waiver of privilege, 392—399, 402, 403. taxation, 402. local rates, 402. Digitized by Microsoft® INDEX. 457 DIPLOMATIC SERYLGE— continued. ambassador or minister — continued. death, duties, 402. when subject of Queen, 402, 403. service out of iurisdiction upon foreign minister, 403. recognition of Crown, 401, 402. ajnbassador does not represent sovereign for purpose of suit, 404, 406. DIEECTOES, of foreign, company may be liable as trustees, 233. DISABILITY, to sue, 65, 66, 425, 427. to contract. See Contract. to marry. See Marriage. to re-marry, 134. See Capacity. DISCHAEGE OF OBLIGATIONS, contractual, 278, 279. 426. in bankruptcy. See Bankruptcy. lawful payments to committee in country of lunatic's residence, valid discharge, 71. DISCOVERY, foreign sovereigns suing, liable to make, 405, 406. foreign republic suing, proper person appointed to make, 406. claim for, in aid of foreign Oovu-t, struck out, 423. DISTEIBUTION, in bankruptcy. See Bankruptcy. on death. See Death. DIVOECE, as affecting domicU. See Married Women. jurisdiction in. See Matrimonial Causes. Foreign Sentence of {including Nullity and Jactitation ; Separation). Lolley's Case, 128, 129. case considered, 129, 130. place of celebration England, 366. sentence of Court of domicil recognized, 130, 311. of non-domicil, 131, 132. where bona fide residence, 132. when domicU acquired after marriage but before decree, 132, 133. fraud and collusion, 133. when domicU not BngUsh, 133, 134. or place of celebration, 133, 134. divorce by sentence of foreign legislature, 134. effect of, when recognized, 134. disability to re-marry, 134. as regards moveables, 134. dower, 134. See Immovealles. DOMICIL, law of, what it means, 187. grant of probate not conclusive as to, 197. in time of war. See Commercial Domicil. of corporations. See Corporations. of married women. See Married Women. Digitized by Microsoft® 458 INDEX. DOMlClL—conUnued. TTdny v. Udny, 1—14. nature of, ■what domicil is, 11, 12, 15. distinguislied. from allegiance, 11, 12, 15. acquisition of nev, compatible ■with, intention to retain old allegiance, 15. nationality does not affect, 13, 15. not to be confounded -with home, 15, 16. or -with residence, 15, 16. every person assumed to have some domicil, 6, 9, 12, 15. person may be domiciled ■where no home, 15. may be resident where not domiciled, 15. can have but one domicil, 6, 15. domicil retained until changed, 16. original, by acquisition of new, 7, 9, 12, 16. acquired by abandoimient, 7, 16. domicil of origin reverts on abandonment of acquired domicil, 6, 10, 13, 17. unlessimmediate acquisition of new domicU of choice, 17. death in itinere, 17. domicil of origin, of legitimate child, 17. Ulegitimate, 17. posthumous, 19, 20. foundling, 20. domicU, change of, during father's lifetime, 20. after father's death, 20. power of mother, 20. on re-marriage, 20. of guardian, 21. Domicil of Choice, necessity of residence and animus manendi, 17, 21, 23. death in itinere towards, 17. evidence of, ascertained from all circumstances, 22 question partly of fact, partly of presumption, 22, 32. presumptions, presence, 22. death, 22. domicil of origin, 22. intention, 23. criteria, purchase of land, 23. of burial place, 23. deposit of plate and valuables, 23. English marriages, 23. naturalization, 24. exercise of political rights, 24. formal declaxations, 4, 5, 24. and descriptions, 4, 5, 24. way of spelling a name, 24. names of children, 24. daughter married and settled, 24. purchasing share in business, 24. investment of property, 24. choosing trustees of ■will, 24. guardian for children, 24. life partnership, 24. Digitized by Microsoft® INDEX. 459 DOMICIL — continued. Domicil of Choice — continued, intention — continued, criteria — continued. submission to, the exercise of, jurisdiction dependent on domicil, 24. residence of wife and family, 24. form of mil of moveables, 24. manner of life, 24. orphan child regarding certain place as domicil, 25. expressions of intention, too much weight not to be given to, 4, 5, 25. of value under certain circumstances, 25. • swearing to own domicil not conclusive, 25. residence, not of itself sufficient to constitute, 25. continued for long period, strong evidence of intention, 25. nature and character of, 25. at hotels, &c., 25. long, may be insufficient, 25. very brief, may be sufficient, 26. circumstances requiring, strong evidence of intention, 26. not pressed too far, 26. of no value when inconsistent with intention, 26. in non-christian country, 26. of trader, 26. to avoid creditors, 27. when continuing debt, 27. of prisoner, 27. of exile, 27. of exile-refugee, 27. of person of unsound mind, 27. of invalid of, 27. in exterritorial community, 27, 28. peer, domicil, 29. clergyman, 29. diplomatic ' ; service, as affecting domicil, 29, 30, 31. consular judicial civil military naval servant, domicil of, 33. student, domicil of, 33. Anglo-Indian domicil, 32. DONATIO MOETIS OAUSA, duty. See Taxation. See Administration; Testamentary Dispositions. DOWEE, as to effect of foreign divorce, 134. marriage, validity of , 137, 140, 141, 144. EMBASSY, persons attached to, domicil. See Domicil. civil jurisdiction. See Diplomatic Service. criminal. See Criminal Law and Jurisdiction. marriage at. See Marriage. Digitized by Microsoft® 460 INDEX. EQUITY TO A SETTLEMENT, 106. ESTOPPEL, as regards transactions in England, 427. in relation to foreign seourities, 284, 285. EVIDENCE, manner of proving, matter of procedure, lex fori, 427. facts to he proved not matter of procedure, 427. of hypothecation, necessity for, 427. of contract, 261, 427. answer criminating abroad, 433. See Certificate; Foreign Affidavits; Foreign Law; Oath; Pro- cedure; Proof. EXAMINATION OP WITNESSES ON COMMISSION ABEOAD, request to examine in lieu of commission, 420, 421. procedure in foreign Court acting on, 420. commission matter of judicial discretion, 418, 419. exercise depends on particular circumstances, 419. examples — cases, 419, 420. plaintiff, 419, 420. amount small, 419. suspicious circumstances, 419, 420. expense, 420. defendant, 420. name of witness need not be disclosed, 420. request to colonial judge, 418 — 420. application to examine as to foreign law, 420. delay, 421. EXECUTOES. See Administration; Probate. EXILE, domicil. See Domicil. EXPATEIATION. See British Subjects. EXTEEEITOEIAL COMMUNITY, residence in, as affecting domicil. See Domicil. commercial domicil. See Commercial Domicil. EXTEADITION, law based on Extradition Acts, 300, 301. effect of statutes, 301. ascertainment of nationality in respect of, 301. PACT0E8 ACTS, cases cited in which considered, 277. FISHEEIES, international regulations, 59, 298. offences in relation to, 59, 298. FOEEIGN ACTS OF STATE, mode of proving, 427 — 430. Digitized by Microsoft® INDEX. 461 POREiaN AFFIDAVITS, E. S. 0. 1883, Ord. 38, r. 6... 430, 431. otter statutory provisions, 430, 431. cases cited and stated, 430, 431. in bankruptcy, 173, 432, 433. FOREIGN BONDS, STOCK AND SHAEB CERTIFICATES, transaction in England, title, 162, 282. negotiability, 282, 283. warranty ol title, 283, 284. " called bonds," 283, 284. estoppel, 284, 285. measure of damages, 285. debentures — trustees for holders in foreign mining company, 285. collusive action abroad by, 285. obligations of English, company charging foreign- assets, 285. interest on foreign government loan — ^moneys in hands of agents here, 285. See Taxation. FOREIGN CORPORATIONS. See Corporations. FOREIGN ENLISTMENT ACT, 300. FOREIGN JUDGMENTS, Godard v. Gray, 338—345. ScMbsby v. Westenholz, 345 — 351. mode of proving, 427 — 430. in foro domicilii concerning testamentary dispositions. See Testa- mentary Dispositions. estabHshmg particular right of foreign administrator or legatees entitles to sue without English grant, 217. concerning internal affairs of foreign corporation, 239, 240. against foreign corporation, 239, 240. Extension Acts (Scotch and Irish), 351. action on, writ specially indorsed, 361. amount plaintiff should recover, 351. nature of action on, 351. judgment in rem or in personam, 352. Foreign Judgment in Personam, when enforceable, 352 et seq. properly constituted Court, 352, 353, 364, 365. final and conclusive inter partes, 352 — 355. upon the merits, 352, 353, 355. same issue, 352, 353, 355, 356. relied on by plaintiff, 352, 353, 356. by defendant, 352, 353, 356. competent jurisdiction, 345, 351, 352, 353, 356, 357 et seq. foreign Court mistaking own law, 357, 358. erroneous construction of EngKsh law, 338 — 345, 358. disregard of English law, 338—345, 358, 359. contrary to "natural justice," 359. jurisdiction, 359 — 363. must be recognized in England, 353, 356, 359, 360. want of residence, 360. process, 360. notice, 360. substituted service, 348, 359, 360, 361. subject, 359, 360, 361. resident, 369, 360, 361. Digitized by Microsoft® 462 INDEX. FOEEIGN JUDGMENTS— coniMMei. Foreign Judgment in Personam — continued, jurisdiction — continued. defendant having selected forum, 359, 360, 361. voluntary appearance, 359, 360, 362. appearance to protect property seized, 362. from apprehended seizure, 362. possession of property within jurisdiction, 359, 360, 362. contract to submit to, 363. fraud of party relying on judgment, 352, 353, 363, 364, 365. coUusion, 352, 353, 363, 364, 365. fraud of stranger, 366. foreign judgment in rem, 352, 365. judgment of prize Court, 59, 60, 61, 365, 366. maritime lien, 365, 366. foreign judgment respecting status, 366. See Divorce. trade mark, 367, 368. proof in bankruptcy of debt arising on, 366, 367.. orimiaal proceeding, plea of acquittal or conviction in another juris- diction, 368. defence after judgment, 368. by law of foreign country, 368. issue of fact, 367, 368, 430. FOEEIGN JUEISDICTION ACTS, 300. FOEEIGN LAW, [laws of foreign countries noticed on particular subjects, e. g. copy- right, corporations, are indexed under the respective subject- raatters.] of legitimation, 18, 19. dissolving marriage, 134. enacting divorce a bar to dower, 134. application for commission to examine abroad as to, 420. proof of, must be proved as fact, 433, 434. by expert evidence, 434. burden of proof, 441. judicial decision to stay when point involved, pending decision in foreign Court, 440, 441. And see Re Missouri Steamship Co., cited 275. reference to sources, 435. proved before, 435. joint opinion, 435. incidental opinion, 435. experts, who are, 434 — 436. not, 435, 436. ofilcial evidence, 436. certificate from embassy or legation, 436. English, Scotch, and Irish law in House of Lords, 434. colonial law in Privy Council, 434. British and Colonial Law Ascertainment Act, 437, 438. British Courts may remit cases for opinion of British Courts, 437, 438. Foreign Law Ascertainment Act, 438 — 440. British Courts may remit cases for opinion of foreign Courts, 438—440. construction of foreign document, 268, 441. international law, part of the common law, 434. Papal See, powers of, judicial notice in Divorce Division, qu., 434. Digitized by Microsoft® INDEX. 463 FOREIGN SOVEEEIGNS AND FOREIGN STATES, criminal jurisdictioii in regard to. See Criminal Law and Juris- diction. civil jurisdiction in regaxd to, 403—408. jus legationis index of sovereignty, 403. recognition by Crown final and proper test, 403, 406. no jurisdiction to entertain action against, as such, 403, 404. or against agents, as such, 403. or property, 403. or ambassador or minister, 403. agents having received moneys upon trust, 403. cannot be prevented from removing property out of jurisdiction, 404. ■will receive notice in equity, 404. cannot be sued, though trading, 404, 405. subject of Queen, 405. resident in England, 405. suing here or coming in as defendant, 405. amenable to cross-proceedings, 405, 406. but not to fresh process after judgment, 406. security for costs, 406. ' asking for costs, 406. republic, may sue in own name, 406. proper person will be appointed to give discovery, 406. minister does not represent sovereign for purpose of suing in own name, 406. rebels acqtiire no title by seizure of sovereign's property, 406, 407. revolution, property which has been acquired as public, 407, 408. de facto and de jure governments, 407, 408. FOREIGN WILLS ACTS. See Testamentary Dispositions. FOUNDLING, domicil of. See Domicil. FRAUD AND COLLUSION, as affecting foreign sentence in matrimonial cause. See Divorce. judgments. See Foreign Judgments. fraudulent conveyance of foreign immoveables relieved against, 151. GAMING CONTRACTS, 261, 262. GARNISHEE; GARNISHMENT, service of orders, 418. leave granted to issue writ for service out of jurisdiction attaching legacy due to husband in order to satisfy an unpaid order for maintenance. Archer y.- Archer, W. N. 1886, p. 66. generaij average, port of destination, 267. or port where voyage properly determined, 267. proper port for adjustment of claims, 267. adjustment must relate to peril insured against, 267. unless otherwise provided in poKcy, 267, 268. See Cargo; Master ; Insurance. GOVERNMENT, colonial. See Colonies. foreign, suing. See Foreign Sovereigns. revolutionary, contract with, 407, 408. de facto, contract with, 407, 408. Digitized by Microsoft® 464 INDEX. GEEEK OHUROH, marriages between members of, in England, 103, 104. Greek Marriages Act, 1884 . . 103, 104. GUAEDIAN AND WARD, grant of probate or administration, 208 — 210. power of guardian to change ward's domicU. See Domicil. foreign guardian recognized, 69. but should be appointed by English Court, 69. title to ward's moveables, 69. removal of ward out of jurisdiction, 69. children of Indian prince by Englishwoman, guardianship, 69. guardian ex lege resident abroad, Court may substitute guardian resident with jurisdiction, 70. Guardianship of Infants Act, 21, 70. HABEAS CORPUS, ad subjiciendum, return detained in slavery in English jurisdiction insufficient, 62 — 65. power to issue writ into English colonies abrogated where com- petent colonial Court, 72. does not lie on behalf of prisoner of war as such, 72. lies on behalf of alien within jurisdiction, 72. HEIB. See Immoveahles. HEEES, illegitimate child admitted as, ab intestate, 19. stranger in blood for purposes of death duties, 19. not without more legitimate, 19. proprietary rights in moveables, 19. universus, foreign grant of probate. See Probate. HOME, not to be confounded with domicil. See Domicil. matrimonial, 24, 118, 120. founds jurisdiction in divorce, quoere, 120 et seq. HOTCH-POT, and immoveables, 199. moveables, 199. HUSBAND AND WIPE. See Death; Divorce; Marriage; Marriage and Proprietary Bights ; Married Women ; Matrimonial Causes. IGNOEANCE OF LAW, of foreign, trustee and, 216. no defence for foreigner criminally prosecuted, 300. ILLEGALITY, and contract. See Contract. ILLEGITIMACY, and domicil. See Domicil. See Legitimacy and Illegitimacy. IMMOVEABLES, Doe V. Vardill, 135—142. Freke v. Carbery, 142 — 144. Digitized by Microsoft® INDEX. 465 IMMOYEABLES— cojition and limitation, 425, 426. law extinguishing right, 426. set-off, 426. Uen, 426. ■. time, 426. mode of suing, 426. title of action, 426. disability, 427. proof and evidence, 427. estoppel, 427. foreign affidavits, &c., 430—433. answer criminating, 433. formal acts done abroad, 433. oath, 441. mode of proving foreign, Indian, and Colonial Acts of State, Judg- ments, &c., 427—430. See Foreign Law ; Oath; Disability; Evidence; Limitation. PEOMISSOEY NOTES. See Bills of Exchange and Promissory Notes. PEOTECTION, de facto — domioil, 28, 29. commercial domioil in time of war, 37 et seq. QUASI-CONTEACT, regarding foreign immoveables enforced against duly constituted personal representatives in England, 151. QUEEN. See Crown ; Royal Family. Queen's Proctor should protect estate of persons dying within realm, 212, 213. EATES. See Taxation. EEBEL— EEVOLUTION. See Foreign Sovereign. EECEIVEE, of imm.oveables, 151, 214. of moveables, 214. service abroad of notice of appointment, 409. foreign, 214. EEFUGEE, domicil. See Bomicil. EEGISTEES, foreign, of baptisms, 430. of marriages, 427, 430. EENT-CHAEGE, duty. See Taxation. in what currency payable, 200, 201. See Immoveables. Digitized by Microsoft® '8 INDEX. BPUBLIC. See Foreign Sovereign. SSIDENCE— RESIDENT, as affecting domicil. See Domicil, taxation. See Taxation. jurisdiction, ci-yil. See Jurisdiction. criminal. See Criminal Law and Jurisdiction . in bankruptcy. See Bankruptcy. general meaning of term, 16, 165, 385. iSTITUTION OF CONJUGAL EIGHTS, suit for. See Matrimonial Causes. 3VENUB, foreign revenue laws, not regarded, \ contracts violating British, > See Contract. and contract generally, ) See Taxation. )TAL FAMILY, capacity of King's children born abroad to inherit, 47. issue of Princess Sophia, nationality of, 47. Eoyal Marriages Act, 88, 89. marriages before British Consul, Act relating to, does not extend to marriages of, 102. See Crown. . PETERSBUEO, marriages of British subjects at, 103. See Marriage. A.L, affixed to documents executed abroad, 433. of notary public, 432. lEVANTS, domicil. See Domicil. of ambassador, i&c. See Biplo^natic Service. EVICE ABEOAD. See Jurisdiction. T-OFF, matter of procedure, lex fori, 426. mutual credits, 426. TTLEMENTS, marriage. See Marriage and Proprietary Sights. See Trusts. IPPING— SBDO'S, The HaUey, 286—289. priority of claims against, 426. sale flagrante or imminente bello, 41. colourable transfer, 41. marriage at sea. See Marriage. children born at sea, nationality. See British Subjects. " an'ived ship," 276. Digitized by Microsoft® INDEX. 479 SHIPPING— SHIPS— con^nwed. natioaality of ship, how determined, 291, 298. public ship, 293. crimes on board, 296, 297, 298. contractual position of British seamen on foreign ship, 266. British ownership of, nothing in Naturalization Act to qualify alien to be owner, 33. must belong to, natural-born subject, 58. or denizen, 58. or person naturalized, 58, 59. or British corporation, 59. proviso as to persons having taken foreign oath of allegiance, 58, 59. See Cargo; Contract; Master; Insurance; Q-eneral Average; Criminal Law and Jurisdiction. SLAVERY, Sonmiersett's Case, 62—65. owner cannot exercise power in England, 65. or on English ship, 65. recognized as regards transactions abroad, 66, 261 . and contract, 261, 263, 264. Slave Trade Acts, ofiences against, 300. SPECIFIC PERFORMANCE, contract to be performed in England, 399, 400. Court will prevent removal of res out of jurisdiction, 399, 400. See Contract. STAMPS, as regards contract. See Contract. duty. See Taxation ^romissor'^^notes" 1 ®®® ■^''^* of Exchange and Promissory Notes. See Revenue. STATUS, Sommersett's Case, 62 — 65. repugnant to English law, 65, 66, 67, 82, 88, 93. penal, 65, 66, 67, 82, 88, 93, 134, 366, 427. recognized generally, 66. lex domicilii, 66. lex actus, 66. Court may refuse to adjudicate, 66. foreign judgment affecting, 366. STATUTE OF FRAUDS, contracts within ss. 4 and 17, sued upon here must be evidenced as required by statute, 261, 277. STATUTES, to be interpreted, as far as language permits, so as not to be incon- sistent with established rules of international law, 56, 118, 122, 173, 292, 293, 386, 387. [The more important statutes printed or cited are indexed by name, or under their respective subject-matters.] STUDENTS, domicU. See Boftfj/^tlzed by Microsoft® INDEX. rCCESSION, duty. See Taxation. on death. See Administration ; Testamentary Dispositions ; Immove- ables. XATION, Thomson v. Adv.-Gen., 376—379. as respects corporations. See Corporations. exemption of diplomatists, 402. does not apply to death duties, 402. customs, 379, 402. excise, 379, 402. local rates, 379, 402. construction of Taxing Acts, 381, 385 — 387. Legacy duty — dependent on domicU, 376. rent-charge, lex sitAs, 379, 380. partnership share, 380. donatio mortis causa, 380. Succession duty — property British or no, 380 — 382. degrees of relationship, 380. foreign duty, payable out of general estate, 382. Prolate duty — • attaches on assets in England, bona notabilia, 378, 379, 382, 383. does not attach on assets abroad, 378, 379, 382, 383. as to instrument of chattel nature, 383. judgment debt, 383. other debts, 383. biUs dra-wn on English bank, 383. foreign stock, 383, 384. shares in companies, 383, 384. claim on estate of deceased person, 207, 384. deduction in respect of debts, 384. Income tax — ■ Schedules A. and B. — immoveables, 384. , E. and C. — charge on puljlic revenues, 384, 385. D. — annual profits accruing or arising to any person residing in United Emgdom, 384 — 387. annual profits arising from property, profession, trade, employment, or vocation in United ■ KiQgdom, 384, 387—389. duties on dividends, &c., payable out of revenue of foreign state or colonial government, 385. difficulty in construing Schedule D., 385. unremitted profits, 385 — 387. trade, &c., in United Kingdom, 387 — 389. interest on deposit by foreign firm in colonial bank, partner resident in United Kingdom, 389. Foreign securities — Customs and Inland Eevenue Act, 1888. . . 389. contract-notes, 389. mode of calculating ad valorem duty, 389. operation of Stamp Act, 389, 390. applies to conveyances executed in England, 389, 390. as to foreign agreements, 390. agreements made at sea, 390. articles of foreign ship, 390. as to bills of exchange, 390. promissory notes, 390. charter-party, 390. See RevenViS. Digitized by Microsoft® INDEX. 481 TELEGRAPH, Submaiine Telegraph Act, 298. damage to, 292, 298. company and income tax, 242. TEEEITOEIAL WATEES. See Criminal Law and Jurisdiction ; Torts. TESTAMENTAEY DISPOSITIONS, Bremer v. Freeman, 174—176. Foreign Wills Act, 176—178. Enohin v. Wylie, 178—180. validity, law of domicil at time of death, 186, 196. capacity, 186, 196. change of domicil after date of execution, 176, 187, 194, 195. lex domicilii, 187. recognition in forum of domicil, 187, 188. does not affect immoveables, 189. combiaation of laws, 190, 191. probate, lis pendens in court of domicil, 189, 375. foreign grant, document to be produced, 189. two or more iustruments, 190. See Prolate. Wills and Testamentary Instruments of British Subjects, 24&25Vict. c. 114..176, 177. wills made out of United Kingdom, law of place where made, 176. law of domicil when made, 176. law of testator's original domicil in Queen's dominions, 176. wills made in United Kingdom, local law, 176. change of domicil, 176. wiUs valid without Act, 177, 190. sects. 1 and 2, form, 190. confirmation and probate, 190. capacity and material validity, lex domicUii, 190. combination of laws, 190. form reqxiired by lex actiis, 191. "British subject," 191, 192. " United Kingdom," 192. " personal estate," 192. Will Executed under Power, in pursuance of power, 192. "appointment by wiU," 192, 193. Interpretation and Construction, intention of testator, 193. law of domicil, 193. description of property, 193. designatio personarum, 18, 19, 193. expressed intention, 193. intention by inference, 193. technical language, 193, 194. immoveables, 193, 194. of immovealles, 144, 146, 147, 148, 189, 194. See Administration, Digitized by Microsoft® 82 INDEX. 1MB, matter of procedure, lex fori, 427. ITLE OF ACTION, matter of procedure, lex fori, 427. in case of foreign corporations. See Oorporations. sovereigns. See Foreign Sovereigns. ITLE OF HONOUE, right to, by what law determined, 152. OET, The Halley, 286—289. action for conspiracy abroad, -365. wrong actionable here, 286—289, 290. not justifiable by lex loci, 286—289, 290. right of action divested ex post facto by lex loci, 290. prescription and limitation, 290. criminal proceedings before action, 290, 291. local remedy purely penal, 291. only before correctional tribunal, 291. at sea, on board foreign ship on high seas, 291 . on foreign private ship ia English territorial waters, 291, 292. acts external to ship on high seas, 292. collisions, 292. acts external to ship in territorial waters, 292. damage to foreign soil in foreign port, 292. Merchant Shipping Acts, 292, 293. limitation of HabUity, 293. foreign ship damaging British property, 325, 326. patent, infringement m British waters, 292, 325, 326. BADE, licence to. See Alien. residence, domicil. See Domicil. commercial. See Gommercial Domicil. mark. See Industrial Property, contract in restraint of, 264, 265. REASON, &c. See Criminal Law and Jurisdiction. BUST, settlor domiciled within jurisdiction may create, 214. jurisdiction to enforce, 150, 219, 220. vesting orders, 199. charitable, 214, 215. See Administration ; Charities ; Trustee. EUSTBB, administration action. See Adm.inistration. foreign, 70. transfer of stock, 70, 71. paying to foreign Committee, 71, 72. out of jurisdiction, removal, 214. appointment of new, 215, 216. petition to appoint — service, c. q. t. resident abroad, 214, 409, 412. mistake as to foreign law, 216. See Trust. Digitized by Microsoft® INDEX. 483 UNITED KINGDOM, meaning in Foreign Wills Act, 192. for pnrposes of Bills of Exchange Act, 281. in Territorial Waters Jurisdiction Act, 295. in policy of insurance, 296. at common law, 192. "or elsewhere," meaning, 56, 165, 166, 386, 387. USUEY LAWS, 279. WARD, of court, removal out of jurisdiction, 69. See Guardian and Ward. WILD BIEDS, offences in relation to, 298. WILL. See Testamentary Dispositions. WINDING-UP. See Corporations. WRONGS. See Tort. THE END. Digitized by Microsoft® LONDON : PRINTED BY C. F. ROWORTH, GREAT NEW STREET, FETTER LANE. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®