1iiil!llii!!il!iP.PS!iiii!l!i Wt UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SELECTION OF CASES ON THE CONFLICT OF LAWS BY JOSEPH HENRY BEALE, Jr. PROFESSOR OF LAW IN HARVARD UNIVERSITY Vol. L JURISDICTION : REMEDIES CAMBRIDGE THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION 1907 Copyright, 1900, 1907, By Joseph Henky Beale, Je. Sanibrrsitg iPrcss: John Wilson and Son, Cambridge, U.S.A. \3 \9 PREFACE. The topic of the Common Law upon which Judge Story has imposed the title, The Conflict of Lmvs, consists of four parts, different in origin, though ch:)sely related to one another in their practical application. The Conflict of Laws is first concerned with the jurisdiction of States, — the extent of their legislative and judicial power, and of the obligation and right of individuals to obey and to take advantage of the legislation of one or another State. These are questions of international law, wliicli should properly he decided in every country in the same way. The topic is next concerned with the creation of legal rights and obligations, as a result of the sovereign action of some State ; often an international matter, though the questions involved are rather questions of foreign fact than of law. The next concern of this branch of the law is the recognition and enforcement within one State of rights and obligations which have been created in another State ; a question not in any sense inter- national, but to be determined in accordance with the municipal law of the State concerned. Finally, there remains to determine the legal process by which, if at all, the foreign right shall be enforced ; also obviously a municipal question. But though the doctrines which make up the topic. The Con- flict of Latvs, are of various origin, they all form pai-t of the Common Law of England, and have been adopted as such in the States of the American Union ; they are law with us, not because they arose in international comity and usage or in municipal prac- tice, but because they are acted upon in our courts. The name, Private International Law, sometimes applied to the whole topic, is therefore inadequate and misleading. This collection of cases is the result of a seven years' experience in teaching the Conflict of Laws. The arrangement of the sub- 66730S VI PliEFACE ject may be open to logical objections ; but there seemed to be sufficient practical reason for tiie order adopted. Most of the cases here printed were decided in the English and American courts ; but valuable cases in the British Colonial courts have also been printed. In these Colonies, as in the United States, the principles of the Conflict of Laws are of especial importance, since in them business transactions are seldom confined within State or Colonial lines. Several foreign cases will be found in the collection. So far as the rules of law illustrated by them have their origin in inter- national law, these cases may well be regarded as having persua- sive authority in our own courts ; cases involving, for instance, the limits of national jurisdiction, tlie validity of a foreign marriage, and the existence generally of foreign-acquired rights. On such questions the views of foreign courts should be carefully considered. It is unnecessary to point out to one familiar with the principles of the Common Law that greater weight should l>e given to the opinions of foreign courts, delivered in the course of actual litigation, than to the academical specula- tions of even the ablest authors, when not based on the authority of decided cases. On such questions as the effect, accord- ing to our own law, of the existence of a foreign-acquired right, where the problem, as has been pointed out, is one of purely municipal law, the views of foreign courts, administering a differ- ent system of law, are of absolutely no weight as authority. Where decisions of this nature have been included, the pui-pose has been to illustrate and emj)hasize the difference between the doctrines prevailing in the modern civil law and in our own law. The need of studying this difference has been shown by recent cases, notably the case of Hilton v. Guyot. Most of these cases are here ])rintcd as they were given in Clunet's " Journal dii Droit International Privet not being re- ported in any official series accessible to me. For the translation of the cases I must take the responsibility. In the French deci- sions and others reported in the French form (for instance, the Belgian and Egyptian) I have done more than translate. The report as published does not oi'dinarily contain the opinion of the court, l)ut merely the judgment, which, however, includes a full l)ut formal recital of the facts and reasons on which the judgment is based. I have so changed the form of statement (without the slightest change otherwise) as to throw the judgment into the PREFACE. VU form of an opinion. This has been done by omitting the formal commencement of each recital. I could not defend such a prac- tice if the primary object of this collection were not in my opinion thereby furthered. The cases cited in the notes by no means exhaust the authori- ties. The purpose has been to include in the notes only a suffi- cient number of well-considered cases to show the actual state of authority on each question. I have not always indicated the omission of the reporter's state- ment of facts, where sufficient facts appeared in the opinion, or of the arguments of counsel. All other deviations from the original report have been indicated. J. H. B. TABLE OF CONTENTS Page Preface v Table of Cases xi PART I. JURISDICTION". CHAPTER I. LAW. Sectiox I. The Extent of Legislative Power 1 Section II. The Origin and Change of Law 65 Section IIL Concurrent Legislative Jurisdiction 85 Section IV. The Nature of Foreign Law 132 Section V. Comity . . ^ 143 CHAPTER IL JURISDICTION OVER PERSONS AND THINGS. ^ Section I. Domicile 145 ^> Section II. Taxation 220 Section III. Te.mporary Presence 293 CHAPTER IIL JURISDICTION OF COURTS. Section T. Jurisdiction in Rem 302 Section II. Personal Jurisdiction 323 Section III. Jurisdiction Quasi in Rem 381 ^ Section IV. Jurisdiction for Divorce 434 \ Right of Action TABLE OF CONTENTS. PART II. REMEDIES. CHAPTER IV. Page 497 CHAPTER V. Procedure ^-' TABLE OF CASES. [This table contain8 all cases in the text, and all the American, British and Colonial cases cited by the editor in his notes. Cases in the text are printed in small capitals.] Page A. B. & Co., In re 353 Abd-ul-Messih v. Farra 165 Abington v. North Bridgewateb 177 Ackerson v. E. R. R. 504 Adams Express Co. v. Ohio 243 Adamson, Copin v. 348 Advocate-General, Thompson v. 285 Advocate-General of Bengal v. Ranee Surnomoye Dossee 67 Airhart i\ Massieu 66 Alden, Harden v. 452 Alderson, Freeman v. 390 Alexander i'. Tolleston Club 372 Allen V. Thomason 158, 215 Alley V. Caspar! 340 Alliance Bank v. Carey 540 Alston V. Newcomer 183 Anderson v. Anderson 191, 216 Anderson, Reg. v. 51 Andrews v. Harriott 530 Anglo-American Tel. Co., Di- rect U. S. Cable Co. v. 37 Anon. 510 Abmington, S. v. 453 Armstrong, Reg. v. 53 Abmytage v. Armytage 439 Arndt v. Amdt 390 Arndt v. Griggs 308 Astley V. Capron 154 Atherton i\ Atherton 459 Attorney-General v. Campbell 285 V. Hope 285 Attorney-General v. Pottinger 173 Attorney-General, Shaw v. 438 Sudeley v. 285 Wallace v. 285 Atwater v. Townsend 527, 540 Augusta, Porterfield v. 191 Avery, Brinley v. 506 Ayeb v. Tilden 551 B. Bachelor, Standard Oil Co. v. 223 Bain i\ Whitehaven, &c. Ry. 548 Baker, Kline v. 134 P. V. 453 Balasubramanian.Bangarusami v. 365 Balcom, First Nat. Bank v. 158 Baldwin, Munday v. 216 Balk, Harris v. 427 Ballinger v. Lautier Ballister v. Hamilton Baltimore, Lord, Penn v. Baltimore & 0. R. R. v. Glenn Bander, Bradley v. Bangarusami v. Balasubramanian Bangor v. Readfield Parsons v. Bangs v. Brewster Bank, Brunswick Terminal Co. v. Bank of Augusta v. Earle Bank of Australasia v. Harding V. Nias Bank of U. S. v. Donnally Barbour v. Barbour Barnes, Frothingham v. Barnhill, M. & 0. R. R. v. Barron, Mineral Point R. R. v. Barton v. Barton Bassett, Hallet v. Bates V. Ry. Beard v. Beard Beard, Le Roy v. Beattie, Johnson v. Beedy, McVicar v. Belchertown, Cummington v. Belgenland, The Bell i\ Kennedy Benaiad, Hamida v. Bengal, Adv. -Gen. of, v. Ranee Surnomoye Dossee Benth'V. S. v. Berchtoldt, Chatfield v. Bergner & Engel Brewing Co. v Dreyfus Bethany, Oxford v. Blackstone v. Miller Blain, Ex parte Blaine v. Colonial Marine Ins. Co. Blankard v. Galdy Bleeker, Swedish-Amer. Bank v. Board of Assessors, Detroit v. Boggs, Weaver v. Bondurant, Watson v. Boothbay v. Wiscasset Borland v. Boston Boston, Borland v. Boston. I>\vight v. Otis V. Sears v. Thornrlike «. Boston, &c. Co., Tillinghast v. 229, 183 551 372 219 228 305 215 184 190 541 143 350 350 540 212 338 423 531 210 199 403 324 529 199 390 461 302 145 546 67 257 285 218 216 258 351 427 05 412 235 364 215 190 202 202 228 155 199 184 333 xu TABLE OF CASES. Page Boynton, Wright v. 358 Bradley v. Bander 228 Brewer v. Linnaeus 191, 200 Clark V. 403 Cocke V. 324 Brewster, Bangs v. 190 Brewster, Watson v. 540 Brigham. Stratton v. 183 Brinley v. Avery 506 Brisbane Oyster Fishery Co. v. Emerson 365 Bristol V. Washington County 257 Bristow V. Sequeville 549 British South African Co. v. COMPANHIA DE MogAMBIQUE 506 Broadhead v. Noyes 530 Broadstreet v. Clark 532 Bronson, In re 282 Brooks, Colquhoun v. 285 Littlefield v. 209 Brown v. Desmond 372 Brown v. Duchesne 290 Brown v. Lynch 215 Cross V. 425 Brunswick Terminal Co. v. Bank 541 Buchanan v. Ruckeb 323 Buckley, Ketchura v. 82 Bulkley v. Williamsto\vii 209 Bullock v. Cairo 528 Burdett, ]\Iatthews v. 85 BuRDicK r. Freeman 514 Burgess, Gibson v. 373 Burgett V. Williford 540 Burlington & M. R. R. v. Thompson 532 Burrow, Wheeler v. 215 Burwcll, Poindexter v. 372 Bushong, Pilson v. 155 Byers, Dunlap v. 373 Cadwalader v. Howell 199 Cairo, Bullock v. 528 Calcutta Jute Mills v. Nicholson 285 Caldwell v. Van Vlissengen 293 Caldwell, Short v. 317 Call Pub. Co., Western Union Tele. Co. v. 127 Camljefort, Russell v. 219 Cambridge v. Charlestown 191, 216 Campbell v. Hall 54 Campbell, A. G. v. 285 Canfield, Walden v. 200 Capron, Astley v. 155 Carey, Alliance Bank v. 540 Carnegie v. Morrison 529 Carpenter v. Strange 373 Carrier v. Gordon 223 Carron Iron Co. v. Maclaren 219 Carson v. Hunter 316 Carter v. Somniermeyer 155 Caspari, Alley v. 340 Centrn] R. R., P. v. 373 Central Trust Co. v. C.R. & C.R.R. 417 Chafee v. First Nat. Bank Champion, Hartford v. Chapman v. Chapman 211, Chapman, Com. v. Chappell v. Jardine Charlestown, Cambridge v. 191, Charlevoix, Roberts v. Chatfield v. Berchtoldt Chedic, Conley v. Cheever v. Wilson 211, Chicago & N. W. Ry., Johnson v, Chicago & N. W. Ry., Murray v. Chicago, R. I. & P. Ry. v. Sturm Chicago, S. P. M. & 0. Ry., Little v. Christie's Succession Church V. Grossman Clark V. Brewer V. Likens V. Robinson Broadstreet v. Mann v. W. U. Tel. Co. V. Cloud V. Greasley Cochrane, Forbes v. Cocke V. Brewer Coe V. Errol Cofrode v. Gartner Colburn v. Colburn Collier v. Rivaz Collins V. Manville Colonial Marine Ins. Co., Blaine v. Colquhoun v. Brooks Columbus, C. & I. C. Ry., Lynde v. Colvin V. Reed Comber v. Leyland Comford, Pfoutz v. CoMiiERCiAL Nat. Bants v. David- son Commissioners of Taxes, Hoyt v. Com. v. Chapman V. Manchester Com. V. Levy Compagnie Generale Transatlan- tique V. Law Companiiia oe Mozambique, Brit. S. Afric. Co. v. Concord v. Rumney Conley v. Chedic Consequa, Fanning v. Cook V. Hager CooLEY, Matter of Cooper, Krone v. copin v. aoamson County of Northampton, Mc- Keen v. Cowell, Tliompson v. Cox, St. Clair v. Craignish, In re Crapo V. Kelly Crispin, Sharpe v. Crist, Roosa v. Critchfield, Snyder v. Page 219 154 462 72 77 216 222 285 223 452 548 97 377, 532 515 212 183 403 183 210 532 184 525 372 41 324 227 514 454 202 540 427 285 374 452 333 209 552 223 72 29 373 345 506 216 223 551 219 286 183 348 227 340 340 166 51 216 529 358 TABLE OF CASES, XUl Crocker, Smith v. Cross V. Brown V. Harrison Crossman, Church v. Culbertson v. Floj^d County Culver's Ap^^eal CUMMINGTON V. BeLCHERTOWN Cunningham, First Nat. Bank v. D. Dallas, Hamilton r. Dalliber, Grant v. Darrah v. Watson Davidson, Commercial Nat. Bank v. Davis V. Headley V. Morton Risewick v. Dawell, P. V. Dayton, S. v. Debary-Baya IMerchants' Line, Johnson v. De Bonneval v. De Bonneval De Casinova, S. v. De la Vega v. Vjaxna Delaware, L. & W. R. R., Fore- PAUGII i;. De Meli v. De Meli Dennis v. S. 177, Dennysville v. Trescott Derby's Case Desmare v. .U. S. Desmond, Brown v. De Strens, Fichera v. Detroit v. Board of Assessors D'Hanlon, Vanderpoel v. Dinsmuir, Roberts v. Direct U. S. Cable Co. v. Anglo- American Tel. Co. DiTSON V. Ditson 210, Doane, Melhop v Dobree v. Napier Dodson, Montrose Pickle Co. v. Doerr v. Forsythe Dolphin V. Robbins Don V. Lippman Donnally, Bank of U. S. v. Dormer, Williams v. Doucet V. Geoghe^an Douglas V. Douglas Douglas v. Forrest Douglas, IMunroe v. Douglass V. Phenix Ins. Co. Drake v. L. S. & M. S. Ry. Dresser, Meyer v. Dreyfus, B. & E. Brewing Co. v. Young v. Duchesne, Brown v. Dumont, Todesco v. Dunham v. Dunham 454, Dunlap V. Byers Dimleith r. Rogers Duply v. Wurtz Page Page 512 Dutcher v. Dutcher 212 ,452 423 Dwiglit V. Boston 228 67 Pearsall v. 540 183 Dyer v. Osburn 228 199 210 E. 4G1 358 Earl, Bank of Augusta v. 143 Easterly v. Goodwin 199 Eastport, Lubec v. 210 EiNwoLD V. German West Afri- 174 can Co. 423 210 Elder, Reel v. 452 338 Eliot V. McCormick .390 Ellefsen, Imlay v. 527 552 Elsasser v. Haines 364 373 Emerson, Brisbane 0. F. Co. v. 365 533 Ennis v. Smith 154 ,210 183 Erie Ry., Stoneman v. 529 454 Errol, Coe v. 227 199 Estes, Meyer v. 552 Everhart, Thrasher v. 530 222 Evey V. Mexican Cent. R. 525 210 Eyer, Security Co. j'. 553 210 527 F. 136 Fabrigas, Mostyn v. 499 155 Falmouth, Oldtown v. 215 200 Fanning v. Consequa 551 216 Fant V. Miller 549 67 Farag c. Mardrous 85 173 Farmington, Gardiner v. 216 372 Farra, Abd-ul-Messih v. 165 92 Fayette v. Livermore 191 235 Fayetteville, Hall v. 228 176 Felch V. Hooper 317 504 Ferguson, Petigi-u v. 216 Ficiiera v. De Strens 92 37 Fireman's Ins. Co. v. Thompson 345 445 First Nat. Bank v. Balcom 158 390 V. Cunningham 358 01 First Nat. Bank v. Kinner 76 403 First Nat. Bank, Chafee v. 219 459 ' Osborn v. 529 212 Firth V. Firth 454 540 Fisk, Stevens v. 452 540 Fitzgerald, Wood v. 200 212 Fitzsimmons v. Johnson 358 199 Fleming, Hardesty v. 226 216 Florance, In re 218 325 Floyd County, Culbertson v. 199 158 P'orbes v. Cochrane 41 412 Forepaugh v. D. L. & W. R. R. 136 532 Forrest, Douglas v. 325 533 Forsythe, Doerr v. 459 218 Foss V. Nutting 529 379 Foster, Haven v. 1.32 296 Fowler, Guerrant v. 372 434 Francis. Germania F. I. Co. v. 219 459 Wilhelm v. 427 373 Frank v. Peyton 372 226 Frary i-. Frary 452 191 Freeman v. Alderson 390 f^ XIV TABLE OF CASES. Freeman, Burdick v. Fremont, Gibbs v. Frothingham v. Barnes Frothingham v. Shaw Frye's Election Furtick, Nat. Bank v. G. Galdy, Blankard v. GaLITZIN, MaTTIIAEI IK Gardiner v. Farniington Gardner v. Ogden Gardner v. Thomas Gartner, Cofrode v. Geoghegan, Doucet v. German West African Co., Ein- WOLD V. Germania F. I. Co. v. Francis Getchell, Sanders v. Gibbs V. Fremont Gibbs v. Howard Gibson v. Burgess GiLMAN 17. Oilman GiRARD V. TrAMONTANO Glenn v. IMarbury B. & O. R. R. V. Goodwin, Easterly v. Gordon, Carrier v. Howell I'. Gore, Harvard College v. Grant v. Dulliber Greasley, Cloud v. Green v. Green Greene v. Greene i\ Windham Griggs, Arndt v. Grizzard, Hannon v. Grothaus, Marheineke v. Grover & Baker Sewing Machine Co. V. Radcliffe Guerrant i'. Fowler Guier v. O'Daniel Guy, Perkins v. GuYOT, Hilton v. Page 514 551 338 282 177 412 158, 199, 191, % H. Hackcttsto\\Ti Bank v. Mitchell Haddock v. Haddock Hagcr, Cook v. Haqgart v. Morgan Haight, R. v. Haines, Elsassor v. Williams v. Hairston v. Hairston Hall V. Fayettcville Hall, Campbell v. Hallot V. Bassett Hamtda v. Benaiad Hamilton v. Dallas Hamilton 7;. Schoenberoer Hamilton. Bnllistor r. Hammond, Port Royal R. R. v. 65 504 21c 237 510 514 200 423 219 177 551 532 373 184 367 529 219 199 223 324 189 210 372 438 212 212 308 200 216 354 372 155 540 144 212 466 219 182 222 364 530 191 228 54 199 546 174 530 551 373 Hanberry v. Hanberry 211, Hannon v. Grizzard Hanson, Rand v. Harden v. Alden Hardesty v. Fleming Harding, Bank of Australasia v. Hardy v. De Leon Habral v. Hakrai. Harris v. Balk Harris v. Harris Harrisburg, the Harrison v. Harrison Cross V. Hart V. Horn Harteau v. Harteau 211, Hartford v. Champion Harvard College v. Gore 158, Harvey, Mooar v. 174, Haskins, Holyoke v. Haven v. Foster • Hays v. Pacific Mail S. S. Co. Headley, Davis v. Heidelback, Ex parte Henderson v. Stanifgbd Henry v. Sargent Hernandez, Underhill v. Herriott, Andrev.'s v. Herron v. Kccran Hickok, Schwinger v. Hicks V. Skinner Hiestand v. Kuns Hilton v. Guyot Hinds V. Hinds Hoadley i\ Northern Tbansp. Co. Hollis, Wheeler v. Hoi man, Watkins v. Holyoke v. Haskins Home Ins. Co., P. v. Hood V. S. Hooper, Felch v. Hope, A. G. V. Horn, Hart v. Home V. Home Howard v Howard, Gibbs v. Howell V. Gordon Cadwalader v. Hoyt v. Commissioners of Taxes Hubbell V. Hubbell Hudson, Perm. B. & I. Assoc, v. Hull, Owinos v. Humphrey v. Humphrey Hunt V. Hunt 211, Hunter, Carson v. Hurlbut, Renier v. Ingersoll Tmlay v. Ellefsen Tngorsoll, Howard v. International L. Ins. tine V. Irby V. Wilson Soc, Mar- Page 452 200 324 452 226 350 210 200 427 459 540 454 67 191 452 154 189 200 216 132 220 373 551 337 504 63 530 257 325 177 216 144 211 547 216 373 216 257 454 317 285 191 184 510 532 324 199 223 452 364 135 438 338 540 408 527 510 219 452 TABLE OF CASES. XV Page Jack, Walker v. 257 Jackson v. Polk 210 Jackson, Mexican Nat. R. R. v. 523 Jackson, Monroe r. 210 James, School Directors v. 215, 210 Jardine, Chappell v. 77 Jefferson, In re 257 -;;. Washington 182 Jemison, Townsend v. 533 Johnson v. C. & N. W. Ry. 548 V. Debary-Baya M. Line 222 V. Kimbro 373 V. Smith 183 Johnson, Fitzsimmons v. 358 Putnam t-. 174 Johnstone v. Beattie 199 Jones V. Jones 454 V. Spencer 390 Jopp V. Wood 199 Judge, S. V. 200 Judges of Couet of Registea- TioN, Tyler v. 317 Judkins v. Reed 182 K. Keeran, Herron v. 257 Kelley, McConnell v. 184 Kellogg j;. Winnebago County 155 Kelly, Crapo t\ 51 Kennedy v. Ryall 215 Ivennedy, Bell v. 145 Kentucky, Union Tkansit Co. v. 262 Ketchum v. Buckley 82 Keyn, Reg. v. - 1 Kimbro, Johnson v. 373 KiNNER, First Nat. Bank v. 70 Kirkland v. Whateley 216 Kline v. Baker 134 Knights, Roberts v. 512 Kopelke v. Kopelke 552 Korte, Sturgeon v. 210 Kowalski v. Mocalttvo 520 Krone ;;. Cooper 183 Kuns, Hiestand v. 216 Labatt v. Smith 540 Laird v. R. R. 510 Lake S. & M. S. Ry., Drake v. 532 Lamar v. Mahony 209 Lamar v. Micou 212 Lang, Wyeth H. & M. O. Co. v. 423 Latham, IMowry v. 216 Lautier, Ballinger v. 183 Law, Comp. Gen. Transatlan- tique V. 345 Le Mesurier v. Le Mesutsieb 426 Leonard v. New Bedford 226 Le Roy v. Beard 529 Lesley, Reg. v. 63 Le\y V. hevy 629 Com. V. 373 Page Lewis, Succession of 216 Leyland, Comber v. 333 Likens, Clark v. 183 Lindsfelt, St. Sure v. 454 Linke v. Van Aerde 465 Linnaeus, Brewer v. 191 ,200 Lippman, Don v. 540 Lister v. Wright 504 Litowich v. Litowich 454 Little v. Chicago, S. P. M. & 0. Ry. 515 Littlefield v. Brooks 209 Livormore, Fayette v. 191 Loaiza v. Superior Court 317 Lodge V. Phelps 529 Long V. Ryan 184 Longley, Robinson v. 223 Lopez, Reg. v. 53 Lord, Moorhouse v. 199 Louisville v. Sherley 216 Louisville & N. R. R. v. Nash 412 Lowell V. Newport 216 Lowther, Metcalf v. 215 Lubec V. Eastport 216 Ludlow V. Szold 183 Ludlow, Wilbraham v. 189 Lynch, Brown v. 215 Warren v. 540 Lynde v. Columbus, C. & I. C. Ry. 374 M. Matter of Cooley 286 McConnell v. Kelley 184 McCormick v. R. R. 358 Eliot V. 390 McCrory, McLaughlin v. 317 ^McDonald v. Mallory 46 McDougall, Putnam v. 400 McEwen v. Zimmer 333 McG«e V. Sweeney 372 McGuiness, Tyson v. 510 McKeen v. County of Northamp - ton 227 McKennon v. Winn 83 Maclaren, Carron Iron Co. v. 219 McLaughlin i\ McCrory 317 McVicar v. Beedy 390 Maddox v. S. 216 Madrazo v. Willes 46 Maguire v. Maguire 211 Mahony, Lamar v. 209 Maiir v. Norwich Union F. I. Soc 403 INIallory, McDonald v. 40 Manchester, Com. v. 29 Mann i\ Clark 184 !\Lanvi]le, Collins v. 640 ^Marbuiy, Glenn v. 529 IMardrous, Far AG v. 85 Marheineke v. Grothaus 216 Marrett, In re 155 r^Iarshall, Wilkins v. 154 Martine v. Internat. L. Ins. Soc. 219 Mason v. Warner 504 XVI TABLE OF CASES. Page Massie V. Watts 368 Massieu, Airhart v. 67 Matthaei v. Galitzin 504 IMatthews v. Burdett 85 Mayo, Peck v. 649 Melhop V. Doane 390 Merchants' Nat. Bank, Tappan v. 235 Merrill v. Morrisett 173 Metcalf V. Lowther 215 Metropolitan Life Ins. Co. v. New Orleans 272 Mexican Cent. Ry. v. Mitten 525 Evey i\ 525 Mexican Nat. R. R. v. Jackson 523 Meyer v. Dresser 533 V. Estes 552 Micou, Lamar v. 212 Miller. Blackstone v. 258 Miller, Fant v. 549 Miller, New York Central Rail- road V. 269 Mineral Point R. R. v. Barron 531 Missouri Pac. Ry. v. Sharitt 532 Mitchell V. U. S. 154 Hackettstown Bank v. 212 Mitten, ]\Iexican Cent. Ry. v. 525 MocALUvo, Kowalski v' 526 Monroe r. Jackson 216 Montrose Pickle Co. v. Dodson 403 Mooar v. Harvey 174, 200 Moorhouse v. Lord 199 Morgan v. Neville 532 Morgan, Haggart v. 182 Morrisett. Merrill v. 173 Morrison, Carnegie v. 529 Morrow, Rannej' v. 412 Mortimer v. N. Y. Eletatsd R. R. 80 Morton, Davis v. 533 MosTYN V. Fabrigas 499 Mowry v. Latham 216 Munday v. Baldwin 216 Munroe t\ Douglas 158 Murdock v. Roebuck 549 Murray v. Chicago & N. W. Ry. 97 Murray Iron Works, Scholes v. 191 N. Napier, Dobree v. 61 Nash, Ix)l'isville & N. R. R. v. 412 Nat. Bank r. Furtick 412 Neff, Pennoyer v. 381 Nereide, ttie 143 Neville, Morgan 7'. 532 New Bedford, Leonard v. 226 Newby v. Van Oppon 219 Newcomer, Alston v. 183 New (Orleans, Metropolitan Life Ins. Co. v. 272 V. Stempel 352 Newport, Lowell v). 216 Newton, Winkley v. 227 New Y( rk Central Railroad v. Miller 269 Page New York Elevated R. R. Co., Mortimer v. 80 Nias, Bank of Australasia v. 350 Nicholson, Calcutta Jute Mills v. 285 Noble V. Thompson Oil Co. 403 Scott V. 333 Northbridge, Upton v. 216 North Bridgewater, Abington v. 177 Northern Transportation Co., hoadley v. 547 North Yarmouth v. West Gardiner 183 Norwich Union F.I.Soc.,Mahr v. 403 Noyes, Broadhead v. 530 Nutting, Foss v. 529 O. O'Daniel, Guier v. 155 Odd Fellows' Ace. Assoc, Reyer v. 345 Ogden, Gardner u. 372 Ohio, Adams Express Co. v. 243 Oldtown V. Falmouth 215 Osborn ;;. First Nat. Bank 529 Osburn, Dyer v. 228 Otis V. Boston 155 V. Wakeman 512 Owings v. Hull 135 Oxford V. Bethany 216 Pacific Mail S. S. Co., Hays v. 220 Papayanni v. Russian S. N. Co. 87 Parks, Seagrove v. 41 Parsons v. Bangor 184 Patience, In re 173 Paulding, Venable v. 200 Pearce u. S. 191 Pearsall tJ. Dwight 540 Pearson, In re 353 Peck v. Mayo 549 Penn v. Lord Baltimore 372 Pennoyer i;. Neff 381 Pennsylvania, Pullman's P. C. Co. V. 235 People v. Baker 454 People V. Central R. R. 373 V. Dawell 454 V. Home Ins. Co. 257 Perkins v. Guy 540 Permanent Building & Invest- ment Assoc. V. Hudson 364 Perot, U. S. v. 136 Petigru V. Ferguson 216 Peyton, Frank v. 372 Pfoutz V. Comford 209 Phelps, Lodge v. 529 Plionix Ins. Co., Douglass v. 412 Philadelphia & R. R. R., Swift v. 116 Pilson V. Bushong 155 Poindexter v. Burwoll 372 Polack V. Schumacher 365 Polk, Jackson v. 216 TABLE OF CASES. XV U Page Page PoLLAK, Young v. 209 Rumney, Concord v. 216 Porterfield v. Augusta 191 Russell V. Cambefort 219 Port Royal R. R. v. Hammond 37.3 Russian Steam Navigation Co. Potinger v. Wightman 21.5 V. Papayanni 87 POTTINGER, AtTY.-GeNL. V. 173 Ryall, Kennedy v. 215 Price V. Schaeffer 325 Ryan, Long v. 183 Pullman's Palace Cab Co. v. Pennsylvania 23.5 S. Putnam v. Johnson 174 Putnam v. ilcDougall 400 St. Clair v. Cox 340 St. Nicholas Bank v. State Nat. Bank 142 R. St. Sure V. Lindsfelt Sanders v. Getchell 454 177 Radcliffe, G. & B. S. M. Co. v. 354 Sargent, Henry v. 504 Rafael v. Verelst 497 Sargent, Shute v. 212, 216 Raffenel, Goods of 155 Sauvage, Van Heyden v. 366 R. R. v. Ackerson 504 Savery v. Savery 633 V. Barnhill 425 Schaeffer, Price v. 325 Central Trust Co. v. 417 SCHIBSBY V. WeSTENHOLZ 328 Laird v. 510 Schiff, Rouet v. 93 McCormick v. 358 Schoenbebger, Hamilton v. 530 Wheat V. 403 Scholes V. Murray Iron Works 191 Ry., Bates v. 403 School Directors v. James 215 216 Rajah of FARroKOTE, Singh v. 334 Schumacher, Polack v. 365 Rand v. Hanson 324 Schwinger v. Hickok 325 Ranee Surnomoye Dossee, Adv.- Scott V. Noble 333 Gen. v. 67 Seagrove t\ Parks 41 Ranney v. Morrow 412 Sea Grove Building & Loan Read's Appeal 158 Assoc, v. Stockton 542 Readfield, Bangor v. 215 Sears v. Boston 199 Reed v. Reed 372 Second Nat. Bank, Suther- Colvin V. 452 land V. 401 Judkins v. 182 Security Co. v. Eyer 553 Reel V. Elder 452 Sequeville, Bristow v. 549 Reg. v. Anderson 51 Sewall V. Sewall 452 Reg. V. Armstrong 53 Seward v. Rising Sun 228 Reg. v. Keyn 1 Sharitt, M. P. Ry. v. 532 Reg. v. Lesley 63 Sharpe v. Crispin 216 Reg. V. Lopez 53 Shaw V. A. G. 438 Reg. v. Vaughan 64 V. Shaw 209 Renier v. Hurlbut 408 Shaw, Frothingham v. 282 Rever v. Odd Fellows' Ace. Assoc. 345 Sherley, Louisville v. 216 Rhyms v. Rhyms 452 Short V. Caldwell 317 Risewick v. Davis 183 Shreck v. Shreck 452 Rising Sun, Seward v. 228 Shute v. Sargent 212 ,216 Rivaz, Collier r. 202 Sirdar Gurdyal Singh v. Rajah Robbins, Dolphin v. 212 of Faridkote 334 Roberts v. Charlevoix 222 Skinner, Hicks v. 177 V. Dinsmuir 504 Smith V. Crocker 512 Roberts v. Knights 512 i\ Spinolla 527 Roberts v. Walker 216 V. Smith 454 Robins v. Weeks 216 Ennis v. 154 ,210 Robinson v. Longley 223 Johnson v. 183 Clark V. 210 Labatt v. 540 Roebuck, Murdock v. 549 Snyder v. Critchfield 358 Roeder, Wood v. 183 Sommermeyer, Carter v. 155 Rogers, Dunleith v. 220 Somer\-ille v. Somerville 189 Roosa V. Crist 529 Spencer, Jones i;. 390 Ross, In re 89 Spinolla, Smith v. 527 Ross, S. V. 226 Standard Oil Co. v. Bachelor 223 RouET i;. Schiff 93 Staniford, Hexderson v. 337 RoxBURY, Williams v. 183 Staples, Stockton v. 184 Rucker, Buchanan v. 323 State v. Armington 453 XV 111 TABLE OF CASES. State V. Bentley 229, V. Daj'ton V. De Casinova V. Dennis V. Haight V. Judge V. Ross Dennis v. Hood V. Maddox v. Pearce v. Van Fossen v. State Nat. Bank, St. Nicholas Bank v. State Tax on Foeeign-Held Bonds Steers, Succession of Stempel, New Orleans v. Stevens v. Fisk Stockton V. Staples Stockton, Sea Grove B. & L. Assoc, v. Stoneman v. Erie Ry. Strange, Carpenter v. Stratton v. Brigham Sturgeon v. Korte Sturm, C. R. I. & P. Ry. v. 317, Sudeley v. A. G. Superior Court, Loaiza v. Sutherland v. Second Nat. Bank Swedish-American Bank ?;.Bleeker Sweeney, McGee v. Swift i\ Philadelphia & R. R. R. V. Tyson In re Estate of Szold, Ludlow V. T. Taft V. Ward Talmaflge i\ Talmadge Tappan v. IMerehants' Nat. Bank Taylor, Woodruff v. Teel V. Yost Tlielau V. Thelau Thomas, Gardner v. Thomas, Watts v. Thomason, Allen v. 158. Thompson v. Adv.-Gen. V. Cowell B. & M. R. R. V. Fireman's Ins. Co. v. Thompson, Turner v. Thnm])son Oil Co.. Noble v. Tliorndike v. Boston Thornton, Western R. R. v. Thrasher v. Everhart Tilden, Ayer v. Tillin^hast v. Boston. . i * EEGINA V. KEYN. [CHAP. I. SO far a portion of the high seas as to be still within the jurisdiction of the admiral, is part of the territory of the realm, so as to make a foreigner in a foreign ship, within such belt, though on a voyage to a foreign port, subject to our law, which it is clear he would not be on the high sea beyond such limit. It is necessary to keep the old assertion of jurisdiction and that of to-day essentially distinct, and it should be borne in mind that it is because all proof of the actual exercise of any jurisdiction by the admiral over foreigners in the narrow seas totally fails, that it becomes necessary to give to the three-mile zone the char- acter of territory in order to make good the assertion of jurisdiction over tne foreigner therein. Now, it may be asserted without fear of contradiction that the posi- tion that the sea within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, forms part of the realm or territory of the Crown is a doctrine unknown to the ancient law of England, and which has never yet received the sanction of an English criminal court of justice.^ From the review of these authorities we arrive at the following re* suits. There can be no doubt that the suggestion of Bynkershoek, that the sea surrounding the coast to the extent of cannon-range should be treated as belonging to the state owning the coast, has, with but very few exceptions, been accepted and adopted by the publicists who have followed him during the last two centuries. But it is equalh' clear that, in the practical application of the rule, in respect of the particular of distance, as also in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, great difference of opinion and uncertainty have prevailed, and still continue to exist. As regards distance, while the majority of authors have adhered to tlie three-mile zone, others, like M. Ortolan and Mr. Hallcck, applying with greater consistency the principle on which the whole doctrine rests, insist on extending the distance to the modern range of cannon, — in other words doubling it. This difference of opinion may be of little practical importance in the present instance, inasmuch as the place at which the offence occurred was within the lesser distance ; but it is, nevertheless, not immaterial as showing how unsettled this doctrine still is. The question of sovereignty, on the other hand, is all-important. And here we have every shade of opinion. One set of writers, as, for instance, M. Hautefeuille, ascribe to the state territorial pro[)erty and sovereignty over the three miles of sea, to the extent of the right of excluding the ships of all other nations, even for the purpose of passage, — a doctrine flowing immediately from the principle of territorial property, but which is too monstrous to be admitted. Another set concede territorial property and sovereignty, but make it subject to the right of other nations to use these waters for the purpose of navigation. Others again, like M. Ortolan and M. 1 The learned Chief Justice then examinerl the opinions of writers upon Interna- '' "' Law as to territorial jurisdiction over the littoral seas. — Ed. SECT. I.] EEGINA V. KEYN. 5 Calvo, deny anj' right of territorial property-, but concede "jurisdic- tion ; '' by which I understand them to mean the power of applying the law, applicable to persons on the land, to all who are within tlie territo- rial water, and the power of legislating in respect of it, so as to bind every one who comes within the jurisdiction, whether subjects or foreigners. Some, like M. Ortolan, would confine this jurisdiction to purposes of " safety and police," — by which I should be disposed to understand measures for the protection of the territor}-, and for the regulation of the navigation, and the use of harbors and roadsteads, and the maintenance of order among the shipping therein, rather than the general application of the criminal law. Other authors — for instance, Mr. Manning — would restrict the jurisdiction to certain specified purposes in which the local state has an immediate interest, namely, the protection of its revenue and fish- eries, the exacting of harbor and light dues, and the protection of its coasts in time of war. Some of these authors — for instance, Professor Bluntschli — make a most important distinction between a commorant and a passing ship. According to this author, while the commorant ship is subject to the general law of the local state, the passing ship is liable to the local jurisdiction only in matters of " military and police regulations, made for the safety of the territoiy and population of the coast." None of these writers, it should be noted, discuss the question, or go the length of asserting that a foreigner in a foreign ship, using the waters in question for the purpose of navigation solely, on its way to another countiy, is liable to the criminal law of the adjoining countiy for an offence committed on board. Now, when it is remembered that it is mainl}- on the statements and authority of these writers, and to opinions founded upon them, that we are called upon to hold that foreigners on the so-called territorial sea are subject to the general law of this countiy, the discrepancy of opin- ion which I have been pointing out becomes ver}' material. Looking to this, we may properly ask those who contend for the application of the existing law to the littoral sea independently of legislation, to tell us the extent to which we are to go in applying it. Are we to limit it to three miles, or to extend it to six? Are we to treat the whole body of the criminal law as applicable to it, or only so much as relates to " police and safety"? Or are we to limit it, as one of these authors proposes, to the protection of fisheries and customs, the exacting of harbor and light dues, and the protection of our coasts in time of war? Which of these writers are we to follow? "What is there in these conflicting views to guide us, in the total absence of precedent or legal sanction, as to the extent to which we may subject foreigners to our law? What is there in them which authorizes us to assume not only that Parliament can of right deal with the three-mile zone as forming part of our territory, but also that, b}' the mere assent of other nations, the sea to this extent has become so completely a part of our 6 EEGINA V. KEYN. [CHAP, I. territory as to be subject, without legislation, to the whole body of our existing law, civil and criminal? But it is said that, although the writers on international law are disagreed on so many essential points, they are all agreed as to the power of a littoral state to deal with the three-mile zone as subject to its dominion, and that consequently we may treat it as subject to our law. But this reasoning strikes me as unsatisfactoiy ; for what does this unanimity in the general avail us when we come to the practical application of the law in the particular instance, if we are left wholly in the dark as to the degree to which the law can be legitimately enforced? This unanimity of opinion that the liltoral sea is, at all events for some purposes, subject to the dommion of the local state, may go far to show that, by the concurrence of other nations, such a state may deal with these waters as subject to its legislation. But it wholly fails to show that, in the absence of such legislation, the ordinary law of the local state will extend over the waters in question, — which is the point which we have to determine. Not altogether uninfluenced, perhaps, by the diversity of opinion to which I have called attention, the argument in support of the prosecu- tion presents itself — not without some sacrifice of consistency — in more than one shape. At one time it is asserted that, for the space of three miles, not only the sea itself, but the bed on which it rests, forms part of the territory or realm of the country owning the coast, as though it were so much land ; so that the right of passage and anchorage might be of right denied to the ships of other nations. At another time it is said that, while the right is of a territorial character, it is subject to a right of passage b}' the ships of other nations. Sometimes the sovereignty is asserted, not as based on territorial right, but simply as attaching to the sea, over which it is contended that the nation owning the coast may extend its law to the foreigner navigating within it. To those who assert that, to the extent of three miles from the coast, the sea forms part of the realm of England, the question may well be put, when did it become so? Was it so from the beginning? It cer- tainly was not deemed to be so as to a three-mile zone, any more than as to the rest of the high seas, at the time the statutes of Richard II. were passed. For in those statutes a clear distinction is made between the realm and the sea, as also between the bodies of counties and the sea ; the jurisdiction of the admiral being (subject to the exception already stated as to murder and mayhem) confined strictl}' to the latter, and its exercise "within the realm" prohibited in terms. The lan- guage of the first of these statutes is especially remarkable : — " The admirals and their deputies sliall not meddle from henceforth with anytliing done within the realm of England, but only with things done upon the sea." It is impossible not to be struck b}' the distinction here taken between the realm of England and the sea ; or, when the two statutes are taken SECT. I.] REGINA V. KEYN. 7 together, not to see that the term "realm," used in the first statute, and " bodies of counties," tiie term used in the second statute, mean one and the same tiling. In tliese statutes the jurisdiction of the admiral is restricted to the higli seas, and, in respect of murder and mayhem, to the great rivers l)elow the bridges, while whatever is within the realm, in otlier words, within the body of a county, is left within the domain of the common law. But there is no distinction taken be- tween one part of the Iiigh sea and another. The three-mile zone is no more dealt with as within tlie realm than the seas at large. The notion of a three-mile zone was in tliose days in the w^omb of time. When its origin is traced, it is found to be of comparatively modern growth. The first mention of it l)y any writer, or In any court of this countr}', so far as I am aware, was made by Lord Stowell, with refer- ence to a question of neutral rights, in the first year of the present cen- tury, in the case of The Twee Gebroeders, 3 C. Rob. 162. To this hour it has not, even in theory, yet settled into certainty. For centuries before it was thought of, the great landmarks of our judicial system had been set fast — the jurisdiction of the common law over the land and the inland waters contained within it, forming together the realm of England, that of the admiral over English vessels on the seas, the common property or highwa}- of mankind. But I am met by authority, and, beyond question, ancient authoritv, may be found in abundance for the assertion that the bed of tlie sea is part of the realm of England, part of the territorial possessions of the Crown. Coke, commenting on § 439 of Littleton, says, in explaining the words " out of the realm " : — " If a man be upon the sea of England, he is within the kingdom or realme of England, and within tlie ligeance of the King of England, as of his crowne of England. And 3-et altum mare is out of the juris- diction of the common law, and within the jurisdiction of the lord admirall." So Lord Hale, no doubt, in his work De Jure Maris, speaks of the narrow seas, and the soil thereof, as "part of the King's waste, demesnes, and dominions, whether in the body of a count}' or not." But this was said, not with reference to the theory of the three-mile zone, which had not then been thought of, but (following Selden) to the wild notion of sovereignty over the whole of the narrow seas. This pretension failing, the rest of the doctrine, as it seems to me, falls with it. Moreover, Hale stops short of saying that the bed of the soa forms part of the realm of P^ngland, as a portion of its territory. He speaks of it under the vague terms of " waste," " demesnes," or " dominions." He carefully distinguishes between the parts of the sea which are within the body of a county and those which are not. It is true tliat, in his later work on the Pleas of the Crown, Lord Halo, speaking in the chapter on Treasons (vol. i. p. 154), of wliat is a levying of war against the King " within the realm," according to the 8 EEGINA V. KEYN. [CHAP. I. required averment in an indictment for that offence, instances the hostile invasion of the King's ships (" whicli," he observes, "are so many royal castles") ; and this, he says, " is a levying of war within the realm ; " the reason he assigns being that " the narrow seas are of the ligeance of the Crown of England," for which he cites the author- ity of Selden. Here, again, we have Lord Hale blindly following " Master Selden," in asserting that the narrow seas owe allegiance to the Crown of England. A hostile attack by a subject on a ship of war on "the narrow seas would, I need scarcely sa}', be a levying of war against the sovereign, but it could not now be said to be high treason as having been done within the realm. Blackstone (Comm. vol. i. p. 110) saj's that "the main or high seas " (which he afterwards describes as beginning at low-water mark) " are part of the realm of England," — here Mr. Stephen, feeling that his author was going too far, interposes the words *' in one sense," — " for thereon," adds Blackstone, " our courts of Admiralty have juris- diction ; but they are not subject to the common law." This is, in- deed, singular reasoning. Instead of saying that, because these seas are part of the realm of England, the Courts of Admiralty have juris- diction over them, the writer reverses the position, and says, that because the Admiralty has jurisdiction these seas are part of the realm, — which certainly does not follow. If it did, as the jurisdiction of the Admiralty extended, as i-egards British ships, wherever the sea rolls, the entire ocean might be said to be within the realm. But to what, after all, do these ancient authorities amount? Of what avail are they towards establishing that the soil in the three-mile zone is part of the territorial domain of the Crown ? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists? What English lawyer is there who would not shrink from maintaining — what foreign jurist who would not deny — what foreign government which would not repel such a pretension ? I listened carefully to see whether any such asser- tion would be made ; but none was made. No one has gone the length of suggesting, much less of openly asserting, that the jurisdic- tion still exists. It seems to me to follow that when the sovereignty and jurisdiction from which the property in the soil of the sea was in- ferred is gone, the territorial property which was suggested to be con- sequent upon it must necessarily go witli it. But we are met here by a subtle and ingenious argument. It is said that although the doctrine of the criminal jurisdiction of the admiral over foreigners on the four seas has died out, and can no longer be upheld, yet, as now, by the consent of other nations, sovereignty over this territorial sea is conceded to us, the jurisdiction formerly asserted may be revived and made to attach to the newly-acquired domain. I am unable to adopt this reasoning. JSx concessis^ the jurisdiction over SECT. I.] REGINA V. KEYN. 9 foreigners in foreign ships never reall}' existed, at all events, it has long been dead and buried, even the ghost of it has been laid. But it is evoked from its grave and brought to life for the purpose of appl}- ing it to a part of the sea which was included in the whole, as to which it is now practically admitted that it never existed. From the time the jurisdiction was asserted to the time when the pretension to it was dropped, it was asserted over this portion of the sea as part of the whole to which the jurisdiction was said to extend. If it was bad as to the whole indiscriminately, it was bad as to every part of the whole. But why was it bad as to the whole? Simply because the jurisdiction did not extend to foreigners in foreign ships on the high seas. But the waters in question have always formed part of the high seas. They are alleged in this indictment to be so now. How, then, can the admiral have the jurisdiction over them contended for if he had it not before? There having been no new statute conferring it, how has he acquired it? To come back to the subject of the realm, I cannot help thinking that some confusion arises from the term " realm " being used in more than one sense. Sometimes it is used, as in the statute of Richard II., to mean the land of England, and the internal sea within it, sometimes as meaning whatever the sovereignty of the Crown of England ex- tended, or was supposed to extend, over. When it is used as synonymous with territory, I take the true mean- ing of the term "realm of England" to be the territory to and over which the common law of England extends — in other words, all that is within the body of any county — to the exclusion of the high seas, which come under a different jurisdiction only because they are not within any of those territorial divisions, into which, among other things for the administration of the law, the kingdom is parcelled out. At all events, I am prepared to abide by the distinction taken in the statutes of Richard II. between the realm and the sea. For centuries our judi- cial system in the administration of the criminal law has been divided into two distinct and independent branches, the one having jurisdiction over the land and any sea considered to be within the land ; the other over the sea external to the land. No concurrent assent of nations, that a portion of what before was treated as the high sea, and as such common to all the world, shall now be treated as the territory of the local state, can of itself, without the authority of Parliament, convert that which before was in the eye of the law high sea into British terri- tory, and so change the law, or give to the courts of this countrj', inde- pendently of legislation, a jurisdiction over the foreigner where they had it not before. The argument in support of the contrary appears to me, I must sa}', singularly inconsistent with itself. According to it the littoral sea is made to assume what I cannot help calling an amphib- ious character. At one time it is land, at another it is water. Is it desired to apply the law of the shore to it, so as to make the foreigner subject to that law ? — it becomes so much territory. Do 3'ou wish to 10 REGINA V. KEYN. [CHAP. I. keep it within the jurisdiction of the admiral, as you must do to up- hold this indictment? — it is made to resume its former character as part of the high seas. Unable to follow this vacillating reasoning, I must add that, to my mind, the contention that the littoral sea forms part of the realm or territory of Great Britain is fatal to tlie argument which it is intended to support. For, if the sea thus becomes part of tlie territory', as though it were actually inter fauces terrce^ it seems to follow that it must become annexed to the main land, and so become part of the adjoining county, in which case there would be an end to the Admiralty jurisdiction. The littoral sea cannot be land for one pur- pose and high sea for another. Nor is anything gained by substituting the term " territory" for land. The law of England knows but of one territory, — that which is within the body of a county. All beyond it is the high sea, which is out of the province of English law as applicable to the shore, and to which that law cannot be extended except by legislation. It does not appear to me that the argument for the prosecution is ad- vanced by reference to encroachments on the sea, in the wa}' of har- bors, piers, breakwaters, and the like, even when projected into the open sea, or of forts erected in it, as is the case in the Solent. Where the sea, or the bed on which it rests, can be physically' occupied per- manently, it may be made subject to occupation in the same manner as unoccupied territory. In point of fact, such encroachments are gen- erally made for the benefit of the navigation ; and are therefore read- ily' acquiesced in. Or they are for the purposes of defence, and come within the principle that a nation may do what is necessary for the pro- tection of its own territory. Whether, if an encroachment on the sea were such as to obstruct the navigation to the ships of other nations, it would not amount to a just cause of complaint, as inconsistent with international rights, might, if the case arose, be deserving of serious consideration. That such encroachments are occasional!}' made seems to me to fall very far short of establishing such an exclusive property in the littoral sea as that, in the absence of legislation, it can be treated, to all intents and purposes, as part of the realm. Again, the fact, adverted to in the course of the discussion, that in the west of England mines have been run out under the bed of the sea to beyond low-water mark, seems to me to avail but little towards the decision of the question of territorial property in the littoral sea. But for the Act of 21 & 22 Vict. c. 109, to which our attention has been specially directed, I should have thought the matter simple enough. Between high and low water mark the property in the soil is in the Crown, and it is to be assumed that it is by grant or license from the Crown, or by prescription, which presupposes a grant, tnat a mine is carried beneath it. Beyond low-water mark the bed of the sea might, I should have thought, be said to be unappropriated, and, if capable of being appropriated, would become the property of the first occupier. I should not have thought that the carrying one or two mines into the SECT. I.] REGINA V. KEYN. H bed of the sea be^'ond low- water mark could have au}' real bearing on a question of international law like the present. But the Act just referred to, and the circumstances out of which it arose, have been brought impressivelj' to our attention by tlie Lord Chief Justice of the Common Pleas, as sliowing that, according to par- liamentary exposition, tlie bed of the sea beyond low-water mark is in the Crown. 1 cannot help thinking tliat, when the matter comes to be looked at a little more closely, it will be found that the facts hy no means warrant this conclusion. The Duchy of Cornwall, which is vested in His Royal Highness the Prince of Wales, extends, as is known, to low-water mark. Mines existing under tlie bed of the sea within the low-water mark having been carried out bej'ond it, a question was raised on the part of the Crown as to whether the minerals beyond the low-water mark, and not within the county of Cornwall, as also tliose lying under the sea-shore between high and low- water mark within the county of Cornwall, and under the estuaries and tidal rivers within the count}-, did not belong to the Crown. The matter having been referred to Sir John Patteson, his decision as to the mines and minerals below low-water mark was in favor of the Crown ; with reference to the others, in favor of the duclij'. Not having had the advantage of see- ing Sir John Patteson's award, I am unaware whetlier the precise grounds on which his decision proceeded are stated in it, but the terms in which it was framed ma}' be gathered with perfect precision from the recitals of the Act of Parliament which, b}^ arrangement, was passed shortl}' afterwards to give statutory effect to the award. From the recitals in the preamble to the Act it appears that the award was very carefully, I may say cautiously, drawn. After stating the matter in dispute, and the reference to Sir John Patteson, the preamble goes on to recite that the arbitrator had decided, — ^ " First, that the right to all mines and minerals lying under the sea- shore between high and low-water marks within the said county of Cornwall, and under estuaries and tidal rivers, and other places, even below low-water mark, being in and part of the said county, is vested in His Royal Highness as part of the soil and territorial posses- sions of the Duchy of Cornwall. Secondl}', that the right to all mines and minerals lying below low-water mark, under the open sea adjacent to, but not being part of, the county of Cornwall, is vested in Hei Majesty the Queen in right of her Crown, although such minerals may or might be won by workings commenced above low-water mark and extended below it." The difference between the two parts of this recital is at once appar- ent. When dealing with that which is within low-water mark, the award declares the right to the mines and minerals under the sea-shore to be vested in His Royal Highness " as part of the soil and territo- rial possessions of the Duchy of Cornwall." But when the learned arbitrator comes to deal with the mines and minerals below low-water 12 REGINA V. KEYN [CHAP. I. mark, he stops short of saying that these mines and minerals belong to Her Majesty b}- virtue of any ownership in the soil. He confines him- self to awardins; tliat the riglit to siicli mines and minerals is vested in Her Majesty " in right of her Crown." What the groiuids were on which this decision was based I can only conjecture. Sir Jolin Patteson may have held, on the authority of Collis (p. 53), that a sul)ject cannot have any ownership in the soil below low-water mark, — and, thougli standing next to the Throne, the Prince of Wales is still a subject, — and that, as between the Crown and a subject as regards property in or under the open sea, the Crown had the better right. Or the deci- sion may have been founded on the peculiar constitution of the Duchy of Cornwall, which is settled by Act of Parliament and occasionally reverts to the Crown. I cannot help thinking that If the arbitrator bad proceeded on the ground tliat the bed of the sea below low-water mark belonged to the Crown, he would have said so, as he had just be- fore done with reference to the soil above low-water mark. It is true that, when we come to the enacting part of the statute, that which had been left unsaid by Sir John Patteson is supplied. The mines and minerals be3'ond low-water mark are enacted and declared to be in the Queen, in right of her Crown, as part of the soil and possessions of the Crown, just as the mines and minerals within low-water mark are stated to be vested in the Prince of Wales as Duke of Cornwall, in right of the Duch}' of Cornwall, as part of the soil and possessions of the duchy. But it is expressly' declared that this is to be taken to be so only " as between the Queen in light of her Crown, and the Prince of Wales in right of the Duchy of Cornwall," and the rights of all other persons are expressh' preserved. I am surprised, I own, tliat we should be asked to look on this piece of legislation as a parliamentary recognition of the universal right of the Crown to the ownership of the bed of the sea below low-water mark. This was a bill for the settle- ment of the question as to the right to particular mines and minerals between the Crown and the duchy, a measure in whi(!u both the royal personages particularly concerned and their respective advisers con- curred, and in which no other person whatever was interested. To what member of Parliament, even the most eccentric, could it possibly have occurred to raise an objection to it on the ground that it involved an assertion of the Queen's right of property in the bed of the sea? To whom would it occur that, in passing it. Parliament was asserting the right of the Crown to the bed of the sea over the three-mile dis- tance, instead of settling a dispute as to the specific mines which were in question? With the most unfeigned respect for my learned col- league, I cannot but think that he has attached to this piece of legisla- tion a degree of importance to which it is by no means entitled. It thus appearing, as it seems to me, that the littoral sea bej-ond low-wuter mark did not, as distinguished from the rest of the liigh seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so? Can a portion SECT. I.] EEGIXA V. KETN. 13 of that which was before high sea have been converted into British ter- ritor}', without any action on the part of the British Government or legislature — by the mere assertions of writers on public law — or even by the assent of other nations ? And when in support of this position, or of the theory of the three- mile zone in general, the statements of the writers on international law are relied on, the question may well be asked, upon what authority are these statements founded ? When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? to say nothing of the difficulty which might be found in saying to which of these con- flicting opinions such assent had been given. For, even if entire unanimity had existed in respect of the important particulars to which I have referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage, — an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless suffi- cient to give the power of parliamentary legislation in a matter other- wise within the sphere of international law ; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas. When I am told that all other nations have assented to such an abso- lute dominion on the part of the littoral state, over this portion of the sea, as that their ships may be excluded from it, and that, without any open legislation, or notice to them or their subjects, the latter may be held liable to the local law, I ask, first, wha^ proof there is of such assent as here asserted ; and, secondly, to what extent has such assent been carried? a question of infinite importance, when, undirected by legislation, we are called upon to apply the law on the strength of such 14 REGINA V. KEYN. [CHAP. L assent. It is said that we are to take the statements of the publicists as conclusive proof of the assent in question, and much has been said to impress on us the respect which is due to their authority, and that they are to be looked upon as witnesses of the facts to which they speak, witnesses whose statements, or the foundation on which those statements rest, we are scarcely at liberty to question. I demur alto- gether to this position. I entertain a profound respect for the opinion of jurists when dealing with the matters of juridical principle and opin- ion, but we are here dealing with a question not of opinion, but of fact, and I must assert my entire liberty to examine the evidence and see upon what foundation these statements are based. The question is not one of theoretical opinion, but of fact, and, fortunately, the writers upon whose statements we are called upon to act have afforded us the means of testing those statements by reference to facts. They refer us to two things, and to these alone, — treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject- matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic dis- cussion. It has been entirely the creation of the writers on interna- tional law. It is true that the writers who have been cited constantly refer to treaties in support of tlie doctrine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only, — the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three-miles range as a con- venient distance. There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral terri- tory, within which no warlike operations should be carried on ; instances of which will be found in the various treatises on international law. Thus, for instance, in the treaties of commerce, between Great Brit- ain and France, of September, 1786 ; between France and Russia, of January, 1787 ; between Great Britain and the United States, of Octo- ber, 1794, each contracting party engages, if at war with any other nation, not to carry on hostilities within cannon-shot of the coast of the other contracting party ; or, if the other should be at war, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenor, a list of which is given by Azuni (vol. ii. p. 78) ; and various ordinances and laws have been made by the different states in order to give effect to them. SECT, l] REGIXA V. KEYN. 15 Again, nations, possessing opposite or neighboring coasts, bordering on a common sea, have sometimes found it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the tliree miles as a convenient distance. Such, for instance, are the trea- ties made between this country and the United States in relation to the fisher}' off the coast of Newfoundland, and those between this countr\' and France in relation to the fishery on their respective shores ; and local laws have been passed to give effect to these engagements. But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doc- trine contended for, the fact of these treaties having l)een entered into has rather the opposite tendency : for it is obviuus that, if the territo- rial right of a nation bordering on the sea to this portion of the adja- cent waters had been established b}" the common assent of nations, these treaty arrangements would have been wholly superfluous. Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treat}', the three-mile belt of sea might at this day be taken as belonging, for these purposes, to the local state. But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have therefore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sov- ereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the coast of another shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are prepared to acquiesce in the appropriation of the littoral sea ; but I cannot think that these treaties help us much towards arriving at the conclusion that this appropriation has actually taken place. At all events, the question remains, whether judicially we can infer that the nations who have been parties to these treaties, and still further those who have 16 REGINA V. KEYN. [CHAP. I. not, have thereby' assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the criminal law of this country. The uncertainty^ in which we are left, so far as judicial knowledge is concerned, as to the extent of such assent, liliewise presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of the, to ray mind, still more serious difficulty, that we should be assuming it without legislative warrant. So much for treaties. Then how stands tlie matter as to usage, to which reference is so frequently made by the publicists in support of their doctrine? When the matter is looked into, the only usage found to exist is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of naviga- tion, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred. Nor have the tribunals of an}' nation held foreigners in these waters amenable gen- erally to the local criminal law in respect of offences. It is for the first time in the annals of jurisprudence that a court of justice is now called upon to apply the criminal law of the country to such a case as the present. It may well be, I say again, that — after all that has been said and done in this respect — after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated assertion of this doctrine by the writers on public law, a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, from the acquies- cence of other states, some outward manifestation of the national will, in the shape of open practice or municipal legislation, so as to amount, at least constructively, to an occupation of that which was be- fore unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control. That such legislation, whether consistent with the general law of nations or not, would be binding on the tribunals of this country — leaving the question of its consistency with international law to be determined between the governments of the respective nations — can of course admit of no doubt. The question is whether such legislation would not, at all events, be necessary to justifj' our courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before. SECT. I.] EEGINA V. KEYN. 17 It is obviously one thing to say that the legislature of a nation may, from the common assent of other nations, have acquired the full right TO legislate over a part of that which was before high sea, and as such common to all the world ; another and a very different thing to say that the law of the local state becomes thereby at once, without any- thing more, applicable to foreigners within such part, or that, indepen- dentl}' of legislation, the courts of the local state can propria vigore so apply it. The one position does not follow from the other ; and it is essential to keep the two things, the power of Parliament to legislate, and the authority of our courts, without such legislation, to apply the criminal law where it could not have been applied before, altogether distinct, which, it is evident, is not alwa^'s done. It is unnecessary to the defence, and equally so to the decision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judiciall}', we can treat the power of Parliament to legislate as making up for the absence of actual legislation. I am clearly of opinion that we cannot, and that it is only in the instances in which foreigners on the seas have been made specifically liable to our law by statutory enactment that that law can be applied to them.^ But the difficulties which stand in the way of the prosecution are not yet exhausted. A technical difficult}- presents itself, which appears to be of a formidable character. Assuming everything, short of the ultimate conclusion, to be conceded to the prosecution — granting that the three-mile zone forms part of the territory or realm of England, and that without parliamentary interference the territorial sea has become part of the realm of England, so that jurisdiction has been acquired over it, the question arises, — In whom is the jurisdiction? The indict- ment alleges that the offence was committed on the high seas. To sui> port this averment the place in question must still remain part of the high sea. But if it is to be held to be the high sea, and so within the jurisdiction of the admiral, the prosecution fails, if the admiral never had jurisdiction over foreigners in foreign ships, the proof of which totally fails, and the negative of which, I think, must be considered as established : and no assent on the part of foreign nations to the exer- cise of dominion and jurisdiction over these waters can, without an Act of Parliament, confer on the admiral or any other judge of this country a larger jurisdiction than he possessed before. If the littoral sea is to be considered territory — in other words, no longer high sea — the present indictment fails, and this, whether the part in question has become part of a county or not. The only distinction known to the law of England, as regards the sea, is between such part of the sea 1 The learned Chief Justice then examined the statutes, and decided that there was no statutory jurisdiction in this case. — Ed. 18 REGINA V. KEYN. [CHAP. L as is within tlie body of a count}' and such as is not. In the first there is jurisdiction over the foreigner on a foreign ship ; in the other, there IS not. Such a thing as sea which shall be at one and the same time high sea and also part of the territory of the realm, is unknown to the present law, and never had an existence, except in the old and sense- less theory of a universal dominion over the narrow seas. To put this shortl}'. To sustain this indictment the littoral sea must still be considered as part of the high seas, and as such, under the jurisdiction of the admiral. But the admi]-al never had criminal juris- diction over foreign ships on the high seas. IIow, when exercising the functions of a British judge, can he, or those acting in substitution for him, assume a jurisdiction which heretofore he did not possess, unless authorized by statute? On the other hand, if this sea is to be consid- ered as territory, so as to make a foreigner within it liable to the law of England, it cannot come under the jurisdiction of the Admiralty. In the result, looking to the fact that all pretension to sovereignty or jurisdiction over foreign ships in the narrow seas hai? long since been wholly abandoned — to the uncertaint}' which attaches to the doc- trine of the publicists as to the degree of sovereignty' and jurisdiction which may be exercised on the so-called territorial sea — to the fact that the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in practice, exercised and acquiesced in, except for violation of neutrality or breach of revenue or fishery laws, which, as has been pointed out, stand on a different foot- ing — as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the criminal law, has Parliament thought proper to assume territorial sovereignt}- over the three-mile zone, so as to enact that all offences committed upon it, b}' foreigners in foreign ships, should be within the criminal law of this country', but, on the contrary, wherever it was thought right to make the foreigner amenable to our law, has done so b}' express and specific legislation — I cannot think that, in the absence of all precedent, and of any judicial decision or authorit}' applicable to the present purpose, we should be justified in holding an offence, committed under such circumstances, to be punish- able by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner pass- ing our shores in a foreign vessel on his way to a foreign port. I am by no moans insensible to the argument ab inconve?nevti, pressed upon us by the Solicitor-General. It is, no doubt, desirable, looking to the frequenc}' of collisions in the neighborliood of our coasts, that the commanders of foreign vessels, who, by unskilful navigation or gross want of care, cause disaster or death, should be as much amenable to the local law as those navigating our own vessels, instead of redress having to be sought in the. perhaps, distant countr}' of the ofTonder, But the remedy for the deficiency of tlie law, if it can bo made good consistently with international law, — as to which we arc not, CHAP. I.] REGINA V. KEYN. 19 called upon to pronounce an opinion, — should be supplied \)y the action of the legislatufe, with whom the responsibilit}- for any imperfection of the law alone rests, not by a usurpation on our part of a jurisdiction whicli, without legislation, we do not judiciall}' possess. This matter has been sometimes discussed upon the assumption that the alternative of the non-exercise of jurisdiction on the part of our courts must be the total impunity of foreigners in respect of collision arising from negligence in the vicinity of our coast. But this is a mis- taken view. If by the assent of other nations the three-mile belt of sea has been brought under the dominion of this country, so that con- sistently with the right of other nations it may be treated as a portion of British territory, which, of course, is assumed as the foundation of the jurisdiction which the courts of law are here called upon to exercise, it follows that Parliament can legislate in respect of it. Parliament has onl}' to do so, and the judges of the land will, of course, as in duty bound, give full effect to the law which Parliament shall so create.^ Coleridge, C. J. I agree in thinliing it clear that unless the place where the offence was committed was part of the realm of England locally, or unless the offence itself was committed on board a British ship, whether the British ship was locally witliin the realm of England, or without it, tlie conviction cannot stand. But first, I think the offence was committed within tbe_j>3a^ui qf^Englood ; and if so, there was jurisdiction to try it. Whether there was aj 2Vjui\isdiction^ and if there were, what particular court was to exercise it, are two separate questions ; and I am hei-e concerned only with the former. Now the offence was committed much nearer to the line of low-water mark than three miles, and, therefore, in ni}- opinion, upon English terr itor }'. I pass b}' for the moment the question of the exact limit of the realm of England beyond low-water raa'rk. 1 am of opinion that it does go beyond low-water mark, and >f it does, no limit has ever been sug- gested which could exclude from the realm the place where this offence was committed. But for the difference of opinion upon the bench and for the great deference which is due to those who differ from me, I should have said it was impossible to hold that England ended with low-water mark. I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm, how far soever it pleases to extend it by enactments, at least so as to bind the tribunals of the country ; and I admit equally freeh- that no statute has in plain terms, or by definite limits, so extended it. But, in m\- judgment, no Act of Parliament was required. The proposition con- tended for, as I understand, is that for an}- act of violence committed by a foreigner upon an English subject within a few feet of low-water i Part of the opinion is omitted. Bramwell, J. A., Kelly, C. B., Lush, J., and Sir R. Puillimore delivered cpinions concurring with that of Cockburn, C. J. Pollock, B., and Field, J. also concurred. Brett and Amphlett, JJ. A., Denman, Grove and Lindley, JJ., delivered opin' ions concurring with that of Colkridge, C. J. — En. 20 EEGINA V. KEYN. [CHAP. 1 mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. As I understand the proposition, it follows, further, that even if the English subject be an officer of the Crown, and the violence is committed by the foreigner in resisting the English officer in the execution of duties which the penal or police laws of the country compel him to perform, laws to which it is admit- ted this country has for a series of years subjected her coast waters, still the consequence is the same, and the act of resistance, though resulting in the death of the officer, unless it takes place on board a British ship, cannot be made the subject of any criminal proceeding in any court of the country where the officer has been outraged. This it is said has always been the law, and it is the law now. The argument ab inconvenieydi is perhaps not one which sound logic recognizes, and a startling conclusion does not always show that the premises from which it follows are untenable. But the incon- venience here is so grave, and the conclusion so startling, as to make it reasonable, I think, to say that the burden of proof lies heavy upon those who disregard the inconvenience, and maintain the conclusion. Now my brothers Brett and Lindley have shown that by a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. 1 concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country (discrepancies, after all, not serious since the time at least of Grotius) are not material in this question ; because they all agree in the princi- ple that the waters, to some point beyond low-water mark, belong to the respective countries, on grounds of sense if not of necessity, belong to them as territory of sovereignty, in property, exclusively, so that the authority of France or Spain, of Holland or England, is the only authority recognized over the coast waters which adjoin these coun- tries. This is established as solidly as, by the very nature of the case, any proposition of international law can be. Strictly speaking, in- ternational law is an Inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common lawgiver to sovereign states ; and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not, in this country at least, per se bind the tribunals. Neither, certainly, does a consensus of jurists ; but it is evidence of the agreement of nations on international points ; and on such points, when they arise, the English courts give effect, as part of English law, to such agreement. Regarding jurists, SECT. I.] REGIXA V. KEYN. 21 then, in the light of witnesses, it is their competency rather than their ability vviiich most concerns us. We find a number of men of education, of many different nations, most of them quite uninterested in main- tainino" any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition that the territory of a maritime country extends beyond low-wa t ei' m ark. I can hardly myself conceive stronger evidence to show that, as far as it depends on the agreement of nations, the territory of maritime countries does so extend. For myself I must add that, besides their competency, 1 have the greatest respect and admiration for the character and abilities of such of these writers as I am personally familiar with. It is not dilli- cult in the works of a voluminous writer, or indeed of any writer, nay, even in the reported judgments of great judges, to find statements exaggerated, or untenable, beliefs which lapse of time has shown to be unwise, prejudices which must always have been foolish. But these things do not detract from the just authority of distinguished men, and, if the matter were to be determined for the first time, I should not hesi- tate to hold that civilized nations had agreed to this prolongation of the territory of maritime states, upon the authority of the writers who have been cited in this argument as laying down the aftlrmative of this proposition. But it is not now to be done for the first time. For from the two judgments to which I have already had occasion to refer it sufficiently appears that a number of English judges, of the very highest authority, have themselves accepted and acted upon the author- ity of these jurists. Lord Talbot, Lord Hardwicke, Lord Mansfield, Lord Stowell, and Dr. Lushington, form altogether a body of judges sufficient to support the authority of the writers upon whom they relied. Furthermore, it has been shown that English judges have held repeat- edly that these coast waters are portions of the realm. It is true that this particular point does not seem ever distinctly to have arisen. But Lord Coke, Lord Stowell, Dr. Lushington, Lord Hatherley, L. C, Erie, C. J., and Lord Wensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and delib- erate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which I am unable to construe, except as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the State and Crown of England over the water and the land beneath it, extends at least so far beyond the line of low water on the English coast as to include the place where this offence was committed. I should only waste time if I were to go through again the cases which my learned brothers have so fully and so accurately examined. It is, I presume, competent for the court to overrule those cases ; but at least it must be admitted that they decide as much as this. It is, perhaps, referring to weaker authorities in order to sup- port stronger ones ; but I will add that the English and American test writers, and two at least of the most eminent American judges, 22 REGINA V. KEYN. [CUAP. I. Marshall and Story, have held the same thing. Further, at least in one remarliable instance, the British Parliament has declared and enacted this to be the law. In the present reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as tc the property in minerals between high and low-water mark around the coasts of that county, and as to the property in minerals below low-water mark won by an extension of workings begun above low-water mark. This was referred by Lord Chancellor Cranworth on the part of Her Majesty, and by Lord Kingsdown, the then Chancellor of the Duchy, on the part of the Prince of Wales, to the arbitration of Su* John Patteson. His decision led to the passing of an Act of Parliament. And a further question as to the minerals below low-water mark was referred by Lord Selborne, then Sir Roundell Palmer, the Queen's Attorney-General, and Sir William Alexander, the Attorney- General to the rrince of Wales, to the arbitration of Sir John Coleridge. All the proceedings in both references were in writing, and by the kindness of Viscount Portman, the present Lord Warden of the Stannaries, I have been furnished with copies of the whole of them. As might be expected from the known characters of the persons who drew and settled all the statements in both cases, the greatest learning and ability were displayed in them; most of the authorities cited before us are cited in the arguments on behalf of the Crown and the Prince of Wales, and some others of con- siderable importance not cited to us are cited there. The whole argu- ment on the part of the Crown was founded on the proposition that the fundus maris below low-water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the disputed mines ; he had worked them from land undoubtedly his own, and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier, for the prince was first occupier, and was in occupation, the Crown must have failed. The argument on behalf of the Duchy was twofold : first, that all which adjoined and was connected with the County of Corn- wall passed to the Dukes of Cornwall under the terms of the original grant to them at the time of the creation of the Duchy ; and, therefore, that even if the bed of the sea elsewhere belonged to the Crown, it had passed from the Crown to the duke in the seas adjacent to Cornwall ; secondly, that the bed of the sea did not belong to the Crown, and that the prince was entitled, as first occupier, to the mines thereunder. I pass by, as not relevant to the present inquiry, the argument as to the property in the soil between high and low water, and I omit Sir John Patteson's decision on that point in favor of the Duchy as not material. On the second point he thus expressed himself : — " I am of opinion, and so decide, that the right to the minerals below low-water mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low-water mark and extended below it." SECT. I.] KEGIXA V. KEYX. 23 And he recomraended the passing of an Act of Parliament to give practical effect to his decision, so far as it was in favor of tlie Crown. The Act of Parliament accordingly was passed, the 21 &, 22 Vict, c. 101), a public Act. By s. 2 it is not merely enacted, but declared and enacted as follows : — '* All mines and minerals lying below low-water mark under the open sea adjacent to but not being part of the County of Cornwall are, as between the Queen's Majesty, in right of her Crown, on the one hand, and His Royal Highness Albert Edward Prince of Wales and Dulve of Cornwall, in right of his Duchy of Cornwall, on the other hand, vested in Her Majesty the Queen in right of her Crown as part of the soil and territorial possessions of the Crown." A subsequent question was raised as to minerals in the beds of estuaries below low-water mark, but, so to speak, intra fauces Cormi- bicB / and this question, whicli arose after the death of Sir John Patteson, was referred for decision to Sir John Coleridge. This de- cision was substantially in favor of the Prince, and the arguments in the former case were repeated before him ; but as he had to decide the matter after the passing of the Act of Parliament, and in truth as to the construction to be placed upon its clauses, it is not material to refer in detail to the words of his judgment and award. It is true, that the particular question between Her Majesty and the Prince of Wales, which arose in respect of the bed of the sea adjacent to the county of Cornwall, could not, as far as I know, arise in respect of the bed of the sea adjacent to any other count}'. But it might well arise between Her Majesty and private persons all round the British islands. The sov- ereign stands in no more peculiar relation to Cornwall than she does to Kent. There is no reason, legal or otherwise, as far as I am aware, why the bed of the sea " adjacent to but not part of the county of Cornwall " should be, and why the bed of the sea adjacent to, but not part of the county of Kent, where this offence was committed, should not be " part of the soil and territorial possession of the Crown," in the words of the Act of Parliament. Parliament did but apply to a particular case, in order to settle a question between the two highest persons in the state, that which is and always has been the law of this country. We have therefore it seems the express and definite author- ity of Parliament for the proposition that the realm does not end with low-water mark, but that the open sea and the bed of it are part of the realm and of the territory of the sovereign. If so it follows that Brit- ish law is supreme over it, and that the law must be administered by some tribunal. It cannot, for the reasons assigned by my Brother Brett, be administered by the Judges of Oyer and Terminer ; it can be, and always could be, by the Admiralty, and if by the Admiralty, then by the Central Criminal Court. I do not feel much pressed by the undoubted fact that no record can be found of the exercise of this particular authority. Cases of collision are not often the subject of criminal inquiry, they do not often happen within local limits so as to 24 WILDENHUS'S CASE. [CUAP. L raise this particular question. If they were cases of wanton violence they would in former days, I conceive, have been very summarily dis- posed of. Sometimes, no doubt, the fact that a jurisdiction has never been exercised is a strong argument against the existence of the juris- diction ; but the force of this argument varies with circumstances ; and though undoubtedly it is a matter to be considered, it does not, I think, in this case outweigh the arguments which establish its exist- ence. On the whole, therefore, I am of opinion on the first point that the conviction is right. I am of the same opinion, though with some doubt, upon the second, that is, that the offence was committed on board an English ship. If this had been murder it would, as I under- stand the law, be clear that the offence was so committed. I need cite no further authority than the case of Reg. v. Armstrong, 13 Cox Cr. C. 184, decided in 1875, by my lamented brother Archibald. I think I follow, and I am sure I feel the weight of, the reasoning which has brought the Lord Chief Justice to the opposite conclusion on this point. But on the whole, though not without some hesitation, I concur in the reasoning of my brother Denman, and I think the same rule should apply in manslaughter which applies in murder. And on the second point, therefore, 1 am of opinion that the conviction was right and should be affirmed.^ WILDENHUS'S CASE. Supreme Court of the United States. 1886. [Reported 120 U. S. 1.] This appeal brought up an application made to the Circuit Court of the United States for the District of New Jersey, by Charles Mali, the '' Consul of His Majesty the King of the Belgians, for the States of New York and New Jersey, in the United States," for himself as such consul, "and in behalf of one Joseph Wildenhus, one Gionviennie Gobnbosich, and one John J. Ostenmeyer," for the release, upon a writ of habeas corpiis^ of Wildenhus, Gobnbosich, and Ostenmeyer from the custody of the keeper of the common jail of Hudson County, New Jersey, and their delivery to the consul, "to be dealt with according to the law of Belgium." The facts on which the application rested were thus stated in the petition for the writ : — " Second. That on or about the sixth day of October, 1886, on board the Belgian steamship Noordland, there occurred an affra}- be- tween the said Joseph Wildenhus and one Fijens, wherein and whereby it is charged that the said Wildenhus stabbed with a knife and inflicted upon tlie said Fijens a mortal wound, of which he afterwards died. " Third. That the said Wildenhus is a subject of the Kingdom of 1 See also Ellis v. Mitchell (Supreme Court of Hong Kong, 1874), U. S. Foreign Relations, 1875, 600, and the accompanying diplomatic correspondence. — Ed. SECT. I.] WILDENHUS'S CASE. 2 ^o Belgium and has his domicil therein, and is one of the crew of the said steamship Noordland, and was such when the said affray occurred. " Fourth. That the said Fijens was also a subject of Belgium and had his domicil and residence therein, and at the time of the said affra}-, as well as at the time of his subsequent death, was one of the crew of the said steamship. " Fifth. That at the time said affray occurred the said steamship Xoordland was lying moored at the dock of the port of Jersey City, in said State of New Jersey. '' Sixth. That the said affraj' occurred and ended wholly below the deck of the said steamship, and that the tranquillity of the said port of Jersey City was in nowise disturbed or endangered thereby. " Seve?ith. That said affray occurred in the presence of several witnesses all of whom were and still are of the crew of the said vessel, and that no other person or persons except those of the crew of said vessel were present or near by. " Eighth. Your petitioner therefore respectfull}^ shows unto this honorable court that the said affray occurred outside of the jurisdiction of the said State of New Jersey. '' Ninth. But, notwithstanding the foregoing facts, 3'our petitioner respectfully further shows that the police authorities of Jersey City, in said State of New Jersey, have arrested the said Joseph Wildenhus, and also the said Gionviennie Gobnbosich and John J. Ostenmeyer, of the crew of the said vessel (one of whom is a quartermaster thereof), and that said Joseph Wildenhus has been committed by a police magis- trate, acting under the authority of the 'said state, to the common jail of the county of Hudson, on a charge of an indictable offence under the laws of the said State of New Jersey, and is now held in confinement by the keeper of the said jail, and that the others of the said crew arrested as aforesaid are also detained in custody and confinement as witnesses to testify in such proceedings as may hereafter be had against the said "Wildenhus." Mr. Chief Justice Waite,^ after stating the case as above reported, delivered the opinion of the court. By §§751 and 753 of the Revised Statutes the courts of the United States have power to issue writs of habeas corpus which shall extend to prisoners in jail when they are in " custody in violation of the Constitu- tion or a law or treaty of the United States," and the question we have to consider is, whether these prisoners are held in violation of the provi- sions of the existing treaty between the United States and Belgium. It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, It subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement ; for, as was said by Chief Justice Ma]> ^ * The arguments and part of the opinion are omitted. — Eoi 26 WILDENHUS'S CASE. [CHAP. I. shall in The Exchange, 7 Cranch, 116, 144, " it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such . . . merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the countr}-." United States v. Diekel- man, 92 U. S. 520 ; 1 Fhillimore's Int. Law, 3d ed. 483, § 351 ; Twiss' Law of Nations in Time of Peace, 229, § 159 ; Creasy's Int. Law, 167, § 176 ; Halleck's Int. Law, 1st ed. 171. And the Enghsh judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Regina v. Cunningham, Bell C. C. 72 ; s. c. 8 Cox C. C. 104 ; Regina v. Anderson, 11 Cox C. C. 198, 204 ; s. c. L. R. 1 C. C. 161, 165 ; Regina v. Keyn, 13 Cox C. C. 403, 486, 525 ; s. c. 2 Ex. Div. 63, 161, 213. As the owner has voluntarily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his sta}*, he owes that government such alle- giance for the time being as is due for the protection to which he becomes entitled. From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regu- lation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignit}' of the country, or the tranquillity of the port, should be left by the local gov- ernment to be dealt with b}^ the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its com- merce should require. But if crimes are committed on board of a char- acter to disturb the peace and tranquillity of the country to which the vessel has been brought, the offenders have never by corait}' or usage been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authoritj'. Such being the general public law on this subject, treaties and con- ventions have been entered into by nations having commercial inter- course, the purpose of which was to settle and define the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. [The learned Chief Justice here stated the terms of successive con- ventions entered into between the United States and foreign nations, and proceeded : — ] It thus appears that at first provision was made only for giving con- suls police authority over the interior of the ship and jurisdiction in civil matters arising out of disputes or differences on board, that is to SECT. I.] WILDEXIIUS'S CASE. 27 say, between those belonging to the vessel. Under this police author- ity the duties of the consuls were evidently confined to the mainte- nance of order and discii)line on board. This gave tliem no power to punish for crimes against the peace of the country. In fact, they were expressly prohibited from interfering with tlie local police in matters of tliat kind. The cases of " The Sally" and "The Newton" (Wheat. Internat. Law, 3d ed., 153), are illustrative of this position. That of " The Sally" related to the discipline of the ship^ and that of " Tlie Newton " to the maintenance of order on board. In neither case was the disturbance of a character to affect the peace or the dignity of the country'. In the next conventions consuls were simply made judges and ar])i- trators to settle and adjust differences between those on board. Tliis clearly related to such differences between those belonging to the vessel as are capable of adjustment and settlement by judicial decision or by arbitration, for it simply made the consuls judges or arbitrators in such matters. That would of itself exclude all idea of punishment for crimes against the State which affected the peace and tranquillity of the port ; but, to prevent all doubt on this subject, it was expressly provided that it should not apply to differences of that character. Next came a form of convention which in terms gave the consuls authority to cause proper order to be maintained on board and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is substan- tially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the conduct of the United States and Belgium towards each other in this particular. Each nation has granted to the other such local jurisdiction within its own dominion as may be necessary to maintain order on board a mer- chant vessel, but has reserved to itself the right to interfere if the dis- order on board is of a nature to disturb the public tranquillity. The treaty is part of the supreme law of the United States, and has the same force and effect in New Jersey that it is entitled to elsewhere. If it gives the consul of Belgium exclusive jurisdiction over the offence which it is alleged has been committed within the territory of New Jersey, we see no reason why he may not enforce his riglits under the treaty by writ of habeas corpus in any proper court of the United States. This being the case, the only important question left for our determina- tion is whether the thing which has been done — the disorder that has arisen — on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the " public repose" of the people who look to the state of New Jersey for their protection. If the thing done — " the disorder," as it is called in the treaty — is of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done is a matter of no moment. Those who are not on the vessel pay no special attention to the mer? 28 WILDENHUS'S CASE. [CHAP. I. disputes or quarrels of the seamen wliile on board, whether they occur under deck or above. Neither do the}' as a rule care for anything done on board which relates only to the discipline of the ship, or to the pre- servation of order and authorit}'. Not so, however, with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which ever}' civilized nation considers Itself bound to provide a severe punishment for when com- mitted within its own jurisdiction. In such cases inquir}* is certain to be instituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes known, it is a " disorder " the nature of which is to affect the community at large, and consequently to invoke the power of the local government whose people have been disturbed by what was done.^ The very nature of such an act is to disturb the quiet of a peaceful community, and to create, in the language of the treaty, a "disorder" which will " disturb tranquillity and public order on shore or in the port." The principle which governs the whole matter is this : Dis- orders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper authorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will un- doubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. That, according to the petition for the habeas corpus, is this case. This is fully in accord with the practice in France, where the govern- ment has been quite as liberal towards foreign nations in this particular as any other, and where, as we have seen in the cases of " The Sally " and " The Newton," by a decree of the Council of State, representing the political department of the government, the French courts were pre- vented from exercising jurisdiction. But afterwards, in 1859, in the case of Jally, the mate of an American merchantman, who had killed one of the crew and severely wounded another on board the ship in the port of Havre, the Court of Cassation, the highest judicial tribunal of France, upon full consideration held, while the Convention of 1853 was in force, that the French courts liad rightful jurisdiction, for reasons which sufficiently appear in the following extract from its judgment : " Considering that it is a principle of the law of nations that every state has sovereign jurisdiction throughout its territory ; " Considering that by the terms of Article 8 of the Code Napoleon the laws of police and safety bind all those who inhabit French territory, SECT I.] COMMONWEALTH V. MANCHESTER. 29 and that consequently foreigners, even transeuntes, find themselves subject to those laws ; " Considering that merchant vessels entering the port of a nation other than that to which they belong cannot be withdrawn from tlie territorial jurisdiction, in an}' case in which the interest of the state of which that port forms part finds itself concerned, without danger to good order and to the dignity of the government ; " Considering that every state is interested in the repression of crimes and offences that may be committed in the ports of its territor}-, not onl}' by the men of the ship's company of a foreign merchant vessel towards men not forming part of that company, but even b^'men of the ship's company among themselves, whenever the act is of a nature to compromise the tranquillity of the port, or the intervention of the local authority is invoked, or the act constitutes a crime by common law " {droit commim, the law common to all civilized nations), " the gravity of which does not permit any nation to leave it unpunished, without impugning its rights of jurisdictional and territorial sovereignty, because that crime is in itself the most manifest as well as the most flagrant violation of the laws which it is the dut}' of every nation to cause to be respected in all parts of its territory." 1 Ortolan Diplo- matic de la Mer (4th ed.), pp. 455, 456 ; Sirey (K S.), 1859, p. 189. The judgment of the Circuit Court is affirmed.^ COMMONWEALTH v. MANCHESTER. Supreme Judicial Court of Massachusetts. 1890. [Reported 152 Mass. 230.] Complaint on the St. of 1886, c. 192, § 1, charging that the defendant, while commorant of Falmouth, in the county of Barnstable, at P'almouth, on July 19, 1889, " did then and there draw, set, stretch, and use a purse seine for the taking of fish in the waters of Buzzard's Bay, within the jurisdiction of this Commonwealth." Trial in the Superior Court, before Sherman, J., who, after a verdict of guilty, reported the case for the determination of this court, in substance as follows. The evidence introduced by the government tended to show that tlie defendant and others, who were citizens of Rhode Island, and were officers and crew of the fishing steamer "A. T. Serrell," on the day alleged, were engaged in drawing, setting, stretching, and using a purse 1 For cases illustrating the peculiar questions of jurisdiction arising between the state and the United States courts, see Tennessee v. Davis, 100 U. S. 257 ; Iti re Coy, 127 U. S. 731 ; In re Neagle, 135 U. S. 1 j Manchester v. Massachusetts, 139 U. S 30 COMMONWEALTH V. MANCHESTEE. [CHAP. L seine for the taking of fish in the waters of Buzzard's Bay ; that the place where the defendant and the others were so engaged was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of the town of Falmouth to the south line thereof; that the point where they were so using said seine was within that part of Buzzard's Bay which the Harbor and Land Commissioners, acting under the provisions of section 2 of chapter 196 of the Acts of the 3-ear 1881, had, so far as they were capable of doing so, assigned to and made a part of the town of Falmouth ; that the defendant and his associates, on that day and at that place, caught with a seine a large quantity of the fish called menhaden ; that in so doing no fixed apparatus was used, and the bottom of the sea was not encroached upon or disturbed; that the distance between the headlands at the mouth of Buzzard's Bay, viz. at AVestport in the county of Bristol on the one side, and the island of Cultyhunk, the most southerly of the chain of islands lying to the eastward of Buzzard's Bay, and known as the Elizabeth Islands, in the county of Dukes County, on the other side, was more than one and less than two marine leagues ; and that the distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in different counties. The defendant did not dispute any of the evidence ofl'ered by the government, but introduced evidence tending to show that it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay ; that the steamer was of Newport, Rhode Island, duly enrolled and licensed at that port under the laws of the United States for carrying on the menhaden fishery; that he was in the employ of a firm engaged in the State of Rhode Island in the busi- ness of seining menhaden to be sold for bait, and to be manufactured into fish oil and fertilizer ; that he was engaged in fishing for menhaden only, and caught no other fish ; that menhaden is not a food fisli, and is only valuable for the purpose of bait and the manufacture of fish oil and fertilizer ; and that the taking of menhaden by seining does not tend in any way to decrease the quantity and variety of food fishes. It was conceded by the government that the defendant was em- ployed upon the vessel described by the enrolment and license, and at the time of the commission of the acts complained of he and his asso- ciates were so in the employ of the vessel described in the license ; and that the defendant could not be convicted if the St. of 1865, c. 212, was not repealed by the St. of 1886, c. 192. The defendant asked the judge to rule, that, notwithstanding the St. of 1886, c. 192, he was authorized to take menhaden by the use of the purse seine in the waters of Buzzard's Bay in the place where this act was committed ; that that statute did not repeal the St. of 1865, c. 212 ; that the defendant might lawfully take menhaden by the use of the purse seine in Buzzard's Bay, in the place where the acts complained of were done ; that the act complained of was on the high seas and SECT. I.] COMMONWEALTH V. MAXCHESTER. 31 without the jurisdiction of Massachusetts, and having been done under a United States license for carrying on this fisher}-, the defendant could not be held as a criminal for violating a statute of this Commonwealth ; tliat the defendant could not be held unless the act complained of was done and committed within the bod}' of a count}' as understood at common law ; that the statute of this Commonwealth prohibiting under a penalty the use of nets and seines, and the taking of fish within three miles of the shore, was invalid, especially as against a license to fish granted under the laws of the United States ; and that on all the evidence the defendant could not be convicted. The judge declined so to rule, and instructed the jury that the St. of 1865, c. 212, was repealed by the St. of 1886, c. 192; that if they found that the defendant was engaged in using a purse seine for the taking of fish of any kind in that part of Buzzard's Bay which was within the jurisdiction of the Commonwealth of Massachusetts, they would be authorized to convict the defendant ; and that the place where the acts of the defendant were committed, being within a marine league from the shore at low-water mark, was within the jurisdiction of the Commonwealth. G. A. King & J. F. Jachson, for the defendant. H. C. Bliss, First Assistant Attorney- General, for the Commou- wealth. Field, C. J. The defendant was complained of for taking fish by the use of a purse seine in the waters of Buzzard's Bay, within the jurisdiction of this Commonwealth. It appears by the report, that the point in Buzzard's Bay where the seine was used "was within that part of Buzzard's Bav which the Harbor and Land Commissioners, actins under the provisions of section 2 of chapter 196 of the Acts of the year 1881, had, so far as they were capable of doing so, assigned to and made a part of the town of Falmouth " ; that the distance between the headlands at the mouth of Buzzard's Bay is " more than one and less than two marine leagues ; " and that " the distance across said bay at the point where the acts of the defendant were done is more than two marine leagues, and the opposite points are in different counties." The place "was about, and not exceeding, one mile and a quarter from a point on the shore midway from the north line of the town of Falmouth to the south line " of said town. Buzzard's Bay lies wholly Avithin the territory of Massachusetts, having Barnstable County on the one side, and the counties of Bristol and Plymouth on the other. The defendant offered evidence that he was fishing for menhaden only, with a purse seine, and that the bottom of the sea " was not encroached u[)on or disturbed," and that " it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay ; " that he was a citizen of the State of Rhode Island, and that the vessel upon which he was employed, and in connection with which he was using the seine, belonged to Newport, in that State, and had been " duly enrolled and licensed at that port under the laws of the United States for carrying on the menhaden fishery." 32 • COMMONWEALTH V. MANCHESTER. [CHAP. I. It was contended at the trial, among other things, that the St. of 1886, c. 192, under which the complaint was made, had not repealed the St. of 18G5, c. 212 ; but this has not been argued in this court. It is plain that the St. of 1886, c. 192, was intended to regulate the whole subject of using nets or seines for taking fish in the waters of Buzzard's Ba}^, and that b}- implication it repealed the St. of 1865, c 212, so far as that statute related to the taking of menhaden by the use of a purse seine in the waters of that ba}'. The principal question argued here is, whether the place where the acts of the defendant were done was within the jurisdiction of the Commonwealth of Massa- chusetts. The Pub. Sts. c. 1, §§ 1, 2, are as follows: "Section 1. The terri- torial limits of this Commonwealth extend one marine league from its sea-shore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is equivalent to the shore line. Section 2. The sovereignty and jurisdiction of the Common- wealth extend to all places within the boundaries thereof; subject to the rights of concurrent jurisdiction granted over places ceded to the United States." The Pub. Sts. c. 22, § 1, contain the following pro- vision : " The boundaries of counties bordering on the sea shall extend to the line of the Commonwealth, as defined in section one of chapter one." Section 11 of the same chapter is as follows : ''The jurisdiction of counties separated bj' waters within the jurisdiction of the Common- wealth shall be concurrent upon and over such waters." The St. of 1881, c. 196, which has been referred to, is as follows: "Section 1. The boundaries of cities and towns bordering upon the sea shall extend to the line of the Commonwealth, as the same is defined in section one of chapter one of the General Statutes. Section 2. The Harbor and Land Commissioners shall locate and define the courses of the boundary lines between adjacent cities and towns bordering upon the sea, and upon arms of the sea, from high-water mark outward to the line of the Commonwealth, as defined in said section one, so that the same shall conform as nearly as may be to the course of the boundary lines between said adjacent cities and towns on the land ; and they shall file a report of their doings, with suitable plans and exhibits, showing the boundary lines of any town by them located and defined, in the registry of deeds in which deeds of real estate situated in such town are required to be recorded, and also in the oflflce of the Secretary of the Common- wealth." Sections 1 and 2 of chapter 1 of the General Statutes contain the provisions which have been before'recited, as now contained in the Pub. Sts. c. 1, §§ 1, 2, and c. 22, §§ 1, 11. These provisions were first enacted by the St. of 1859, c. 289. Section 1 of the Rev. Sts. c. 1, was as follows : " The sovereignty and jurisdiction of the Commonwealth extend to all places within the boundaries thereof; subject only to such rights of concurrent jurisdiction as have been or may be granted over any places ceded by the Commonwealth to the United States." The SECT. I.] COMMONWEALTH V MANCHESTER. 33 boundaries of the Commonwealth on the sea were first exactly defined by the St. of 1859, c. 289. The boundaries of the territory granted by the charter of the Colony of New Plymouth, or of the territory included in the Province Charter, need not be particularly set forth. Buzzard's Bay was undoubtedly within the territory described in those charters. By the deliuilive treaty of peace between the United States of America and Great Britain, '' His Britannic Majesty acknowledges the said United States, viz. New Hampshire, Massachusetts Bay, ... to be free, sovereign, and independent States ; that he treats with them as such ; and for himself, his heirs and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof." 8 U. S. Sts. at Large, 81. If Massachusetts had become an independent nation, there can be no doubt, we think, that her boundaries on the sea, as she has defined them b}' the statutes, would be acknowledged by all foreign nations, and that her right to control the fisheries within these boundaries would be conceded. It has often been a matter of controversy how far a nation has a right to control the fisheries on its sea-coast, and in the bays and arms of the sea within its territory ; but the limits of this right have never been placed at less than a marine league from the coast on the open sea ; and bays wholly within the territory of a nation, the headlands of which are not more than six geographical miles apart, have always been regarded as a part of the territory of the nation in which they lie. More extensive rights in these respects have been and are now claimed by some nations ; but, so far as we are aware, all nations concede to each other the right to control the fisheries within a marine league of the coast, and in bays within the territory the headlands of which are not more than two marine leagues apart. In the proceedings of the Halifax Commission, under the Treaty of Washington of May 8, 1871, where it was for the interests of the United States to claim against Great Britain, independently of treaties, as extensive rights of fishing as could be maintained, the claim was stated, in the answer on behalf of the United States, as follows : " It becomes necessary at the outset to mquire what rights American fish- ermen, and those of other nations, possess, independently of treaty, upon the ground that the sea is the common propert}" of all mankind. For the purposes of fishing, the territorial waters of every country along the sea-coast extend three miles from low-water mark ; and beyond is the open ocean, free to all. In the case of bays and gulfs, such only are territorial waters as do not exceed six miles in width at the mouth upon a straight line measured from headland to head- land. All larger bodies of water connected with the open sea form a part of it. And whenever the mouth of a bay, gulf, or inlet exceeds the maximum width of six miles at its mouth, and so loses the character of territorial or inland waters, the jurisdictional or proprietary line for the purpose of excluding foreigners from fishing is measured along the shore of the bay. according to its sinuosities, and the limit of exclusion 3 34 COMMONWEALTH V. MANCHESTER. [CHAP. I. is three miles from low-water mark." Documents and Proceedings of the Halifax Commission (Washington, 1878), Vol. I. p. 120 (45th Cong. 2d Sess., H. R. Kx. Doc, No. 89). The government of Canada liad been instructed by the government of Great Britain, on April 12, 18G6, "that American fishermen should not be interfered with, either bv notice or otherwise, unless found within thiee miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek which is less than ten geographical miles in width, in conformity with the arrangement made with P>ance in 1839;" but afterwards the British government issued instructions " that the United States fish- ermen will not be for the present prevented from fishing, except within tliree miles of land, or in bays which are less than six miles broad at the mouth." Vol. I. pp. 120, 121. It is true that Mr. Dana, of counsel for the United States, contended, in argument with reference to the right to fish in the open sea, " that the deep-sea fisherman, pursuing the free-swimming fish of the ocean with his net or his leaded line, not touching shores or troubling the bottom of the sea, is no trespasser, though he approach within three miles of a coast, by any established recognized law of all nations." Vol. II. p. 1654. This contention, however, did not touch the right to fish in bays or arms of the sea, and it was not the claim actually made b}' the United States before the Commission. This is stated in the answer and in the brief of the United States. The answer does not allude to any such position as that taken by Mr. Dana in bis closing argument, but in the brief it is said : " Man}' authorities maintain that whenever, under the law of nations, any part of the sea is free for navigation, it is likewise free for fishing by those who sail over its surface. But, without insisting upon this position, the inevitable conclusion is, that prior to the Treaty of Washington the fishermen of the United States, as well as those of all other nations, could rightfully fish in the open sea more than three miles from the coast, and could also fish at the same distance from the shore in all bays more than six miles in width, measured in a straight line from headland to headland." Vol. I. p. 166. The counsel for the defendant in the case at bar place much reliance upon the decision in The Queen v. Keyn, 2 Ex. D. 63. In that case, the defendant was the oflficer in command of the " Franconia," a Ger- man steamer, which, at a point " one mile and nine tenths of a mile S. S. E. from Dover pier-head, and within two and a half miles from Dover beach," in the English Channel, ran down and sank the British steamer " Strathclyde," and one of the " Strathclyde's " passengers was drowned. The defendant was indicted in the Central Criminal Court for manslaughter. The question was whether the offence was committed within the jurisdiction of the admiralty, the Central Crimnial Court having jurisdiction to hear and determine an}' offence alleged " to have been committed on the high seas or other places witliin the jurisdiction of the Admiralty of England " (p. 100). A majority of the court held that the offence was committed on the German steamer, SECT. I.] COMMONWEALTH V. MANCHESTER. 35 and not on the British steamer ; and that, under the laws then exist- ing, there was no admiralty jurisdiction over an offence committed by a foreigner on a foreign sliip on tiie open sea, whether within or without a marine league from the shore of England. In consequence of this decision, Parliament passed the St. of 41 and 42 Vict. c. 73. By that Act it was declared that, " for the purpose of any offence declared by this Act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast, measured from low-water mark, shall be deemed to be open sea within the terri- torial waters of Her Majesty's dominions." It is obvious that by this decision the court did not attempt to define the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only the extent of the existing admiralty jurisdiction over offences committed on the open sea. The courts of England would undoubtedly enforce any Act of Parliament conferring upon them jurisdiction over offences committed anywhere. It is equally obvious that the decision has nothing to do with the right of control over fisheries in the open sea, or in bays or arms of the sea. The case contains a great deal of learning upon the respective limits of the common-law jurisdiction and of the admiralty jurisdiction in England over crimes, and upon the boundaries of counties in England under the laws then existing. These distinctions are immaterial in the case at bar, except with reference to the contention that the place where the acts complained of were done was within the admiralty jurisdiction of the courts of the United States. The boundaries of counties in Massachusetts may be defined by statute, and they may be made to extend over all the territory of Massachusetts, whether it be sea or land ; and, if Massachusetts has a right to control the fisheries in Buzzard's Bay, offences in violation of the regulations which the State may establish can be tried in any of its courts upon which it may confer jurisdiction. It is to be noticed, however, that in all the cita- tions contained in the different opinions given in The Queen v. Keyn, wherever the question of the right of fishery is referred to, it is con- ceded that the control to the extent at least of a marine league belongs to the nation on whose coast the fisheries are. The argument of Mr. Benjamin, of counsel for the defendant, is not contained in the report of the case ; but from the statement of Mr. Justice Lindley, found on page 90 of the report, it seems that he admitted that the dominion of a State over the seas adjoining its shore existed for the purpose of protecting "its coasts from the effects of hostilities between other nations which may be at war, the protection of its revenue and of its fisheries, and the preservation of order by its police." In Direct United States Cable Co. v. Anglo-American Telegraph Co. 2 App. Cas. 394, it became necessary for the Privy Council to deter- mine whether a point in Conception Ba}', Newfoundland, more than three miles from the shore, was a part of the territory of Newfound- laud, and within the jurisdiction of its legislature. It appeared that 36 COMMONWEALTH V. MANCHESTEK. [CHAP. I. the average width of the bay " is about fifteen miles," and the distance between the headlands is " rather more than twenty miles." Lord Blackburn, in delivering the opinion, says, at page 416 : " The question raised in this case, and to which their Lordships confine their judg- ment, is as to the territorial dominion over a bay of configuration and dimensions such as those of Conception Bay above described. The few EngUsh common-law authorities on this point relate to the question as to where the boundary of counties ends, and the exclusive jurisdic- tion at common law of the Court of Admiralty begins, which is not precisely the same question as that under consideration ; but this much is obvious, that when it is decided that any bay or estuary of any particular dimensions is or may be a part of an English county, and so completely within the realm of England, it is decided that a similar bay or estuary is or may be part of the territorial dominions of the country possessing tlie adjacent shore." He quotes, at page 417, the well-known language of Lord Hale : " That arm or branch of the sea which lies within the fauces terrce^ where a man may reasonably discerne between shore, is, or at least may be, within the body of a county, and therefore within the jurisdiction of the sheriff or coroner," and comments upon its indefiniteness ; and then cites the case of Regina v. Cunningham, Bell, C. C. 72, 86, and says, at page 419, that in this case, " this much was determined, that a place in the sea, out of any river, and where the sea was more than ten miles wide, was within the county of Glamorgan, and consequently, in every sense of the words, within the territory of Great Britain." Apparently he was of opinion that, by most of the text-writers on international law, Con- ception Bay would be excluded from the territory of Newfoundland, and the part of the Bristol Channel which in Regina v. Cunningham was decided to be in the county of Glamorgan would be excluded from the territory of Great Britain ; but he decides that Conception Bay is a part of the territory of Newfoundland, because the British govern- ment has exercised exclusive dominion over it, with the acquiescence of other nations, and it has been declared by Act of Parliament "to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland." We regard it as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide waters is a marine league from its coast, and that bays wholly within its territory not exceeding two marine leagues in width at the mouth are withih this limit, and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free- moving fish like lobsters, or fish attached to or imbedded in the soil. The open sea within this limit is of course subject to the common right of navigation ; and all governments, for the purpose of self-protection in time of war, or for the prevention of frauds on tlie revenue, exercise an authority beyond this limit. We have no doubt that the British Crown will claim the ownership of the soil in the bays SECT. I.] DIRECT U. S. CABLE CO. V. ANGLO-AMERICAN TELEG. CO. 37 and in the open sea adjacent to the coast of Great Britain, to at least this extent, whenever there is any occasion to determine the ownership. The authorities are collected in Gould on Waters, Part I. cc. 1, 2, and notes. See also Neill v. Uuke of Devonshire, 8 App. Cas. 135 ; Gam- niell V. Commissioners of Woods and Forests, 3 Macq. 419 ; Mowat v. McFee, 5 Sup. Ct. of Canada, 66 ; The Queen v. Cubitt, 22 Q. B. D. 622 ; St. 46 & 47 Vict. c. 22.^ DIRECT UNITED STATES CABLE CO. v. ANGLO- AMERICAN TELEGRAPH CO. Judicial Committee of the Privy Council. 1877. [Reported 2 Appeal Cases, 394.] Lord Blackburn.^ . . . Conception Ba}- lies on the eastern side of Newfoundland, between two promontories, the southern ending at Cape St. Francis, and the northern promontory at Split Point. No evidence has been given, nor was any required, as to the configuration and di- mensions of the bay, as that was a matter of which the court could take judicial notice. On inspection of the Admiralty chart, the following statement, though not precisely accurate, seems to their Lordships sufficiently so to enable them to decide the question : — The ba}^ is a well-marked ba}-, the distance from the head of the bay to Cape St. Francis being about forty miles, and the distance from the head of the ba}' to Split Point being about fifty miles. The average width of the bay is about fifteen miles, but the distance from Cape St. Francis to Split Point is rather more than twent}' miles. The appellants have brought and laid a telegraph cable to a buoy more than thirty miles within this bay. The buoy is more than three miles from the shore of the bay, and in laj'ing the cable, care has been taken not at any point to come within three miles of the shore, so as to avoid raising any question as to the territorial dominion over the ocean within three miles of the shore. Their Lordships therefore are not called upon to express any opinion on the questions which were re- cently so much discussed in the case of Reg. v. Keyn (the "Franconia" case). The question raised in this case, and to which their Lordships con- fine their judgment, is as to the territorial dominion over a bay of configuration and dimensions such as those of Conception Ba^' above described. 1 The remainder of the opinion discusses the right of jurisdiction as between the State and the United States. Affirmed, Manchester v. Massachusetts, 139 U. S. 240. — Ed. 2 Only so much of Lord Blackburn's opinion is given as deals with the jurisdiction over Conception Bay. — Ed. 38 DIRECT U. S. CABLE CO. V. ANGLO-AMEKICAN TELEG. CO. [CHAP. I. The few English common-law authorities on this point relate to the question as to where the boundary of counties ends, and the exclusive jurisdiction at common law of the Court of Admiralty begins, which is not precisely the same question as that under consideration ; but this much is obvious, that when it is decided tliat any bay or estuary of any particular dimensions is or ma}* be a part of an English county, and so completely within the realm of England, it is decided that a similar bay or estuary is or may be part of the territorial dominions of the country possessing the adjacent shore. Tiie earliest. authority on the subject is to be found in the grand abridgment of Fitzherbert " Corone," 399, whence it appears that in the 8 Edw. II. , in a case in Chancer}' (the nature and subject-matter of which does not appear), Staunton, J., expressed an opinion on the subject. There are one or two words in tlie common printed edition of Fitzherbert which it is not eas\' to decipher or translate, but subject to that remark this is a translation of the passage : " Nota per Staunton, J., that that is not [sance which Lord Coke translates ' part'] of the sea where a man can see what is done from one part of the water and the other, so as to see from one land to tlie other ; that the coroner shall come in such case and perform his office, as well as coming and going in an arm of the sea, there where a man can see from one part to the other of the [a word not deciphered], that in such a place the country can have conusance, etc." That is by no means definite, but it is clear Staunton thought some portions of the sea might be in a count}', and within the jurisdiction of the jury of that county, and at that early time, before cannon were in use, he can have had in his mind no reference toucan non shot. Lord Coke recognizes this authorit}', 4th Institute, 140, and so does Lord Hale. The latter, in his treatise, De Jure Maris, p. 1, c. 4, uses this language: "That arm or branch of the sea which lies within the fauces terrcB, where a man ma}' reasonabl}' discerne between shore, is, or at least may be, within the bod}' of a county, and therefore within the jurisdiction of the sheriff or coroner. Edward TL, Corone, 399." Neither of these great authorities had occasion to apply this doctrine to any particular place, nor to define what was meant by seeing or dis- cerning. If it means to see what men are doing, so, for instance, that eye-witnesses on shore could say who was to blame in a fray on the waters resulting in death, the distance would be very limited ; if to discern what great ships were about, so as to be able to see their manreuvres, it would be very much more extensive ; in either sense it is indefinite. But in Reg. v. Cunningham, Bell's Cr. C. 86, it did become necessary to determine whether a particular spot in the Bristol Channel, on which three foreigners on board a foreign ship had com- mitted a crime, was within the county of Glamorgan, the indictment liaving, whether necessarily or not, charged the offence as having been committed in that county. The Bristol Channel, it is to be remembered, is an arm of the sea SECT. I.] LIRHCT U. S. CABLE CO. V. ANGLO-AMERICAN TELEG. CO. 33 dividing England from Wales. Into the upper end of this arm of the sea the River Severn flows. Then the arm of tbe sea lies between Somersetshire and Glamorganshire, and afterwards between Devon- shire and the counties of Glamorgan, Carmarthen, and Pembroke. It widens as it descends, and between Port Eynon Head, the lowest point of Glamorganshire, and the opposite shore of Devon it is wider than Conception Bay ; between Ilartland Point, in Devonshire, and Pembrokeshire it is much wider. The case reserved was carefully pre- pared. It describes the spot where tlie crime was committed as being in the Bristol Channel, between the Glamorganshire and Somersetshire coasts, and about ten miles or more from that of Somerset. It nega- tived the spot being in the River Severn, the mouth of which, it is stated, was proved to be at King's Road, higher up the Channel, and was to be taken as the finding of tlie jury. It also showed that the spot in question was outside Penarth Head, and could not therefore be treated as within the smaller bay formed by Penarth Head and Laver- nock Point. And it set out what evidence was given to prove that the spot had been treated as part of the county of Glamorgan, and the question was stated to be whether the prisoners were properly con- victed of an offence within the count}' of Glamorgan. The case was much considered, being twice argued, and Chief Justice Cockburn delivered judgment, saying: "The only question with which it be- comes necessary for us to deal is whether the part of the sea on which tlie vessel was at the time when the offence was committed, forms part of the body of the county of Glamorgan, and we are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of which form part of England and Wales, of the county of Somerset on the one side, and the county of Glamorgan on the other. We are of opinion that looking at the local situa- tion of this sea it must be taken to belong to the counties respec- tively by the shores of which it is bounded; and the fact of the Holms between which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardilf, and as part of the county of Glamorgan, is a strong illustration of the principle on wliich we proceed, namely, that the whole of this inland sea between the counties of Somerset and Glamor- gan, is to be considered as vvithin the counties b}' the shores of which its several parts are respectively bounded. We are therefore of opinion tliat the place in question is within the body of the county of Glamor- gan." The case reserved in Cunningham's Case, incidentally states that it was about ninety miles from Penarth Roads (where the crime was committed) to the mouth of the Channel, which points to the head- lands in Pembroke and Hartland Point in Devonshire, as being the fauces of that arm of the sea. It was not, however, necessary for the decision of Cunningham's Case to determine what was the entrance of the Bristol Channel, further than that it was below the place where the crime was committed ; and though the language used in the judgment 40 DIKECT U. S. CABLE CO. V. ANGLO-AMERICAN TELEG. CO. [cUAP. I. is such as to show that the impression of the court was that at least the whole of that part of the Channel between the counties of Somerset and Glamorgan was within those counties, perhaps that was not deter- mined. But this much was determined, that a place in the sea, out of any river, and where the sea was more than ten miles wide, was witliin the county of Glamorgan, and consequently, in every sense of the words within the territory of Great Britain. It also shows that usage and the manner in whicli that portion of the sea had been treated as being part of tlie county was material, and this was clearly Lord Hale's opinion, as he says not that a bay is part of the county, but only that it may be. Passing from the Common Law of England to the general law of nations, as indicated by the text writers on international jurisprudence, we find an universal agreement that harbors, estuaries, and bays landlocked belong to the terrilorj- of the nation which possesses the shores round tliem, but no agreement as to what is the rule to deter- mine what is " bay " for this purpose. It seems generally agreed that whei'e the configuration and dimen- sions of the bay are sucli as to show that the nation occupying the ad- joining coasts also occupies the bay, it is part of the territory ; and with this idea most of the writers on the subject refer to defensibility from the shore as the test of occupation ; some suggesting therefore a width of one cannon shot from shore to shore, or three miles ; some a cannon shot from each shore, or six miles ; some an arbitrarj' distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of Newfoundland, but also would have excluded from the territory of Great Britain that part of the Bristol Channel which in Reg. v. Cunningham, Bell's Cr. C. 72, was decided to be in the county of Glamorgan. On the other hand, the diplomatists of the United States in 1793 claimed a territorial jurisdic- tion over much more extensive ba\-s, and Chancellor Kent, in his Com- mentaries, though by no means giving the weight of his authorit}' to this claim, gives some reasons for not considering it altogether unrea- sonable. It does not appear to their Lordships that jurists and text writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts ; and it has never, that the}' can find, been made the ground of any judicial determination. If it were necessar\' in this case to lay down a rule the diflficulty of the task would not deter their Lord- ships from attempting to fulfil it. But in their opinion it is not neces- sary so to do. It seems to them that, in point of fact, the British Governmeut has for a long period exercised dominion over this bay, and that their claim has been acquiesced in bj- other nations, so as to show that the bay has been for a long time occupied exclusively by Great Britain, a circumstance which in the tribunals of any country SECT. I.] FORBES V. COCHRANE. 41 would be very important. And moreover (which in a British tribunal is conclusive) the British Legislature has by Acts of Parliament de- clared it to be part of the British territory, and part of the country made subject to the Legislature of Newfoundland. SEAGROVE V. PARKS. High Court of Justice, Queen's Bench Division. 1891. [Reported [1891] 1 Q. B. 551.] Appeal from a refusal of Denman, J., at chambers, to give leave to serve a writ out of the jurisdiction. It appeared from the affidavit used in support of the application that the defendant was a naval officer on board H.M.S. " Cockatrice," appointed to the Mediterranean station, and that at the time of the applica- tion the ship was on the high seas. There were certain coaling ports at which the ship would touch, and in due course she would put into Malta, the chief port on the station. It was stated that leave had been granted by Vaughan Williams and Lawrance, JJ., respectively at cliambers, in similar applications b\' the plaintiffs in actions against other officers on board ships on the Mediterranean station, the orders giving leave to serve the writ " at Malta or elsewhere in tlie Mediter- ranean." The application in the present case was refused by Denman, J., upon the ground that, as the defendant was on tlie high seas at the time of the application, the affidavit did not sufficiently show, nor could it be shown, "in what place or country such defendant is or probably ma}' be found," as required by Order xi., r. 4. The plaintiffs appealed. Montague Lush^ for tlie plaintiffs. Per Curiam (Cave and Charles, JJ.). The decision must be affirmed. As long as the defendant is on board his ship, he is within the jurisdiction, and Order xi. is unnecessary and inapplicable. If it is sought to serve him out of the jurisdiction, upon his quitting his ship, the affidavit does not comply with the requirements of Order xi., r. 4. Appeal dismissed. FORBES V. COCHRANE. King's Bench. 1824. [Reported 2 Barnwall ^ Cresswell, 448.] The declaration stated that the plaintiff was lawfull}' possessed of a certain cotton plantation, situate in parts beyond the seas, to wit, in East Florida, of large value, and on which plantation he employed 42 FORBES V. COCHRANE. [CHAP. L divers persons, his slaves or servants. The first count charged the defendants with enticino; the slaves awav. The second count stated, that the slaves or servants having wrongfiill}' and against the plaintiffs will, quitted and left the plantation and the plaintiff's service, and gone into the power, care, and keeping of the defendants ; the3', know- ing them to be the slaves or servants of the plaintiff, wrongfully received the slaves into their custody, and harbored, detained, and kept them from the plaintiffs service. The last count was for wrong- full}' harboring, detaining, and keeping the slaves or servants of the plaintiff after notice given to the defendants that the slaves were tlie plaintiffs property, and request made to the defendants by the plain- tiff to deliver them up to him : plea, not guilty. At the trial before Abbott, C. J., at the London sittings after Trinity term, 1822, a ver- dict was found for the plaintiff, damages £3800, subject to the opinion of the court on the following case. The plaintiff was a British merchant in the Spanish provinces of East and West Florida, where he had carried on trade for a great many j-ears, and was principally resident at Pensacola in West Florida, East and West Florida were part of the dominions of the king of Spain, and Spain was in amity with Great Britain. The plaintiff, before and at the time of the alleged grievances, was the proprietor and in the possession of a cotton plantation, called San Pablo, lying contiguous to the river St. John's, in the province of East Florida, and of about one hundred negro slaves whom he had purchased, and vyIio were employed by him upon his plantation. The river St. John's is about thirty or forty miles from the confines of Georgia, one of the United States of America, which is separated from East Florida by the river St. Mary, and Cumberland Island is at the mouth of the river St. Mary on t!ie side next Georgia, and forms part of that State. During the late war be- tween Great Britain and America, in the month of February, 1815, the defendant, Vice-Admiral Sir Alexander Inglis Cochrane, was command- er-in-chief of His Majesty's ships and vessels on the North American station. The other defendant, Rear-Admiral Sir George Cockburn, was the second in command upon the said station, and Ins flag-ship was the " Albion." Tlie British forces had taken possession of Cumber- land Island, and at that time occupied and garrisoned the same. The " Albion," " Terror Bomb," and others of His Majesty's ships of war, formed a squadron under Sir George Cockburn's immediate command off that island, where the headquarters of the expedition were.^ In the night of the 23d February, 1815, a number of the plaintiff's slaves deserted from his said plantation, and on the following day thirty-eight of them were found on board the " Terror Bomb," part of the squadron at Cumberland Island, and entered on her muster-books as refugees from St. John's. On the 26th of the same month of February, Sir George Cockburn received from the plaintiff a memorial. The plaintiff prayed " that the defendant. Sir G. Cockburn, would order 1 Tho statement of facts is condensed by omitting unnecessary facts. — Ed. SECT. I.] FORBES V. COCHRANE. 43 the said thirty-eight slaves to be forthwith delivered to him tiieir lawful proprietor." Sir G. Cockburn told him he might see his slaves, and use any arguments and persuasions he chose to induce them to return. The plaintiff according!}- endeavored to persuade tliem to go back to his plantation, and no restraint was put upon them, but they refused to go. The phiintilf then urged his claim very strongly to Sir G. Cockburn, and said he must get redress if he did not succeed in prevailing upon Sir G. Cockburn to order them back again, which Sir G. Cockburn said he could not do, because they were free agents and might do as they pleased, and that he could not force them back. HoLKOYD, J.^ I am also of opinion, that the plaintiff is not en- titled to maintain the present action. The declaration alleges, that the plaintiff was the proprietor, and in the possession of a cotton plantation lying contiguous to the river St. John's, in East Florida, on which laud he employed divers persons, his slaves or servants. The plaintiff, therefore, claims a general property in them as his slaves or servants, and he claims this property, as founded, not upon any municipal law of the countrj' where he resides, but upon a general right. This action is therefore founded upon an injur}' done to that general right. Now it appears, from the facts of the case, that the plaintiff had no right iu these persons, except in their character of slaves, for they were not serving him under an}' contract ; and, according to the principles of the English law, such a right cannot be considered as warranted by tlie general law of nature. I do not mean to say that particular cir- cumstances may not introduce a legal relation to that extent ; but assuming that there may be such a relation, it can only have a local existence, where it is tolerated by the particular law of the place, to which law all persons there resident are bound to submit. Now if the plaintiff cannot maintain this action under the general law of nature, independently of any positive institution, then his right of action can be founded only upon some right which he has acquired by the law of the country where he is domiciled. If he, being a British subject, could show that the defendant, also a British subject, had entered the country where he, the plaintiff, was domiciled, and had done any act amounting to a violation of that right to the possession of slaves which was allowed by the laws of that country, I am by no means prepared to say that an action might not be maintained against him. The laws of England will protect the rights of British subjects, and give a remedy for a grievance committed by one British subject upon another, in whatever country that may be done. That, however, is a very different case from the present. Here, the plaintiff, a British subject, was resident in a Spanish colony, and perhaps it may be inferred, from what is stated in the special case, that, by the law of that colony, slavery was tolerated. I am of opinion, that, according to the prin- ciples of the English law, the right to slaves, even in a country where 1 The arguments of counsel, the opiuion of Bayley, J., and part of the opiuiou of Best, J., are omitted. — Ed. 44 FORBES V. COCHRANE. [CHAP. I. such rights are recognized b.y law, must be considered as founded not upon the law of nature, but upon the particular law of that country. And, supposing that the law of England would give a remedy for the violation of such a right by one British subject to another (both being resident in and bound to obey the laws of that country) still the right to these slaves being founded upon the law of Spain, as applicable to the Floridas, must be co-extensive with the territories of that State. I do not mean to sa}-, that if the plaintiff having the right to possess these persons as his slaves there, had taken them into another place, where, by law, slavery also prevailed, his right would not have continued in such a place, the laws of both countries allowing a property in slaves. The law of slavery is, however, a law hi invitum ; and when a party gets out of the territory where it prevails, and out of the power of his master, and gets under the protection of another power, without any wrongful act done by the part}- giving that protection, the right of the master, which is founded on the municipal law of the particular place only, does not continue, and there is no right of action against a party who merely receives the slave in that country, without doing any wrongful act. This has been decided to be the law with respect to a person who has been a slave in any of our West India colonies, and comes to this country. The moment he puts his foot on the shores of this countr}', his slavery is at an end. Put the case of an uninhabited island discovered and colonized by the subjects of this country ; the inhabitants would be protected and governed by the laws of this country. In the case of a conquered country, indeed, the old laws would prevail, until altered by the King in council ; but in the case of the newly discovered country, freedom would be as much the inheritance of the inhabitants and their children, as if they were treading on the soil of England. Now, suppose a person who had been a slave in one of our own West India settlements, escaped to such a country', he would therebv become as much a freeman as if he had come into Ens: land. He ceases to be a slave in England, onlj- because there is no law which sanctions his detention in slavery ; for the same reason, he would cease to be a slave the moment he landed in the supposed newly discovered island. In this case, indeed, the fugitives did not escape to any island belonging to England, but they went on board an Eng- lish ship (which for this purpose may be considered a floating island), and in that ship they became subject to the English laws alone. They then stood in the same situation in this respect as if they had come to an island colonized by the English. It was not a wrongful act in the defendants to receive them, quite the contrary. The moment they got on board the English ship there was an end of any right which the l)laintifr had by the Spanish laws acquired over them as slaves. They had got beyond the control of their master, and lieyond the territory where the law recognizing them as slaves prevailed. They were under the protection of another power. The defendants were not sul)ject to the Spanish law, for they had never entered the Spanish territories, SECT. I.] FORBES V. COCHRANE. 45 either as friends or enemies. The plaintiff was permitted to see the men, and to endeavor to persuade them to return ; but in that he failed. He never applied to be permitted to use force ; and it does not appear that he had the means of doing so. I think that Sir G. Cockburn was not bound to do more than he did ; whether he was bound to do so much it is unnecessary for me to sa}-. It was not a wrongful act in him, a British officer, to abstain from using force to compel the men to return to slavery. It does not appear that he prevented force being used. I do not say that he might not have refused, but in fact there was no refusal. I have given my opinion upon this question, suppos- ing that there would be a right of action against these defendants, if a wrong had actually been done by them, but I am by no means clear, that even under such circumstances, any action would have been main- tainable against them by reason of their particular situation as officers acting in discharge of a public dutj', in a ]pla.ce Jlagrante bello. I doubt whether the application ought not to have been made in such a case to the governing powers of this country for redress. The cases from the Admiralty Courts are distinguishable from the present, upon the grounds already stated by m}^ Brother Bayley. In Madrazo v. Willes, 3 B. & Aid. 353, the plaintiff was a Spanish subject, and by the law of Spain slavery and the trade in slaves being tolerated, he had a right, by the laws of his own country, to exercise that trade. The taking away the slaves was an active wrong done in aggression upon rights given by the Spanish law. That is very different from requiring, as in this case, an act to be done against the slaves, who had voluntarily left their master. When they got out of the territory where they became slaves to the plaintiff and out of his power and control, they were, by the general law of nature, made free, unless they were slaves by the par- ticular law of the place where the defendant received them. They were not slaves by the law which prevailed on board the British ship of war. I am, therefore, of opinion, that the defendants are entitled to the judgment of the court. Best J. The question is, were these persons slaves at the time when Sir G. Cockburn refused to do the act which he was desired to do? I am decidedly of opinion that they were then no longer slaves. The moment they put their feet on board of a British man-of-war, not lying within the waters of East Florida (where, undoubtedly, the laws of that country would prevail), those persons who before had been slaves, were free. The defendants were not guilty of any act pre- judicial to the rights which the plaintiff alleges to have been infringed. Those rights were at an end before the defendants were called upon to act. Slavery is a local law, and, therefore, if a man wishes to preserve his slaves, let him attach them to him by affection, or make fast the bars of their prison, or rivet well their chains, for the instant they get beyond the limits where slavery is recognized by the local law, the}' have broken their chains, they have escaped from their prison, mid are free. These men, when on board an English ship, had all the 46 MCDONALD V. MALLORY. [CHAP. L rights belonging to Englishmen, and were subject to all their liabilities. If they had committed any offence they must have been tried according to English laws. If any injury had been done to them they would have had a remedy by applying to the laws of this country for redress. I think that Sir G. Cockburn did all that he lawfully could do to assist the plaintiff; he permitted him to endeavor to persuade the slaves to return ; but he refused to apply force. I think that he might have gone further, and have said that force should not be used by others ; for if any force had been used by the master or any person in his assistance, can it be doubted that the slaves might have brought an action of tres- pass against the persons using that force? Nay, if the slave, acting upon his newly recovered right of freedom, had determined to vindicate that right, originally the gift of nature, and had resisted the force, and his death had ensued in the course of such resistance, can there be any doubt that evei-y one who had contributed to that death would, according to our laws, be guilty of murder? That is substantially decided by Sommersett's case, from which, it is clear, that such would have been the consequence had these slaves been in England ; and so. far as this question is concerned, there is no difference between an English ship and the soil of England ; for are not those on board an English ship as much protected and governed by the English laws as if they stood upon English land? Judgment for the defendants.^ Mcdonald v. mallory. Court of Appeals, New York. 1879. [Reported 77 N. Y. 546.] Rapallo, J.^ For the purposes of this appeal the wrongful act or neglect causing the death of the plaintiff's intestate must be treated as having been committed upon the high seas. The complaint does not specifically allege that the disaster was caused by the unlawful or negligent lading of the petroleum on board of the vessel in the port of New York, and consequently the question whether that fact, if alleged, would establish that the wrong complained of was committed within the territorial bounds of this State, need not be considered. We shall therefore come directly to the principal point argued, which is, whether under the statute of this State, which gives a right of action for causing death by wrongful act or neglect, an action can be mahitained for thus causing a death oa. the high seas, on board of a vessel hailing from, and registered in, a_jjiort within this State an^d owned by citizens thereof.; the person whose death was so causec' 1 See Madrazo v, Willes, 3 B. & Aid. 353. — Ed. 8 The opinion only is givon ; it sufficiently statos the case. — Ed. SECT, l] Mcdonald v. mallory. 47 beiug alsp a citizen of this State, the vessel being at the time \t^^'^^ employed by the owners in theii- own business, and their negligence *^ ^ being allos-ed to have caused the deatli. It is settled by the adjudications of our own courts that the right of action for cau sm°L death by negligence exists ouly-byLxirtue of th^ statute, and that where the_wrong is committed within a foreign State — or country, no action therefor carTbe maintained here, at least withouf" ■—prnnf-nf— the- existence- of a similar statute in the place where the_ ■ jyrono;"u'a3 coH»m ittcd. _(Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Crowley v. IPanama R. R. Co., 30 Barb. 99 ; Beach v. Bay State Steamboat Co., 30 id. 433 ; Vandeventer v. N. Y. and New Haven R. R. Co., 27 id. 244. ) These decisions rest upon the plain ground that our statute can have no operation within a foreign juris- diction, and that with respect to positive statute law it cannot be presumed that the laws of other States or countries are similar to our own. (Opinion of Demo, J., 23 N. Y. 467, 468, 471.) The liability of a person for his acts depends, in general, ui)on the laws .of the place where the acts were committed, and although a civil riglit of action acquired, or liability incurred, in one State or country for a personal injury may be enforced in another to which the parties may remove or where they be found. ^-et the right o r liability must exist^ under the laws of the place where the act was done. Actions for injuries to the person committed abroad are sustained without proof j.n tH'e hist Instance of the lex loci^ upon the presumption that the rigtlX to compensation for such injuries is recognized by the laws of alT "countries. But this presumption cannot apply where the wrong com- plained o? is not one of those thus universally recognized as a ground of action, but is one for which redress is given only by statute. v Keeping these principles in view it is clear that in order to maintain this action it is necessary to establish that the statute law in question was operative on board of the vessel upon which the injuiy was com- mitted. In all the cases which have been decided, the place of the injury was actually within the limits of a foreign territory, subject to Its own laws, and where there could be no claim that the laws of this State or country were operative. In the present case the locus in quo was not within the actual territorial limits of any State or nation, nor was It subject to the laws of any government, unless the rule which exists from necessity is applied, that every vessel on the high seas is constructively a part of the territory of the nation to which she belongs, and its laws a re operative on board of her. In this respect the case is ^ new. There can be no question that if this case were one arising under the laws of the United States the rule referred to would apply, and acta done on board of her while on the high seas would be governed by those laws. The question now presented Is whether in respect to matters not committed by the Constitution exclusively to the Federal government nor legislated upon by Congress, but regulated entireij 48 Mcdonald v mallory. [chap, i by State laws, the State to which the vessel belongs can be regarded as the sovereignty whose laws follow lier until she comes within the jurisdiction of some other government. This precise question arose in the case of Kelly v. Crapo (45 N. Y. 86 ; and 16 Wall. 610), though in a different form. The question there was whethei* a vessel upon the high seas was subject to tlu- TSsoTvent laws of the State of Massachusetts, to which State the vessi 1 belonged, that is, where she was registered and her owner resided,__ so that by operation of those laws, and without any act of the owneij__ the title to the vessel could be transferred while she was at sea by a proceeding in uivitumj, to an official _assignfifi^ and his title thus acquired would take precedence of an attachment levied upon her in ihe State of New York after sheJiad come within this State. It was conceded in that case, in this court as well as in the Supreme Court of the United States, that unless the vessel was actually or con- structivel}' within the jurisdiction of the State of Massachusetts her insolvent law could not operate upon her so as to defeat a title acquired under the laws of the State within whose actual territorial jurisdiction she afterwards came. (16 Wall. 622.) But in support of the title of the assignee in insolvency it was urged that the rule before referred to applied to her, and that while at sea she was constructively a part of the territory of the State of Massachusetts and subject to her laws. This court held that the rule invoked was not applicable to a State, and State laws, but that the jurisdiction referred to was vested in the government of the United States, and that the national territory and its laws only were extended by legal fiction to vessels at sea. This decision was reversed by the Supreme Court of the United States (Cra20_Vj_Kell^jt IQ Wsdl^ S^VQj', and as we understand the prevailing opinion in that court, it holds that the relations of a State to the Union do not affect its status as a sovei'eign, except with respect to those powers and attributes of sovereignty which have by the Con- stitution been transferred to the government of the United States, and that in all other respects it stands as if it were an independent sov- ereign State, unconnected with the other States of the Union. Upon this principle it was held that the vessel while at sea was constructively part of the territory of the State of Massachusetts and subject to its iaws. (16 Wall. 623, 624, 631-632.) It is difficult to conceive any other principle upon which that conclusion could have been reached. In respect to crimes committed on the high seas, the power to provide for their punishment has been delegated to the Federal govern- ment, and for that reason State laws cannot be applicable to them ; but cannot escape the conclusion that under the principle of the case of !3rapo V. Kelly civil rights of action, for matters occurring at sea on )oard of a vessel belonging to one of the States of the Union must iepend upon the laws of that State, unless the}' arise out of some [matter over which jurisdiction lias been vested in and exercised b}' 'the government of the United States, or over which the State has ^ SECT. I.] MCDONALD V. MALLORY. 49 transferred its rights of sovereignty to the United States ; and that to this extent the vessel must be regarded as part of the territory of the State, while in respect to her relations with foreign governments, crimes committed on board of her, and all other matters over which jurisdiction is vested in the Federal government, she must be regarded \ as part of the territory' of the United States and subject to the laws \ thereof. The facts alleged in the complaint, and admitted by the demurrer, present a strong case for tlic a[)[)lication of the rule that the laws oi the State to which the vessel belongs follow her until she comes within some other jurisdiction. The defendants, by whom the wrcnig is alleged to have been committed, were, at all times up to its final consummation by the death of the plaintiff's intestate, citizens and residents of this State, and subject to its laws, and the deceased was also a citizen of this State. The death was caused either by the illegal and negligent act done in this State of lading the dangerous and prohibited article on board the vessel and sending the deceased to sea in her thus exposed, or by the negligence or wrongful acts of the defendants committed at sea through their agents. The complaint does not distinctly specify which, but it must have been one or the other. If the latter, then, at the place where the injury was consum- mated there was no law by which to determine whether or not it rendered the defendants liable to an action, unless the law of the State to which the vessel belonged followed her. In the present case tiie defendants were, at the time of the wrongful act or neglect, and of the injury, within this State and subject to its laws, and none of the objections, suggested in the various cases which have been cited, to subjecting them to liability under the statute, for acts done out of the territory of the State, can apply. There can be no double liability, as suggested by Denio, J., in 23 N. Y. 467, 471, for the locus in quo was not subject to the laws of any other country ; nor can it be said that the deceased or his representatives were under the protection of the laws of any other government, as is said in some of the other cases cited. It is a case where no confusion or injustice can result from the application of the principle declared by the Supreme Court, that the laws of the State as well as of the United States, enacted within their respective spheres, follow the vessel when on the high seas. In the opinion of the court at General Terra in this case it is expressly con- ceded that both the laws of the State and the nation have dominion on a vessel on the hio;h seas, but the demurrer was sustained on the ground that this riglit of jurisdiction has not been exei'cised b}' tlie State of New York, and its statutes are restricted in their operation to the actual territorial bounds of the State. No such restriction is contained in the statute now under considera- tion. Its language is broad and general and b}' its terms it operates in all places. Its operation on cases arising in other States and countries has not been denied by reason of anything contained in 4 50 Mcdonald v. mallory. [chap, l the act itself or in an}- other legislative act, but on general principles of law. ]iut the court rests its conclusion upon the act of the Legislature of this State which defines its boundaries and declares that the sovereigiTty and jurisdiction of this State extends to all the places within the boundaries so declared (1 R. S. 62, 65), and it construes that act as a renunciation or abrogation of any effect which might on general principles of law be given to its statutes on board of vessels on the high seas. We are unable to concur in this view. The act referred to was intended to define simply the actual territorial bounds of the State, and the declaration that its sovereignty and jurisdiction should extend to all places within those bounds was not intended to nor could it operate as a restriction upon subsequent legislation, nor had it any reference to such a question as that now before us. Whatever opera- tion our laws may have on board of vessels at sea depends upon general principles, and there is nothing in the legislation of our State which places it in this respect on a different footing from any other. Is is not claimed that the sovereignty and jurisdiction of this State extend to its vessels when at sea, as they do to places within its boundaries, for all purposes, such as service of process, the execu- tion of judgments and the like, but only that when acts done at sea become the subject of adjudication here, the rights and liabilities of parties may in some cases be determined wilh reference to our statutes. There is nothing inconsistent with this in the act referred to, or in the assertion of sovereignty and jurisdiction for all purposes over places ■within tlie bounds of the State. The decision of this court in Kelly v. Crapo is referred to as the highest evidence that this State never intended that its laws shouW extend to vessels on the high seas. That decision recognized the general principle that the laws of a nation do so extend, but was based upon the theory that the relation of the State to the Union was such that tliis attribute of sovereignty had become merged in the powers granted to the general government. But the judgment of the Supreme Court of the United States having establislied the contrary view, and that in matters not the subject of Federal legislation, the laws of the State follow the vessel, thus making the laws of the State and of the United States, in their respective spheres, together constitute the law of tlie nation to which the vessel belongs, we adopt that decision as the . judgment of the tribunal to whom the ultimate determination of ques- . tions of that nature properly belongs. There is nothing in the nature of this action which renders it exclu- sively tlie subject of Federal cognizance. The jurisdiction of the States and of the United States in the matter of personal torts com- mitted at sea, such as assaults by a master on his crew, injuries to passengers, and the like, are concurrent, though remedies by proceed- ings in rem can be administered only by the Courts of Admiralty of the SECT. I.] EEGINA V. ANDERSON. 51 United States. The field of legislation in respect to cases like the present one has not been occupied by tlie general government and is therefore open to the States. (Steamboat Co. v. Chase, 16 Wall. 522, 530, 533.) Indeed the United States Court of Admiralty would have no jurisdiction in such a case (Steamboat Co. v. Chase, 16 Wall. 522, 530, 533; Sherloclc v. Allen, 93 U. S. 99), and there is no greater objection to extending the operation of a statute of this description to a vessel at sea than there was to giving similar opera- tion to a State insolvent law. The judgment of the court below should be reversed, and judgment rendered for the plaintiff on the demurrer, with leave to the defendants to answer on payment of costs within thirty daj's. All concur, except Andrews, J., absent. Judgment accordingly.^ EEGINA V. ANDERSON. Crown Case Reserved. 1868. [Reported 11 Cox C.C. 198.] Case reserved by Byles, J., at the October Sessions of the Central Criminal Court, 1868, for the opinion of this court. James Anderson, an American citizen, was indicted for murder on J^board a vessel, belonging to the port of Yarmouth in Nova Scotia. She was registered in London, and was sailing under the British flag. At the time of the offence committed the vessel was in the river Garonne, within the boundaries of the French empire, on her way up to Bordeaux, which city is b}' the course of the river about ninety miles from the open sea. The vessel had proceeded about half-way up the river, and was at the time of the offence about three hundred yards from the nearest shore, the river at that place being about half a mile wide. " The tide flows up to the place and beyond it. No evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected for the prisoner that the offence having been com- mitted within the empire of France, the vessel being a colonial vessel, and the prisoner an American citizen, the court had no jurisdiction to try him. I expressed an opinion unfavorable to the objection, but agreed to grant a case for the opinion of this court. The prisoner was convicted of manslaughter. J. Barnard Byles. ^ Ace. Crapo v. Kelly, 16 Wall. 610. And see to the same effect a decision of the Court of Cassation, Turin (Italy), April 14, 18S0, (8 Clunet, 551) : a Sicilian s.iilor on a vessel registered in Lonibardy is subject to a section of the Penal Code which is in force in Lombardy, but not in Sicily. — Ed. 52 REGINA V. ANDERSON. [CIIAP. L BoviLL, C. J.^ There is no doubt that the place where the offencej was committed was witliin the territory of France, and that the pris-l oner was therefore subject to the laws of France, which the local author- ities of that realm might have enforced if so minded ; but at the same time, in point of law, the offence was also committed within British! territory, for the prisoner was a seaman on board a merchant vessel, which, as to her crew and master, must be taken to have been at the time under the protection of the British flag, and, therefore, also amen-l able to the provisions of the British law. It is true that the prisoner was an American citizen, but he had with his own consent embarked on board a British vessel as one of the crew. Although the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offence within the terri- tory of France, ^t-he^&ust-al&oJtxe -couaidered as subject to the jims- dictioujaf British law, wliicli__gxtends to the protection of British vessels., though. m ports belonging to another country. From the pas- sage in the treatise of Ortolan, already' quoted, it appears that, with regard to offences committed on board of foreign vessels within the French territory, the French nation will not assert their police law unless invoked by the master of the vessel, or unless the offence leads to a disturbance of the peace of the port ; and several instances where that course was adopted are mentioned. Among these are two cases where offences were committed on board American vessels — one at the port of Antwerp, and the other at Marseilles — and where, on the local authorities interfering, the American court claimed exclusive jui-isdic- tion. As far as America herself is concerned, it is clear that she, bj' the statutes of the 23rd of March, 1825, has made regulations for per- sons on board her vessels in foreign parts, and we have adopted the same course of legislation. Our vessels must be subject to the laws of the nation at any of whose ports they ma}' be, and also to the laws of our country, to which they belong. As to our vessels when going to foreign parts we have the right, if we are not bound, to make regula- tions. America has set us a strong example that we have the right to do so. In the present ease, if it were necessaiy to decide the question on the 17 & 18 Vict. c. 104, I should have no hesitation in saying that we now not only legislate for British subjects on board of British ves- sels, but also for all those who form the crews thereof, and that there is no difficulty in so construing the statute ; but it is not necessary to decide that point now. Independently of that statute, the general law is sufficient to determine this case. Here the offence was committed\\ on board a British vessel b3'one of the crew, and it makes no differenceU whether the vessel was within a foreign port or not. If the offence had been committed on the high seas it is clear that it would have been within the jurisdiction of the Admiralt}', and the Central Criminal Court has now the same extent of jurisdiction. Does it make any i Arguments of counsel and tlie concurring opinions of Channell, B., and Black- burn and Lush, JJ., are omitted, — Ed. SECT. I.J REGINA V. ANDERSON. 53 difference because the vessel was in the river Garonne half-way between the sea and the head of the river? The place where the offence was committed was in a navigable part of the river below bridge, and where the tide ebbs and flows, and great ships do lie and hover. An offence committed at such a place, according to the author- ities, is within the Admiraltj' jurisdiction, and it is the same as if the offence had been committed on the high seas. On the whole I come to the conclusion that the prisoner was amenable to the British law, and that the conviction was right. Byles, J. I am of the same opinion. I adhere to the opinion that I expressed at the trial. A British ship is, for the purposes of this question, lilse a floating island ; and, when a crime is committed on board a British ship, it is within the jurisdiction of the Admiralty Court, and therefore of tlie Central Criminal Court, and the offender is as amenable to British law as if he had stood on the Isle of Wight and committed the crime. Two English and two American cases decide that a crime committed on board a British vessel in a river like the one in question, where there is the flux and reflux of the tide, and wherein great ships do hover, is within the jurisdiction of the Admiralty Court; and that is also tlie opinion expressed in Kent's Commentaries. The' only effect of the ship being within the ambit of French territory is that there might have been concurrent jurisdiction had the French claimed it. I give no opinion on the question whether the case comes within the enactment of the Merchant Shipping Act.^ Vaughan, C. J., in Craw v. Ramsey, Vaughan 274 (1670). One of mv brothers . . . said England and Ireland were two distinct Iving- doms, and no otherways united than because thej' had one Soveraign. Had this been said of Scotland and England it had been right, for they aic both absolute kingdoms, and each of them sui juris. But Ireland far otherwise ; for it is a dominion belonging to the crown of England, and follows that it cannot be separate from it but by Act of Pai'liament of England, no more than Wales, Guernsey, Jerse}', Ber- wick, the English Plantations, all which are dominions belonging to the realm of England, though not within the territorial dominion or realm of England, but follow it and are a pait of its royalty. . . . Wales, after the conquest of it, by Edward the First, was annext to England, jure proprietatis 12 Ed. 1, by the Statute of Ruthland only, and after more really by 27 H. 8 c. 26 ; but at first received laws from England as Ireland did ; but not proceeded by writs out of the English Chan- cery, but had a Chancery of his own, as Ireland hath; was not bound by the laws of England, unnamed, until 27 H. 8, no more than Ireland now is. Ireland in nothing differs from it but in having a Parliament gratia Regis, subject to the Parliament of England. It might have 1 See Keg. v. Lopez, 7 Cox C. C. 431 ; Reg. v. Armstrong, 13 Cox C. C. 184. — Ed. 54 CAMPBELL V. HALL. [CHAP. I. had so, if the King pleased, but it was annext to England. None doubts Ireland as conquer'd as it, and as much subject to the Parlia- ment of England if it please. Vaughan, C. J., Wilde and Archer, JJ., in the same case (2 Ventris 1). Ireland was a conquered kingdom, the conquest coni- pleated, if not begun, in King Henry the Second's time ; in whose time there is no record of any establishment. And being a Christian king they remained governed by their own laws, until King John (anno 12 regni sui) by Charter (for so they conceived it to be, and not by Parliament ; for it appears that the nobles were sworn, which is not usual in Acts of Parliament, neither is it 2'este Rege in Parlianiento) introduced the English laws. Yet it ever hath remained a distinct kingdom, viz. from the bringing in the laws by King John, M. Paris Hist. 230, and Calvin's Case in 7 Co. 22. 23 ; the Conquest brought it infra dominiuyyi Megis, sed non infra Regnum Anglice. Orurke committed treason in Ireland, and it was held triable by Commission, by 33 H. 8. as a treason out of the Realm. 20 H. 6. 8, the Judges here are not bound to take notice of the laws of Ireland. Fitzh. Voucher 239, a man in Ireland cannot be vouched. Anders. 262, 263, 2 Inst. 2, it is said. Magna Charta nor the Statute laws here did not extend to Ireland until Poining's Law, 10 H. 7, tho in truth it appears to be before by 8 E. 4. cap. 10 ; neither arc they obliged by any statute since unless named. CAMPBELL V. HALL. King's Bench. 1774. [Reported Cowper, 204.] This case was very elaborately argued four several times ; and now on this day Lord Mansfield stated the case, and delivered the unani- mous opinion of the court, as follows : This is an action that was brought by the plaintiff, James Campbell, who is a natural born subject of this kingdom, and who, upon the 3d of March, 1763, purchased a plantation in the island of Grenada: and it is brought against the defendant William Hall, who was a collector for His Majesty of a dut}' of four and a half per cent upon all goods and sugars exported from the island of Grenada.^ ... A special verdict was found, which states as follows : That the island of Grenada was taken by the British arms, in open war, from the French king. . . . The special verdict then states, . . a proc- lamation under tho groat seal, bearing date the 7th October, 1763, wherein amongst other things it is said as follows : — Whereas it will greatly contribute to the speedy settling our said governments, of which the island of Grenada is one, that our loving subjects should be informed of our paternal care for the security of the 1 Part of the opinion is omitted. — Ed. SECT. I.] CAMPBELL V. HALL. 55 liberties and properties of those who are and shall become inhabitants thereof: we have thought fit to publish and declare by this our procla- mation, that we have in our letters patent under our great seal of Great Britain, by wliicli the said governments are constituted, given exi)i-ess power and direction to our governors of the said colonies re- spectively, that so soon as the state and circumstances of the said colonies will admit tliercof, tliey sliall, witii the advice and consent of the members of our council, summon and call general assemblies, within the said governments respectively, in such manner and form as is used and directed in those colonies and provinces of America, which are already under our immediate government ; and we have also given power to the said governors, witli the consent of our said councils, and the representatives of the peo{)le to be summoned as aforesaid, to make, constitute, and ordain laws, statutes, and ordinances, for tlie public peace, welfare, and good government of our said colonies and the in- habitants thereof, as near as maj* be agreeable to the laws of England, and under such regulations and restrictions, as are used in our other colonies. The next instrument stated in the special verdict, is the letters patent under the great seal, or rather a proclamation, bearing date the 26th March, 1764 ; whei'ein, the King recites a survey and division of the ceded islands, and that he had ordered them to be divided into allotments, as an invitation to purchasers to come in and purchase upon the terms and conditions specified in that proclamation. The next instrument stated, is the letters patent under the great seal, bearing date the 9th of April, 1764. In these letters there is a commission appointing General Melville governor, with a power to summon an assembly as soon as the state and circumstances of the island would admit, and to make laws with consent of the governor and council, with reference to the manner of the other assemblies of the king's provinces in America. This instrument is dated the 9th of April, 1764. The governor arrived in Grenada on the 14th December, 1764, and before the end of the year 1765, an assembly actually met in the island of Grenada. But before the arrival of the governor at Grenada, indeed before his departure for London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the great seal, bearing date the 20th July, 1764. Wherein, the King reciting, that whereas, in Barbadoes, and in all the British Leeward Islands, there was a duty of four and an half per cent upon all sugars, etc. exported ; and reciting in these words ; that whereas it is reascmable and expedient, and of importance to our other sugar islands, that the like duty should take place in our said island of Grenada; proceeds thus : we have thought fit, and our royal will and pleasure is, and we do hereby, by virtue of our prerogative royal, order, direct, and appoint, that from and after the 29th day of September next ensuing the date of these presents, a duty or impost of four and an half per cent in specie, shall be raised 56 CAMPBELL V. HALL. [CHAP. I and paid to us, oui* heirs and successors, upon all dead commodities, the growth and produce of our said island of Grenada, that shall be shipped off from the same, in lieu of all customs and import duties, hitherto collected upon goods imported and exported into and out of the said island, under the authority of His Most Christian Majesty. The special verdict then states that in fact this duty of four and an half per cent is paid in all the British Leeward Islands, and sets forth the several acts of assembly relative to these duties. They are public acts : therefore, I shall not state them ; as any gentleman may have access to them ; they depend upon different circumstances and occa- sions, but are all referable to those duties in our islands. This, with what I set out with in the opening, is the whole of the special verdict that is material to the question. The general question that arises out of all these facts found by the special verdict, is this ; whether the letters patent under the great seal, bearing date the 20th July, 1764, are good and valid to abolish the French duties; and in lieu thereof to impose the four and an half per cent dut}' above mentioned, which is paid in all the British Leeward Islands? It has been contended at the bar, that the letters patent are void on two points ; the first is, that altliough they had been made before the proclamation of the 7th October, 1763, yet the King could not exercise such a legislative power over a conquered countr}'. The second point is, that though the King had sufficient power and authority before the 7th October, 1763, to do such legislative act, yet before the letters patent of the 20th July, 1764, he had divested him- self of that authority. A great deal has been said, and many authorities cited relative to propositions, in which both sides seem to be perfecth- agreed ; and which, indeed, are too clear to be controverted. The stating some of those propositions which we think quite clear, will lead us to see with greater perspicuity, what is the question upon the first point, and upon what hinge it turns. I will state the propositions at large, and the first is this : A country conquered by the British arms becomes a dominion of the King in the right of his crown ; and, therefore, necessarily subject to the legislature, the Parliament of Great Britain. The 2d is. That the conquered inhabitants once received under the king's protection, become subjects, and are to be universally considered in that light, not as enemies or aliens. The 3d, That the articles of capitulation upon which the country is surrendered, and the articles of peace by which it is ceded, are sacred and inviolable according to their true intent and meaning. The 4th, That the law and legislative government of every dominion, equally aflfects all' persons and all property within the limits thereof; and is the rule of decision for all questions which arise there. Who- ever purchases, lives, or sues there, puts himself under the law of the SECT. I.] CAMPBELL V. HALL. 57 place. An Englishman in Ireland, Minorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives. The 5th, That the laws of a conquered countr}- continue in force, until they are altered by the conqueror ; the absurd exception as to Pagans, mentioned in Calvin's case, shows the universality and antiquity' of the maxim. For that distinction could not exist before the Christian tera ; and in all probability arose from the mad enthusiasm of the Croisades. In the present case the capitulation expressly provides anc? agrees, that they shall continue to be governed by their own laws, until His Majesty's further pleasure be known. The 6tli, and last proposition is, that if the King (and when I say the King, I always mean the King without the concurrence of Parliament), has a power to alter the old and to introduce new laws in a conquered country, this legislation being subordinate, that is, subordinate to his own authority in Parliament, he cannot make any new change contrary to fundamental principles : he cannot exempt an inhabitant from that particular dominion ; as, for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects ; and so in manj' other instances which might be put. But the present change, if it had been made before the 7th October, 1763, would have been made recently after the cession of Grenada by treaty, and is in itself most reasonable, equitable, and political ; for it is putting Grenada, as to duties, on the same footing with all the British Leeward Islands. If Grenada paid more it would have been detri- mental to her; if less, it must be detrimental to the other Leeward Islands : nay, it would have been carrying the capitulation into execu- tion, which gave the people of Grenada hopes, that if any new tax was laid on, their case would be the sam^ with their fellow subjects iu the other Leeward Islands. The only question then on this first point is, Whether the King had a power to make such change between the 10th of February, 1763, tho day the treaty of peace was signed, and the 7th October, 1763? Tak- ing these propositions to be true which I have stated ; the only question is, Whether the King had of himself that power? It is left by the constitution to the King's authority to grant or refuse a capitulation : if he refuses, and puts the inhabitants to the sword or exterminates them, all the lands belong to him. If he receives the inhabitants under his protection and grants them their property, he has a power to fix such terms and conditions as he thinks proper. He is intrusted with making the treaty of peace : he may yield up the con- quest, or retain it upon what terms he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of govern ment of a conquered dominion. To go into the history of the conquests made by the Crown of Eng- land. The conquest and the alteration of the laws of Ireland have been 58 CAMPBELL V. HALL. [CHAP. I. variousl}' and learnedly discussed by lawyers and writers of great fame, at different periods of time; but no man ever said, that the cliange in the laws of that country was made by the Parliament of England : no man ever said the Crown could not do it. The fact in truth, after all the researches which have been made, comes out clearl}' to be, as it is laid down by Lord Chief Justice Vaughan, that Ireland received tlie laws of England, by the charters and commands of Henry II., King John, Henr3^ III., and he adds an et ccetera to take in Edward I., and the subsequent kings. And he shows clearly the mistake of imagining that the charters of the 12th of John, were by the assent of a Parlia- ment of Ireland. Whenever the first Parliament was called in Ireland, that change was introduced without the interposition of the Parliament of England ; and must, therefore, be derived from the Crown. Mr. Barrington is well warranted in saying that the statute of Wales, 12th Edward I., is certainly no more than regulations made by the King in his council, for the government of Wales, which the preamble sa}s was then totally subdued. Though, for various political purposes, he feigned Wales to be a feoff of his crown ; j'ct he governed it as a con- quest. For Edward I. never pretended that he could, without the as- sent of Parliament, make laws to bind anj' part of the realm. Berwick, after the conquest of it, was governed b}' charters from the Crown without the interposition of Parliament, till the reign of James I. All the alterations in the laws of Gascon}-, Guienne, and Calais, must have been under the King's authority ; because all the acts of Parliament relative to them are extant. For they were in the reign of Edward III., and all the acts of Parliament of that time are extant. There are some acts of Parliament relative to each of these conquests that I have named, but none for any change of their laws, and particu- larly with regard to Calais, which is alluded to as if their laws were considered as given by the Crown. Besides the garrison, there are inhabitants, property, and trade in Gibraltar : ever since that conquest the King has made orders and regulations suitable to those who live, etc. or trade, or enjoy property in a garrison town. The Attorney-General alluded to a variety of instances, and several very lately, in which the King had exercised legislation in Minorca : there, there are many inhabitants, much property, and trade. If it is said, that the King does it as coming in the place of the King of Spain, because their old constitution remains, the same argument holds here. For before the 7th October 1763, the original constitution of Grenada continued, and the King stood in the place of their former sovereign. After the conquest of New York, in which most of the old Dutch inhabitants remained, King Charles II. changed the form of their con- stitution and political government ; by granting it to the Duke of York, to hold of his crown, under all the regulations contained iu the letters patent. SECT. I.] CAMPBELL V. HALL, 59 It is not to be wondered at that an adjudged case in point has not been produced. No question was ever started before, but that the King has a right to a legislative authorit}* over a conquered country ; it was never denied in WestminsterHall; it never was questioned in Par- liament. Coke's report of the arguments and resolutions of the judges in Calvin's case, lays it down as clear. If a king (says the book) comes to a kingdom by conquest, he may change and alter the laws of that kingdom ; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament. It is plain he alludes to his own country, because he alludes to a country where there is a Parliament. The authority also of two great names has been cited, who take the proposition for granted. In the year 1722, the assembly of Jamaica being refractory, it was referred to Sir Philip Yorke and Sir Clement Wearge, to know " what could be done if the assembly should obsti- nately continue to withhold all the usual supplies." They reported thus : " If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but if it was to be considered in the same light as the other colonies, no tax could be imposed on the inhabitants but by an assembly of the island, or by an Act of Parliament." They considered the distinction in law as clear, and an indisputable consequence of the island being in the one state or in the other. Whether it remained a conquest, or was made a colony, they did not examine. I have upon former occasions traced the constitution of Jamaica, as far as there are papers and records in the offices, and can- not find that any Spaniard remained upon the island so late as the restoration ; if any, there were very few. To a question I lately put to a person well informed and acquainted with the country, his answer was, there were no Spanish names among the white inhabitants, there were among the negroes. King Charles II. by proclamation invited settlers there, he made grants of lands : he appointed at first a gov- ernor and council only : afterwards he granted a commission to the governor to call an assembly. The constitution of every province, immediately under the King, has arisen in the same manner ; not from grants, but from commissions to call assemblies : and, therefore, all the Spaniards having left the island or been driven out, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown ; like the cases of the island of St. Helena and St. John, mentioned by Mr. Attorney-General. A maxim of constitutional law as declared by all the judges in Cal- vin's case, and which two such men, in modern times, as Sir Philip Yorke and Sir Clement Wearge, took for granted, will require some authorities to shake. But on the other side, no book, no saying, no opinion has been cited', no instance in any period of history produced, where a doubt has been 60 CAMPBELL V. HALL. [CHAP. L raised concerning it. Tlie counsel for the plaintiff no doubt labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration we are of opinion, tiiat before the letters patent of the 20th July, 1764, the King had precluded himself from the exercise of a legislative authorit}' over the island of Grenada. The first and material instrument is the proclamation of the 7th Octo- ber, 1763. See what it is that the King there sa3s, with what view, and how he engages himself and pledges his word. " For the better security of the liberty and property of those who are or shall become inhabitants of our island of Grenada, we have de- clared by this our proclamation, that we have commissioned our gov- ernor (as soon as the state and circumstances of the colony will admit) to call an assembly to enact laws," etc. With what view is this made? It is to invite settlers and subjects: and why to invite? That they might think their properties, etc. more secure if the legislation was vested in an assembly, than under a governor and council only. Next, having established the constitution, the proclamation of the 20th March, 1764, invites them to come in as purchasers: in further confirmation of all this, on tlie 9th April, 1764, three months before July, an actual commission is made out to the governor to call an assembly as soon as the state of the island would admit thereof. You observe, there is no reservation in the proclamation of any legis- lature to be exercised by the King, or by the governor and council under his authority in any manner, until the assembly should meet ; but rather the contrary : for whatever construction is to be put upon it, which, perhaps, ma}' be very difficult through all the cases to which it may be applied, it alludes to a government by laws in being, and by courts of justice, not by a legislative authority, until an assembly should be called. There does not appear from the special verdict, any impediment to the calling an assembly immediately on the arrival of the governor, which was in December, 1764. But no assembly was called then or at any time afterwards, till the end of the year 1765. We therefore think, that by the two proclamations and the commis- sion to Governor Melville, the King had immediately and irrecoverably granted to all who were or should become inhabitants, or who had, or should acquire property in the island of Grenada, or more generally to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the gov- ernor and council, in like manner as the other islands belonging to the King. Therefore, though the abolishing the duties of the French King and the substituting this tax in its stead, which according to the finding in this special verdict is paid in all the British Leeward Islands, is just and equitable with respect to Grenada itself, and the other British Leeward Islands, yet, through the inattention of the King's servants, in inverting the order in which the instruments should have passed, SECT. I.] DOBREE V. NAPIER. 61 and been notoriously published, the last act is contradictor}' to, and a violation of the first, and is, therefore, void. How proper soever it ma3' be in respect to the object of the letters patent of tlie 2Uth July, 1764, to use the words of Sir Philip Yorke and Sir Clement Wearge, " it can only now be done, by the assembly of the island, or by an act of the Parliament of Great Britain." The consequence is, ji^lgment must be given for the plaintiff. DOBREE V. NAPIER. Court of Common Pleas. 1836. [Reported 2 Bingham's New Cases, 781 J. TiNDAL, C. J.^ The plaintiffs declare in this action against the two defendants for seizing and taking a steam vessel of the plaintiffs, and converting the same to their use. The defendants sever in their pleading, but each puts upon the record substantially the same justification, to which the answers given b}' the replication are the same, and the same questions of law are raised thereon. It will be sufficient, therefore, to consider the case as it is raised upon the pleadings with respect to the first-named defendant, Charles Napier. The third special plea of the defendant Charles Napier alleges, that as a servant of the Queen of Portugal, and b}- her command, he seized and took the steam vessel of the plaintiffs as lawful prize, and that such proceedings were thereupon had, according to the laws of Portugal, in a court of law in the kingdom of Portugal of competent jurisdiction in that behalf, that afterwards, in and b}' the said court, the said steam vessel was adjudged to have been justly and lawfull}' taken, and was then in due course and form of law condemned as lawful prize, and as forfeited to the Queen of Portugal. In answer to this plea, the plain- tiff in his replication alleges certain facts, which bring the service of the defendant Charles Napier under the Queen of Portugal, upon the occasion in question, within the restrictions of the statute 59 G. 3. c. 69. s. 2., generall}- known b}- the name of the Foreign Enlistment Act; and to this replication the defendant demurred. We think it is perfectly clear, that, except for the facts introduced by the replication, the plea, standing alone and unanswered, would be a conclusive bar to the plaintiff's right of action. The sentence of a foreign court of competent jurisdiction, condemning a neutral vessel taken in war, as prize, is binding and conclusive on all the world ; and I The opinion only is given ; it sufficiently states the case. Part of the opinion, in- volving a different question, is omitted. — Ed. 62 DOBREE V. NAPIER. [CHAP. J. no English court of law can call in question the propriety, or the grounds, of such condemnation. It is sufficient to refer to tlie case of Hughes V. Cornelius and others, Sir T. Ra3m. 473, as a decisive authorit}- on that point. It follows that after tiie sentence of the Court of Lisbon, it cannot be controverted in this, or an}' other English court, that the steam vessel was rightly taken by the Queen of Portugal as prize, and that all the property of the plaintiffs therein became, by such capture and condemnation, forfeited to the Queen, and vested in her. But the plaintiffs contend that the replication, by the facts therein disclosed, shows that the service of the defendant Charles Napier under the Queen of Portugal, bj' virtue of which service alone he justifies the seizing of the steam vessel, is made illegal by an English statute, viz. the statute 59 G. 3. c. 69., and that such illegality of the service pre- vents him from making an}- justification under the Queen of Portugal, and renders him liable to all the damages which the plaintiffs have sus- tained by reason of the seizure. And whetlier the conclusion which the plaintiff's draw from these premises is the just conclusion or not, is the question between these parties. Tiie seizure by the Queen of Portugal must be admitted to be justifiable ; no objection can be taken against the forfeiture of the property in this vessel to the Queen, under the sentence of condemnation. Tlie plaintiffs, therefore, in contem- plation of law, have sustained no legal injur}' b}' reason of the seizure. Again no one can dispute the right of the Queen of Portugal, to api)oint in her own dominions, the defendant or an}- other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize ; or can deny, that the relation of lord and servant, de facto ^ subsists between the Queen and the defend- ant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country. Still, however, notwithstanding the loss by seizure is such, as that no court of law can consider it an injury, or give any redress for it; and that the service and employment of the defendant is a ser- vice and employment de facto; the plaintiffs contend they can make the servant responsible for the whole loss, only by reason of his being obnoxious to punishment in this country, for having engaged in such service. No case whatever has been cited which goes the length of this proposition ; the authorities referred to establishing only, that where an act prohibited by the law of this country has been done, the doer of such illegal act cannot claim the assistance of a court of law in this country to enforce such act, or any benefit to be derived from it, or any contract founded upon it. To the full extent of these authorities, we entirely accede ; but we cannot consider the law to be, that where the act of the principal is lawful in the country where it is done, and the authority under which such act is done is complete, binding, and un- questionable there, the servant who does the act can be made responsible in the courts of this country for the consequence of such act, to the same SECT. I.] KEGINA V. LESLEY. 63 extent as if it were originally unlawful, merely b}* reason of a personal disability imposed by the law of this country upon liiin, for contracting such engagement. Such a construction would effect an unreasonable alteration in the situation and rights of the plaintiffs and the defendant. The plaintiffs would, without any merit on their part, recover against the servant the value of the property to which they had lost all claim and title by law against the principal ; and the defendant, instead of the measure of punishment intended to be inflicted by the statute for the transgression of the law, might be made liable to damages of an incalculable amount. Again, the only ground upon which the authority of the servant is traversable at all in an action of trespass, is no more than this ; to protect the person or property- of a party from the offi- cious and wanton interference of a stranger, where the principal might have been willing to waive his rights. It is obvious that the full benefit of this principle is secured to the plaintiffs by allowing a traverse of the authority de facto, without permitting them to impeach it by a legal objection to its validit}-, in another and foreign country'. And we think there is no material difference between the third and the first and second special pleas on this record. For as we hold that the au- thority of the Queen of Portugal to be a justification of the seizure " as prize," there is as little doubt but that she might direct a neutral ves- sel to be seized when in the act of breaking a blockade b}' her estab- lished, wliich is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second. "We therefore give judgment on the first three special pleas, for the defendants. Judgment for Defendants.^ EEGINA V. LESLEY. Crown Case Reserved. 1860. ^Reported Bell, 220 ; 8 Cox C. C. 269.] Erle, C. J.*^ In this case the question is whether a conviction for false imprisonment can be sustained upon the following facts. The prosecutor and others, being in Chili, and subjects of that state, ■were banished by the government from Chili to England. 1 See Underbill v. Hernandez, 168 TJ. S. 250. — Ed. 2 The opinion only is given. In addition to the facts therein stated, the following may be useful : — It appeared by the evidence for the prosecution that the prisoners requested the defendant to take them to Peru, which was near, offering to pay him what the Govern- ment of Chili paid him, but that the defendant refused, on the ground that his contract required him to carry the prisoners to Liverj)0ol. They made no other request to be put ashore. The vessel touched at the Azores, and the defendant made holes in the boats to prevent the escape of the prisoners. Watson, B., who tried the case, directed a verdict of guilty, and reported the case to the Court for Crown Cases Reserved. — Ed. 64 REGINA V. LESLEY. [CHAP. I. The defendant, being master of an English merchant vessel lying in the territoriiil waters of Chili, near Valparaiso, contracted with that government to take the prosecutor and his companions from Valparaiso to Liverpool, and they were accordingly brought on board the defen- dant's vessel by the officers of the government and carried to Liverpool by the defendant under his contract. Then, can the conviction be sustained for that which was done within the Chilian waters? We answer no. We assume that in Chili the act of the government towards its sub- jects was lawful ; and although an English ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts done to the subjects thereof. We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its author- it}'. In Dobree v. Napier, 2 Bing. N. C. 781, the defendant, on behalf of the Queen of Portugal, seized the plaintiff's vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass ; and judgment was for the defendant, because the Queen of Portugal, in her own territorj-, had a right to seize the vessel and to employ whom she would to make the seizure ; and therefore the defend- ant, though an Englishman seizing an English vessel, could justify the act under the employment of the Queen. We think that the acts of the defendant in Chili become lawful on the same principle, and therefore no ground for the conviction. The further question remains. Can the conviction be sustained for that which was done out of the Chilian territory? And we think it can. It is clear that an English ship on the high sea, out of any foreign territory, is subject to the laws of England ; and persons, whether for- eign or English, on board such ship, are as much amenable to English law as they would be on English soil. In Regina v. Sattler, 1 D. & B. C. C. 525, this principle was acted on, so as to make the prisoner, a for- eigner, responsible for murder on board an English ship at sea. The same principle has been laid down b}' foreign writers on international law, among which it is enough to cite Ortolan, " Sur la Diplomatic de la Mer," liv. 2. cap. 13. The Merchant Shipping Act, 17 & 18 Vict. c. 104, s. 267, makes the master and seamen of a British ship responsible for all offences against property or person committed on the sea out of her Majesty's dominions as if the}' had been committed within the jurisdiction of the Admiralty of England. Such being the law, if the act of the defendant amounted to a false im[jrisonment he was liable to be convicted. Now, as the contract of the defendant was to receive the pi'osecutor and the others as prisoners on board his ship, and to take them, without their consent, over the sea to England, although he was justified in first receiving ihem in Chili, SECT. II.] BLANKARD V. GALDY. 65 yet that justification ceased when he passed the Ihie of Chilian juris- diction, and after that it was a wrong which was intentionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so lawfully transport Chilian sub- jects ; but for an English ship the laws of Chili, out of the state, are powerless, and the lawfulness of the acts must be tried by English law. For these reasons, to the extent above mentioned, the conviction is affirmed. Conviction confirmed accordingly. Lord Mansfield, C. J., in Rex v. Vaughan, 4 Burr. 2494, 2500 (1769). The argument is strong that these statutes do not extend to Jamaica, though they were enacted long before that island belonged to the Crown of England. If Jamaica was considered as a conquest, they would retain their old laws, till the conqueror had thought tit to alter them. If it is considered as a colony (which it ought to be, the old inhabitants having left the island), then these statutes are positive regulations of police, not adapted to the circumstances of a new colony ; and therefore no part of that law of England which every colony from necessity is supposed to carry with them at their first plantation. No Act of Parliament made after a colony is planted is construed to extend to it, without express words showing the intention of the legislature to be 'that it should.' SECTION II. THE ORIGIN AND CHANGE OF LAW. BLANKARD v. GALDY. King's Bench. 1693. [Reported 2 Salkeld, 411.] In debt on a bond, the defendant prayed oyer of the condition, and pleaded the statute E. 6. against buying offices concerning the admin- istration of justice ; and averred, That this bond was given for the purchase of the office of provost-marshal in Jamaica, and that it con- cerned the administration of justice, and that Jamaica is part of the revenue and possessions of the Crown of England : The plaintiff replied, 5 G6 BLANKARD V. GALDY. [CIIAP. L that Jamaica is an Island be3'ond the seas, which was conquered from the Indians and Spaniards in Queen Elizabetli's time, and the inhabit- ants are governed bj* their own laws, and not by the laws of England : The defendant rejoined, That before such conquest they were governed by their own laws ; but since that, by the laws of England : Shower argued for the plaintiff, that, on a judgment in Jamaica, no writ of error lies here, but only an appeal to the Council ; and as they are not represented in our Parliament, so they are not bound by our stat- utes, unless specially named. Vide And. 115. Pemberton contra argued, that by the conquest of a nation, its liberties, rights, and prop- erties are quite lost ; that hy consequence their laws are lost too, for the law is but the rule and guard of the other ; those that conquer, can- not b}' their victory lose their laws, and become su])ject to others. Vide Vaugh. 405. That error lies here upon a judgment in Jamaica, which could not be if the}' were not under the same law. Et per Holt, C. J. & Cur., First, in case of an uninhabited country* newl}' found out b}' English subjects, all laws in force in England are in force there ; so it seemed to be agreed. Secondly*, Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the Crown of England ; yet retain their ancient laws: That in Davis 36. it is not pretended, that the custom of tanistr}- was determined by the conquest of Ireland, but b}- the new settlement made there after the conquest : That it was im- possible the laws of this nation, by mere conquest, without more, should take place in a conquered country; because, for a time, there must want officers, without which our laws can have no force : That if our law did take place, yet the}- in Jamaica having power to make new laws, our general laws maybe altered b}' theirs in pnrtictilnrs ; also they held, that in the case of an infidel country, their laws hy conquest do not entirely cease, but only such as are against the law of God ; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment jyro qxier} 1 Another report of the same case may he found in 4 Mod. 222. In th^it case the Court is reported to have said : " And therefore it was held, that Jamaica was not gov- erned by the laws of England after the conquest thereof, till new laws were made : for they had neither sherifT or counties; they were only an assembly of popple whi^'h are not bound by our laws, unless particularly mentioned. In Barbadoes all frepholds are subject to debts, and are esteemed as chattels till the creditors are satisfied, and then the lands descend to an heir ; but the law is otherwise here ; which shows that though that island is parcel of the possessions of England, yet it is not governed by the laws made here, but by their own particular laws and customs," Ace. Earl Derby's Case, 2 And. 116 ; Mem- 2 P. Wms. 75. See Cross v. Harrison, 16 How. 161; Airhart v. Massieu, 98 U. S. 491. — Ed. SECT. II. J ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. 67 THE ADVOCATE-GEXERAL OF BENGAL v. RAXEE SURNOMOYE DOSSEE. Judicial Committee of the Privy Council. 1863. [Reported 2 Moore's Privy Council, new series, 22. ] Their Lordships' judgment was now delivered bj- The Right Hon. Lord Kingsdown. The question in this case arises on the claim of the Crown to a por- tion of the personal estate of Rajah Kistonauth Ro}-, who destroyed himself in Calcutta on the 31st of October, 184:4, and was found by inquisition to have been felo de se. We understand that the Rajah had a residence in Calcutta, though his Raj, or Zcmindary, was at some distance from that city. He was a Hindoo both by birth and religion. On the morning of the day on which he destroyed himself he made a will, by which he left a large portion of his property to the East India Company for charitable purposes. Tlie will was disputed by his widow, who was his heiress, and a suit was instituted by her against the East India Company and others, to determine its validity. It was agreed between the litigating parties that the question should be tried by an issue at law. The widow in- sisted, amongst other objections, that the testator was not in a fit state of mind to make a will at the time of its execution. The issue was tried, and a verdict was found by the judges against the will, upon what ground does not distinctly appear, and the verdict was acquiesced in b}' the Indian Government. If the Crown, by virtue of the inquisition, was entitled to all the per- sonal propert}' of the Rajah, the validity or invalidity of the will was, as regards his personal estate, of no importance. Now, the inquisition had found that the goods and chattels of the Rajah when he committed self-murder amounted within Calcutta to Rs. 9, 87, 063, and without the town of Calcutta to Rs. 2, 89, 500 ; and it stated that all his propert}' was claimed by the widow. No claim of an}- part of it appears at that time to have been set up by the East India Company on behalf of the Crown, and very large sums were from time to time, by the order, or with the consent of the Indian Government, paid over to the widow in the years 1846 and 1847. A portion, however, of the Rajah's personal estate, amounting to between six and seven lacs of Rupees, was secured in the Supreme Court, in order to provide for the payment of life annuities to two ladies, both then living. The existence of these charges seems to have been the only reason why this fund was not transferred to the widow with the rest of the estate. One of the annuitants is now dead, and the fund reserved to answer 68 ADVOCATE-GENERAL V. KANEE SURNOMOYE DOSSEE. [CHA?. I. her annuitj' is of course set free. This fund is now claimed by the Indian Government under the finding on the inquisition of 1844. It is stated in the affidavit of a gentleman who was manager for the widow on the death of her husband, that he was advised in 1844, by three English counsel of eminence, whom he names, that the verdict on the inquisition might be set aside on the ground both of misdirec- tion by the coroner, and as being against the weight of evidence, but that proceedings were not taken for that purpose, because the govern- ment represented, through its law agents, that no claim would ever be made under the verdict. If the facts be such as we have stated, it is impossible not to feel some surprise at the present demand ; and, if we differed from the court below, it would deserve much consideration, whether a claim which seems to have been abandoned in 1844, ought now to be enter- tained. But these facts do not seem to have been noticed by the judges in India; there ma}' possibly be circumstances with which we are unacquainted to account for the course taken by the government, and we think it better to dispose of the case on the merits. At what time then, and in what manner, did the forfeiture attached by the law of England to the personal property' of persons committing suicide in that countr}', become extended to a Hindoo committing the same act in Calcutta? The sum of the appellant's argument was this : that the English Criminal Law was applicable to natives as well as Europeans witliin Calcutta, at the time when the death of the Rajah took place, and the sovereignty of the English Crown was at that time established ; that the English settlers when they first went out to the East Indies in tlie reign of Queen Elizabeth took with them the whole law of England, both civil and criminal, unless so far as it was inapplicable to them in their new condition ; that the law oZfelo de se was a part of the crimi-^ nal law of England which is not inapplicable to them in their new con- dition, and that it, therefore, became part of the law of the country. Where Englishmen establish themselves in an uninhabited or bar- barous country, they carry with them not only the laws, but the sove- reignty of their own State ; and those who live amongst them and become members of their community become also partakers of, and subject to the same laws. But this was not the nature of the first settlement made in India — it was a settlement made by a few foreigners for the purposes of trade in a very populous and highly civilized country, under the government of a powerful Mohammedan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. If the settlement had been made in a Christian country of Europe, the settlers would have become Subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories, which thev were SECT. II.] ADVOCATE-GENERAL V. RANEE SURNOMOYE DOSSEE. 69 permitted by the ruling powers of India to establish ; but this was not on the ground of general international law, or because the Crown of England or the laws of England had an}- proper authorit}- in India, but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage of his judgment in the case of •' The Indian Chief." (3 Rob. Adm. Rep. 28). The laws and usages of Eastern countries where Christianit}- does not prevail are so at variance with all the principles, feelings, and habits of European Christians that they have usually been allowed b}' the indulgence or weakness of the potentates of those countries to re- tain the use of their own laws, and their factories have for many pur- poses been treated as part of the territory of the Sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to natives within the same limits, who remain to all intents and purposes subjects of their own Sovereign, and to whom European laws and usages are as little suited as the laws of the Mohammedans and Hindoos are suited to Euro- peans. These principles are too clear to require any authority to sup- port them, but they are recognized in the judgment to which we have above referred. But, if the English laws were not applicable to Hindoos on the first settlement of the countr}', how could the subsequent acquisition of the rights of sovereignty by the English Crown make any alteration? It might enable the Crown by express enactment to alter the laws of the countr}", but until so altered the laws remained unchanged. The ques- tion, therefore, and the sole question in this case is, whether b}- ex- press enactment the English law of/elo de se, including the forfeiture attached to it, had been extended in the year 1844 to Hindoos destroy- ing themselves in Calcutta. We were referred b}' Mr. Melvill, in his very able argument, to the charter of Charles II. in 1661, as the first, and indeed the only one which in express terms introduces English law into the East Indies. It gave authorit}' to the company to appoint governors of the several places where the}' had or should have factories, and it authorized such governors and their council to judge all persons belonging to the said company, or that should live under them, in all causes, whether civil or criminal, according to the laws of the kingdom of England, and to execute judgment accordingly. The English Crown, however, at this time clearly had no jurisdiction over the native subjects of the Mogul, and the charter was admitted by Mr. Melvill (as we understood him) to apply only to the European ser- vants of the company ; at all events it could have no application to the question now under consideration. The English law, civil and crimi- nal, has been usually considered to have been made applicable to natives, within the limits of Calcutta, in the year 1726, by the charter, 13th Geo. I. Neither that nor the subsequent charters expressly de- clare that the English law shall be so applied, but it seems to have 70 ADVOCATE-GENERAL V. RANEE SURXOMOYE DOSSEE. [CHAP. I. been held to be the necessaiy consequence of the provisions contained in them. But none of these charters contained any forms apphcable to the punishment, by forfeiture or otherwise, of the crime of self-murder, and with respect to other offences to which the charters did extend, the application of the Criminal law of England to natives not Chris- tians, to Mohammedans and Hindoos, has been treated as subject to qualifications without which the execution of the law would have been attended with intolerable injustice and cruelt\'. To apply the law which punishes the marrying a second wife whilst the first is living, to a people amongst whun:i polygamy is a recognized institution, would have been monstrous, and accordingly it has not been so applied. In like manner, the law, which in England most justl}- punishes as a heinous offence, the carnal knowledge of a female under ten years of age, cannot with anj' propriety be applied to a country* where puberty commences at a much earlier age, and where females are not unfre- quentl}' married at the age of ten years. Accordingl}', in the case referred to in the argument, the law was held not to apply. Is the law of forfeiture for suicide one which can be considered prop- erly applicable to Hindoos and Mohammedans? The grounds on which suicide is treated in England as an offence against the law, and punished by forfeiture of the offender's goods and chattels to the King, are stated more fully in the case of Hales v. Petit, in Plowden's Reports, p. 261, than in any other book which we have met with. It is there stated that it is an offence against nature, against God, and against the King. Against nature, because against the in- stinct of self-preservation ; against God, because against the command- ment, " Thou shalt not kill," and a/elo de se kills his own soul ; against the King, in that thereb}' he loses a subject. Can these considerations extend to native Indians, not Christians, not recognizing the authority of the Decalogue, and owing at the time ■when this law is supposed to have been introduced no allegiance to the King of Great Britain? The nature of the punishment also is ver}' little applicable to such persons. A part of it is, that the bod^' of the offender shall be de- prived of the rites of Christian burial in consecrated ground. The for- feiture extends to chattels real and personal, but not to real estates ; these distinctions, at least in the sense in which they are under stood in England, not being known or intelligible to Hindoos and Mohammedans. Self-destruction, though treated by the law of England as murder, and spoken of in tlie case to which we have referred in Plowden as the worst of all murders, is reall}-, as it affects society, and in a moral and religious point of view, of a character ver}' different not only from all murders but from all other felonies. These distinctions aie pointed SECT. IL] advocate-general V. RANEE SURNOMOYE DOSSEE. 71 out with great force and clearness in tiie notes attached to the Indian code, as originally prepared b}' Lord Macaulay and the other Commis- sioners. Tlie truth is, that the act is one which in countries not in- fluenced by the doctrines of Christianity has been regarded as deriving its moral character altogether from the circumstances in wliich it is committed: sometimes as blameable, sometimes as justifiable, some- times as meritorious, or even an act of positive duty. In tliis light suicide seems to have been viewed by the founders of the Hindoo Code, who condemn it in ordinary cases as forbidden by their religion ; but in others, as in the well-known instances of Suttee and self-immolation under the car of Juggernaut, treat it as an act of great religious merit. We think, therefore, the law under consideration inapplicable to Hindoos, and if it had been introduced b}' the charters in question with respect to Europeans, we should think that Hindoos would have been excepted from its operation. Bat that it was not so introduced appears to us to be shown by the admirable judgment of Sir Barnes Peacock in this case ; and if it were not so introduced, then as regards natives, it never had an}' existence. It) would not necessarilv follow that, therefore, it never had existed as regards Europeans. That question would depend upon this, whether, when the original settlers, under the protection of their own Sovereign, were governed by their ow'n laws, those laws included the one now under consideration ; whether an offence of this description was an oflfence against tlie King's peace, for which he was entitled to claim forfeiture ; whether the factor\' could for tliis purpose be considered as within his jurisdiction. In that case it might be that the subsequent appointment of coroners by the Act of the 33rd Geo. III. would render effectual a right previously existing, but for the recovery of which no adequate remedy had been previoush' provided. We are not quite sure whether the court below intended to deter- mine this point or not. Much of the reasoning in the judgment is applicable to Europeans as well as to natives, but the Chief Justice in his judgment says : " At present we have mereh' to consider the ques- tion, so far as it relates to the goods and chattels of a native who wil- fully and intentionally destroys himself, and who cannot in strictness be called a./elo cle se; and we now proceed to deal with that question, and with that question alone." The point so decided we think perfectly clear, and it is not necessary to go further. Since the new code, which confines the penalty of for- feiture within much narrower limits than existed previously to its enactment, and does not extend it to the property of persons com- mitting suicide, the case can hardly again arise. We have no doubt that it is our duty in this case humbly to advise Her Majesty to dismiss the appeal, with costs. 72 COMMONWEALTH V. CHAPMAN. [CHAP. L COMMONWEALTH v. CHAPMAN. Supreme Judicial Court of Massachusetts. 1848. [Reported 13 Metcalf, 68.] Shaw, C. J. This was an indictment against tlie defendants for a false and malicious libel, tried before the Court of Common Pleas, and, upon a conviction there, the case is brought before this court, upon an exception which has been most elaborately argued by the learned counsel for the defendants, and which, if sustained, must go to the foundation of the prosecution ; narael}-, tbat there is no law of this Commonwealth by which the writing and publishing of a malicious libel can be prosecuted by indictment, and punished as an offence. The proposition struck us with great surprise, as a most startling one ; but as it was seriously presented and earnestly urged in argument, we felt bound to listen, and give it the most careful consideration; but after the fullest deliberation, we are constrained to say, that we can enter- tain no more doubt upon the point than we did when it was first offered. It is true that there is no statute of the Commonwealth declaring the writing or publishing of a written libel, or a malicious libel, by signs and pictures, a punishable offence. But this goes little wa}' towards settling the question. A great part of the municipal law of Massa- chusetts, both civil and criminal, is an unwritten and traditionary law. It has been common to denominate this "the common law of Eng- J, land," because it is no doubt true that a large portion of it has been derived from the laws of England, either the common law of England, or those English statutes passed before the emigration of our ancestors, ^ and constituting a part of that law, by which, as English subjects, they^'^?T were governed when they emigrated ; or statutes made afterwards, of a ^ general nature, in amendment or modification of the common law, which were adopted in the colony or province b}' general consent. In addition to these sources of unwritten law, some usages, growing out of the peculiar situation and exigencies of the earlier settlers of Massachusetts, not traceable to an}' written statute or ordinance, but ~lLI adopted b}' general consent, have long had the force of law ; as, for instance, the convenient practice, by which, if a married woman join with her husband in a deed conveying land of which she is seized in her own right, and simply acknowledge it before a magistrate, it shall be valid to pass her land, without the more expensive process of a fine, required by the common law. Indeed, considering all these sources of unwritten and traditionary law, it is now more accurate, instead of the common law of I^ngland, which constitutes a part of it, to call it col- lectively the common law of Massachusetts. To a very great extent, the unwritten law constitutes the basis of our jurisprudence, and furnishes the rules by which public and private riglits SECT. II.] COMMONWEALTH V. CHAPMAN. 73 are established and secured, the social relations of all persons regulated, their rights, duties, and obligations determined, and all violations of duty redressed and punished. Without its aid, tlie written law, em- bracing the constitution and statute laws, would constitute but a lame, partial, and impracticable system. Even in man}' cases, where statutes have been made in respect to particular subjects, they could not be carried into effect, and must remain a dead letter, without the aid of the common law. In cases of murder and manslaughter, the statute declares the punishment ; but what acts shall constitute murder, what manslaughter, or what justiflable or excusable homicide, are left to be decided b}' the rules and principles of the common law. So, if an act is made criminal, but no mode of prosecution is directed, or no punishment provided, the common law furnishes its ready aid, pre- scribing the mode of prosecution by indictment, the common law punishment of fine and imprisonment. Indeed, it seems to be too obvious to require argument, that without the common law, our legis- lation and jurisprudence would be impotent, and wholly deficient in completeness and symmetrj-, as a S3-stem of municipal law. It will not be necessary here to consider at large the sources of the unwritten law, its authorit}- as a binding rule, derived from long and general acquiescence, its provisions, limits, qualifications, and excep- tions, as established by well authenticated usage and tradition. It is sufficient to refer to 1 Bl. Com. 63 et seq. If it be asked, " How are these customs or maxims, constituting the common law to be known, and b}- whom is their validity to be deter- mined?" Blackstone furnishes the answer; ''by the judges in the several courts of justice. They are the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by oath to decide according to the law of the land. Their knowledge of that law is derived from experience and study," " and from being long personally accustomed to the judicial decisions of their predecessors." 1 Bl. Com. 69. Of course, in coming to any such decision, judges are bound to resort to'the best sources of instruction, such as the records of courts of justice, well authenticated histories of trials, and books of reports, digests, and brief statements of such decisions, prepared by suitable persons, and the treatises of sages of the profession, whose works have an established reputation for correctness. That there is such a thing as a common or unwritten law of Massa- chusetts, and that, when it can be authentically established and sus- tained, it is of equal authority and binding force with the statute law, seems not seriously contested in the argument before us. But it is urged that, in the range and scope of this unwritten law, there is no provision which renders the writing or publLshiug of a malicious libel punishable as a criminal offence. The stress of the argument of the learned counsel is derived from a supposed qualification of the general proposition in the constitution of 74 COMMONWEALTH V. CHAPMAN. [CHAP. I. Massachusetts, usually relied on in proof of the continuance in force of the rules and principles of the common law, as they existed before the adoption of the constitution. The clause is this: Chap. 6, Art. 1, Sect. 6 : " All the laws which have been adopted, used, and approved in the province, colony, or state of Massachusetts Bay and usually prac- tised on in the courts of law, shall still remain and be in full force until altered or repealed by the legislature ; such parts only excepted as are repugnant to the rights and liberties contained in this constitution." It is then argued, that it is in virtue of this clause of the constitu- tion that the common law of England, and all other laws existing before the revolution, remain in force, and that this clause so far modifies the general proposition, that no laws are saved, but those which have been actually applied to cases in judgment in a court of legal proceeding ; and unless it can be shown affirmatively that some judgment has been rendered, at some time before the adoption of the constitution, affirmative of any particular rule or principle of the common law, such rule is not brougiit within the saving power of this clause, and cannot therefore be shown to exist. We doubt the sound- ness of this proposition, and the correctness of the conclusion drawn from it. ' We do not accede to the proposition, that the present existence and effect of the whole body of law, which existed before the constitution, depends solel}' upon this provision of it. We take it to be a well- settled principle, acknowledged by all civilized states governed by law, that by means of a political revolution, b}- which the political organization is changed, the municipal laws, regulating their so(;ial relations, duties, and rights, ai'e not necessaril}' abrogated. They remain in force, except so far as they are repealed or modified by the new sovereign authority. Indeed, the existence of this bod\' of laws, and the social and personal rights dependent upon them, from 1776, when the Declaration of Independence was made, and our political revolution took place, to 17S0, when this constitution was adopted, depend on this principle. The clause in the constitution, therefore, though highly proper and expedient to remove doubts, and give greater assurance to the cautious and timid, was not necessary' to preserve all prior laws in force, and was rather declaratory of an existing rule, than the enactment of a new one. We think, therefore, it should have such a construction as best to carry into effect the great principle it was intended to establish. But further; v^^e think the argument is unsound in assuming that no rule of the common law can be established under this clause of the constitution, without showing affirmatively, that in some judicial pro- ceeding, such rule of law has been drawn in question and affirmed, previously to the adoption of the constitution. During that time there were no published report of judicial proceedings. The records of courts were very imperfectly kept, and afford but little information in SECT. II.] COMMONWEALTH V. CHAPMAN. 75 regard to the rules of law discussed and adopted in them. And who has examined all the records of all the criminal courts of Massachu- setts, and can declare that no records of such prosecutions can be found? But so far as it regards libel, as a criminal offence, we lliink it does appear, from the very full and careful examination of the late Judge Thacher (^Commonwealth v. W/uti/ucrsh, Thacher's Crim. Cases, 441), that many prosecutions for Ubel were instituted in the criminal courts before the Revolution, and none were ever quashed or otherwise disposed of, on the ground that there was no law rendering libels punisliable. In the case of the indictments returned against Governor Gage and others, very much against the will of the judges, those indictments were received and filed, and remained, until non prossed b}' the king's attorney-general. This investigation of the histor}' of the common law of Massachusetts is so thorough, complete, and satisfactory, that it is sufficient to refer to it, as a clear elucidation of the subject. But we think there is another species of evidence to prove the existence of the common law, making libel an offence punishable by law, clear, satisfactory, and decisive ; and that is, these rules of law, with some modification, caused b}" the provisions of the constitution, have been affirmed, declared, and ratified by the judiciary and the legislative departments of the existing government of Massachusetts, by those whose appropriate province and constitutional duty it was to act and decide upon them ; so that they now stand upon a basis of authoritj- which cannot be shaken, and must so stand until altered or modified b}- the legislature. When our ancestors first settled this countrv, they came here as English subjects ; the}' settled on the land as English territor\', con- stituting part of the realm of England, and of course governed b}' its laws ; they accepted charters from the English government, conferring both political powers and civil privileges ; and the}' never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till tiie Revolution. It is not therefore, perhaps, so accurate to say that they established the laws of England here, as to say, that the}- were subject to the laws of England. When they left one portion of its territory, the}' were alike subject, on their transit and when they arrived at anotiier portion of the English territory ; and therefore always, till the Declaration of Independence, they were governed and protected by the laws of Eng- land, so far as those laws were applicable to their state and condition. Under this category must come all municipal laws regulating and securing the rights of real and personal property, of person and per- sonal liberty, of habitation, of reputation and character, and of peace. The laws designed for the protection of reputation and character, and to prevent private quarrels, affrays, and breaches of peace, by punish- ing malicious libel, were as important and as applicable to tiie state and condition of the colonists as the law punishing violations of the 76 FIRST NATIONAL BANK V. KINNER. [CHAP. I. rights of property, of person, or of habitation; that is, as la^-s for punishing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessarilj^ applied to all English subjects and terri- tories, as well in America as in Great Britain, and so continued applic- able till the Declaration of Independence. This, therefore, would be evidence, a priori^ that they were in force, and were adopted by the clause cited from the constitution, except so far as modified by the excepting clause. That the law of libel existed, at the first migration of our ancestors, and during the whole period of the colonial and provincial governments, is proved by a series of unquestionable authorities.^ JEJxcejHions overruled. Emerson, J., in First National Bank u. Kinner, 1 Utah, 100 (1873). In American Ins. Co. v. Canter, 1 Pet. 511, the court, b}' Judge Mar- shall, say, substantial!}', that the laws of Florida, as the\' were when the Territory was ceded, so far as not inconsistent with the Consti- tution and Laws of the United States, continued in force until altered by the newly created power of the State. (See, also, United States v. Powers, 11 How. 570; Strothers v. Lucas, 12 Pet. 410, 436.) This appears to be the settled doctrine in regard to conquered and ceded Territory in the absence of special treat}' stipulation. It applies to territory' acquired from Mexico, since tlie treaty of Guadaloupe made no special provision on the subject. Utah was embraced in that ac- quisition. As in Florida the pre-existing law was Spanish, so in Utah, it was Mexican, and in both cases the laws were derived mainly from the laws of Rome. In neither did the English common law, or the Statute of Frauds, prevail. Congress made no special change, and the Territorial Legislature, upon whom authority was conferred, have made no express enactment upon the subject. This Territorv was first settled in 1847, and from that time up to the acquisition and treat}' in 1848, the settlers were comparatively few in number. There were no settled laws, usages, and customs among them. They came here as American citizens, under the flag, and claiming the protection of the United States Government. The particular class of persons forming the great, if not the entire bulk of emigrants, claim to have furnished troops from among their own numbers to assist this Government in its war against Mexico. At the time of the acquisition and treaty, they could not claim Mexi- can citizenship, and have never adopted its laws and customs. Soon after the change of sovereignty by the treaty, emigrants in 1 The learned Chief Justice proceeded to show that these autliorities had been followed iu Massachusetts since the adoption of the constitution. — Ed. SECT. II.] CHAPPELL V. JARDINE. 77 large numbers flocked in from the States and surrounding Territories, and for many years there has been an organized community. When we turn to the communities from whence these emigrants pro- ceeded, we find that they differed one from another, more or less, in regard to their laws and institutions. No two are alike. In the most, it is true, many common-law principles and doctrines were in force. Still the body of the common law in each was peculiar to the particular State, and it was rather the common law of the State than the English common law. In some, the English statutes had been received as common law; in others, not. These diversities make it impossible to assume that any specific body of the common law was transplanted to the Territory by the fact of immigration. But one course was open, and that was for the whole body of the people to agree, expressly or tacitly, upon a common measure. It was to be expected that the emigrants would not be contented with the loose and alien institutions of an outlying Mexican department, and they have not been. They have tacitly agreed upon maxims and principles of the common law suited to their conditions and consistent with the Constitution and Laws of the United States, and they only wait recognition by the courts to become the common law of the Territory. When so recognized, they are laws as certainly as if expressly adopted by the law-making power. CHAPPELL V. JARDINE. Supreme Court of Errors of Connecticut. 1884. [Reported 51 Connecticut, 64.] Park, C. J.* This is a suit for the foreclosure of certain mortgaged premises, constituting an island, known as Ram Island, in Long Island Sound. The complaint alleges that the land mortgaged, at the time the deed was given, lay in the town of Southhold, Suffolk County, in the State of New York, and it is averred that the mortgage was re- corded in the office of the clerk of Suffolk County iu that State. It is further alleged that Ram Island, by the recent establishment of the boundary line between the State of New York and this State, has be- come a part of the town of Stonington in this State. The complaint is demurred to, so that the averment stands admitted that the island was, when the mortgage was made, a part of the State of New York. We have heretofore held (Elphick v. Hoflfman, id Conn. 381) that the boundary agreed upon by the joint commission of the two Stales and established by the legislative acceptance of both States, was to be regarded as presumably a designation and establishment of the pre- 1 Part of the opinion is omitted. — Ed. 78 CHAPPELL V. JAEDINE. [CIIAP. I. existing boundar}' line which had become lost, and not as the establish- ment of a new line, leaving the matter open to proof in special cases. If we should apply that rule here, and consider the island in question as having been legally a part of this State when the mortgage was made, we should at once encounter another question of a serious nature. There can be no question that whatever has been the de jure jurisdic- tion over the island, it has been for man}' 3'ears within the de facto jurisdiction of the State of New York; and we should be compelled lo determine the legal effect upon this mortgage of that de facto jurisdic- tion. We have thought it as well, therefore, to take the case as the parties have themselves presented it, the plaintiff b}' the averments of his com- plaint and the defendants by tlie admissions of their demurrer, and regard the island in question as liaving been within the State of New York when the mortgage was made, and afterwards brought within this State by the establishment of the boundary line. Indeed as tlie proceeding is in error we cannot properly govern ourselves by anything but the record as it comes before us. And in treating the island as within the State of New York when the mortgage was made we are regarding the contract and the rights of the parties under it, precisely as they themselves understood them at the time. The mortgaged premises having been in the State of New York when the mortgage was made, it is of course to be governed in its construc- tion and effect by the laws of that State then in force. In McCormick V. Sullivant, 10 Wheat. 192, the court say: "It is an acknowledged principle of law that the title and disposition of real property is exclu- sively subject to the laws of the countrj- where it is situated, which can alone prescribe the mode bj' which a title to it can pass from one per- son to another." The same doctrine is held in United States v. Crosby, 7 Cranch, 115, Kerr v. Moon, 9 Wheat. 565, Darby v. Mayer, 10 id. 465, and in man}' other cases. Indeed the doctrine is unquestioned law everywhere. Now, according to the laws of the State of New York then and still in force, a mortgage of real estate creates a mere chose in action, a pledge, a security for the debt. It conveys no title to the property. The claim of the mortgagee is a mere chattel interest. He has no right to the possession of the property. The title and seisin remain in the mortgagor, and he can maintain trespass and ejectment against the mortgagee, if he takes possession of the property without the consent of the mortgagor. This appears clearly from the following cases. ^ It follows, therefore, that while the land in question remained in the State of New York, it was incumbered by a mortgage of this character ; 1 The learned judge here cited and discussed the following cases : Gardner i>. Henrtt, 8 Den. 232 ; Power v. Lester, 23 N. Y. 527 ; Ttimra v. Marsh, 64 N. Y. 599 ; Jackson V. Willard, 4 Johns. 42 ; Aator v. Hoyt, 6 Wend. 603 ; Kortright v. Cady, 21 N. Y. 848 ; Merritt v. Bartholick, 36 N. Y. 44. — Ed. SECT. II.] CIIArPELL V. JAKDINE. 79 and when it came into this State it bore witli it the same burden pre- cisel}-. There was nothing in the change of jurisdiction that could affect the contract of mortgage tliat had been made between the parties. The title to the property continued to remain in the mortgagor, and it remains in him still. This is clear. The laws of this State could not make a new contract for the parties or add to one already made. The}' had to take the contract as they found it. Now it is clear that there is no remedy by waj' of foreclosure known to our law which is adapted or appropriate to giving relief on a mort- gage of this character. Our remedy is adapted to a mortgage deed which conveys the title of tlie propert}- to the mortgagee, and when the law da}' has passed, tiie forfeiture, stated in the deed, becomes at)solute at law, and vests a full and complete title in the mortgagee, with the exception of the equitable right of redemption, which still remains iu the mortgagor. The object of the decree of foreclosure is, to extin- guish this right of redemption if the mortgage debt is not paid by a specified time. The decree acts upon this right only. It conveys nothing to and decrees nothing in the mortgage if the debt is not paid. After the law day has passed the right of redemption becomes a mere cloud on the title the mortgagee then has, and when it is removed his title becomes clear and perfect. Phelps v. Sage, 2 Da}*, 151 ; Roath V. Smith, 5 Conn. 136; Chamberlin v. Thompson, 10 id. 244; Porter V. Seeley, 13 id. 564; Smith v. Vincent, 12 id. 1; Doton v. Russell, 17 id. 151; Cross v. Robinson, 21 id. 379; Dudley v. Caldwell, 19 id. 218 ; Colwell v. Warner, 36 id. 224. What effect would such a decree produce upon a mortgage like the one under consideration, where the legal title remains in the mortgagor, and nothing but a pledgee's interest is in the mortgagee, even after the debt becomes due? It could only extinguish the right of redemption, if it could do that. It could not give the mortgagee the right of pos- session of the property, for the mortgagor has still the legal title, which carries with it the right of possession. It would require another pro- ceeding in equity, to say the least, to dispossess him of that title, and vest it in the mortgagee. Hence it is clear that full redress cannot be given the plaintiff in this proceeding. But the plaintiff has a lien on the property in the nature of a pledge to secure payment of the mortgage debt. And although our remed}' of strict foreclosure may not be adapted to give redress to the plaintiff through the medium of such a lien, still a court of equity can devise a mode that will be appropriate ; for it would be strange if a lawful lien upon property to secure a debt could not be enforced according to its tenor by a court of chancery. It is said that every wrong has its remedy ; so it may be said that every case requiring equitable relief has its corresponding mode of redress. We have no doubt that a court of equity has the power to subject the property in question to the pay- ment of this debt, upon a proper complaint adapted to the purpose. When personal property is pledged to secure the payment of a debt, it 80 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. I. ma}' be taken and sold, that payment ma}' be made, after giving the pledgor a reasonable opportunity for redemption. So liere, we tliink a similar course might be taken with this property. Such a course would fall in with the original intent of the parties, and with tlie civil code and mode of procedure of the State of New York. Modes of redress in that State have of course no force in this State, but such a mode of procedure seems to be adapted to a case of this character. And we further think that on an amended complaint, setting forth all the essential facts, and praying that if there shall be a default in re- deeming the property during such time as the court shall allow for redemption, then the right of redemption shall be forever foreclosed, and the legal title and possession of the property be decreed in the mortgagee, such course might be taken. We think either of the modes suggested might be pursued ; but inas- much as the course which has been taken leaves the legal title and pos- session of the property in the mortgagor, we think the court erred in holding the complaint sufficient, and in passing the decree thereon. There is error in the judgment appealed from, and it is reversed, and the case remanded. In this opinion the other judges concurred. MORTIMER V. NEW YORK ELEVATED RAILROAD CO. Superior Court of the City of New York. 1889. [Reported 6 New York Supplement, 898.] Freedman, J. The claim made in this case by and on behalf of the elevated railway companies is that the absolute fee of the street known as the "Bowery" was, prior to the surrender of the Dutch forces to the English in 1664, in the Dutch government; that such fee thereafter went to the State or to the city of New York so abso- lutely that abutting owners never had, and do not now have, any ease- ment of any kind in said street, and that, the elevated railway running through the Bowery having been constructed with the consent of both the city and the State, neither its owners nor its lessees are liable for any injury inflipfpd npr>n qhnHino- pr opert y by reason of theconstruc- , t.inn_and operation olihe- r a ilway. ■ ~ "" The claim of the English that they were the owners, by right of discovery, under governmental authority, of the land of which the present city of New York forms a part, and that this gave them such exclusive ownership that the Dutch government acquired no title to the land which can be recognized, has been fully set forth in the opin- ion of Judge Truax. I concur in his remarks as far as they go, but wish to add the following, viz. : — SECT. 11.1 MORTIMER V. NEW YORK ELEVATED RAILROAD CO. 81 The claim of the English, it is true, has occasionally been criticised on the ground that neither of the Cabots landed in or near New York, or saw the coast of New York. The right of discovery is not recog- nized in the Roman law unless followed by occupation, or unless the intention of the sovereign or State to take possession be declared or made known to tlie world. And it must be conceded that modern diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing unless followed in a reasonable time b}' occupation and settlement, more or less permanent, under the sanction of the State. _^_t^ the question in the cas£ at bar 1$ not to_be decided according to the rules of the international law of the present time. It is a question purely between the public authorities of the State of" New York and citizens of the same State, and as such it is controlled- by the decisions referred to by Judge Truax, to the effect that what the English did do was sufficient to give them title by discovery,* and that such title is superior to the Indian title. These decisions proceeded upon the theory that the claim of the Dutch was contested* by the English from the very start, not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title ; and tliat the claim of the English was finally decided in their favor by the sword. That being so^it follows that, in contemplation of present law, neither Uie Dutch" nor the Roman law ever prevailed in the State of New Y^'ork de Jure,- and that the common law of England must be deemed to be the origi- nal source of all our law. And it further follows that the foundatioiis_; of the rights of owners of land abutting on a street laid out while the Dutch were in possession, as against the city or the State of New York, rest upon the English common la w, and th at they are not to be af- • lected by the Dutch or Roman law.. Reported cases in which the validity of Dutch grants was upheld between individuals have no application to the present controversy. Now, under the English common law, the presumption is^that the owners of lands, lying on a highway^ are, the owners of the fee of the highway ; that the owners on eacli side of the highway own the soil of the highway in fee to the centre of the highway ; and that the rights of the public in and to the highway are no higher or other than those of a mere easement. Wager v. Railroad Co., 25 N. Y. 529. This presumption applies as well to the streets of a city as to a country highway. Bissell v. Railroad Co., 23 N. Y. 61. This presumption of law is founded on the supposition that the wa}' was originally granted by the adjoining owners in equal proportions. Watrous v. Southworth, 5 Conn. 305. But the presumption may be rebutted by proof to the contrary, and it is rebutted b}' the production of a deed under which the owner derives title granting the land to the side of the street only. Under the operation of this rule, and there being no proof of alienation or escheat requiring a different conclusion, it must l^e assumed in this case that the original grantors from whom plaintiffs' 6 \ 82 MOETIMER V. NEW YORK ELEVATED RAILROAD CO. [CHAP. I. title has been derived owned the soil of the Bowery in front of the premises in suit to the centre of the street. But even if the title ot the English rested not in discovery, but in conquest, and the English, upon the surrender by the Dutch in 1664, acquired from the Dutch a title to the then existing streets as absolute as under the Roman law the title of the government to a military highway was, the fact would not improve the position of the defendants. Upon receiving such title the English could do with it what they pleased. They were not bound to enforce it against abutting owners, as the Dutch government might have enforced it. The presumption is that they took the title and the streets to be held by them according to their own laws, and as matter of fact they thereafter so dealt with said streets as to admit of no other conclusion. The province having been granted by Charles II. to his brother, the Duke of York, by the charter of 1664, several months before the surrender to Sir Richard NicoUs, the grant, in oi-der to remove all doubt as to its validity, was afterwards confirmed by the charter of 1674, also granted to the Duke of York. The object of both charters was to enable the Duke of Yoi-k to plant a colony on this continent. The charter of 1664, issued under the great seal of Eno-- land, contained a provision that the statutes, ordinances, etc., to be established by the Duke in the new country, "- should not be contrary to, but as nearly as might be agreeable to, the laws, statutes, and government of the realm of England." This charter was, therefore, in itself, an explicit declaration of the King's will that the laws of England should be established in the colony, and that the laws of the Dutch settlers should not be retained. The consequence was that, having obtained the lands, the English held them, not under the Dutch or the civil law, but under the common law of their own coun- try. English law governed English land, so that, even if an absolute title to a street was obtained, the street was ever thereafter treated as an English street, under the common law.^ 1 The learned jiidge then expressed the opinion that by subsequent acts of the Pro- prietor and of the State the city lost its rights, if any, to the legal fee. In his concurring opinion Truax, J., said : " I am of the opinion that the fee of the Bowery, and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government ; and that it was, prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutcli civil law'. While the Dutch were in actual possession this execution of the common law was suspended, just as, during the late Rebellion, this execution of the laws of the United States could not be enforced in some of the southern States. But, said the Supreme Court of the United States in Ketchum v. Buckley, 99 U. S. 188, " the same general form of government, the same general law for the administration of justice and the lirot(.ction of private rights which had existed in the States prior to the Rebellion, re- mained during its continuance and afterwards." See Ketchum v. Buckley, 99 U. S. 188, and cases cited. —Ed. SECT. II.] McKENNOX V. WINN. 83 McKENNON v. WINN. Supreme Court of Oklahoma Territory. 1893. [Reported 1 Oklahoma Reports, 327.] BuRFORD, J.^ The appellant filed his complaint in the court below to enforce the specific performance of a Qoii^r act for the conveyance of real estate situated in Oklahoma Cit}^ Oklahoma Count}', Oklahoma Territory'. A demurrer was filed to the complaint, alleging as grounds : First. That the cou r t^h as no ju risd ict ion of the person of defendant, or th e subject of_the_a£tiQiu Second. That the complaint does not state facts sufficient to constitute^ a cause--o£_actiQiL_ The demurrer was sustained, to wjiic h the appellant excepted and brings the case to Jthis court b}' appeaL_.— . . The second ground for demurrer presents two questions : First. Can a parol contract for the conveyance of real estate, or an interest therein, made after the settlement of this country, and prior to the adoption of our organic act, be enforced ? Second. Is a contract for the conveyance of real estate, entered into before title is acquired fi'«m the United States, and to be executed after title is acquired, void, as against public policy ? The first proposition seems to be settled by the adjudicated cases and text writers in favor of the appellant. " Every contract, on what- ^ever subject, may be in oral words, which will have the same effec t as_ ofjwritten, except when some_j30sitlYfi rule oT the common or sta t utory law has provided- otherwise^' Bish. Cont. § 153; Mallory u. Gillett, 21 N. Y. 412 ; Wyman v. Goodrich, 26 Wis. 21 ; Green v. Brookins, 23 Mich. 48 ; White v. Maynard, 111 Mass. 250. By the common law, prior to the enactment of the statute of frauds (29 Car. II. c. 3, A. D. 1676), ^contracts ior the sale of real estate, or an interest therein , were not required ta be^in writing. Bish. Cont. § 1231 ; 4 Kent Com. p. 450. The English-speaking people brought the common law to America with them, in the first settlement of the colonies ; and it has prevailed in all the States and Territories, modified by legislative acts, local conditions, and such of the English statutes adopted prior to the settlement of our colonies as were of general application, and suited to our conditions, except in some portions where the French or civil law prevailed. At the time of the settlement and discovery of America the statute of frauds had not been adopted, and has only become the law of the United States, or of our several States and Territories, by legislative enactment. *^ This leads us to the inquir}', Did the common law prevail in the Territory in April, 1889? It is contended that prior to the settlement of Oklahoma, and until the same was superseded by statutory laws, ^ Part of the opinion is omitted, — Ed. 84 McKINNON V. WINN. [CHAP. I. the Code Napoleon, or civil law, prevailed. Whatever may have been the laws of the country now known as Olilahoina, they ceased to operate in the region originally comprising tlie Indian Territory when the Territory ceased to be a part of the Territory of Louisi- ana, and the laws of the Territory of Indiana and the Territory of Missouri, which may have once prevailed in said region, became inoperative in and ceased to have any force or effect in the Indian Territory, when that Territory ceased to be a part of said Territories. Kailroad Co. v. O'Loughlin, 49 Fed. Rep. 440. There was no law in the Indian Territory regulating the making of contracts at the time of the approval of the Act of Congress establishing a United States dis- trict court in said Territory by the act of March 1, 1889. 25 Stat. 783. Congress, with the assent of the Indians, created the court for the whole of the Indian Territory, which included Oklahoma, and con- ferred on it jurisdiction in all civil cases between citizens of the United States who are residents of the Territory, or between citizens of the United States or of any State or Territory, and any citizen of, or person residing or found in, the Indian Territory. It gave the court author- ity, and imposed upon it the dut\', to apply the established rul es a nd principles of the common law to the adjudication of those cases_Qf_ which it was given jurisdiction. Pyeatt v. Powell, 51 Fed. Rep. 551. But if it be held, that the establishment of a United States court in the Indian Territory did not put the common law in force in said Territor}', except in so far as was necessary to execute the powers of said court, and for the adjudication of such cases as actually went into that forum, then there was no law in Oklahoma, at the date of its settlement, regulating the making of contracts. If this should be conceded, then it necessarily follows, on principle, that when people from all parts of the United States, on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the- established principles and rules of the common law, as recognized and promulgated by the American co,urtSi__ and as it existed when imported into this country by our early settlers, "and unmodified by American or English statutes. ^So that, nT^anv event, t he common law prevail ed, in Oklnliomn. nt t.hp time lh£ . con- tract between the appellant ^and-ap^jellee was entered into ; mid a^, at _eommpn lajE, contracts Jbr the sale aud^onveyance of Jiealestate weriT* not re^Luired to be_inj5u:Jtingi_the contract mentioned in .the_ .compJamT '^may be enforced, unless void for other reasons.l^ 1 The contract was held not to be void on the ground alleged: the court followed on this poftit Lamb v. Davenijort, 18 Wall. 307. — Ed. SECT. III.] SELIM FARAG V. DAME ROSINA MARDROUS ET AL. 85 SECTION TIL CONCURRENT LEGISLATIVE JURISDICTION. MATTHEWS v. BURDETT. Queen's Bench. 1703. [Reported 2 Salkeld, 412.] In the primitive church, the laity were present at all synods. When the empire became Christian, no canon was made without the Emperor's consent; the Emperor's consent included that of the people, he having in himself the whole legislative power, which our kings have not. Therefore, if the King and clergy make a canon it binds the clergy in re ecclesiastica, but it does not bind laymen : they are not represented in Convocation ; their consent is neither asked nor given.^ SELIM FARAG v. DAME ROSINA MARDROUS ET AL. Court of Appeal of Alexandria (Egyptian Mixed Court). 1894. 19 Juris, des Trih, de la Riforme, 231. The Armenian Catholic Patriarch of Constantinople on August 23, 1886, and on November 18, 1887 pronounced a judicial separation between Selim Farag and his wife, and condemned him to pay her 33,000 francs damages and 300 francs a month alimony. One Back, a creditor of Mrs. Farag, made a judicial seizure of the sum thus due from Selim Farag. On January 20, 1891, after due notice, Selim Farag appealed from the decision of the Patriarch to the Holy See ; and the Congregation de propagoMda fide^ to which the matter was referred, by a decision of June 27, 1892 (approved by the Pope the same day) , reversed both sentences of the Patriarch.'^ The Court. It will not be seriously questioned that if, as a result of the decision of the Holy Court of Rome, the sentences of the Patri- arch have been made void, all the rights which Mrs. Farag or those claiming under her asserted as a result of the sentences also became void : since the original title on which they were based has become null and without effect. The fundamental questions are therefore whether the Holy See exceeded the limits of its jurisdiction, and whether its decisions have binding force in Turkey. 1 See 21 E. 4. 44. pi. 6. — Ed. 2 This short statement of facts has been slightly altered in form from the statement of the court. Part of the opiuiou, upon a point of procedure, has been omitted. — Ed. 86 SELIM FARAG V. DAME ROSINA MARDROUS ET AJj. [CHAP. T. On the first point, the Pope is the head of the Catholic Church. His jurisdiction extends directly over all bishops for the maintenance of the unity of the faith and the discipline ; he is, as the Council of the Vati- can proclaims, the Supreme judge of the faitliful. The}' may appeal to him in all cases which are within the ecclesiastical jurisdiction ; his sovereign power extends over the churches of the Orient as well as over all other churches in the whole world. By a recent bull of July 20, 1883, addressed to the Patriarchs, Archbishops, and Bishops of the Oriental rites, the Congregation de propagcmda Jide has reminded them of this fundamental rule of jurisdiction, especially with regard to matrimonial causes: "To harmonize the rigorous observance of the Canon Law in this very important matter with the special conditions of the Ecclesiastical Courts of the Orient, appeals ought to be taken in the following order : if the first judgment has been given in the Dioce- san Court, appeal shall be taken to the Patiiarchal Court; and if judg' ment is given in the Patriarchal Court, appeal shall be taken to the Holy See." (Chap. IV., § 24). As to the Armenian Catholic Patriatxh of Constantinople, in particular, before he was proclaimed in the Con- sistory of August 4, 1881, Patriarch of Cilicia under the name of Peter IV., Mgr. Stephen Azarian had addressed to His Holiness Leo XIII. the profession of faith and obedience to the Hoi}' See, which he had pronounced before the Synod in the form prescribed by Urban VIII., and submitted himself to the authority' of the Roman Church in all things touching the faith, the discipline, and the administration of his patriarchate. There is no doubt, therefore, that in granting the appeal of Selim Farag against the decisions of the Patriarch, and in setting them aside, the Holy See has acted within the bounds of its jurisdiction and its powers. On the second point, far from disowning the authority and the right of jurisdiction of the heads of religions communities established in the Orient, the Sublime Porte has for a long time granted to these com- munities the most absolute right of conforming to the rules and rites of their religion. In such a spirit were promulgated the Hatti Humayoum on Februarj' 18, 1856, the organic rule of the Supreme Court of Con- stantinople on 8 Zilhedje, 1284, and the law of the Vilayets in 1867. The idea and intention of the Sublime Porte are made still clearer by its spontaneous declaration in the Treaty of Berlin on July 13, 1878 ; in which it is said that " the Sublime Porte having expressed the wish to maintain the principle of religious liberty and give it the widest ex- tension," it has been stipulated that " the liberty and the open practice of all cults are assured to every one, and no hindi-ance shall be placed m the way either of the hierarchical organization of the different com- munions or of their relations to their spiritual heads." The Berat of the Sultan, dated 21 Gamad Akher, 1303, accrediting the Patriarch Azarian after the confirmation of his election by the Holy See, inspired by the same principles, expressly imposes upon the Patri- arch respect and observance of the laws of his church, orders that the SECT. III.] PAPAYANNI V. RUSSIAN STEAM NAVIGATION CO. 87 Christians of his communion sh.iU be judged in accordance with the rules ot their rite and the laws of their religion, and makes the ob- servance and respect of these laws by the Patriarch the condition of his continuance during his life. The constant practice of the Catholic Patriarchates of the Orient, Syriac, Chaldee, Copt, Maronite, Armenian, and Latin, has certainly been to render legal decisions in the name of the Pope, and to take appeals to him, without any opposition on the part of the local authorities or of the Sublime Porte. It is only neces- sary to read the circulars of February 3 and April 1, 1891, to be con- vinced that the Sublime Porte, in decreeing that in future the decisions of the Patriarchates should be executed like the other judgments of the countr}', without any foreign intervention, had no other aim than to put such' decisions beyond the reach of objections brought by the defend* ants before the local courts charged with the execution of judgments, and to give the Patriarch alone jurisdiction to pass upon the objections. One might therefore rely upon these circulars to establish the doctrine that the Patriarch's decisions are in future sovereign, and beyond all appeal except to the superior jurisdiction of the Holy See. The decision of the Holy See, which has set aside the two sentences of the Armenian Catholic Patriarch of Constantinople, has m Turkey therefore, the authority of a sovereign judgment, and had the immedi- ate effect of quite avoiding the two sentences. Back and the heirs of Mardrous cannot in addition invoke the authority of the judgment of this court, January 29, 1891, and the Court of Cairo, January 28, 1892, which declared regular and valid the suits against Farag by virtue, and in execution of the Patriarchal sentences ; for these judgments were given before the Papal decision, which in setting aside the Patriarchal sentences has at the same time as necessary consequence avoided all the effects of the supposed res Judicata. It is in fact a principle of the Courts of the Reform that the setting aside or reversal of a judgment in any legal way caused the avoidance of the execution and of all de- cisions based on the judgment ; cessa^ite causa, cessat effectus. PAPAYANNI V. RUSSIAN STEAM NAVIGATION CO. Judicial Committee of the Privy Council. 1863. [Reported 2 Moore's Privy Council Cases, New Series, 161.] This was an appeal from two judgments in an action and cross- action, being a claim and counter-claim, respecting damage by collision off the Island of Marmora, whereby the steamer "Colchide" was lost, pronounced by 'the Judge of the Supreme Consular Court at Constantinople. The appellants were British subjects domiciled in England, and owners of the ''Laconia." The respondents were Rus- sian subjects, " The Russian Steam Navigation and Trading Company," a public company, incorporated by an Imperial ukase of His Majesty 88 PAPAYANNI V. KUSSIAN STEAM NAVIGATION CO. [CHAP. 1. the Emperor of Russia, and were tbe owners of the steamslii[, " Col- chide." . . . The appellants entered a protest against the _/urisdictioa of the Supreme Consular Court to entertain the cause of collision, it being a proceeding i?i rem} Their Lordships' judgment was pronounced by • Dr. Lushington. In considering what power and what jurisdiction was conceded to Great Britain within certain portions of the Turkish dominions, it must always be borne in mind that in almost -all trans- actions, whether political or mercantile, a wide difference subsists in the dealings between an Oriental and a Christian State and the inter- course between two Christian nations. This is an undoubted fact. Man}- of the reasons arc obvious, but this is not the occasion for discussing them. It is sufficient for us to know and acknowledge that such is the fact. It is true bej'ond all doubt that, as a matter of right, no State can claim jurisdiction of any kind within the territorial limits of another independent State. It is also true that between two Christian States all claims for jurisdiction of an}' kind, or exemption from jurisdiction, must be founded on treat}', or engagements of similar validity. Such, indeed, were factory establishments for the benefit of trade. But though, according to the laws and usages of European nations, a cession of jurisdiction to the subjects of one State within the territory' of another, "would require, generally at least, the sanction of a treat}', it may by no means follow that the same strict forms, the same pre- cision of treaty obligation, would be required or found in intercourse with the Ottoman Porte. It is true, as we have said, that if j'ou inquire as to the existence of any particular privileges conceded to one State in the dominions of another, you would, amongst European nations, look to the subsisting treaties ; but this mode of incurring obligations, or of investigating what has been conceded, is matter of custom and not of natural justice. Any mode of proof by which It is shown that a privilege Is conceded is, according to the principles of natural justice, sufficient for the pur- pose. The formality of a treaty is the best proof of the consent and acquiescence of parties, but it is not the only proof, nor does it exclude other proof; and more especially in transactions with Oriental States. Consent maj' be expressed in various ways : bj' constant usage permitted and acquiesced in by the authorities of the State, active assent, or silent acquiescence, where there must be full knowledge. We, having considered the materials before us, entertain no doubt that, so far as relates to the Ottoman Government, no objection is tenable against the exercise of jurisdiction between British and Rus- sian subjects. Indeed, the objection, if any such could properl}' be urged, should come from the Ottoman Government rather than a 1 The remainder of tho statement of facts, the arguments of counsel, and part of the opinion are omitted. — Ed. SECT, in.] IN RE ROSS. 89 British suitor, who, in this case, is bound b}- the law established by his own countr}'. The case ma}', in some degree, be assimilated to the violation of neutral territory by a belligerent; the neutral State alone can complain. We think, looking at the whole of this case, that so far as the Ottoman Government is concerned, it is sufficiently shown that they have acquiesced in allowing to the British Government a jurisdiction, whatsoever be its peculiar kind, between British subjects and the subjects of other Christian States. It appears to us that the course was Ibis : that at first, from the total difference of religious habits and feelings, it was necessar}' to withdraw as far as practicable British subjects from the native courts ; then in the progress of time commerce increasing, and various nations having the same inter- est in abstaining from resort to the tribunals of Mussulmans, etc., recourse was had to Consular Courts ; and bj' degrees the system be- came general. Of all this the Government of the Ottoman Porte must have been cognizant, and their long acquiescence proves consent. The principles are fully explained in the celebrated judgment of Lord Stowell in the case of "The Indian Chief" (3 C. Rob. 28), to which we have very recently referred (Advocate-General of Bengal v. Ranee Surnomoye Dossee, 2 Moo. P. C. 22, 60). Though the Ottoman Porte could give and has giA'en to the Christian Powers of Europe authorit}' to administer justice to their own subjects, according to their own laws, it neither has professed to give nor could give to one such Power any jurisdiction over the subjects of another Power. But it has left those Powers at liberty to deal with each other as they may think fit, and if the subjects of one country desire to resort to the tribunals of another, there can be no objection to their doing so with the consent of their own Sovereign and that of the Sove- reign to whose tribunals they resort. There is no compulsory power in an English Court in Turkey over any but English subjects ; but a Russian or any other foreigner maj^, if he pleases, voluntarily resort to it with the consent of his Sovereign, and thereby submit himself to its jurisdiction. In re ROSS. Supreme Court op The United States. 1890. {^Reported 140 United States Repwts, 453.] The petitioner below, the appellant here, was Imprisoned in the penitentiary at Albany in the State of New York. He was convicted on the 20th of May, 1880, in the American consular tribunal in Japan, of the crime of murder, committed on board of an American ship in the harbor of Yokohama in that empire, and sentenced to death. On the 6th of August following, his sentence was commuted by the President to imprisonment for life in the penitentiary at Albany, and 90 IN RE ROSS. [chap. I to that place he was taken, and there he has ever since been confined. Nearly ten years afterwards, on the 19th of March, 1890, he applied to the Circuit Court of the United States for the Northern District of New York for a writ of habeas corpus for his discliarge, alleging that his conviction, sentence, and iraprisonraent were unlawful, and stating the causes thereof and the attendant circumstances. The writ \vuf> issued, directed to the superintendent of the penitentiary, who made return that he held the petitioner under the warrant of the Presi- dent. . . . Field, J.^ The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdic- tion over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protect- ing their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. During those ages these commer- cial magistrates, generally designated as consuls, possessed to some extent a representative character, sometimes discharging judicial and diplomatic functions. In other than Christian countries they were, by treaty stipulations, usually clothed witli authority to hear complaints against their countrymen and to sit in judgment upon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries bordering on the Mediterranean, the exercise of this judicial authority became a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribunals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments inflicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful residence of Christians within those countries and the successful prosecution of commerce with their people. The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of judicial authority in other coun- tries b}' its officers appointed to reside therein. We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an * Part of the opinion only is given. — Ed. SECT. III.] IN RE ROSS. 91 undue accusation or an unfair trial, secured by the Constitution to citi- zens of the United States at home, should be enjoyed b}' them abroad. In none of the laws which have been passed by Congress to give effect to treaties of the kind has there been any attempt to require indictment by a grand jury before one can be called upon to answer for a public offence of that grade committed in those countries, or to secure a jury on the trial of the offence. Yet the laws on that subject have been passed without objection to their constitutionalit}'. Indeed, objection on that ground was never raised in any quarter, so far as we are in- formed, until a recent period. It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenable. By the Constitution a government is ordained and established " for the United States of America," and not for countries outside of their limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or pre- sentment b}' a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences committed elsewhere, and not to residents or teraporar}' sojourners abroad. Cook V. United States, 138 U. S. 157, 181. The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passen- gers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boundaries of the United States. And, besides, their enforcement abroad in numerous places, where it would be highly important to have consuls invested with judicial au- thority, would be impracticable from the impossibility of obtaining a competent grand or petit jur}'. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would de- feat the main purpose of investing the consul with judicial authority. While, therefore, in one aspect the American accused of crime com- mitted in those countries is deprived of the guarantees of the Constitu- tion against unjust accusation and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tri 92 FICHEKA V. DE STEENS. [CHAP. I. bunals, often arbitrary and oppressive, and sometimes acconipanied uitli extreme cruelt}' and torture. Letter of Mr. Gushing to Mr. Calhoun of September 29, 1844, accompanying President's message communicating abstract of treaty with China, Senate Doc. 58, 28th Cong. 2d Sess. ; Letter on Judicial Exterritorial Riglits b}' Secretar}- Frelinghuysen to Chairman of Senate Committee on Foreign Relations of April 29, 1882, Senate Doc. 89, 47th Cong. 1st Sess. ; Phillimore on Int. Law, vol. 2, part 7 ; Halleck on Int. Law, c. 41. . . . FICHERA V. DE STRENS. Belgian Coxsular Court, Cairo. 1887. [Reported 16 Clunet, 141.] The Court. The Constitution of February 7, 1831, cannot guaran- tee to Belgian citizens the enjoyment of their constitutional rights outside the limits of the national territory. It cannot have the effect of granting liberty of worship, of the press, of speech, and of assem- blage in countries which cannot tolerate such liberty. Therefore, the special measures of protection which are the corollary of it, like trial by jury in crimes concerning the press, cannot be invoked in the case of acts committed in a foreign country. One cannot rely upon the fiction of exterritoriality to argue that the crime imputed to the accused should be considered as having been committed in Belgium ; for this fiction cannot be pressed beyond its object, which is, in penal matters, as much to secure the re[)ression of crimes committed by Belgians in a country outside Christendom as to protect them from vexatious prosecutions by foreign governments. The theory of incompetence set up by the accused would, on the con- trary, render the repression of crimes of the press illusory and impos- sible ; for to deal justly with such an affair it is necessary to take account of the personality of the parties to the cause and of the polemical habits of the local press, things which cannot be wisely appreciated liy judges who are entire strangers to the place where the alleged libels were published. . . .^ On principle, citizens of a country residing abroad, whatever may be their political and constitutional rights elsewhere, are subject to the criminal laws of the foreign country where they live. There is, it is true, an exception when countries outside Christendom are concerned, but this exception results, not from the Constitution, but from the diplomatic conventions and the special laws which exclusively govern it. So far as concerns Belgian citizens, this special law is the consular law of December 81, 1851 ; by the terms of Art. 27 of this law, the Consular Court has cognizance of all crimes committed within 1 The court here held that no Belgian court had jurisdiction. — Ed. SECT. III.] ROUET V. SCIIIF?. 93 the limits of the consulate. It makes no distinction between ordinary crimes and crimes of the press ; no mention at all is made of a special procedure for crimes of this sort. The plea to the jurisdiction is overruled. ROUET V. SCHIFF. Court of Cassation, France. 1891. [Reported Journal du Palais, 1891, 721.] M. EouET, a French banker at Constantinople, engaged in a series of operations on the Bourse with MM. Schiff & Co., English subjects. The operations resulted in 1885 in a balance of £1400, for which Eouet, on May 11, 1885, signed two promissory notes to the order of Schiff & Co. These bills having been protested at maturity, MM. Schiff brought suit against their debtor, who set up in defence that the transaction was void for gaming. To meet this defence, MM. Schiff invoked the law of March 25, 1885. But Rouet replied that this law had no retroactive effect, and that on the day of signing the notes it had not yet gone into effect in Constantinople. By judgment of June 25, 1886, the Consular Court of Constanti- nople, in which the suit was brought, decided in favor of Schiff & Co. as follows : — " As to the obligatory force at Constantinople of the law of March 28-April 8, 1885 ; our legislation has not made special provisions for the promulgation of law in the Levant, and the presumption of Article 1 of the Civil Code^ ceases at the frontiers of the fatherland, and cannot be extended to Frenchmen residing abroad. The consular tribunals ought, by analogy with our laws in force, while protecting private interests, to conform to established rules in asserting the au- thority of laws. There are two systems possible, that of Article 73 of the Code of Procedure, which grants a delay of two months as legally necessary for knowledge of a legal process to be presumed to have reached the interested party, and that of the Decree of 5-11 November, 1870. Article 73, Co. Proc, had quite another object than that of a legislator in determining when a new law shall become obligatory ; it granted a long delay in order to permit a Frenchman in a foreign land to prepare a method of defence and to provide at leisure for the for- malities of a lawsuit ; but the same considerations do not exist in a matter of promulgating law, where the object is to give notice of the legislative will. The consular tribunals ought, therefore, to follow the rule laid down in the decree of 5-11 November, 1870. " By virtue of this decree, the promulgation of laws results from 1 "Laws . . . shall be executed in every part of the Republic from the moment when their promulgation can be known there." 94 ROUET V. SCHIFF. [CHAP. I. their insertion in the Journal officiel. Laws are obligator}- in Paris a full day after the promulgation ; and everywhere else a full day after the Journal officiel containing them arrives at the capital city of the county. The law as to sales for future delivery was promulgated in the Journal officiel on April 8, 1885, and the Journal officiel reached Constantinople on the 18th of the same month ; the new law therefo>'e came in force there the 18th of April. The notes in question were signed the following 11th of Ma}- ; consequently the new law was at that date promulgated and binding on all. This law grants an action to the creditor on a gaming debt, and therefore the defence set up by Rouet should be rejected. " For these reasons : — overrules Rouet's plea ; adjudges him to pa}' Schiff & Co. the sum of £1400, due on two notes of £700 each, with legal interest, etc." M. Rouet appealed, but on April 21, 1887, the Court of Appeal of Aix affirmed the decision of the lower court. Error was brought by M. Rouet for violation of Art. 1 of the Civil Code and for misapplication of the decree of Nov. 5, 1870, and of the principles governing the promulgation and publication of laws-, in that the judgment had declared applicable ipso jure to Frenchmen residing abroad a law which had not been published there, on the er- roneous ground that the provisions of said decree were not relative solely to the publication of laws in France. Judgment. The Court. As to the only error alleged : Article 1 of the Civil Code and Article 1 of the decree of Nov. 5, 1870, apply exclusively to the execution and to the publication of laws in French territory ; they cannot be applied to govei-n tiie case where the question to be determined is, when a law promulgated and pub- lished in France should be presumed to be known by French citizens residing abroad. In the silence of the law in this respect, it is the duty of the courts to determine this question according to the circum- stances of the case, especially by taking account of the day of arrival of the Journal officiel in the place where the act in question took place. In the exercise of this duty, the Court of Aix has found that the Journal officiel containing the law of March 28, 1885, promulgated the following 8th of April, reached Constantinople April 18, 1885, and that the notes in question were signed May 11 following. From these facts the judgment attacked, whatever other grounds it was rested upon, might properly have been rested on this conclusion, that the law of March 28, 1885, was known to the maker of the notes when he signed them, and was therefore obligatory on him. Application dismissed. t SECT. III.] SWIFT V. TYSON. 95 SWIFT V. TYSON. Supreme Court of the United States. 1812. [Reported 16 Peters' Reports, 1,] Mr. Justice Story delivered the opinion of the court. ^ This cause comes before us from tlie Circuit Court of tlie Southern District of New York, upon a certificate of division of the judges of that court. /f" The action was brouglit bj the plaintiff, Swij't, as endorsee, agaiiist the defend^ant, Tysoi), as acceptor, upon a bill of exchange dated jit Portland, Maine, on the first day of May, 1836, for the sum of one iS'to^ thousand five hundred and forty dollars, thirty cents, payable six months after daj,e and grace, drawn b^' one Nathaniel Nortan and one Jairus S. Keith uj)Oii and aecc'i^ted by Tyson, at the citj' of New York, in favor of the order of Nathaniel Norton, and by Norton endorsed to the plain tUt'. 'Hie bill was dishonored at maturity. . . . In the present case, the plaintiff is a bona fide holder (without notice) for what_the law deems a good and valid consideratimi, that is, for a pre-e xisting debt ; and the only real question in the cause i^ ^ '? whethei*, under the circumstances of the present case, such a pre-exist- J ing debt constitutes a valuable consideratio^u in the sense of the ge ner al ) rule applicable to negotiable instruments. We sa}', under the circum- stances of the present case, for the acceptance having been made in New Y'ork, the arguinent on behalf of the defendant is, that the con- tract is to be treated as a New Y^ork contuapt, and therefore to be gov- erned b>JLhe laws qf_^ew-XDrk, as expounded by its courts, as well upon general principles as by the express provisions of the thirty- fourth section of the^diciar}' Act of 1789, ch. 20. And then it is f urther contended, that by the law of New Y''qrk, as thus expounded by its courts, a pre-exis ting debt docs not constitute, in the sense of the general rule, a valua ble consideration applicable to negotiable igt, struments. ... To say the least of it, it admits of serious doubt, whether any doc- trine upon this question can at the present time be treated as finally established ; and it is certain that the Court of Errors have not pro- nounced any positive opinion upon it. But, admitting the doctrine to be fully settled in New Y''ork, ii r emain s to be considered, whether it is obligatory upoQ this cojjrt, if it differs from the principles established in the general commercial law. It is observable that the courts of New York do not found their deci- sions upon this point upon any local statute, or positive, fixed, or ancient local usage : but they deduce the doctrine from the general principles of commerciaL law. It. is, however, contended, that the thirty-fourth section of the Judiciary' Act of 1789, ch. 20, furnishes a rule 1 Part of the opinion is omitted. — Ed. 96 SWIFT V. TYSON. [CHAP. I. obligatory upon this court to follow the decisions of the State tribunals in all cases to which they apph'. That sectjpn provides " that t he laws of the several States, except where the Constitution, treaties, or statutes of the United States shall otherwise require or provide^ slipU be regarded as rules of decision in trials at common law in the courts of the United States, in cases whei-e they apply." In order to main- tain the argument, it is essential, therefore, to hold, that the word "laws," in this section, includes within the scope of its meaning the decisions of the local tribunals. In the ordinary use of language it will hardl}' be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are ; and are not of themselves laws. Thej- are often re-examined, reversed, and quali- fied by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a State are rpnre nsnrt lly understoo d to m e an the rules_ ajKLaaactments proioiil- gated by the legislative authority thereo f, or long^e^tabli&hed local c ustoms having the force of law s. In all the various cases which have hitherto come before us for decision, this court have uniformly sup- posed that the true interpretation of the thirty-fourth section limited its application to State laws strictlv local, that is to sa}', to the positive statutes of the State, and the construction thereof adopted b}- the local tribunals, and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intraterritorial in their nature and character. It never has been supposed by us that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes or local usages of a fixed and permanent operation, as, for example, to the construction of ordinarj' contracts or other written instruments, and especially to questions of general commercial law. where the State tribunals are called upon to perform the like functions as ourselves, that is, to ascertain upon general reasoning and legal analogies, vrhat is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case. And we have not now the slightest difficulty in hold ing, that t his sectio n, upon its true intendment and construction. js_ strictly limited to local statutes and local usages of the character before stated, and does not extend to contracts and other instruments of a commercial nature, the true interpretatioruand efl'ect whereof aic to be sought, not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence. Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court ; but they cannot furnish positive rules, or conclusive authority, by which our own judgments are to be bound up and governed. Tlic law\ respectjn g ne gotiable instn jments may be truly declared in the language of Cicero, adopted by Lord INIansfield in Luke v. Lyde, 2 Bun-. R. 88,3, 887, to be in a great measure, not.tUe.I aw of a single .country oul v-, but of the SECT. III.] MURRAY V. CHIC.VGO Such a result tends to discredit the law. . . . The enumeration might be carried further, but enough has, perhaps, been said to show that no uniform rule can be deduced from the decisions of the English and American courts under the commercial law, and that the certainty requisite to justice can be obtained only by following the local tribunals as regards the contracts made in each localit}-. The several States of this country are coUectiveh' one nation, but the}' are as self-governing in all that concerns their purely internal commerce as if the general government did not exist ; and when the will of the people of New York or Pennsylvania is declared on such matters, througli their repre- sentatives in the local legislatures, expressly or by long-continued acquiescence in the rules enunciated by their judges, it cannot be set aside by Congress short of an amendment of the Constitution. Had the New York legislature declared that notes made and negotiated in that State should follow the rule laid down in Coddington v. Ray [20 Johns. 637], the federal tribunals would have been bound to carry it into effect, notwithstanding any attempt of the national legislature 140 FOREPAUGH V. D, L. & W. RAILROAD CO. [CHAP. I. to introduce a different principle ; and it is inconceivable that the judicial department of the government can exercise a greater autliority in this regard than the legislature." Hare, Const. Law, 1107, 1117 and see Lecture 51, passim. We conclude, therefore, that the distinction between the bindinf' effect of decisions on commercial law and on statutes is utterly untenable ; that the law declared by State courts to govern on con- tracts made within their jurisdiction is conclusive everywhere ; and the departure made by the United States courts is to be regretted, and certainly not to be followed. In entire accordance with this view are our own cases of Brown v. Railroad Co., 83 Pa. St. 316, and Brooke V. Railroad Co., 108 Pa. St. 530, 1 Atl. Rep. 206 ; and the decisions in Ohio: Knowlton v. Railway Co., 19 Ohio St. 260; in Illinois: Penn- sylvania Co. V. Fairchild, 69 111. 260; Railroad Co. v. Smith, 74 111. 197 ; in Iowa : Talbott v. Transportation Co., 41 Iowa, 247 ; Robinson V. Transportation Co., 45 Iowa, 470; in Connecticut: Hale v. Naviga- tion Co., 15 Conn. 539; in Kansas: Railroad Co. v. Moore, 29 Kan. 632 ; in South Carolina : Bridger v. Railroad Co., 27 S. C. 462, 3 S. E. Rep. 860 ; in Georgia : Railroad Co. v. Tanner, 68 Ga. 390 ; in Missis- sippi : McMaster v. Railroad Co., 65 Miss. 271, 4 South. Rep. 59; in Texas : Cantu v. Bennett, 39 Tex. 303 ; Ryan v. Railway Co., 65 Tex. 13, and perhaps in other States. I will not notice them in detail further than to quote the terse and forcible summary made by Scott, J., in Knowlton v. Railway Co. : " As the contract was made within the jurisdiction of New York, and contemplated no action outside of that jurisdiction, it is clear that the question of its validity must be deter- mined solely by the laws of New York. The rights and obligations of the parties to such a contract, and in respect to the manner of its execution, cannot be affected by the laws or polic}' of other States. If no cause of action arose to the plaintiff under his contract when the accident occurred, the transaction cannot be converted into a cause of action by the fact that the parties have subsequently come within the jurisdiction of Ohio." Holding, therefore, that the validity of this contract is to be determined by the law of New York, as decided by the courts of that State, is there any reason why the courts of this State should not enforce it? The general rule is that courts will enforce contracts valid by the law of the place where made, unless they are injurious to the interests of the State, or of its citizens. Story, Confl. Laws, §§ 38, 244. The injury may be indirect by offend- ing against justice or morality, or by tending to subvert settled public policy (2 Kent, Com. 458 ; Greenwood v. Curtis, 6 Mass. 358 ; Bliss V. Brainard, 41 N. H. 256) ; but tliis does not imply that courts will not sustain contracts that would not be valid if made within their juris- diction, or will not enforce rights that could not be acquired there* Thus, for example, the courts of Pennsylvania have always enforced contracts for a higher rate of interest than would be valid under the laws of this State. Ralph v. Brown, 3 Watts & S. 395 ; Wood v. Kelso, 27 Pa. St. 243 ; Irvine v. Barrett, 2 Grant, Cas. 73. The con- SECT. IV.] FOREPAUGH V. D. L. & W. RAILROAD CO. 141 tract in the present case does not directl}' affect the State or its citizens in any way. Nor is it in any way contrary to justice or morality. It may be doubted whether it is even so far contrary to the policy of the State that it would have been invalid if it had been made here. It has some exceptional features, which, it is argued, take it out of the ordinary rules governing the contracts of common carriers ; and the case of Coup v. Railroad Co., 56 Mich. Ill, 22 N. W. Rep. 215, is a strong authority for that position. But without stopping to discuss that point, which our general view renders unnecessar}', it is sufficient to say that, even if it would not have been valid if made here, its enforcement as a New York contract does not in an}' wa}' derogate from the laws of Pennsylvania, or injure or affect the polic}' of the State, any more than would a foreign contract for what would be usurious interest here, and that, as already said, the courts have never hesitated to enforce. The argument of duress may be briefly dismissed for want of any evidence in the case to sustain it. There is no evidence that defend- ant was unwilling to accept the ordinary and usual rates for the trans- portation of plaintiff's cars and property. If they had been offered by plaintiff and refused, there might have been some ground for the present argument, though, in view of the peculiar nature of the property, and the special facilities required, even that is far from clear. But in fact plaintiff got a large reduction of rates, and part of the consideration for such reduction was the agreement that he should be his own insurer against loss by accident. There was nothing com- pulsory about such a contract, and plaintiff comes now with a very bad grace to assert a right that he expressly relinquished for a sub- stantial consideration. The learned court below was right in entering judgment for the defendant on the facts found in the special verdict. ~^ Judgment affirmed. Williams, J. (dissenting). I dissent from the judgment in this case because I cannot agree that a well-settled rule of public policy of this commonwealth must give way to considerations of mere comit}'. The contract set up as a defence to this action is a release to a common carrier from liability for its own neglig ence. It is well settled in this SXata-lha J; such a -iclunso ia agatD st public pol icy. Comity does not require more of us than to give effect to the lex loci contJ'actus^ when not subversive of the public policy of our own State. This has been distinctly held by the Court of Appeals of New York, in which this release was executed, and in whose behalf comity is asked. I would follow the Court of Appeals, because comity can require no more of us in any given case than the courts of the place of the contract would yield to us for comity's sake, and because I believe the rule to rest oa solid ground. Sterrett, J. , concurs in the foregoing dissent. 142 ST. NICHOLAS BANK V. STATE NATIONAL BANK. [CHAP. I. ST. NICHOLAS BANK v. STATE NATIONAL BANK Court of Appeals of New York. 1891. [Reported 128 New York Reports, 26.] Earl, J.^ This action was broiiglit to recover the proceeds of n draft for $473.57 sent for collection by the plaintiff lo the defendant, and paid to the defendant's correspondents. The trial resulted in the direction ofL-a ^verdict for_ thc— 4> laintiff — for the amount demanded. Fpon appeal to the general term, the judgment entered upon the ver- dict was reversed, and a new trial ^ oixjiHiad. From the order of reversal the plaintiff appealed to this court. . . . The rule has long been estal)lished in this State that a bank receiv- ing commercial paper for collection, in the absence of a special agree- ment, is liable for a loss occasioned l)y the default of its correspondents or other agents selected by it to effect the collection. Allen v. Bank, 22 Wend. 215; Montgomery County Bank v. Albany City Bank, 7 N. Y. 459 ; Commercial Bank v. Union Bank, 11 N. Y. 203 ; Ayrault V. Pacific Bank, 47 N. Y. 570; Naser v. Bank, 116 N. Y. 498, 22 N. E. Rep. 1077. And the same rule prevails in some of the other States, in the United States Supreme Court, and in England.. Titus v. Bank, 35 N. J. Law, 588 ; Wingate v. Bank, 10 Pa. St. 104 ; Reeves V. Bank, 8 Ohio St. 465 ; Tyson v. Bank, 6 Blackf. 225 ; Simpson V. Waldby (Mich.), 30 N. W. Rep. 199 ; Mackersy v. Ramsays, 9 Clark & F. 818. In such a case the collecting bank assumes the obligation to collect and pay over or remit the money due upon the paper, and the agents it employs to effect the collection, whether they be in its own banking-house or at some distant place, are its agents, and in no sense the agents of the owner of the paper. Because they are its agents, it is responsible for their misconduct, neglect, or other default. ... ^ The defendant, however, claims that the contract with the plaintiff is to be treated as a Tennessee contract, and that by the law of that State it cannot be made liable for this loss. Upon the trial, for the purpose of showing the law of that State, it put in evidence a decision of the Supreme Court in the case of Bank of Louisville v. First Nat. Bank of Knoxville, 8 Baxt. 101. . . . That decision was not based upon any statute law, but upon the principles of the common law, supposed, to be applicable to the facts of the case. It did not make or establish , law, but expounded the law, and furnished some evidence of what the law applicable to that case was, — evidence which other courts might or might not take and receive as reliable and sufilcient ; and even the same court, upon fuller discussion and more mature consideration, • might, in some subsequent case, refuse to take the same view of the law. There ia no common law peculiar to Tennessee, But the • 1 Part of thu opiuion is omitted. — Ed. SECT, v.] BANK OF AUGUSTA V. EARLE. 143 common law there is the same as that wliich prevails here and else- \^here, and the judicial expositions of the common law there do not bind the courts here. The courts of this State, and ot other Sta tes, and of the United States, would follow the courts of that Stat(; in the cons truction of its statu tc _law . lint the courts of this State will follow its own precedents m the expounding of the general common law ap- plicable to commercial transactions, and so it has been repeatedly held. Faulkner v. Hart, 82 N. Y. 413 ; Swift v. Tyson, 16 Pet. 1 ; Gates V. Bank, 100 U. S. 239 ; Ray v. Gas Co., 20 Atl. Rep. 1065 (decided in Pennsylvania Supreme Court, Jan 12, 1891). We must, therefore, hold that the obligation resting upon the defendant was that which the principles of the common law, as expressed by the courts of this State, placed upon it. If it be said that the contract between these parties was made in view of the common law, then we must hold that it was the common law as expounded here. But it cannot be maintained that the contract between these parties was a Tennessee contract. It is by no means clear, even, that it can be held that the contract was made there.^ . . . Our conclusion, therefore, is that the order of the general term should be reversed, and the judgment entered upon the verdict affirmed with costs. All concur. SECTION V. COMITY. Marshall, C. J., in The Nereide, 9 Cr. 388, 422 (1815). The court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them its unjust proceedings towards our citi- zens, is a political, not a legal measure. It is for the consideration of the government, not of its courts. The degree and kind of retalia- tion depend entirely on considerations foreign to this tribunal. It may be the polic}' of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track i prescribed for us, and to tread the devious and intricate path of politics. Taney, C. J., in Bank of Augusta v. Earle, 13 Pet. 519, 589 (1839). It is needless to enumerate here the instances in which, by the general * The court found that the contract was not a Tennessee contract. — Ed. 144 HILTON V. GUYOT. [chap. I. practice of civilized coiintries, the laws of the one will, b}' the comity of nations, be recognized and executed in another, where the rights of individuals are concerned. . . . The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when con- trary to its policy or prejudicial to its interests. But it contributes so largel}' to promote justice between individuals, and to produce a friendl}' intercourse between the sovereignties to which they belong, that courts of justice have continually acted upon it, as a part of the voluntary law of nations. It is truly said in Story's Conflict of Laws, 37, that " In the silence of any positive rule, affirming, or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests. It is not the comity of the courts, but the comity of the nation which is adminis- tered, and ascertained in the same wa}', and guided by the same reasoning by which all other principles of municipal law are ascer- tained and guided." at / Gray, J., in Hilton v. Guyot, 159 U. S. 113, 163 (1895). No law has an}' effect, of its own force, beyond the limits of the sover- eignty from which its authorit}' is derived. The extent to which the law of one nation, as put in force within its territoiy, whether by execu- tive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call " the comity of nations Although the phrase has been often criticised, no satisfactory' sub- stitute has been suggested. " Comity," in the legal sens'e, is neither a matter of absolute obli- gation, on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protection of its laws.^ 1 See the dissenting opinion of Fuller, C. J., in the same case, at p. 233 ; and Bee further Dicey on the Conflict of Laws, p. 10. — Ed. CHAPTER IL JUKISDICTION OVER PERSONS AND THINGS. SECTION I. DOMICILE.^ BELL V. KENNEDY. c^*^ ji>^^i*r^ House of Lords. 1868. [Reported Law Reports, 1 House of Lords {Scotch), 307.] The Lord Chancellor (Lord Cairns).^ My Lords, this appeal arises in an action commenced in the Cotlrt of Session, I regret to say so long ago as the year 1858; in the course of which action no less than sixteen interlocuto rs ^ have been pronounced by the. court, all, or the greater part of which, become inoperative or imma- terial if your Lordships should be unable to concur in the view taken by the court below of the question of domicile. The action is raised by Captain Kennedy, and his wife, the daughter of the late Mrs. Bell ; and the defender ij§ Mrs. Kennedy's father, the husband of Mrs. Bell- The claim is for the shiye, said to belong to Mrs. Kennedy, of the goods held in communion between Mr. and Mrs. Bell. This claim proceeds on the allegation that the domicile of Mrs. Bell, at the time of her death on the 28th of Sep- tember, 1838, was in Scotland. And the question itself of her domi- cile, at that time depends upon the further question, what was the domicile of her husband? Her husband, the appellant, is still living; and your Lordships have therefore to consider a case which seldom arises, the question, namely, of th e domicileat a, particular time of a person who is a till living. '"' Mr. Bell was born in the island of Jamaica, His parents had come there from Scotland, and had settled in the island. There appears to be no reason to doubt but that they were domiciled in Jamaica. His father owned and cultivated there an estate called the 1 For the general principles of nationality see Calvin's Case, 7 Co. 1; U. S. i;. Wong Kira Ark, 169 U. S. 649. — Ed. 2 The statement offacts is omitted, as are also the concurring opinions of Lords Ckax^vorth, Chelmsford, and Colonsay. — Ed. 10 146 BELL V. KENNEDY. [CH .P. II. Woodstock estate. His mother died when the appellant was about the age of two years, and immediately after his mother's death he was sent to Scotland for the purpose of nurture and education. By his father's relatives he was educated in Scotland at school, and he afterwards proceeded to college. His father appears to have died when he was about the age of ten years, dying, in fact, as he was coming over to Great Britain for his health, but with the intention of returning to Jamaica. The appellant, after passing through college in Scotland, travelled upon the Continent; and soon after he attained the age of twenty-one years he went out again to Jamaica, in the year 1823, with the inten- tion of carrying on the cultivation of the Woodstock estate, which, in fact, was the only property he possessed. He cultivated this estate and made money to a considerable amount. He arrived at a position of some distinction in the island. He was the custos of the parish of St. George, and was a member of the Legislative Assembly. He married his late wife, then Miss Hosack, in Jamaica in the year 1828; and he had by her, in Jamaica, three children. It appears to me to be beyond the possibility of doubt that the domicile of birth of Mr. Bell was in Jamaica, and that the domicile of his birth continued during the events which I have thus described. In the year 1834 a change was made in the law with regard to slavery in the island of Jamaica, which introduced, in the first instance, a system of apprenticeship, maturing in the year 1838 into a complete emancipation. This change appears to have been looked upon by Mr. Bell with considerable disfavor, and, his health fail- ing, in the year ^837 he determined to leave Jamaica, and to return to some part, at all events, oF Great Br itain. He entered into a con- tract for the sale of the Woodstock estate, the purchase-money being made payable by certain instalments; and in 1837 he left the island, to use his own expression, "for good." He abandoned his residence there without any intention at that time, at all events, of returning to the island. He reached London in the month of June, 1837. He remained in London for a short time, apparently about ten days, and he then went on to Edinburgh, and took up his abode under the roof of the mother of his wife, Mrs. Hosack, who at that time was living in Edinburgh. I ought to have stated that while the appellant was in Jamaica he appears to have kept up a correspondence with his relatives and friends in Scotland. In the year 1833 he acquired (I prefer to use the term "acquired" rather than the word "purchased ") the estates of Glengabers and Craka. He appears to have taken to those estates mainly in settlement of a claim for some fortune or money of his wife secured upon them. It is apparent, however, that he had at no time any intention of residing upon Glengabers, and. in fart, the acquisition of those estates bears but little, in my opinion, upon the question of domicile, because in 1833, when he acquired them, his SECT. I.] BELL V. KENNEDY. 147 domicile, beyond all doubt, was, and for some years afterwards con- tinued to be, in Jamaica. He wrote occasionally at that time from Jamaica, evincing a desire to buy an estate at some future period in Scotland, if he could obtain one to his liking, and even an intention, if he could obtain such an estate, of living in Scotland, but nothing definite appears to have been arranged or said upon the subject; and, in fact, at this time other suggestions as to other localities appear to have been occasion- ally entertained and considered by him. in these letters he frequently uses an expression that was much insisted upon at the bar — the expression of "coming home;" but I think it will be your Lordships' opinion that the argument is not much advanced, one way or the other, by that expression. It ap- pears to me to be obviously a form of language that would naturally be used by a colonist in Jamaica speaking of the mother country in contradistinction to the colony. Up to this point, my Lords, there is reall}^ no dispute with regard to the facts of the case. The birth-domicile of the appellant in Jamaica continued, at all events till 1837, and the onus lies upon those who desire to show that there was a change in this domicile, by which I mean the personal status indicated by that word, — the onus, I say, lies upon those who assert that the personal status thus acquired, and continued from the time of his birth, was changed, to prove that that change took place. The law is, beyond all doubt,\\ clear with regard to the domicile of birth, that the personal statusJI indicated by that term clings and adheres to the subject of it until/ an actual change is made by which the personal status of another ( domicile is acquired. I do not think it will be necessary to examine the various defini- tions which have been given of the term "domicile." The q uestijon which I will ask your Lordships to consider in the present case js, . -_ ^ in substance, this: WMl JJer the appellant, before the 28th of Seo- C/Cy.^ ' tem ber. 1^8> the day of the death of his wif^i hftd dptp^iped to ) \ ^ "^ make, and had ni.ade, Scotland his home, withtliejntention o f estab- jishl ug_iuj^ elf and his fam i ly there, and endin^ hia davs in that country? The onus, as i have said, is uponthe respondents to establish this proposition. I will ask your Lordships, in the first place, to look at the facts subsequent to the return of the appellant to Scotland, as to which there is no dispute, then at the character of the parol evidence which has been adduced, and, finally, at a few passages in the correspond- ence which is in evidence. . As regards the facts which are admitted, they amount to this: The appellant lived under the roof of Mrs. Hosack from the time of <^ i^lil %^ "^ his arrival in Edinburgh, in the year 1837, until the 1st of Junga 1838. He appears to have borne the whole, or the greater part of her house-keeping expenses during that time. He inquired for, and •V 148 BELL V. KENNEDY. [CHAP. IL looked after, various estates, in the south of ScotlahJ especially, and he indicated a preference for the estates of Blairston or Auchin- draine, of Mollance, and of Enterkine. With regard to Blairston or Auchindraine, it does not appear, so far as I can discover, to have been actually offered to him for sale. With regard to Mollance, before he came to any determination as to it, it was sold to another person. With regard to Enterkine, at the time we are speaking of, the 1st of June, 1838, a negotiation had been going on by letters written between the appellant and those who were proposing to sell the estate, but the offer which he ultimately made for it had at that time been refused, and, on the 1st of June, 1838, there was no pend- ing offer on his part for the property. Mrs. Bell, his wife, at this time was expecting her confinement. The house of his mother-in- law, in which they were sojourning, was not sufficiently commodious for their wants, and the appellant took for one year a furnished house in Ayrshire, called Trochraigue. He took it with no inten- tion, apparently, of buying the estate, although it appears to have been for sale, but with the intention of living for a year in the house, and he hired servants for his accommodation. He removed to Trochraigue on the 1st of June, 1838, and, while so sojourning there, Mrs. Bell died in her confinement on the 28th of September in that year. It appears to me, beyond all doubt, that prior to this time the appellant had evinced a great and preponderating preference for Scotland as a place of residence. He felt and expressed a great desire to find an estate there with a residence upon it, with which he would be satisfied. His wife appears to have been even more anxious for this than he himself was; and her mother and their friends appear to have been eager for the appellant to settle in Scotland. There is no doubt that, since the death of his wife, he actually has bought the estate which I have mentioned, the estate of Enterkine, and that his domicile is now in Scotland. All that, in my opinion, would not be enough to effect the acquisition of a Scotch domicile. There was, indeed, a strong probability up to the time_of_ the death of his wife that he would ultimately find in Scotland an estate to his liking, and that he would settle there. But it appears to me to be equally clear that if, in the course of his searches, a property more attractive or more eligible as an investment had^Feeiii "TSffered to him across the Border, he might, without any alteration oi^change in the intention which he expressed or entertaine d, have. ^acquired and purchased such estate and settled upon it, and thus_ liavc acquired au English domicile. In point of fact, he made more or less of general inquiry after estates in England; and a circum- stance is told us by one of the witnesses, Mr. Telfer, which seems to me of great significance. Mr. Telfer says that his relations enter- tained great apprehension or dread that he would settle in England — a state of feeling on their part totally inconsistent with the notion SECT. I.] BEIX V. KENNEDY. 149 that he had, to their knowledge, at that time determined ultimately and finally to settle in Scotland. These being the admitted facts, let me next turn to the character of the parol evidence in the case. As to the evidence of the mem- bers of the Hosack family, and of the servants, very little is to be extracted from it in the shape of information upon which we can rely. They speak of what they considered and believed was the intention of the appellant; but as to anything he said or did, to which alone your Lordships could attend, they tell us nothing beyond what we have from the letters. As to the evidence of the appellant himself, I am disposed to agree very much with what was said at the bar, that it is to be accepted with very considerable reserve. An appellant has naturally, on an issue like the present, a very strong bias calculated to influence his mind, and he is, moreover, speaking of what was his intention some twenty-five years ago. I am bound, however, to say, and therein I concur with what was said by the Court of Session, that the evidence of the appellant appears to be fair and candid, and that certainly nothing is to be extracted from it - which is favorable to the respondents as regards the onus of proof which they have to discharge. I will now ask your Lordships to look at what to my mind appears the most satisfactory part of the case, namely, the correspondence contemporaneous with the events in the years 1837 and 1838. I do not propose to go through it at length, but I will ask you to consider simply certain principal epochs in the correspondence from which, as it appears to me, we derive considerable light as to the intentions of the appellant. In the first place, I turn to a letter written by the appellant on the 26th of September, 1837, three months after the appellant and his wife had come to Scotland. He is writing from Minto Street, Edin- burgh, to his brother-in-law, Mr. William Hosack, in Jamaica, and he says: "I have not got rid of my complaint as yet, and still find difl^iculty in walking much, and was obliged to forego the pleasures of shooting, on which I had so much set my heart. This country is far too cold for a person not having the right use of his limbs. In fact I have been little taken with anything, and would go to Canada, Jamaica, or Australia, without hesitation. I enjoy the fresh butter and gooseberries." Of the latter — that is, of the gooseberries — he proceeds to state some evil consequences which he had suffered, and then he says: "Everything else is as good, or has an equivalent fully as good, in Jamaica. My mind is not made up as to the pur- chase of an estate. Land bears too high a value in proportion to i other things in this country, owing to the members of the House of j Commons and of Lords being all landowners, and having thereby received greater legislative protection. The reform voters begin to see this, and as soon as the character of the House of Commons changes enough (and it is changing prodigiously) the value of land 150 BELL V. KENNEDY. [CHAP. IL will come to its true value in the State. I have formed these views since I came home, and have lost in proportion my land-buying mania." Thus, having, as I have stated, a domicile by birth in Jamaica, and having come to this country with an indeterminate view as to what property he should become the purchaser of, writing three months afterwards, he says: "I have been little taken with anything, and would go to Canada, Jamaica, or Australia, without "hesitation." Nothing can be more significant as to the absence of ^'hy determination in his mind to make Scotland his fixed home, and to spend the remainder of his days there. I come to the 27th of December, 1837, when the appellant, again writing to the same brother-in-law in Jamaica, says: "As to the countr}', I like none of it. I have not purchased an estate, and not likely to do so. I had my guns repaired, bought a pointer, pur- chased the shooting of an estate for £10, have never been there, nor fired a shot anywhere else. Have had a fishing rod in my hands only for two hours, and caught nothing. I bought a horse, and might as well have bought a bear. He bites so, it would have been as easy to handle the one as the other. I exchanged him for a mare, and, positively, I have sent her to enjoy herself in a farm straw yard, without ever having been once on her back, or even touched her in any way." Here, again, we find that so far from his expressing a liking for the country upon better acquaintance, he says he does not like it, and so far from a deteimination to purchase an estate in Scotland and end his days upon it, he says, "I have not purchased an estate, and am not likely to do so." Passing over three months more, I come to a letter dated the 20th of March, 1838, by Mrs. Bell, the wife's expressions being even more significant than those of her husband; for it is obvious that she, of the two, was more inclined to settle in Scotland. She writes: "The extreme severity of the winter has put us a good deal out of conceit of Scotland, but independent of that, I don't find the satis- faction in it I anticipated. If circumstances permitted, I would not mind to return to Jamaica, though, I dare say, after being here a few years I might not like it. This country is so gloomy, it is sadly depressing to the spirits, so unlike what one has been used to in dear, lovely Jamaica. The vile pride and reserve of the people is here too great a source of annoyance. A man is not so much valued on the manners and education of a gentleman as on the rank of his great grandfather — that is to say, among a certain class. You will perceive from this we are still at Number 9. Bell has several prop- erties in view, but is as undetermined about where we may settle as when he left Jamaica. Next week he goes to Ayrshire to look at an estate, and from thence to Galloway and Dumfriesshire. If we don't fix very soon we purpose taking a furn ished house in the country for 3w£b:e.months/' Now, the whole of thi s passage, I think, is of con^ siderable importance, but the last sentence I have read affords a key SECT. I.] BELL V. KENNEDY. 151 which may be useful ia letting us into the design of the opouses in Takinti; the furnislied hoiIse"or TrocUraigue. The interpretation given by tliis letter is, that it was eq uivalent t o saying that they had not aTthat time fixe d upon a residence., 1 pass on for two months more. The offer which in the interval he had made for Enterkine had been refused. The furnished house at Trochraigue had been taken., The ai)pellant and his wife were upon the eve of taking possession of it on the 1st of June, 1838, and on the 28th of May, 18o8, the appellant writes to his brother-in law in Jamaica: "1 have taken a country house at Tiochrigg." "I leave this for it on the 1st of June. It is situated two miles from Girvan, which is twenty miles west of Ayr, on the seacoast. Therefore for the next twelve months you can address to me Trochrigg, near Girvan, Ayrshire, Scotland. The offer which I wrote you I have made for Enterkine I received no answer to until sixteen days after, and then I got an answer stating they had a better otter. Of this 1 believe as much as I like, for I see it advertised again in the Satur- day's paper. 1 do not know whether I shall make anything of this estate for the present, and I care not. It is still very cold, and if _ I do not make a purchase in the course of this year, 1 perhaps will_ take^Jrip next summer to the south of France, and see whether I don't find it warmer there." That is to say in the next summer, which would be the summer of 1839, he was in expectation that Mrs. Bell and his family would be able to accompany him to "take a trip to the south of France, and see whether he did not find it warmer there," noti_a^ U seems to me, for the purpose of enjoying a tempo- rary sojourn, but, if he found it a more agreeable climate, for the purpose of making it his permanent residence. " There is only one other passage to which 1 would ask your Lord- ships' attention. It is in a letter written one month afterwards, while Mr. and Mrs. Bell were at Trochrigg, on the 16th of June. "Writing to Mr. William Hosack, the appellant says: " There are several gentlemen's seats in the neighborhood, but none of them reside in them. We will probably have only three or four acquaint- ances, and shall be, in that respect, much the same as in Jamaica. We must, however, make the most of it for twelve months, in the hope that during that time I may be able to find some estate that will be suitable for me as a purchase." I find nothing after this material in the correspondence before the death of Mrs. Bell, and the last sentence I have read appears to me to sum up and to describe most accurately the position in which the appellant was at Trochrigg; he was there in the hope that, during the_ "twelve months," he might be abl^e to find some estate which might be suitable to him for purchase; but upon that contingency, as it seems to me, depended the ultimate choice which he would make of Scotland, or some other countrv, as a place of residence.^ If his hope should be realized, we might from this letter easily' infer- 152 ' BELL V. KENNEDY. [CHA-P. IL that Scotland would become his home. If his hope should not be realized, I see nothing which would lead me to think, but everything" which would lead me to doubt, that h e would h ave el ected to remain m^cbtland as his place of residence. It appears to me, on the whole, upon consideration of the facts which are admitted in the case, and the parol evidence, and the correspondence to which 1 have referred, that so far from the respon- dents having discharged the onus which lies upon them to prove..the_ adoption of a Scotch domicile, they have entirely failed in dischargj^ i ng th at burden of proof, and that the evidence leads quite in the. pposite direction. There is nothing in it to show that the appel- aut's personal status of domicile as a native and an inhabitant of amaica has been changed on coming here by that which alone could hange it, his assumption of domicile in another country. I am, therefore, unfortunately unable to advise you to concur in the opin- ion of the Court of Session. The Lord Ordinary entertained the opinion that the appellant, from the first moment of his arrival in Scotland, and of his sojourn at Mrs. Hosack's house, had acquired a Scotch domicile. But nothing could be more temporary — nothing more different from the state of things that would lead to the con- clusion of the assumption of a Scotch domicile — than the circum- stances under which that sojourn took place. Lord Cowan, in delivering the opinion of the Court of Session, appears, on the other hand, to have thought that the Scotch domicile was not acquired at the time of arrival in Scotland, but was acquired at the time of tak- ing possession of Trochrigg. But if we are to put upon the occupa- tion of Trochrigg the interpretation which the appellant himself put upon it at the time, so far from its being an assumption of a Scotch domicile, it appears to me to have borne an entirely different con- struction, and to have been a temporary place of sojourn, in order that a determination might be arrived at in the course of the sojourn as to whether a Scotch domicile should or should not ultimately be acquired. There is one passage in the judgment of the Court of Session, delivered by Lord Cowan, to which I must ask your Lordships more particularly to refer, for it appears to me to afford a key to what I think, with great respect, I must call the fallacious reasoning of the judgment. After speaking of the parol evidence given by the appel- lant, Lord Cowan uses these words: "For after all, what do the statements of the defender truly amount to? Simply this, that prior to September, 1838, he had not fixed on any place of permanent resi- dence, and had not finally made up his mind or formed any fixed intention to settle in Scotland before he bought Enterkine. There is no statement that he had it in his mind to take up his residence elsewhere than in Scotland." If, my Lords, I read these words cor- rectly. Lord Cowan appears to have intimated that in his opinion it would not bo enough to find that the appellant had not fixed on any aKCT. I.] BELL V. KENNEDY. lo3 place of permanent residence prior to September, 1838, and had not decidedly made up biti mind or formed a fixed intention to settle in Scotland, unless proof were also adduced that be bad it in bis mind to take up bis residence elsewbere than in Scotland. I venture to think that would be an entirely fallacious mode of reasoning, and would be entirely shifting the position of the proof which has to be brought forward. The question, as it seems to me, is not whether he bad made up bis mind to take up his residence elsewhere than Tn^ Scotland, but the question is, bad be, prior to September, lyya, fin ally ma de up his mind or formed a fixed intention to settle in Scotland. Lord Cowan appears to admit that the parol evidence itself would show that that bad not been done, and that parol evi- dence is, in my mind, fortified and made very much more emphatic by the evidence of the correspondence to which I have referred. I have humbly, therefore, to advise your Lordships to assoilzie the defender from the conclusions of the summons, and to reverse the six- teen interlocutors which have been pronounced by the court below. Lord Westbury. My Lords, I have very few words to add to what has been already stated to your Lordships; and, perhaps, even those are not quite necessary. AYhat appears to me to be the erroneous conclusion at which the Court of Session arrived is in great part due to the circumstance, frequently lost sight of, that the domicile of origin adheres until a new doimcile is acquired. In the argument, and in the judgments, we find constantly the phrase used that he bad abandoned his native domicile. That domicile appears to have been regarded as if it had been lost by the abandonment of his residence in Jamaica. Now, residence and domicile are two perfectly distinct things. It is nec- essary in the administration of the law that the idea of domicile should exist, and that the fact of domicile should be ascertained, in order to determine which of two municipal laws may be invoked for the purpose of regulating the rights of parties. We know very well ^ tha^t succession and distribution depend upon the law of the domi- / i,&«-t-*T^'' cile . Domicile, therefore, is an idea of law. It is the relation '"* which the law creates between an individual and a particular locality or country. To every adult person the law ascribes a domicile, and that domicile remains his fixed attribute until a new and different attribute usurps its place. Now this case was argued at the bar on the footing, that as soon as Mr. Bell left Jamaica he had a settled and fixed intention of taking up his residence in Scotland. And if, indeed, that had been ascertained as a fact, then you would have had the animus of the party clearly demonstrated, and the factum^ which alone would remain to be proved, would in fact be proved, or, at least, would result immediately upon his arrival in Scotland. The true inquiry, therefore, is, Had he this settled purpose, the moment he left Jamaica, or in course of the voyage, of taking up a %^ 154 BELL V. KENNEDY. [CHAP. II. fixed and settled abode in Scotland? Undoubtedly, part of the evidence is the external act of the party; but the only external act we have here is the going down with his wife to Edinburgh, the most natural thing in the world, to visit his wife's relations. "We find him residing in Scotland from that time; but with what animus or intention his residence continued there we have yet to ascertain. For although residence may be some small jjvinia facie proof of domicile, it is by no means to be inferred from the fact of residence that domicile results, even although you do not find that the party had any other residence in existence or in contemplation. I take it that Mr. Bell may be more properly described by words which occur iu the Digest; that when he left Jamaica he might be de- scribed as qiicerens^ quo se coiiferat, atque uhi constituat domiciliuvi. Dig. lib. 50 t. 1, 27. Where he was to fix his habitation was to himat that time a thing perfectly unresolved; and, as appears from the letters which your Lordships have heard, that irresolution, that want of settled fixity of purpose, certainly continued down to the time when he actu-_ "ally became the purchaser of Enterkine. But the ininrtvrii temporis to which our inquiries are to be directed as to Mr. Bell's intention is of an earlier date than that. The question is, had he any settled fixed intention of being permanently resident in Scotland on the •JHth of Septem.ber, 1838? I quite agree with an observation which wus made in the Court of Session, that the letters are the best evidence in the case. To those letters your Lordships' attention has been directed, and whether you refer to the language of the wife's letters, or look exclusively at the language of the husband's letters written to his familiar friends or his relatives whom he had left in Jamaica, it is impossible to predicate of him that he was a man who had a fixed and settled purpose to make Scotland his future place of resi- dence, to set up his tabernacle there, to make it his future home. And unless you are able to show that with perfect clearness and satisfaction to yourselves, it follows that the domicile of origin con tinues. And therefore I think we can have no hesitation in answer- ing the question where he was settled on the 28th of September. It must be answered in this way; he was resident in Scotland, but without the animus manendi^ and therefore he still retained his domi- cile of origin. My Lords, it is matter of deep regret, that although it might have been easily seen from the commencement of this cause that it turned entirely upon this particular question, yet we find that ten years of litigation have taken place, with enormous* 'expense, and an enormous amount of attention to a variety of other matters, which would have been wholly unnecessary if judicial attention had been concentrated upon this question, which alone was sufficient for the decision of the case.^ 1 Ace. Kmiis o. Smith, 14 How. 400; Mitchell v. IT. S,, 21 Wall. 350 ; Hartford V, Champion, 68 Conn. 268, 20 Atl. 471 ; Wilkiua v. Marshall, 80 111. 74; Astley g. SECT. I.l UDNY V. UDXY. 155 UDNY V. UDNY. House of Lords. 1869. [Reported Law Reports, 1 House of Lords (Scotch\(^'i\, The late Colonel John Robert Fullerton Ucln^ of Uclny, In the county of Aberdeen, though born at Leghort^ where his father was consul, had by paternity his domicile in Scotland. At the age of fif- teen, in the year 1794 , he ga^-8eti4; to Fdiab ui-gh, where he renja ined for t hree years. In 1797 he became an officer in the Guards. Tir" T502 he succeeded to the family estate. In 1812 he married Miss Emily Fitzhugh, — retired from the army, — and took upon lease a. house in London , where he resided for thirty-two years, paying occa- sional visits to Aberdeenshire. In 1844, having got into pecuniary diflScultieB, be br^^ke-gp" e stablishment in London and repaired to Boulogne/ where he re^ * "mained for nine years, occasionally, as befor e, visiting Scotland. In 1846 his wife died, leaving the only child of her marriage, a son, who, in 1859, died a bachelor. Some time after the death of his wife Colonel Udny formed at Boulogne a connection with Miss Ann Allat, which resulted in the birth at Camberwell, in Surrey, on the 9th of May, 1853, of a son, the above respondent, whose parents were undoubtedly unmarried when he came into the world. They were, however, united after- wards in holy matrimony at Orijiiaionj_ia_.Scotlaiid, on the 2d of January, 1854, and the question was whether the respondent, undex the circumstances of ^the ^case^ iiat L-^ Secome legitimate per subsequens_ matriinonijiiru^ The Court of Session (First Division) on the 14th of December, 1866, 3d Series, vol. v. p. 164, deci ded that Colo n el Udny's domi- cile of origin was Scotcb^an d that he had never al t ered or lost it, liotwlths iano ing uis lo ng^jbsences fi' om Scotland. They therefore found that bis son, the respondent, "though illegiti mate at his birth, was legitimat ed by the subsequent marria ge of bis parents ." Hence this appeal, which the House regarciea as involving questions of greatly more than ordinary importance. Lord Westbury. ^ The law of England, and of almost all civilized countries, ascribes to each individual at bis birth two distinct Ciipron. 8 a,Ind. 167 ; Otis v. Boston, 12 Cush. 44 ; DeMeli y. DeMeli, 120 N. Y. 485, 24 N. E. 996 ; Guier v. O'Daniel, 1 Bin. 349 n. ; Pilson v. Bushong, 29 Grat, 229 ; Kellogg V. Winnebago County, 42 Wis. 97. Conversely, the m(>re intent to acquire a new domicile without ])hysical presence at the new place will not change the domicile. Goods of Raffnnel, 3 Sw. & Tr. 49 ; In re ilar* rett, 36 Ch. Div. 400 ; Talmadge v. Talmadge, 66 Ala. 199 ; Carter v. Sommenneyer, 27 Wis. 665 ; de Chanipagny's Appeal (French Cassation), Dalloz, 1875, i. 384 ; Martini v. Schliewinski, (Germany, Oberhandelsgericht), 13 Entsch. 363. — Ed. 1 Concurring opinions of the Lord Chakcellor, Lord CHELMSFORD, and Lord CoLONSAY are omitted. — Ed, 15G UDNY V. UDNY. [chap. II. < legal states or conditions; one by virtue of which he becomes tue subject of s ome particular country, binding him by the time of natural allegiance, and which may be called his political status; another, by virtue of which he has ascribed to him the character of a citizen of some particular country, and as such is possessed of certain municipal rights, and subject to certain obligations, which latter character is the civil status or condition of the Individual, and may be (juiie different from his political status. The political status may depend on different laws in differehf countries; whereas the civil status is governed universally by one singl^e^ pr inciple, nam el y, that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority or minority^ his marriage, succession, testacy, or intestacy, umst depend._ International law depends on rules which, being in great measure derived from the Roman law, are common to the jurisprudence of all civilized nations. ]i is a settled principle that no man^ shall be without a domicile,, and to secure thi§ result the law attributes to every individual as soon as he is born the domicile of his father, if the child be legitimate, and the domicile of the mother if illegitimate. This has been called the domicile of origin, and is involuntary. Other domiciles, including domicile by operation of law, as on marriage, are domiciles of choice. For as soon as an individual is s^li juris it is competent to him to elect and assume another domicile, the continuance of which depends upon his will and act. When another domicile is put on, the domicile of origin is for that purpose relinquished, and remains in abeyance during the continuance of the domicile of choice; but as the domicile of origin is the creature of law, and independent of the will of the party, it would be inconsistent with the principles on which it is by law created and ascribed, to suppose that it is capable of being by the act of the party entirely obliterated and extinguished. It revives / and exists whenever there is no other domicile, and it does not require to be regained or reconstituted anim,o et facto^ in the manner which is necessary for the acquisition of a domicile of choice. Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief //residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the cir- cumstances which create or constitute a domicile, and not a defini- tion of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of otflce, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular pur- pose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited SECT. I.] UDNY V. UDNY. 157 period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus vianendi^ can be inferred the fact of domicile is established. The domicile of origin may be extinguished by act of law, as, for example, by sentence of death or exile for life, which puts an end to the status clvilis of the criminal; but it cannot be destroyed by the will and act of the party. Domicile of choice, as it is gained animo et facto ^ so it maybe put au end to in the same manner. Expressions are found in some books, and in one or two cases, that the first -or existing domicile remains until another is acquired. This is true if applied to the domicile of origin, but cannot be true if such general words were intended (which is not probable) to convey the conclusion that a domicile of choice, though unequivocally relinquished and aban- doned, clings, in despite of his will and acts, to the party, until another domicile has animo et facto been acquired. The cases to which I have referred are, in my opinion, met and controlled by other decisions. A natural-born Englishman may, if he domiciles himself in Holland, acquire and have the status civilis of a Dutch- ( man, which is of course ascribed to him in respect of his settled i abode in the land, but if he breaks up his establishment, sells his house and furniture, discharges his servants, and quits Holland, declaring that he will never return to it again, and taking with him his wife and children, for the purpose of travelling in France or Italy in search of another place of residence, is it meant to be said that he carries his Dutch domicile, that is, his Dutch citizenship, at his back, and that it clings to him pertinaciously until he has finally set < up his tabernacle in another country? Such a conclusion would be absurd; but there is no absurdity and, on the contrary, much reason, in holding that an acquired domicile may be effectually abandoned by unequivocal intention and act; and that when it is so determined the domicile of origin revives until a new domicile of choice be acquired. According to the dicta in the books and cases referred to, if the Englishman whose case we have been supposing lived for twenty years after he had finally quitted Holland, without acquiring a new domicile, and afterwards died intestate, his personal estate would be administered according to the law of Holland, and not according to that of his native country. This is an irrational conse- quence of the supposed rule. But when a proposition supposed to be au- thorized by one or more decisions involves absurd results, there is great reason for believing that no such rule was intended to be laid down. In Mr. Justice Story's Conflict of Laws (the last edition) it is stated that "the moment the foreign domicile (that is, the domicile of choice) is abandoned, the native domicile or domicile of origin ia re-acquired." And such appears to be the just conclusion from several decided cases, as well as from the principles of the law of domicile. 158 UDNY V. UDNY. [CHAP. II. In adverting to Mr. Justice Story's work, I am obliged to dissent from a conclusion stated in the last edition of that useful book, and which is thus expressed, "The result of the more recent English cases seems to be, that for a change of national domicile there must be a definite and effectual change of nationality." In support of this proposition the editor refers to some words which appear to have fallen from a noble and learned lord in addressing this House in the case of Moorhouse v. Lord, 10 H. L. C. 272, when in speaking of the acquisition of a French domicile. Lord Kingsdown says, "^ man must intend to become a Frenchman instead of an Englishman." These words are likely to mislead, if they were intended to signify that for a change of domicile there must be a change of nationality, that is, of natural allegiance. That would be to confound the political and civil states of an indi- vidual, and to destroy the difference between patria and domicilium. The application of these general rules to the circumstances of the present case is very simple. I concur with my noble and learned friend that the father of Colonel Uduy, the consul at Leghorijpp V. "Wood, 4 D. J. & S. 616. The point that the animus manendi was inferred in law from the obligation to serve in India as stated by Lord Hatherley, has no bearing on the case before me, in which the evidence is sufficient for general purposes to establish the animus manendi. But the observations of Lord Justice Turner that the East India Company was regarded as a foreign government are material. He says. Ibid. 623: "At the time when those cases [on Anglo-Indian domicile] were decided, the government of the East Indian Company was in a great degree, if not wholly, a separate and independent gov- ern'ment foreign to the government of this country, and it may well have been thought that persons who had contracted obligations with such government for service abroad could not reasonably be consid- ered to have intended to retain their domicile here. They, in fact, became as much estranged from this country as if they had become servants of a foreign government." Lord Stowell in his judgment in the Indian Chief shows that in his time the sovereignty of the Great Mogul over the British territo- ries in India was merely nominal, being, as he says, occasionally brought forward for purposes of policy, and that the actual authority of government over these territories was exercised with full effect by this country, and the East India Company, a creature of this country. His observation as to the authority of government being exercised by this country is not really inconsistent with the passage above cited from Lord Justice Turner's judgment. Lord Stowell was not address- ing himself to the particular point for which I have quoted Lord Jus- tice Turner's judgment. Although the government of British India was English, being carried on principally by the agency of the char- tered company, it was for all practical purposes a distinct govern- 7iient from that of Great Britain, and in that sense it was, as Loi-d Justice Turner says, regarded as a foreign government. At Shanghai there is a British consul, residing there by virtue of the treaties, but there is no government by British authority existing there, and there is nothing which can be regarded as a separate or independent government, and the analogy which the petitioners seek to establish with an Anglo-Indian domicile is not made out. On principle, then, can an Anglo-Chinese domicile be established? The British community at Shanghai, such as it is, resides on foreign SECT. I.] IN RE TOOTAL's TRUSTS. 163 territory; it is not a British colony, nor even a Crown colony, al- though by the statutes above referred to the Crown has as between itself and its own subjects there a jurisdiction similar to that exer- cised in conquered or ceded territory. Residence in a territory or country is an essential part of the legal idea of domicile. Domicile of choice, says Lord Westbury in Udny y. Udny, Law Rep. 1 H. L., Sc. 458, is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place with the intention of continuing to reside there for an unlimited time. He speaks of resi- dence in a particular place, and not of a man attaching himself to a particular community resident in the place. In Bell v. Kennedy, Law Rep. 1 H. L., Sc. 320, he uses similar expressions. Domicile is an idea of the law; "it is the relation which the law creates between an individual and a particular locality or country." He refers to locality or country and not to a particular society subsisting in the locality or country. The difference of law, religion, habits, and customs of the governing community may, as I have already pointed out, be such as to raise a strong presumption against the individual becoming domi- ciled in a particular country ; but there is no authority that I am aware of in English law that an individual can become domiciled as a member of a community which is not the community possessing the supreme or sovereign territorial power. There may be, and indeed are, numerous examples of particular sects or communities residing within a territory governed by particular laws applicable to them spe- cially. British India affords a familiar illustration of this proposition. But the special laws applicable to sects or communities are not laws of their own enactment, the}' are merely parts of the law of the governing community or supreme power. It may well be that a Hindoo or Mussulman settling in British India, and attaching himself to his own religious sect there, would acquire an Anglo-Indian domicile, and by virtue of such domicile would enjoy the civil status as to marriage, inheritance, and the like accorded by the laws of British India to Hindoos or Mussulmans, and such civil status would differ materially from that of a European settling there and attaching himself to the British communit}'. But the civil status of the Hindoo, the Mussulman, and the European would in each case be regulated by the law of the supreme territorial power. In the case before me the contention is for a domicile which may not improperly be termed extraterritorial. The sovereignt}' over the soil at Shanghai remains vested in the Emperor of China with this exception, that he has b}' treaty bound himself to permit British sub- jects to reside at the place for the purposes of commerce only, without interference on his part, and to permit the British Crown to exercise jurisdiction there over its own subjects, but over no other persons. According to the petitioner's argument the subjects or citizens of all the foreign states who enjoy similar treaty privileges would (subject to any particular exceptions arising from the law of their own country in 164 IN BE tootal's trusts. [chap. II. relation to domicile), acquire under circumstances similar to those in the present case a new domicile of choice. If, for instance, a citizen of the United States were to reside at Shanghai with the intention of remaining there permanently, but not under such circumstances as would be sufficient to rebut the strong presumption against a Chinese domicile, and were to attach himself so far as he could to one of the European communities there, sa}', for an instance, the British com- munity, he would, according to the petitioner's contention, have lost his domicile of origin, and would have acquired an Anglo-Chinese domicile, which for most practical purposes would be equivalent to an English domicile. In my opinion he would not acquire such a domicile. It appears to me that there is no substantial difference as to the question I am considering between the residence of a British subject at Shanghai, or at any factory in Turkey or elsewhere, or the East, whether by virtue of special treaties, capitulations, sufferance, or the like. But such factories are not regarded as colonies or foreign coun- tries for the purpose of domicile. There may be commercial domicile there in times of war with reference to the law of capture, but that ia altogether a different matter. No authority except those relating to Anglo-Indian domicile has been cited in support of the petitioner's contention as to domicile. In Maltass v. Maltass, 1 Rob. Ecc. 80, already cited, Dr. Lushington admitted to probate the will, valid according to the law of England, of an English merchant resident at a British factory at Smyrna. He held that if the treaty between England and the Porte was applicable to British merchants resident or domiciled in the ordinarj' acceptation of the term in Smyrna, the provisions of the treaty decided what was to be done in the case of succession to personal estate, namely, that it was to follow the law of England. But he considered that the deceased was domiciled not in a colony, but in England. In the argument for the petitioners great reliance was placed on the nature and extent of the jurisdiction of the court at Shanghai, and the fact that the will has not been proved in England. The law admin- istered by the court at Shanghai, being for most practical purposes the same as that administered in England, the question of domicile is likely to arise only in exceptional cases like the present. The juris- diction conferred on the Supreme Court at Shanghai is merely the jurisdiction of Her Majesty exercisable in China, and confined to British subjects. It is not exclusive and does not oust the jurisdiction of Her Majesty's courts in England. No solid reason exists that I can discover for holding that the will of an Englishman " whose fixed place of abode " was at his death in China, could not be admitted to probate by the Court of Probate in England. I may observe that the terra " fixed place of abode " is not equivalent to domicile. The technical term "donaicile " was, it appears to me, purposely avoided. The only distinction between this case and Maltass v. iNIaltass, 1 Rob. Ecc. 67, is the existence at Shanghai of an English Court of Probate. Similar SECT. I.] IN RE TOOTAL'S TKUSTS. 165 courts now exist in the Ottoman dominions and in Egypt. In fact all these courts are consular courts, or constituted on the same model with more or less jurisdiction. In the case of Attorney-General v. Napier, 6 Ex. 217, letters of administration had been granted by the courts established iu India, where nearl}' the whole of the intestate's personal estate was locall}- situate at his death. In order to recover a comparatively small debt in England, administration was taken out in this country- also. The intestate's domicile was in England. But in deciding that legacy duty was payable, the Court of Exchequer proceeded solely on the domicile, and did not even advert in the judgment to the grant of administration in England. Evidently that fact, as well as the fact that the Indian court had jurisdiction to grant and had granted administration, were considered immaterial. If an Englishman domiciled in England dies resident abroad, and no part of his assets are in England, and no probate or letters of administration are taken out in England, there may be great difficulty in asserting the Crown's right to duty, and inasmuch as foreign courts will not enforce the revenue laws of this country the difficulty may in some cases be insuperable. But the Crown's right cannot depend on the greater or less difficulty in pursuing the remedy. In the case before me there is no difficulty in giving the remedy, since the fund is in court, and under the Legacy Duty Acts this court or its officers are bound to see that the legacy dut}-, if payable, is paid before the fund is parted with. The circumstance that the will has not been proved here is also immaterial. It has been proved in a dul}' constituted British court of competent jurisdiction, and, it being admitted that further probate here is not required, it follows that the court must look at the Shang- hai probate before distributing the fund. This disposes of the argu- ment that the court cannot take notice of an alleged will of personal estate, unless it has been proved in this country-. The argument which was addressed to me, founded on a close examination of the various pro- visions of the Legacy Duty Acts, for the purpose of showing that they do not apply in the circumstances of this case, was substantially the same as that urged in the House of Lords in Attorney-General v. Forbes, 2 CI, & F. 48, and is disposed of by the decisions in Thomson V. Advocate-General, 12 CI. & F. 1, and in Attorney-General v. Forbes, as explained by the Court of Exchequer in Attornev-General v. Napier, 6 Ex. 217. For these reasons I hold that there is no such thing known to the law as an Anglo-Chinese domicile, that the testator's domicile remained English, and that the circumstances are not sufficient to create an}' exception from the broad principle that legacy duty is pa3'able when the domicile is British. Consequently I think that the duty is payable-^ 1 Approved, Abd-ul-Messih v. Farra, 13 App. Cas. 431 (1888). The residence re- lied upon to establish domicile iu that case was at Cairo, as a protected British sub- 166 IN RE CRAIGNISH. [ciIAP. II. In re CRAIGNISH. High Court of Justice : Court of Appeal. 1892. [Reported [1892] 3 Chancery, 180.] Chittt, J.^ The plaintiff claims to be entitled beneficially to one- half of the property which passed under the will of his late wife. . . . He bases his claim on two grounds, — first, he alleges that during the marri age his own domicile, and consequently his wile^s domicile, was Scotch; and, secondly, that acoor dinp ; to t ,lip law of Sf^r>t.lf|,pd^ he_ is entitled beneficiahy to one-Dalf of the ^•^0-000 wt^jch ahp appointed, and one-half of h er residuar y estate. ... In order to establish that his own domicile was IScotch, the plaintiff gave evidence as to the domicile of his great-grandfather and his grandfatlier. When this evidence, chiefly documentary, had been put in, it was admitted by the defendants' coun- sel that the plaintiff had proved that the domicile of both these ancestors was and continued until their deaths to be Scotch ; consequently, the j ^lfiintijFs fatli er, being the legitimate son of a man domiciled in Scot- lan d, had at his birth a Scotch domicile . The contest then starts from this point. In the course of it many questions were raised, some of law, and some of fact, including the just inferences to be drawn from the facts proved. In view of the conclusion at which I have arrived on the facts subsequent to the plaintiff's marriage with Miss Meeking, , jjj^^ I shall pass by many of the questions that were raised ; 1 shall begin -r with a short statement of the facts from the plaintiff's birth down to ^ that marriage. He was born on the 24th of December, 1836, at Sydney, in *J ]» j>w- -Sou th -Will^" His father was then an officer in the 21st Regiment, serving with his regiment stationed there. His father and mother had married in that colony in 1834. His mother was the daughter of Sir Alexander Macleay, Speaker to the Legislative Council at Sydney. On the 15th of December, 1837, the plaintiff's father retired from the army by sale of his commission. He remained in the colony for some few years afterwards. He became police magistrate at Parramatta, and subsequentl}^, about 1838 or 1839, Colonial Treasurer. He gave up his appointment and left the colony about 1841. In that year he arrived in England with his wife and family, including the plaintiff. He sub- sequently visited Scotland, and, after a short stay in Manchester, he Qa^ ^ came with his wife and family to London in 1846, and continued to ^;jv**'''*^ Reside tb erejintil hi" dpnth, In August, 1846, he was appointed secre- tary to the London and South-Western Railway Company. Tlie salary ^ was considerable and sufficient for the support of his family and himself. He became a member of the Junior United Service Club. In February, ject. The Court said : " Residence in a foreign state, as a privileged member of an ex-territorial community, although it may be effectual to destroy a residential domicile acquired elsewhere, is ineffectual to create a new domicile of choice." — Ed. 1 The opinion only is given : it sulficiently states the ease. Only so much of th« opinion as deals with the question of domicile is given. — Ed. SECT. I.] IN RE CRAIGNISH. 1G7 1848, he purchased 62, Chester Square, for the remainder of a long lease, and went to reside there with his wife and family, and he con- tinued to reside there with them until his death, which occurred on the 4th of October, 1848. Being in ill-health he had resigned his office of secre- tary in the previous September. He made his will on the 28th of that^- month, describing hi niself as of 62^ Chester" Square, in t5g~Trounty o l* MiddlesexT Tlie residue of his property remauiing after payment of his debts'"araountod onl}' to a few hundred pounds, which he bequeathed to his wife, l ie had lost his money^byJJieJailure oLthe-Westei-n Btiiik^ of Aust ralia, a s he learnt on his arrival in England in 1841. Upon these facts it was argued for the defendants, — first, that the plaintiff's father w as at the time of t he plainti ff's birth domiciled in New Sou th Wales, and^conse quentl}- that the plaintifPs domicile of birth wa s in that count r3^j__and, secondl}', that if the plaintiff's father was not then domiciled in New South Wales, he was domiciled in England at the time of his death, and thereupon it was argued for the defendants, aa a proposition ofLlaw, that domicile of origin, rightly understood, does not mean domicile at birth-; but the last domicile imposed by the choice of the father, or other the guardian of an infant, who has authority to change the domicile of an infant by changing his own. This proposition of law was also raised in reference to certain facts (which I have not noticed) relating to the plaintiff's father while under age. It was urged that great inconvenience and hardship would arise b}^ holding that domicile of origin meant simply domicile at birth, and a case was put b}' way of illustration. Suppose, it was said, that at the time of tlie birth of his child an Englishman is domiciled in France, that shortly after- wards, say within three months of the birth of the child, the father breaks up his home in France and returns to England, his own domicile of origin, and continues to live settled there until the child comes of age — it was urged that it would be a great hardship on this English child to hold that throughout the rest of his life there was clinging to him a French domicile ready to arise whenever he abandoned the Eng- lish domicile, or any subsequent domicile acquired b}' his own choice. But this case can be met by a parallel counter-case. Suppose an Eng- lishman domiciled in England at his child's birth retains his English domicile until, say within three months of the child's coming of age, and then breaks up his English home and acquires a domicile in France, which he retains until the child comes of age — according to the argu- ment for the defendants, the domicile of origin of this Ensjlish child would be French. But inasmuch as I intend to decide this case on the assumij- tion that the plaintiff's domicile of origin was Scotch . I pass by these questions of fact and law without expressing any opinion upon them, except by saying, as to the defendants' proposition of law, that I am not persuaded that it is well founded, or that it can be supported upon a due examination of the authorities bearing on the subject. The plaintiff was in his twelfth year at his father's death. He was educated for the military service, chiefly in England, but partly in Ger- 168 IN RE CRAIGNISH. [CHAP. II. many, where his mother was residing. He obtained a military cadetship in the service of the East India Company, went out to India, and was appointed in 1854 to the 7th Bombay Native Infantry, one of the com- pany's regiments. He remained in the company's service until the government of India was transferred to the Crown by the act passed in 1858. He then became a military officer under the Crown. In 1869 he finally left India, and in 1871 he retired from military service on a pension. From 1854 to 1869 he was constantly in active service. He served in the Persian and other wars, and in the Mutiny he was an officer in Jacob's Horse. Oii_Jus-qxuttiilg Ijidia finally in 1869, he abandoned the Anglo-Indian domicile which he had acquired ; thereupon his domicile of origin, which I assume to be Scotch, revived, and this domicile continued unless and until he acquired a new domicile by choice. The burden of proving tiiat he acquired a new domicile by choice js JupoiL the defenda nts. From 1869 to 1883 his career may be briefly stated. During this pei-iod London seems to have been his headquarters. From London hfi..o;e.uerally started, and to London he generaU y returned on_ and after his numerous expeditio ns. He was continually moving from place to place. Down to 1877 his movements were principally in the direction where there was war or rumor of war. He was the mili- tary correspondent of a leading London newspaper — the " Standard " — daring the Franco-German ^Var ; afterwards he was roving corre- spondent for that newspaper. He was called back to England by the '■ Standard," and acted as militarj' correspondent for that paper at the manoeuvres on Salisbury Plain in 1872. He was present in the Spanish War in 1873, as correspondent for an English newspaper called the '* Hour," which had but a brief existence. I pass by the disturbances in Bosnia and Herzegovina in 1875, the Servian War in 1876, the Turkish War in 1877, and the siege of Batoum in the same year, in all of which he played some part, or had some concern. After 1877 his expeditions in connection with war appear to have ceased. In 1878 he was at Milan and Paris, and then he came to London ; and thence he went on a visit to Scotland and Ireland. In May, 1879, he was divorced from his first wife at her suit by the decree of the High Court in Lon- don, made absolute in the following December. He had married her in 1862 while in India. In 1879 he was living on the banks of the river Thames, not far from London. In 1881 he travelled to S3'dney, his birthplace, and returned to London about the end of that year. In 1882 he received from the Duke of Saxe-Coburg-Gotha the dignity of Baron von Craignish, and in 1883 he obtained the royal license to use that title in this country. It is said, however, that his claim to use the title is not recognized in Scotland. The selection of Craignish for his title has apparently given great offence to an elder branch of the Camp- bell family in Scotland. The estate of Craignish in Scotland has passed away from the Campbells. The plaintiff is not a Campbell of Craignish. His family is Campbell of Laggan Lochan. Neither the plaintiff nor his J father ever held any land in Scotland. I have mentioned this circum- SFXT. I.] IN RE CRAIGN'ISH. 169 stance as to the grant of the dignity' by a foreign prince because the plaintiff's counsel placed some reliance on it ; but it appears to me to have no bearing on the question of domicile. I now come to the critical period which extends from his marriage ■with Miss Meeking until her death. The marriage took place at the British Embassy in Paris on the 2 6th of March, 1883. He was then in his forty-seventh year — a time of life when a man is less disposed to rove and more inclined to settle down, particularly when he has mar- ried a rich wife. He is described in the marriage certificate as "of the parish of Sydney, in the county of New South Wales, then residing at I Parr's Hotel, Brighton," and she is described as " of the parish of St. Andrew's, Holborn, in the county of Middlesex." They seem to have started from London for the marriage in Paris. After the marriage they went on a trip to Nice, and from Nice they returned to London. There they stayed at Fisher's Hotel, Clitford Street. That was in the middle of 1883. He bought a yacht at Cowes, which his wife paid for and presented to him. The yacht was, and continued to be, stationed at Cowes. H is property consisted of his pension and some articles of " ornament or the like, which he had apparently collected in his wander; ^tng5r*^He had" no other property except the yacht. Daring the yacht- ing seasons of the years 1883, 1884, and 1885, the yacht was used by him, sometimes with and sometimes without his wife, for various trips to Scotland, the Mediterranean, and the Baltic. During the same period they made visits to the Riviera, Paris, and Boulogne, Germany, and the New Forest in England, generall}', but not always, together. There was some Httle confusion in the plaintiff's evidence as to the dates and order of these trips and visits ; but the exact dates and order are not material. During this period the plaintiff and his wife were frequently in London, staying at hotels and furnished rooms. "What- ever expeditious they made, the plaintiff and his wife (as he stated in his evidence) always came back to Loudon. On the 4th of January, 1886, the plaintiff signed an agreement for taking No. 25, Albert Gate, on a tenancy commencing on the 15th of that month. He entered into possession accordingly, and resided there with his wife until their separation, which took place in June or July following. The plaintiff, in his evidence, seemed desirous of ascribing the taking of this house solely to his wife; he had apparently forgotten that he had himself signed the agreement, and that in a letter written by him to her after the separation, dated Piccadilly, he had spoken of the house emphatically as "my house." The taking of thj^i^ hmisp wnar his own act, even if hgJiOalLJ t at the request of his w ife. The hous t / was taken with the furniture therein. His wife had f urnit ure j toreS~ at a repository: "some of this wap vemoved to^the house, but the buTF^ remained at the repos itory. The articleswhich belonged to him -^ were removed" to tde Ebuse. In the agreement he is described as of the Junior United Service Club, S. W. The rent was £500 a year, and the term was for a year certain, with an option to the plaintiff 170 IN RE CRAIGNISH. [CHAP. II. to continue the tenancy for another year, and if the house was not required by the landlord, then for a further term. Some time after the separation of the plaintiff and his wife this house was given up. After their separation they never lived together again. There were protracted negotiations carried on by their solicitors for a deed of separation. They were broken off before her death, because the plaintiff would not accept the conditions on which it was proposed on her part that an annuity should be settled on him. Her proposal was that the annuity should be a personal provision for his mainte- nance, and therefore determinable on bankruptcy or alienation; the plaintiff required that the annuity should be free of all restrictions, so that he could deal with it and raise mouey upon it. These negotia- tions were conducted throughout on the footing or tacit assumption that the law applicable to the relation of the parties was the law of England. Thfwrrnft_wh ip.h pn.sse d._betwe en the solicitors w as in ^ Engli sh formj no suggestion was made~7rom begi nning to end by ^r_on behalf of the plaintiff of a Scotch domicile., or thatl haiajs-ol- Scotl and had a ny bearing on the r ights of the plaintiff and his wife. "But, in justice ~to tne piamtitt, it is proper to add that he was not designedly suppressing or keeping back any claim. He was not aware that he had any before the memorable conversation with his barrister friend after his wife's death. Still, the circumstance that these negotiations were conducted on the footing or assumption that the law of England applied has some bearing on the question of domi- cile. The object of the law in searching for and ascertaining a man's domicile is to ascertain the particular municipal law by which his private rights are regulated and defined. The circumstance t hat a foreigner residing in England by h is conduct adopts the law of Eng- Jaiid as the law whereby his private rigMa-ar6-dMiifidJ[aj:elesiuit.^i" deuce on the question of his domicile. Doucet v. Geoghegan, 9 Ch. D. 44:L Xlie assumption in these negotiations, that t he relative j lghla^ of the plaintiff and liis wife were governed by the law of England^ TallsTar short of an intentional adoption of that law, and if it stood_ ^lone it would be of trifling import, but, taken in connection with the other circumstances of tlie case, it is not altogether without weight. ^A' few more facts remain to be noticed. 'J'he plaintiff was during the marriage a member of three clubs in London, — the Junior United / Service Club, the Royal Thames Yacht Club, and the Raleigh. Shortly after his wife's death he became a member of the Arts and Letters Club, also in London. His wife was a member of the Albe- marle Club in London, i He never had a club in Scotland. After the separation he continued to reside chiefly in London. He had lodg- ings or furnished apartments in Suffolk Street, in Bedford Gardens, Kensington (where he stayed about a year), in Vauxhall Bridge Road, and in Cheniston Gardens, where he was when his wife died. He had a studio in Cheniston Gardens. He made a short expedition to Cairo, and he went round Scotland in the Norham Castle, accompany- SECT. I.] IN RE CRAIGNISH. 17l ing the ocean j'aeht race of 1887 as one of the Thames Yacht Club committee. This was the only visit, if it can be called a visit, which he paid to Scotland after the separation. In order to show that his domicile was Scotch, or, at all events, that it was not Eng- lish, the plaintiff gave in evidence conversations which he had with his wife concerning Craignish. All these conversations occurred before he took No. 25, Albert Gate. The final conversation was at Fisher's Hotel, London. The plaintiff said his wife often talked to him about the possibility of his being able to buy Craignish. A friend had made inquiries and reported the result. The owner evi- dently did not intend to part with it at any price. He put a fancy price upon it; according to the plaintiff's recollection it was £80,000. To use the plaintiff's own expression, "That settled the matter of Craignish." It put an end to all ideas of his wife buying it. He never had any idea of purchasing it himself-, as he truly stated, he had no money. It never really was within the range of practicability that even his wife should buy it. The £65,000 was so tied up that she could not dispose of any part of the capital during her life. She had a legacy of some thousand pounds under her father's will, but there was no evidence to show how much of this remained in her hands at the marriage. That a man with Scottish blood in his veins should have dreams of Scotland and an ancestral estate there is natural enough. This was but a waking dream, and the dream, such .as it was, was the dream of his wife, and not of himself. A dream or a mere hope or a wish for the impossible is not an intention. There was no intention to buy Craignish. Whatever idea there was on the subject, it had finally vanished before the plaintiff took the house at Albert Gate. The plaintiff gave also some evidence as to his wife's making inquiries in regard to some other places in Scot- land on their visits to that countr}', but nothing came of these inqui- ries, and these matters all came to an end before the house at Albert Gate was taken. There is one peculiarity in this case which does not often arise in questions of domicile. Generally the inquiry relates to the domicile of a person who is dead. In this case the question relates to the domicile of the plaintiff, a living person. He gave evidence as to his past intention during his wife's life. Asked by his own counsel whether he formed any intention to make a settled home in England, he said, "No," and subsequently he said: "The only place I ever had any serious intention of making a home, if I could, was Scotland." In cross-examination he had admitted that there was no part of the United Kingdom where he had anything which could be called a home but in London; that any home he had' was in London; and that certainly he had no other home but in London. As to the evidence of the plaintiff himself on the subject of his past intention, it must be accepted with a very considerable reserve. A plaintiff" has naturally, on an issue like the present, a very strong bias cal- 172 IN RE CRAIGNISH. [CHAP. II. Ciliated to influence bis mind, and he is, moreover, speaking of bis past intention, and not merel}' of past declarations of inten- tion. (See the observations of Lord Cairns in Bell v. Kennedy, Law Rep. 1 H. L., Sc. 307, 313.) Considerable ligbt is thrown on the question whether the plaintiff did not himself consider that bis home •was in England by some of his own letters written to his -wife after the separation. In these letters, written at various dates and from various places, the term "home" occurs seven times. I refrain from quoting at length the passages in the letters or the cross-examination upon them. They are, so far as they go, contemporaneous declara- tions of intention. The term "home" may be, and is, often used in different senses. An Englishman permanently settled in one of the English colonies may without impropriety speak of going home •when he is paying a visit to England. If asked to explain himself, be would probably say that he used the term in reference to the mother country from which he and his brother colonists had emigrated or originally sprung, and that his own true home was in the colony. So in familiar conversation or in familiar letters the term may be used in a sense (varying more or less according to the accuracy of the speaker or writer from the ordinary popular sense) of the place where a man has his abode or is settled. When a traveller speaks of return- ing home he uses the term in the ordinary popular sense. In a letter of the plaintiff's (January 23, 1888), written from Corfu, where the plaintiff charges his wife with "breaking up our home," he was referring to their home at Albert Gate. This he admitted. In a passage in the same letter, where he asks "How can I go home?" he is referring to London, or at all events to England. In an undated letter from Alexandria, where the term "home" occurs three times, he uses it in the same sense of London or England. In the course of his examination-in-chief the plaintiff used the term "home" eit^ht times, generally, however, following the lead of his counsel. When he is speaking of home before he finally quitted India, it is clear that he is using the term in the loose sense in which an Anglo-Indian may speak of this country as his home. After he left India, he uses it generally in reference to England as the place from which he started and to which he returned. I have surveyed the evidence at some length. In the result, and on the assumption that the plaintiff's domicile of origin was Scotch, I ^findjbat the plaint iff acquired by choice adomicile ijLE,n^l.and_£iX)m^ Jhe^time when he went toTesraFwiIErEIs wif e inlhe house at Albert-. Gate, and that the domicile thus acquired was agt afterwards aban-_ doned, but contiaued to the death of hj_s_wife. Tbe_evidence of the^ fact of residence here is amply snllici^c^^^The true inferencelo be drawn from the evidence of the circumstances surrounding and accompanying the fact of the residence here, when taken in connection. with the plaintiff's own letters and the other facts of the case viewed_^ as a w hoIe^_app ear8 t o me to be t hat the plaintiff formed the intentio a_^ SECT. I.] IN RE CRAIGNISir. ' 173 of residing heie indefinitely. There was the animus revertendi and manendi. According to Story's definition, that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom. Story's Conflict of Laws, sect. 43. There was no present intention on the plaintiff's part to remove from London. London, which was at first merely his be ad , - quarters^ afterwards became his home; he treated It as Lis home, and call ed it liis home, more particularly he considered the house kt Alber t Gate, where he lived with his wife, as his home. A m an may be in fact homeless, but he cannot in law be without a domicile. Subjec't to this distinction the term "home," in its ordinary popular sense, is practically identical with the legal idea of domicile. Dicey on Domicile, pp. 42-55. Living in lodgings and changing the lodgings from time to time are circumstances to be taken into consid- eration on a question of domicile-, they are not inconsistent with domicile. There are many foreigners resident and domiciled in this country who pass their lives in lodgings only; a man may be domi- ciled in a country without having a fixed habitation in some particular spot in that country. The plaintiff's lodgings or apartments were all within the area of London. If (as I think was the case) the plaintiff's domicile was English in January, 1886, there is no sufficient evidence to show subsequent abandonment of that domicile. The subsequent breaking up of the house at Albert Gate is attributed by the plain- tiff to his wife; even if it were his own act it would not of itself constitute an abandonment of a home or domicile in England. For^ Jhe period of two.and a halfjrears which elapsed between the separ a-_ lis wife's death the plafntiflf'^s~~principal place of residence was in jiOudou^-, he quj tted Lond on onlyjoi jhe temporary purpose of_ his short trips abroad. The plaintiff's counsel relied on the decision in In re Patience, 29 Ch. D. 976. On a question of fact a decision in a previous case affords little or no assistance. In that case I thought there was not sufficient evidence of intention. In this case I think there is. The action is dismissed with costs. The plaintiff appealed. I^iimLEY^. J., in delivering judgment, went through the facts of the case, and expressed the opjnion that the plaintiff had not a Scotch domicile at the time of his wife's death. His Lordship accordingly held that the decision of Mr. Justice Chitty was right, and that the appeal must be dismissed with costs. Bo WEN and Kay, L.JJ., concurred.* Pollock, C. B., In Attorney-General v. Pottinger, 6 H. & N. 733,744(1861). The question is, whether Sir Henry Pottinger at the » Ace. Merrill v. Morrisett, 76 Ala. 433; Dalloz, Repert. vol. xvii. p. 396. Contra, In re Patience, 29 Ch. D. 976. Cf. Desmare v. TJ. S., 93 U. S. 605. — Ed. 174 PUTNAM V. JOHNSON. [CHAP. II. time of his decease was domiciled in England or in India. . . . The onl}' doubt arises from this, that he continued in the service of the East India Company, and might have been called upon at any time to serve in Indi^. In Hodgson v. De Beauchesne, 12 Moo. P. C. 285, which was cited to establish that because an Indian officer con- ti n u ed Ji able to be callecL up on to se rve in. In dia hfiL JJould not sicqwee ^ JU'i-^*^,*^^ -^^ English domicile, Uie court_decided that such circumstances con- nCyu^^-^ stituted a strong reason against such an officer acquiring a Fiench ^'*^''"^''^^^ g^^/«% Tn. •j4(^ • Frye's Eloction, 71 Pa. 302. — Eu. / >'' ' Ace. Sanders v. Getchell, 76 Me. 158 ; Hicks v. Skinner, 72 N. C. 1. Re^sideiuc tor voting means act ual domicil ^e. Dennis v. S., 17 Fla. 389. — Eu. / V ' f Ee opinion only is given : it sufficiently states the case. — Ed. ' ^ ', 12 ':\ ii 'J in. w 178 ABINGTON V. KORTH BRIDGEWATER. [CIIAP. II. and dwell," are frequently and variously used, and, we think, they are used indiscriminately, and all mean the same thing, namely, to desig- nate the place of a person's domicile. This is defined in the Consti- tution, c. 1, § 1, for another purpose, to be the place "where one dwelleth or hath his home." The fact of domicile is often one of the highest importance to a person; it determines his civil and political rights and privileges, duties and obligations; it fixes his allegiance; it determines his bel- ligerent and neutral character in time of war; it regulates his personal and social relations whilst he lives, and furnishes the rule for the disposal of his property when he dies. Yet as a question of fact, it is often one of great difficulty, depending sometimes upon minute shades of distinction, which can hardly be defined. It seems difficult to form any exact definition of domicile, because it does not depend upon any single fact, or precise combination of circumstances. If we adopt the above definition from the Constitution, which seems intended to explain the matter and put it beyond doubt, it will be found, on examination, to be only an identical proposition, equivalent to declaring, that a man shall be an inhabitant where he inhabits, or be considered as dwelling or having his home where he dwells or has his home. It must often depend upon the circumstances of each case, the combinations of which are infinite. If it be said to be fixed by the place of his dwelling-house, he may have dwelling houses in different places; if it be where his family reside, his family with himself may occupy them indiscriminately, and reside as much in one as another; if it be where he lodges or sleeps (per7ioetaf), he may lodge as much at the one as the other; if it be his place of busi- ness, he may have a warehouse, manufactory, wharf, or other place of business, in connection with his dwelling-hoiise in different towns. See Lyman y. Fiske, 17 Pick. 231. But without pursuing this gen- eral view further, to show that it is difficult, if not impossible, to lay down any general rule, on account of the very diversified cases which may be supposed, yet it will generally be found in practice, that there is some one or a few decisive circumstances which will deter- mine the question. In coming to the inquiry in each case, two considerations must be kept steadily in view, and these are, — 1. That every person must have a domicile somewhere; and 2. That a man can have only one domicile, for one purpose, at one and the same time. Every one has a domicile of origin, which he retains until he ac- quires another; and the one thus acquired is in like manner retained. The supposition, that a man can have two domiciles, would lead to the absurdest consequences. If he had two domiciles within the limits of distant sovereign States, in case of war, what would be an act of imperative duty to one, would make him a traitor to the other. As not only sovereigns, but all their subjects, collectively and indi- SECT. I.] ABINGTON V. NORTH BRIDGE WATER. 179 vidually, are put into a state of hostility by war, he would become an enemy to himself, and bound to commit hostilities and afford pro- tection to the same persons and property at the same time. But without such an extravagant supposition, suppose he were domiciled within two military districts of the same State, he might be bound to do personal service at two places, at the same time; or in two counties, he would be compellable, on peril of attachment, to serve on juries at two remote shire towns ; or in two towns, to do watch and ward in two different places. Or, to apply an illustration from the present case. By the provincial laws cited, a man was liable to be removed by a warrant to Ihe place of his settlement, habitancy, or residence, for all these terms are used. If it were possible that he could have a settlement or habitancy in two different towns at the same time, it would follow that two sets of civil officers, each acting under a legal warrant, would be bound to remove him by force, the one to one town, and the other to another. These propositions, therefore, that every person must have some domicile, and can have but one at one time, for the same purpose, are rather to be regarded as postulata than as propositions to be proved. Yet we think they go far in furnishing a test by which the question may be tried in each particular case. It depends not upon proving particular facts, but whether all the facts and circumstances taken together, tending to show that a man has his home or domicile in one place, over- balance all the like proofs, tending to establish it in another; such an inquiry, therefore, involves a comparison of proofs, and in mak- ing that comparison, there are some facts which the law deems decisive, unless controlled and counteracted by others still more stringent. The place of a man's dwelling-house is first regarded, in contradistinction to any place of business, trade, or occupation. If he has more than one dwelling-house, that in which he sleeps or passes his nights, if it can be distinguished, will govern. And we think it settled by authority, that if the dwelling-house is partly in one place and partly in another, the occupant must be deemed to dwell in that town in which he habitually sleeps, if it can be ascertained. Lord Coke, in 2 Inst. 120, comments upon the statute of Marl- bridge respecting courts leet, in which it says, that none shall be bound to appear, nisi in balivis uhi fuerunt conversantes ; which he translates, "but in the bailiwicks, where they be dwelling." Ilis Lordship's comment is this: "If a man have a house within two leets, he shall be taken to be conversant where his bed is, for in that part of the house he is most conversant, and here conversant shall be taken to be most conversant." This passage, at first blush, might seem to imply that the entire house was within two leets. But no man can be of two leets. 2 Doug. 538; 2 Hawk. P. C. c. 10, § 12. Indeed, the whole passage, taken together, obviously means, a house partly within one leet and partly within another; otherwise, the bed Would be within the two leets, as well as the house. 180 ABINGTON V. NORTH BKIDGE WATER. [CHAP. II. It is then an authority directly in point to show, that if a man has a dwelling-house, situated partly within one jurisdiction and partly in another, to one of which the occupant owes personal service, as an inhabitant, he shall be deemed an inhabitant within that jurisdiction within the limits of which he usually sleeps. The same principle seems to have been recognized in other cases, mostly cases of settlement, depending on domicile. Rex v. St. Olaves, 1 Str. 51; Colechurch v. Radcliffe, 1 Str. 60; Rex v. Brigh- ton, 5 T. R. 188; Rex v. Ringwood, 1 Maule & Selw. 381. I am aware that the same difficulty may arise as before suggested, which is, that the occupant may not always, or principally, sleep in one part of his house, or if he sleeps in one room habitually, the dividing line of the towns may pass through the room or even across his bed. This, however, is a question of fact depending upon the proofs. When such a case occurs, it may be attended by some other circumstance decisive of the question. If the two principles stated are well established, and we think they are, they are, in our opinion, sufficient to determine the present case. It becomes, therefore, neces- sary to see what were the facts of this case, and the instructions in point of law upon which it was left to the jury. The plaintiffs contended that two monuments pointed out by them were true and genuine monuments of the Colony line, and if so, a straight line drawn from one to the other would leave the house wholly in North Bridgewater, and the jury were instructed, if they so found, to return a verdict for the plaintiffs. But the jur^^ stated, on their return, that on this point they did not agree, and therefore that part of the instruction may be considered as out of the case. It is therefore to be taken that, in point of fact, the line ran through the house, leaving a small part in Randolph and a large part in North Bridge-water. In reference to this, the jury were instructed, that if that line would leave a habitable part of the house in Randolph, the verdict should be for the defendants ; otherwise, for the plaintiffs. The jury were also directed to find, specially, whether the beds of the family in which they slept, and the chimney and fireplace, were or were not in North Bridgewater. The jury found a verdict for the plaintiffs, which in effect determined, in point of fact, that the line did run through the house, leaving a small part in Randolph, that the beds and fireplaces of the house were on the North Bridgewater side of the line, and that there was not a habitable part of the house in Randolph. "What was the legal effect of this instruction to the jury? To understand it, we must consider what was the issue. The burden of proof was upon the plaintiffs, to prove that Hill had his settlement in North Bridgewater. But proving that he had a dwelling-house, standing partly in North Bridgewater and partly in Randolpli, would leave it wholly doubtful whether he had his domicile in the one or the other, provided that the line passed the house in such a direction SECT. I.] ABINGTOX V. NORTH BRTDGEWATER. 181 as that either would have been sufficient for the purpose of a habita- tion; because it would still be doubtful whether he dwelt upon one or the other side of that line. But if the line ran in such a direction as to leave so small a portion on one side that it could not constitute a human habitation, then the position of the dwelling determined the domicile. In any other sense, we see not how the correctness of the instruction could be maintained. If the term "habitable part of the house " was intended to mean a portion of the house capable of being used with the other part for purposes of habitation, and the whole constituting together a place of habitation, then every part of the house capable of being used would be a habitable part. The instruction was, that if a habitable part was in Randolph, the occu- pant did not acquire a domicile in North Bridgewater; it would be equally true in law, that if a habitable part was in North Bridge- water, he did not acquire a domicile in Randolph. If the term "habitable," then, were used in the restricted sense, capable of being used as a part, and not as the whole of a human habitation, the in- struction would amount to this, that living ten years in a dwelling- house divided by an imaginary line into parts, both of which are useful and capable of being used as parts of a dwelling-house, the occupant would acquire no domicile. But this is utterly inconsistent with the principles of domicile. By leaving his domicile in Abing- ton, and living in the house in question, Hill necessarily lost his domicile in Abington, and necessarily acquired one by living in that house; and this must be in either Randolph or Bridgewater, and not in both. It may be impossible, from lapse of time and want of evidence, to prove in which, and therefore the plaintiffs, whose case depends on proving affirmatively that it was in North Bridgewater, may fail ; nevertheless it is equally true, in itself, that he did acquire a domicile in one, and could not acquire one in both of those towns. Suppose the proof were still more deficient; suppose it were proved beyond doubt, that Hill lived in a house situated on a cleared lot of one acre through which the town line were proved to run, but it were left uncertain in the proof on which part of the lot the house was situated. It would be true that he lost his domicile in Abing- ton, and acquired one in Randolph or North Bridgewater; but it being entirely uncertain which, the plaintiffs would fail of proving it in North Bridgewater, and therefore could not sustain their action. So if the line ran through a house in such a manner that either side might afford a habitation, then dwelling in that house would not of itself prove in which town he acquired his domicile, though he must have acquired it in one or the other. In this sense we understand the instruction to the jury, and in this sense we think it was strictly correct. If they should find that the line so ran through the house as to leave a part capable, of itself, of constituting a habitation, in Randolph, then dwelling in that house, though partly in North Bridge- water, did not necessarily prove a domicile in North Bridgewater. 182 HA.GGART V. MORGAN. [CHAP. II. Under this instruction the jury found a verdict for the plaintiffs, and we think it is evident from this verdict, that they understood the instruction as we understand it. The jury find that one corner of the house, to the extent of two feet and one inch, was in Randolph, but that no habitable part of the house was in Randolph; not, as we think, no part capable of being used with the rest of the house for the purpose of habitation, but no part capable, of itself, of constitut- ing a habitation; from which they draw the proper inference, that the habitation and domicile, and consequently the settlement, was in North Bridgewater. And if we look at the fact, specially found by the jury, we are satisfied that they drew the right conclusion, and could come to no other. If the line had divided the house more equally, we think, on the authorities, that if it could be ascertained where the occupant habitually slept, this would be a preponderating circumstance, and, in the absence of other proof, decisive. Here it is found, that all the beds, the chimney and fireplace, were within the North Bridge- water side of the line, and that only a small portion of the house, and that not a side but a corner, was within the Randolph side, and that so small as to be obviously incapable of constituting a habitation by itself. We think, therefore, that the instruction was right, and the verdict conformable to the evidence. Judgment on the verdict for the plaintiffs ?■ HAGGART v. MORGAN. ^^^ ^'^7/i Court of Appeals, New York. 1851. [Reported 5 New York, 422.] 1 Gardiner, J.'^ The defendants at the trial offered to prove "that fy at the time of taking out the attachment mentioned in the pleadings, and at the time of the giving of the bond in suit, the debtor. Bran- degee, was not a non-resident of the city of New York, but a resi- tr dent. That he had been absent about three years, in attending a law- suit at New Orleans, and returned in the spring of 1848." The judge excluded the evidence on the grounds, — 1st, That the offer itself showed the debtor to be a non-resident, at the time when the attachment issued, within the spirit of the act; 2d, that the giving of the bond to discharge the attachment prevented him from show- ing such fact; and the defendant excepted. This exception presents "the only question in the cause worthy of serious consideration. The ruling of the judge was probably correct for the reasons as- signed by him. In the matter of Thompson, 1 Wend. 45, the distinc* 1 Ace. Judkins r. Reed, 48 Me. 386. — Ed. 2 Part of the opinion only is given. — Ed. SECT. I.] WILLIAMS V. ROXBURY. 183 tion was taken between t bevreaidence of the dcbtoi/and bis domicile. It was there held that hisj-esiiUiiice might be-iiln'oad, within the spirit of^the statute, whi^h was intended to give a remedy to creditors whose debtors could not be served with process, while his domicile continued in this State. In Frost v. Brisbin, 19 Wend. 14, it was said, in a case like the present, thatd^ctnal residen ce,JAvithout regard to the dom- icile of the defendant, w nft witliin tlu> fqnt''" ^i>lation of the statute . If was part of the offer of the defendants to prove that the debtor left this State in November, 1844j and returned in the spring of 1848j^ and that this absence of three years and a half was necessary to accomplish the business in which he was engaged. He was there- fore a non-resid ent when the attachment w as issue d, witllln these decisions, although domiciled in New York|3 // WILLIAMS V. ROXBURY. Supreme Judicial Court of Massachusetts. 1858. [Reported 12 Grai/, 21.] Action of contract to recover back the amount of a tax assessed on the 1st of May, 1856, upon personal property held by the plaintiff as trustee under the will of John D. Williams, for the benefit of Mrs. Sarah A. W. Bradlee, formerly Miss Merry, and paid under protest. The parties agreed that if, in the opinion of the court, upon so much of the following facts as would be admissible in evidence, Richards Bradlee, her husband, was a resident of Brookline, judgment should ^ \ ^ render ed for the plaintiff ; otherw ise, for the def endants. Richards Bradlee was born in ^rattleboro. Vt. lived there until the age of sixteen, then went to New York, and there remained until after he became of age in the spring of 1855, when he returned to Brattleboro for the purpose of finding some employment, but with a view of going to the West, and, after passing the summer in Brattle- • boro, went to St. Louis in October in search of employment, and entered a store as a clerk, but under no contract for any fixed length of time ; and in the following winter at St. Louis met Miss Merry, who resided in ^pxhury, and became engaged to marry her. He neyer had any intention of making Roxbury his residence. In 1 Jcc. Krone v. Cooper, 43 Ark. 547 ; Ludlow v. Szold, 90 la. 175, 57 N". "W. 676 (see, however. Church v. Grossman, 49 la. 444) ; Risewick v. Davis, 19 Md. 82 ; Alston v. Newcomer, 42 Miss. 186 ; Johnson v. Smith, 43 Mo. 499 ; Long v. Ryan, 30 Grat. 718. Coyitra, Wood v. Roeder, 45 Neb. 311, 63 N. W. 853 ; Stratton v. Brigham, 2 Sneed, 420. And see Ballinger v. Lautier, 15 Kan. 608; Clark v. Likens, 26 N. J. L. 207. A similar rule prevails as to " settlement" or "residence " in poor-law cases. Jef- ferson V. Washington, 19 Me. 293 ; North Yarmouth v. West Gardiner, 58 Me. 207. — Ed. '-'-i^t^ 184 OILMAN V. OILMAN". [CHAP. II. March, 1856, he hired a house in Brookline, at a rent to begin on the 1st of April, for the residence of himself and his wife; visited it with her several times to set up the furniture; put a housekeeper and servants in charge of it, and removed into it his and Miss Merry's movable property. They were married in Roxbury on the 9th of April, and on the same day started on a wedding tour, with the inten- tion of returning, not to Miss Merry's former residence in Roxbury, but to the furnished house in Brookline, and on the 2d of May did return to that house. C. A. Welch, for the plaintiff. TV. Gaston, for the defendants. Shaw, C. J. The question of domicile is a question of fact. It is a question of comparison of facts. Had Mr. Bradlee previously had a clear, fixed, and decided domicile, the circumstances would hardly be sufficient to show an acquisition of a domicile in Brookline. But when we compare the facts, we are brought to the opposite result, ^j ^ttleboro was his domicile of origin , but he scarcely ever visited there, and soon after coming of agewent to St. Louis, and was there three or four months as a clerk, and there formed a marriage engage- ment with Miss Merry. He then came to Massachusetts, without c^ any intention to return to St. Louis with his wife. But he came to yto ^%r Massachusetts to fulfil his engagement. „jHeacquired no domicile at Roxbury. He took a lease of a house in ^rooETT ne~inTJarcE, the renl jommence on the 1st of April; took possession; put in a house- Ifeeper; visited the house for the purpose of putting up furniture, removed all his own and his wife's property to it, before their marriage. His subsequent absence was only temporary; he left on a marriage tour, with the intention to return to live in Brookline, and on his return he took actual possession of the house which he had hired. Our conclusion is that upon a balance of all the facts the domicile was in Brookline, and that • The plaintiff is entitled to judgment, * OILMAN V. OILMAN. ' Supreme Judicial Court of Maine. 1863. [Reported 52 Maine, 165.] Davis, J.^ This case comes before us upon an appeal from a decree of the Probate Court, admitting to probate and allowing the 1 Ace. Mann v. Clark, 33 Vt. 55. If the fact of residence and the intention to stay indefinitely concur, a domicile is gained at once, for however short a time the residence or the intent continues. Par- sons V. Bangor, 61 Me. 457 ; Stockton v. Staples, 66 Me. 197 ; Thorndike v. Boston, 1 Met. 242 ; McConnell v. Kelley, 138 Mass. 372 ; Home v. Home, 9 Ired. 99. — Ed * The opinion only is given : it sufficiently states the case. — Ed. SECT. I.] OILMAN V. OILMAN. 18.' last n-ill atid testament of Nathaniel Oilman. It was proved by a copy, the original being beyond the jurisdiction of the court. The validity of the will is not questioned. But the testator left a large amount of property in the city of New York as well as in this State; and the will has been proved and allowed there, on proof of its execution merely, without any inquiry in regard to domicile. The Surrogate seems to have assumed that jurisdiction of the property conferred original jurisdiction of the will, whether the testator's domicile was there or elsewhere. Even if his decree were conclusive, which cannot be admitted, no decree was made by him upoii that point, or that was intended to settle it, as a judgment binding upon the courts of any other State. If the domicile of the testator, at the time of his death, was in New York, then his will should be allowed and recorded in this State as a foreign will. R, S., c. 64, § 8. And, in that case, the movable property in this State would be disposed of, under the will, according to the laws of the State of New York. Jarman on Wills, 2. But if his domicile was in this State, then the Probate Court here has original jurisdiction, and our laws must govern the construction of the will, aud the disposal of the property. Harrison v. Nickerson, 9 Pet. 483; Story's Conflict of Laws, § 481; Bempde v. John- stone. 3 Ves. 199. It would be well, if possible, to have a distinct and clear idea of what we mean by the term "domicile," before applying it to this case. It is no easy matter, however, to find a definition that has not been questioned. Vattel defines it as "the habitation fixed in any place, with an intention of alwnys staying there." This is quoted with approbation by Savage, C. J., in Thompson's Case, 1 Wend. 43; and in the case of Roberts' Will, 8 Paige, 519, Chan- cellor Walworth adopts it in substance. "Domicile is the actual residence of an individual at a particular place, with the animus manendi,, or a fixed and settled determination to remain there the remainder of his life." This was slightly varied in Massachusetts, by Wilde, J., in Jennison v. Hapgood, 10 Pick. 77, where it is said to be a residence at a place "accompanied with the intention to re- main there permanently, or at least for an indefinite time." -Vattel's definition was questioned by Parker, J., in Putnam v. Johnson, 10 Mass. 488, in which "domicile " is said to be "the habitation filse'd in any place, without any present intention of removing therefrom." This form has been recognized in this State as more nearly correct than any of the others. Warren v. Thomaston, 43 Maine, 406. All definitions of this kind were criticised, with much force, by Lord Campbell, C. J., in the case of Regina v. Stapleton, 18 Eng. Law and Eq. 301, in which he suggests that, if one should go to Australia, with the intention of remaining there ten years, and then returning, his domicile could hardly be said to continue in England. If he should leave his family in England, as stated in the supposed 1S6 OILMAN V. OILMAN. [CHAP. II. case, his domicile might properly be considered there. But, if a citi- zen of Maine, with his family, or having no family, should go to California, to engage in business there, with the intention of return- ing at some future time, definite or indefinite, and should establish himself there, in trade or agriculture, it is difficult to see upon what principle his domicile could be said still to be here. His residence there, with the intention of remaining there a term of years, might so connect him with all the interests and institutions, social and public, of the community around him, as to render it not only proper, but important, for him to assume the responsibilities of citizenship, with all its privileges and its burdens. Such residences are not strictly within the terms of any definition that has been given; and yet it can hardl}^ be doubted that they would be held to establish the domicile. Other definitions have been given, which, though more general, are better adapted to determine the case at bar. Thus Story, in his Conflict of Laws, says that one's domicile is "his true, fixed, perma- nent home, and principal establishment, to which, whenever he is absent, he means to return." And, in Muuroe v. Munroe, 7 CI. & Fin. 877, Lord Cottenham says that, to effect the abandonment of one's domicile, and to substitute another in its place, " is required the choice of a place, actual residence in the place chosen, and that it should be the principal and permanent residence." That the testator's original residence was in Waterville is ad- mitted. There he established himself in business, accumulated prop- erty, was married, and owned a house, in which, either continuously or at intervals, he resided, with his family, until he died there in 1859. It has been laid down as a maxim on this subject, that every person must have a domicile somewhere. Abington v. North Bridgewater, 23 Pick. 170. This may be doubtful in its application to some ques- tions. A life may be so vagrant that a person will have no home in any city or town where he can claim any of the rights or privileges appertaining to that relation. But, in regard to questions of citizen- ship, and the disposition of property after death, every person must have a domicile. 1 Amer. Lead. Cas. 725, note. For every one is presumed to be a subject of some government while living; and the law of some country must control the disposition of his property upon his decease. It is therefore an established principle of jurisprudence, in regard to the succession of property, that a domicile once acquired continues until a new one is established. Therefore the testator's domicile must be considered in Waterville, for the purpose of settling his estate, unless he had not only abandoned it, but had actually acquired a new domicile in New York. It appears in evidence that he commenced business in New York about 1831, at first being there transiently; that in 1836 or 1837, having been married a second time, he was in the habit of spending considerable time there with his family at the Astor House, and other SECT. I.] OILMAN V. OILMAN. 187 hotels; that he hired a house there, in which he lived portions of the year from 1841 to 1844; that he bought a house in Brooklyn, which he occupied at intervals from 1847 to 1852 ; that he bought a lot in Greenwood Cemetery, on which he built an expensive tomb; that, after 1836, his principal business was in New York, and that several of his children were married and settled there in business. But he never disposed of his house in Waterville; he always kept it fur- nished, in repair, and supplied with fuel ; he kept a horse and car- riage there; he generally spoke of Waterville as his home; and, with the exception of one or two years (and during those years he did not keep house anywhere else), he lived in his house there a portion of the year with his family. A person may have two places of residence, for purposes of busi- ness or pleasure. Thorndike v. Boston, 1 Met. 242; Sears v. Boston, 1 Met. 250. But, in regard to the succession of his property, as he must have a domicile somewhere, so he can have only one. Green v. Green, 11 Pick. 410. It is not very uncommon for wealthy mer- chants to have two dwelling-houses, one in the city and another in the countr}', or in two different cities, residing in each a part of the year. In such cases, looking at the domestic establishment merely, it might l)e difficult to determine whether the domicile was in one place or the other. Bernal v. Bernal, 3 Mylne & Craig, 555, note. In the case of Somerville v. Somerville, 5 Ves. 750, 788, it is stated as a general rule, "that a merchant, whose business is in the metropolis, shall be considered as having his domicile there, and not at his country resi- dence." But no such rule can be admitted. The cases differ, and are distinguished by other facts so important, that the domicile can- not always be held to be in the city. It is frequently the case that the only real home is in the country; so that, while some such mer- chants talk of going into the country to spend the summer, others, with equal propriety speak of going into the city to spend the winter. If any general rule can be applied to such cases, we think it is this: that the domicile of origin, or the previous domicile, shall pre- vail. This is in accordance with the general doctrine, that the forum origines remains until a new one is acquired. 3 Kent, 431 ; Kilburn V. Bennett, 3 Met. 199; Moore v. Wilkins, 10 N. H. 455; Hood's Case, 21 Penn. 106. And this would generally be in harmony with the other circumstances of each case. If the merchant was originally from the country, and he keeps up his household establishment there, his residence in the city will be likely to have the characteristics of a temporary abode. While, if his original domicile was in the city, and he purchases or builds a country house for a place of summer resort, he will not be likely to establish any permanent relations with the people or the institutions of the town in which it is located. If we apply this rule to the case at bar, it will bring us to the conclusion that the testator's domicile in Waterville remained un« 188 OILMAN V. gilman. [chap. II. changed. Are there any facts that should make this case an excep- tion to the rule? The testator continued to vote in Waterville about one half of the time. There is no evidence that he ever voted in New York. His manner of life there, boarding generally at hotels, where he always registered his name as from "Maine," renders it probable that he never claimed or was admitted to be a voter in that city. He paid a tax upon personal as well as real estate in Waterville, a few of the years after he went into business in New York. He does not appear ever to have paid any tax in the latter place but one year. He evidently belonged to that class of men, fortunately small in number, who have uo^^'onger desire than to avoid the paymen-t of taxes anywhere. These facts have little tendency to establish anything but the inten- tion of the testator. Residence, being a visible fact, is not usually in doubt. The intention to remain is not so easily proved. Both must concur in order to establish a domicile. Harvard College v. Gore, 5 Pick. 370. And, as both are known to be requisite in order to subject one to taxation, or to give him the right of suffrage, any resident who submits to the one, or claims the other, may be pre- sumed to have such intention. Both parties claim that the will itself furnishes evidence of the testator's domicile. At most, it can be of little weight, except on the question of his intention. Such inten- tion must relate to the future and not to the past. A will made at or near the close of life will not be likely to throw much light on that question. It must be an intention to reside. An intention to dis- pose of his property according to the laws of any place, does uot tend to fix the testator's domicile there. So that, if the will is made in conformity with our laws, and even if, as is contended, some of its provisions would be void by the laws of New York, that cannot affect the question of domicile. Hoskins v. Matthews, 35 Eng. Law and Eq. 532; Anstruther v. Chalmer, 2 Simons, 1. Nor, on the other hand, does the fact that he described himself, in the will, and in the codicil, as "of the city and State of New York," make any material difference. Whicker v. Hume, 5 Eng. Law and Eq. 52. During the last twenty years of the testator's life, his ruling pur- pose seems to have been to accumulate property abroad, and escape taxation there and at home. This led him to sacrifice, to a large extent, the enjoyments of domestic life, and to sever or neglect all those social ties which might have given him position and influence in the community. He pursued this process of isolation, because, while it did not interfere with his gains, it diminished his expenses. This was what rendered his domicile a question of doubt. This is what gives to the testimony, as it gave to his life, an aspect of incon- sistency and contradiction. But through it all there is apparent an intention to retain his home in Waterville, as a place of retreat for himself during life, and a place of residence for his family after his SECT. I.] WILBRAHAiM V. LUDLOW. 189 decease. He never had any such home elsewhere. And, upon the whole evidence, we are satisfied that his domicile was never changed. The decree of the Probate Court is atfirmed, with costs for the appellees.^ WILBRAHAM u. LUDLOW. Supreme Judicial Court of Massachusetts. 1868. [Reported 99 Massachusetts, 587.] Foster, J.^ The question in the present case was, whether the, pauper, whose settleme nt was o nce in the plaintiff town of Wilbraham, had acquired a ne w settlement 'in i^uaiow. 'i'he burden of proof to establish this was on the plaintiffs. After the preskling judge had announced the rule of law which he deemed to govern the case, and the instructions which he proposed to give to the juiy, the plaintiffs declined to argue tlie case, submitted to a verdict for the defendants, and alleged exceptions. Under these circumstances, the only question open for revision is the correctness of the rulings. The evidence is not for the court to pass upon, and is reported only to make the instructions intelligible and enable us to judge better whether they were pertinent and accurate. The pauper leased his house in Ludlow in June, 1857, and never lived in it again. He remained in that town, working as a laborer, until August in that yeaV. He then went to his brother's house in Wilbraham, and afterwards worked about, as a day laborer, in the towns of Wilbraham, Springfield, and Ludlow, till October, 1861, after which he remained in Wilbraham in the family of Horace Clark, who was about that time appointed his guardian, until he was committed as an insane pauper to the hospital at Northampton. The proposition to be maintained by the plaintiffs was, that after August, 1857, he con- tinued to reside in Ludlow within the meaning of the pauper laws ; so that a settlement in that town could be subsequently acquired. There was certainly no actual continuance of his former home in that town ; it was broken up and he had abandoned it, apparently without any intention to return there to live. But the argument for the plaintiffs js, that the pauper's domicile remained in Ludlow until he acquired a new one in some other town, and that, while absent in fact, he con- tinued to live there in contemplation of law, and b}' such constructive residence the prescribed period for acquiring a settlement was com- pleted. Assuming that this view of the law is correct, and that domicile and ^^' residence are identical under the pauper laws, we are nevertheless of opinion that the rule of law stated to the jury was correct. If, from 1 Ace. Somerville v. Somerville, 5 Ves. 750 ; Harvard College v. Gore, 5 Pick. 370. — Ed. 2 The opinion only is given : it sufficiently states the case. — Ed. v^ 190 BANGS V. BREWSTER. [CHAP. II. the time the pauper left Ludlow in August, 1857, he had " no opi nions , desireSj_oiLijitentions j n re lation to residence, except to have a Jjome where ver he woxked^' then he didi have in each successive town where he lived as a laborer a home and domicile so long as he remained there. It must be borne in mind that this was the case of one who had aban- doned his former dwelling-place, either with no intention of return, or at the most with such vague, indefinite, and remote purposes in this respect that the}- would not prevent him from readily acquiring a new domicile wherever he might go. The person was a day laborer without family, separated b}- judicial decree from his wife. Such a man, so situated, when he is laboring in one town with no other intention as to residence except to have a home wherever he works, may well be deemed to live there with the purpose of remaining for an indefinite period of time, and thus to have there all the home he has anj-where, as much of a domicile as such a wanderer can have. At least it was competent for the jury to come to that conclusion ; and the instructions under which they did so were unobjectionable. It is unnecessary to attempt a precise definition of the term domicile, as to which that eminent English judge, Dr. Lushington, has said that, " although so man}' powerful minds have been applied to the question, there is no universally agreed definition of the terra, no agreed enumera- tion of the ingredients which constitute domicile." Maltass y. Maltass, 1 Rob. Ecc. 74. Story Confl. Laws, c. 3. Our own adjudged cases sufficiently establish the rule that gnewho is residing in a place with! ttt£_j3urpose of remaining there for an indefinite period of time, andi ithout retaining and keeping up an}- animus reverteiidi, or intention f tp retur n, to the former home which he has abandoned, will have his fd gmicile in the place of his actual residence. Sleeper v. Paige. 15 Gray, 349 ; Whitney v. Sherborn, 12 Allen, 111. Where the question is one of national domicile, this statement may not be correct ; for such a con- dition of facts might not manifest an intention of expatriation. But it is accurate enough for cases like the present, which relate to a change of domicile from one place to another within the same Commonwealth. Exceptions overruled} BANGS V. BREWSTER. Supreme Judicial Court of Massachusetts. 1873. [Reported 111 Massachusetts, 382.] Morton, J.^ The question at the trial was whether the plaintiff had on May 1, 1869, acquired a domicile in Orleans. There is no doubt as 1 " A sea cay tain, who has neither domicile nor residence abroad, whose domicile of origin, being abandoned long ago, without intention of returning, should be conside.red as lost, and who has no residence except on the steamer which he commaods, is in the eye of the law, for the purpose of service of process on lum, domiciled in the port where his vessel is moored at the time of secyice." — Court of Ghent (1891), 21 Clunet, 584. But sec Boothbay v. Wisca.sset, 3 Me. 354. —Ed. ^ Part of the opinion only is given. —Ed. SECT. I.] DUPUY V. WURTZ. 191 to the rule of law that the plaintifTs douiieile of origin in Brewster ad- hered to him until he had acquired a domicile somewhere else, aiuT that in order to effect a change of domicile^ he must not only have had the intent to make his home in some otlior town, but he must in fact hai'e made Jiis^hpme tliei'e. The intent and the act must concur, and until the intent was consummated by an actual removal of his home, no change of domicile was effected. Whitney v. Sherborn, 12 Allen, HI. Carnoe v. Freetown, 9 Gray, 357. The question is as to the application of this rule to the facts of this case. The plaintiff was a shipmaster, most of whose time was spent at sea. He went to sea in November, 1867, taking his wife with him, and in December, 1868, he sent his wife to Orleans, and she arrived there in February, 1869. He did not arrive at Orleans until July, ,JJi69, so that he was not personally present in Orleans on May 1, 1869. The special findings of the jury settle conclusively that when he went to sea in November, 1867jjie had the definite intent to make Orleans his home, and that in December, 1868, he sent his wife to Orleans in pursuance of that intent. We think the jury were justified in finding that his domicile was in Orleans on the first of May. By sending his wife to Orleans with the intent to make it his home, ) he thereby changed his domicile. The fact of removal and the intent' concurred. Although he was not personall}' present, he established his home there from the time of his wife's arrival.^ DUPUY V. WURTZ. Court of Appeals, New York. 1873. ^^ [Reported 53 New York, 556.] Rapallo, J.^ When Mrs. Wurtz went to Europe with her hus- band, in 1859 , she was domiciled in the city and State of New York. She and her husband were natives of the United States. It does not appear in the case that she ever had had any domicile except in this State, and it seems to be conceded on both sides that this was her domicile of origin. ' 1 AazAndieTSOTf v. Ai Anderson, 42 Vt. 350. Contra, Hart v. Horn, 4 Kan. 232 111 Porterfield y. Augusta, 67 Me. 556 (1877), it was held that the husband's domicji could not thus be changed if the wife's removal was without his prior consent. /See further, Fayette v. Liverraore, 62 Me. 229. If the wife removes, the husband remain- ing at the old domicile, their domicile is of course not changed. Scholes i-. Murray Iron Works Co., 44 la. 190. And the fact tliat a man's family is settled in a certain place (though prima facie evidence that he is domiciled there, Brewer v. Linnaeus, 36 Me. 428) is consistent with his being domiciled elsewhere. Greene v. Windham, 13 Me. 225; Cambridge v. Charlestown, 13 Mass. 501 ; Hairston v. Hairston, 27 Miss. 704 ; Pearce V. S., 1 Sneed. 63. —Ed. 2 Only so much of the opinion as deals with the question of domicile is given. — Ed. 192 DUPUY V. WURTZ. [CHAP. II. It is not pretended that she or her husband had abandoned their domicile in New York up to the time of his death in Europe in 1861 ; and from the evidence, which we have carefully examined, but do not consider it necessary to recite in detail, we are clearly of opinion that, up to the fall of 1868, she had not for a moment relinquished her intention and expectation, often declared orally, and in her written correspondence, of returning to her home in New York as soon as the condition of her health should permit; that her sojourn in Europe was compulsory, being caused by ill health and the advice of her physi- cian that she was not physically able to bear the voyage and the ex- citement which would await her on her return; that she had not acquired any domicile abroad, and up to the time of the execution of the will in question, November 21, 1868, she continued to be a citizen of this State- But it is claimed on the part of the contestants that although it should be conceded that she was a citizen of New York at that time, and then intended to return, she changed her intention, after execut- ing the will, and acquired a domicile at Nice, and that this change destroyed the validity of the will, it not having been executed accord- ing to the laws of France. This is the only branch of the case which presents questions of difficulty. The counsel for the contestants is sustained by authority in the position that the domicile of the testatrix at the time of her death, and not at the time of the execution of the will, is the material in- quiry ; and that as to personal property, the question of intestacy, or of the valid execution of her will, depends upon the law of the place where she was domiciled at the time of her death. This question was decided after much discussion, and notwithstanding the dissents of three eminent judges of this court, in the case of Moultrie v. Hunt, 23 N. Y. 394. In England, the embarrassments likely to arise from such a rule are now obviated, as to British subjects, by the Act of Parliament of 24 and 25 Victoria, chapter 114, 1861-2, which provides in substance, as to wills made after the passage of the act, that wills of personal estate made out of the United Kingdom by a British subject shall be deemed well executed, whatever may be the domicile of the testator at the time of making the will, or of his death, if made according to the forms required by the law of the place where made, or of the place of the domicile of the testator at the time of making the will, or of the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin. Also, that no subsequent change of domicile shall afifect the validity or construction of the will. This enactment substantially conforms the law of England to that which generally prevails in continental Europe. We have no such statute, and must therefore follow the nile laid down in Moultrie v. Hunt, and hold that if at the time of hcFTleath, January 8, 1871, Mrs. W'uitz had changed her domicile and ceased to be a citizen of SECT. I.] DUPUY V. WURTZ. 193 this State, her will is not va lid her e, unless it would be valid accord* iug to the law of the place of her domicile at the time of her death. (Scv! :iIso 1 Brad. 69; 8tory Conf. Laws, § 473.) The important ques- tion, therefore, is whether the evidence establishes such a change of the domicile of the testatrix as is alleged by the contestants. A reference to some of the elementary principles governing ques- tions of domicile will facilitate this inquiry. One leading rule is^that for the purposes of succession ^very person must have a domicile somewhere, and can have but one domicile, and that the domicile of origin is presumed to continue until a new one is acquired. (Somerville v. Somerville, 5 Ves. 750, 786, 787; Story, Conf. Laws, § 45; Abingtou v. N. Bridgewater, 23 Pick. 170; Graham v. Pub. Admr., 4 Brad. 128; De Bonneval v. De Bonueval, 1 Cartels, 856; Attorney-General v. Countess of Wahlstatt, 3 Hurl. & Colt. 374; Aikman v. Aikman, 3 McQueen, 855, 863, 877.) The statute of New York of 1830, 2 Stat, at Large, p. 69, § 69a, referred to by the learned counsel for the contestants, does not affect this principle, nor does it aid in determining whether Mrs. Wurtz had lost her domicile or citizenship in New York. The object and effect of this act are fully explained in Matter of Catharine Roberts' Will, 8 Paige, 525, 526; Isham v. Gibbons, 1 Bradf. 69; 4 Bradf. 128. To effect a change of domicile for the purpose of succession^there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile. There must be both residence in the alleged adopted domicile and intention to adopt such place of residence aq the sole domicile. Residence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together do constitute a change of domicile. (Hodgson v. De Beauchesne, 12 Moore P. C. Cases, 283, 328; Munro v. Munro, 7 CI. & F. 877; Collier v. Rivaz, 2 Curteis, 857; Aikman v. Aikman, 3 McQueen, 855, 877.) This rule is laid down with great clearness in the case of Moorhouse v. Lord, 10 H. L. 283, 292, as follows: Change of residence alone, however long continued, does not effect a change of domicile as regulating the testamentary acts of the indi- vidual. It may be, and is, strong evidence of an intention to change the domicile. But unless in addition to residence there is an inicB-- tion to change the domicile, no change of domicile is made. '"Said in Whicker v. Hume, 7 H. L. 139, it is said the length of time is an ingredient in domicile. It is of little value if not united to intention, and is nothing if contradicted by intention. And in Aikman v. Aikman, 3 McQueen, 877, Lord Cranworth says, with great concise- ness, that the rule of law is perfectly settled that every man's domi- cile of origin is presumed to continue until he has acquired another Sole domicile with the inteutiuu of abandoning his domicile of origin; 13 X V 194 DUPUY V. WURTZ. [CHAP. II. that this change must be animo et facto, and the burden of proof unquestionably lies upon the party who asserts the change. The question what shall be considered the domicile of a party, is in all cases rather a question of fact than of law. (Bruce v. Bruce, G Bro. Par. C. 566.) With respect to the evidence necessary to establish the intention, it is impossible to lay down any positive rule. Courts of justice must necessarily draw their conclusions from all the circumstances of each case, and each case must vary in its circumstances; and moreover, in one a fact may be of the greatest importance, but in another the same fact may be so qualified as to be of little weight. (12 Moore Priv. C. C. 330.) In passing upon such a question, in view of the important results flowing from a change of domicile, the intention to make such a change should be established by very clear proof (Donaldson v. Mc- Clure, 20 Scotch Session Cases, 2d series, 321 ; S. C. afR'd, 3 Mc- Queen, 852), especially when the change is to a foreign country. (Moorhouse v. Lord, 10 H. L. 283.) The intention may be gathered both from acts and declarations. \cts are regarded as more important than declarations, and written leclarations are usually more reliable than oral ones. The principal if not the only act done by Mrs. Wurtz, in 1868, bear- ing upon the question of an intention to abandon her domicile in New York, consisted in her letting her house in Fifth Avenue to Mr. Gray in that year. This house she had kept unoccupied during all her stay abroad up to that time, and it is to be observed that in letting it to Mr. Gray, the testatrix reserved one room for the storage of some of her effects. In all other respects she continued to live after 1868, as she had done during the preceding nine years, dwelling all the time in hotels, passing her winters at Nice, and during the residue of the year travelling on the continent and in England, Nice had for many years been her headquarters. She there retained owQ room in the hotel for the storage of such personal effects as she did not desire to take with her upon her travels. The same reasons which had theretofore prevented her from returning to what she in- variably called her home, still continued to exist. She had failed to recover the health of which 'fehe was in pursuit, and her physicians still continued to advise her that her health would not permit her to make the voyage home. But up to the time of her death she retained her property and investments in this State, made no investments abroad, did not purchase or even hire a permanent place of residence, nnd lived continualjy in hotels. Rut after the execution of the will there was a change in the tenor of her correspondence, and in some of her oral declarations on the subject of returning to what she still continued to call her home, and it is upon these declarations that the contestants' case principally rests. In all her correspondence, up to the time of the making of the will, whenever the subject was alluded to, she had clearly exhib- SECT. I.] DUPUy V. WURTZ. 195 ited not only an intention, but a determination and expectation of returning as soon as her health should permit, and in many instances she had mentioned a definite period for the continuance of her sojourn abroad, and in others down to October, in 1868, she placed the con- tinuance of her stay upon the ground that her physicians would not permit her to return. On the 20th of April, 1868, she wrote to Mr. Seymour: "Dr. Pantaleone has told me very plainly that he cannot permit me to cross the Atlantic ; that 1 have no strength to combat a voyage, and all the trials that are to meet me on my arrival. So here I am." On the 29th of September she again writes: "In fact with that and other troubles I have been ill, and have been put back three years in my convalescence. Now I never expect to be well." And on the 3d of October, 1868, she says to Mrs. Seymour: "But my nervous system has been shattered, and after the experience of the past year (in heavy trials) I see why my physicians have not wished me to go home. ... Do you not think my articles ought to be in one place, except the silver? " The first letter of all the series in evidence, bearing upon the ques- tion of an abandonment of the intention to return, was written on the 21st of November, 1868, the very day of the execution of the will. It is addressed to Mrs. Seymour. In it the testatrix says: "I am now in Dr. Pantaleone's care, and find all three physicians, Dr. Vallery in Rome, Dr. Mannoir in Geneva, and Dr. Pantaleone, agree that it is rest and tranquillity of mind is very important to me. Many thanks for your kind wishes. Rut e.x c£Pt to see a few friends I have no induc en ient t o ret urn to Amer ica. My nerves would not endure the shock, and it is plain that my life is more quiet here. But I do not intend to expatriate myself, and hold firmly to my allegiance to my beloved country." In her will, bearing date the same day, . a-U-x-X"^ she makes the following declaration: "Ap I have fqr_seyjeral yeam^ resicled iu Earope, sojourning now at onerplace, and aow at anotherj/^'^'^ ^a3_ni^Jifia]th and comfort have required, I deem it proper for me here_ to^gajVthat I consider ray home and residence as still being in the ~ ^^cityof^ New York, in my beloved country ,'"tbe^_^ United States of . America." August 5th, 1869, from Geneva she writes to Mrs. Sey- —meur -as -Allows : "I think Charles is staying in Europe on my account, and I never expect to return. But I feel badly at any sacri- fice for me. But Dr. Pantaleone is correct. Any moral excitement upsets me away from turbulent spirits, and there is much to worry me at home." And on the 13th of October, 1870, the last date of the series of letters in evidence, she writes to Mrs. Courtney: "I never can live in a cold climate again, and the few years I have to live, I want to live in comfort and repose." These are all the written declarations of the testatrix bearing upon the question. There was also evidence of oral declarations, but they do not throw any additional light upon the intentions of the testatrix. 196 DUPUY V. WURTZ. [CHAP. II. Mary Brown, a colored servant, who was in the service of the deceased during all her stay in Europe, testified that she always said, of late years, that she never would return to America. That the doctors told her she was not able to come, and, finally, she gave it up, and said she would not come. Mrs. Slemmer testified that, at Geneva, in the summer of 1870, Mrs. Wurtz said to her, "I know when I am well off, indeed I am not going back; I should never have any com- fort if I did." She said she had no intention of returning, and had let her house and disposed of her furniture. Mr. Sandford testified that he had frequently spoken to her of her returning to America, and her reply invariably was that she could not come, that her health would not admit of it. Mr. Gray and Mr. Aldis testified substan- tially to the same effect. This is, in substance, all the evidence in the case tending to show a change of domicile. The present is one of the exceptional cases in which the duty devolves upon this court to pass upon the facts as well as the law. And we think that the conclusion of fact, fairly to be drawn from all the evidence, is that the testatrix, after having long and consistently entertained the intention of returning, had finally become satisfied that the state of her health and nerves was such that she would be unable to return to her home, and would, in all proba- bility, die abroad. At the same time it establishes no intention to adopt a foreign domicile, but that she desired and claimed to retain her domicile of origin, and to have her estate administered according to the laws of the State of New York. This, the learned counsel for the contestants contends, the law would not permit her to do. That her lOng-continued stay in Europe, in connection with her final aban- donment of the idea of returning to New York : her dwelling, during the winter of each year, at Nice, furnishing, in part, the rooms which she occupied in the hotel; the removal to that place of a portion of her personal effects, her hiring an apartment in the hotel by the year for the storage of such articles as she did not carry with her on her summer travels, and always returning to the same place, afforded such clear evidence of the abandonment of her domicile in New York, and adoption of a new domicile at Nice, that no claim on her part to continue to be considered a citizen and resident of New York could preserve her domicile of origin ; and he has cited numerous authori- ties in support of these positions. An examination of these authorities will show that they proceed upon the ground that the person whose domicile was in question had actually settled in a new residence, with the intention of making it a permanent home; that this intention was manifested by unequivocal acts which outweighed any declarations to the contrary, and the intention was found as matter of fact. The principal cases -referred to in this connection are Stanley v. Bernes, 3 Hagg. Ecc. R. 373; In re Steer, 3 H. & N. 594; Ander- son V. Laneuville, 9 Moore Priv. C. Cases, 325 ; Hoskins v. Mat' SECT. I.] DUl UY V. WURTZ. 197 thews, 35 Eng. L. & Eq. 540; Whicker v. Hume, 13 Beav. 384; 7 II. L. 124; Hegemau v. Fox, 31 Barb. 475; Eunis v. Smith, 14 How. U. S. 423. la Stanley u. Bernes, the testator, a British subject, had been natu- ralized in Portugal, and the point decided was that a British subject might acquire a domicile abroad (a proposition which had been dis- puted. Curling v. Thornton, 2 Addams' R. 19), and that his claim to be considered a British subject did not destroy his foreign domicile. Iji re Ste er, the testator had resided many years in Hamburg, and had been regularly constituted a burgher of that city to enable him to trade there. In his will, made while on a visit to England, he recited those facts, and his intention to return to Hamburg, and at the same time declared that he did not mean to renounce his domicile of origin as an Englishman. The court in that case conceded the principle of law that the domicile of origin continued until the testator had mani- fested an intention of abandoning it and acquiring another as his sole domicile, but held that there was evidence of such an intention, and decided, as matter of fact, that he had elected Hamburg as his domi- cile; that he thereby necessarily gave up his English domicile, as he could not retain both, and that the declaration in his will was unavail- ing. In Anderson v. Laneuville the testator's domicile of origin ■was in Ireland. He had incontestably changed his domicile to Eng- land. He afterwards broke up his establishment in England and moved to France, where he bought and furnished a house, in which he resided permanently for thirteen years. The contest was between his English and French domicile, and was decided as a question of fact. In Hoskins v. Matthews, the decedent was held to have acquired a domicile in Tuscany by residence, the purchase of a villa and the establishment of his family there. Notwithstanding his continued attachment for his native country, and his often expressed desire to return there, and the fact that he was obliged, by his health, to live in a milder climate than that of his birth, the fact being established that he had formed the intention of permanently changing his domi- cile, the court held that the change was not the less effectual because induced by motives of health; at the same time admitting that even .1 permanent residence in a foreign country, occasioned by the state of health, may not operate as a change of the domicile, and that every case must stand upon its own circumstances. In Whicker v. Hume, 13 Beav. 384, and 7 H. L. 124, the domicile of origin of the testator was in Scotland. The evidence of an aban- donment of that domicile, and the adoption of a domicile in England was clear. Afterward he went to France, leaving some of his prop- erty in England, which he desired a friend to keep for him until his return. He died in Paris, having just made a will in the English form, which was sustained. The Scotch domicile was regarded as entirely out of the question, find the contest v^as between the English and French domicile. (7 H L. 139.) 198 DUPUY V. WUIITZ. [chap. II. In Hegeman v. Fox, much relied upon by the contestants, the question was whether the testator was at the time of his death domi- ciled in Florida. He was a native of Massachusetts, had been domi- ciled in New York, afterward in Wiliiamsburgh, and then removed to Florida. There was no evidence of any intention to retain his domi- cile in Wiliiamsburgh, and the opinion of the court was that the weight of the evidence established that he neither expected nor in- tended to return to the Northern States. He purchased a plantation in Florida, stocked it, and furnished his house, went to housekeeping, entered into the business of planting, and made other family arrange- ments looking to a permanent residence there. Upon these facts it was held that the circumstances that this change of residence was induced by considerations of climate and health, and that domestic troubles intei'veniug induced the expression of an intention to return to New York, did not overcome the effect of his acts, which clearly indicated an intention to make his permanent home in Florida. The case is well reasoned in the opinion of the court, and does not conflict in principle with the result at which we have arrived, but depends upon its own peculiar circumstances. In Enuis v. Smith the question was whether General Kosciusko had acquired a domicile in France. He left Poland voluntarily, came to this country, and afterward went voluntarily to France, where he lived for fifteen years. He could have returned to Poland at any time. He was made a French citizen by decree of the national assembly, of which privilege he could not avail himself unless he became domiciled in France. Residence w-as, in that case, said to be jjriina facie evi- dence of domicile, and the facts were held to establish a domicile in France. In all these cases it was upon the ground of a clearly proved volun- tary and intentional acquisition of a foreign domicile that the courts held the former domicile abandoned. The late cases of Jopp u. Wood, [1864] 34 L. J. Eq. 212, and Moorhouse v. Lord, 10 H. L. 284, proceed upon the ground that in order to acquire a new domicile there must be an intention to aban- don the existing domicile. All the authorities agree that to effect a change of domicile there must be an intention to do both. Some of them hold that the intention to do one implies an intention to do the other. But in all the cases the question of intention is treated as one of fact, to be determined according to the particular circumstances of each case. (See also Douglas v. Douglas, Law Rep. 12 Eq. 617, 647; The Attorney-General v. The Countess de Wahlstatt, 3 Hurl. & Colt. 374; Udny v. Udny, L. R. 1 Scotch App. 441, 1070; White V. Brown, 1 Wallace, Jr. 217.) In the present case we find no sufficient evidence of an intention to adopt Nice or any other place as a permanent home or domicile. The plans of the testatrix nfter November, 1S6H, so far as disclosed, had leference to failing health and an apprehension that she might not SECT. I.] DUPUY V. WUUTZ. 199 loug survive, rather than to adopting and settling in a new home. If she chose to be a wanderer during the short period of life which she supposed might still remain to her, she would not thereby, as re- spects her succession, lose her domicile of origin. (Attorney-General V. Countess of Wahlstatt, 3 H. & C. 374; White v. Brown, 1 Wall., Jr. 217.) Her long residence abroad, upon which the contestants rely, is not very significant in this case, as during by far the greater part of that time, in fact during all except about two and a quarter years before her death, she was clearly shown to be a mere sojourner in Europe, intending and fully expecting to return, and retaining her house in New York ; and all the acts relied upon to show the acquisition of a domicile in Nice were done during that period, and while there can be no doubt of her continuing to be a citizen of New York. Her habit of spending her winters in Nice, her furnishing her rooms, hiring a store-room at the hotel, the bringing out there of her nick- nacks as they are called, were all before she had given any evidence of the relinquishment of her plan of return, and while she still retained her house in Fifth Avenue, New York. The only evidence of any change consists in her declarations. These indicate no intention to settle permanently in any particular place, and are clearly contradic- tory of any intention to abandon her domicile in New Y^'ork. A mere declaration of inten tion not to return is not conclusive as to a change of domicile. As well expressed by Lord Kingsdown in Moorhouse v. Lord, 10 H. L. 293 : "1 can well imagine a case in which a man leaves England with no intention whatever of returning, but with a detei'mination and certainty that he will not return." He then sup- poses the case of one laboring under a mortal disease, whose physi- cian advises him that his life may be prolonged or his sufferings mitigated by a change to a warmer climate, and says that to hold that he cannot do that without losing his right to the intervention of the English laws as to the transmission of his property after his death, would be revolting to common sense and the common feelings of humanity. (See S. C. p. 283, per Lord Cranworth; Stor}^ Conf. Laws, §§ 45, 46; Guthrie's Savigny, 62, 63; Munro v. Munro, 7 CI. & Fin. 842, 876; 1 Rob. Ecc. R. 606; 2 Hurl. & Colt. 982; 3 id. 374.) Unless a new domicile was acquired, as has been already shown, the domicile of origin continues, and must govern, else there would be no law according to which the estate could be administered, espe- cially in a case of intestacy.^ 1 Ace. Moorhouse v. Lord, 10 H. L. C. 272. See Johnstone v. Seattle, 10 CI. & F. 42. So (iomici le is not necessar ily' chang ed by an absence, howev er long continueil. for pleasurerTravel, etc. : Culbertsnn v. Floyd County. 5 2 IiuL_361 ; Sears i'. Boston, 1 Met. 250 ; Cailwaliider v. Howell, 18 N. J. L. 138. Nor by "absence merely for b usiiie. ss : Easterly v. Goodwin, 35 Conn, sri^ ; Greene v. Greene, 11 Pick. 410; Hallet v. Bnssett, 100 Mass. 167 ; S. i-. Daytou, 77 Mo. G7S ; see Jopp v. Wood, 34 Beav. 88. Nor by 200 HAKKAL V. ilAKRAL. [cHAP. IL HARRAL V. HARRAL. Court of Errors and Appeals, New Jersey. 1884. [Reported 39 New Jersey Equity, 279.] Depue, J.^ The domicile of the testator's parents, at the time of his birth, was in Bridgeport, Connecticut. That was his domicile of origin.*] His father died in 1862. In 18G5 the family residence in Bridgepoit was3 sold, and in 1866 his mother removed to New York with all the family, except one son, who was married, and had his household in Bridgeport. The mother rented a house in New York as a residence for herself and the family, which they occupied until her death in December, 1867. After his mother's death, the testator resided in New York City with his brother, until he was appointed house-surgeon in the New York Hospital, and had his residence in the hospital until he went to Europe in August, 1869. The decedent went abroad for the purpose of acquiring the German language and continuing his professional studies. In 1869 he was in Paris temporarily, and in the fall of that year left Paris for German}', where he remained about two years. He then went to Paris again, and resided there in No. 8 Rue de la Sorbonne, known as the Latin Quarter. In 1872, he became acquainted with the complain- ant, who lived with him as his mistress at No. 8 Rue de la Sorbonne until they were married on the 20th of February, 1877. Imme- diately after their marriage they began housekeeping in 'arouse rented by him at Suresnes, a village a short distance from Paris. He had a lease of the house for tsto^y^iu's, and he and his wife continued to occupy it until his return to America, in May,5j^8.!i4L He seem&„to haYe_been attached to his wife.- In May, 1877, he wrote to Mr. Wallis, announc- ing his marriage, and said he was "happy and contented." The facts connected with the residence of the decedent at Suresnes are fully stated in the opinion of the chancellor, and need not be repeated here. The chancellor, from the testimony, concluded that the decedent had settled himself in France to live there, and make it his home. The circumstances under which he was brought to America are also detailed in the chancellor's opinion. They show no intention on the part of the decedent to make any change at that time iiji his domicile. The evi- dence is quite to the contrary. A person sui juris may change his domicile as often as he pleases. To effect such a change, naturalization in the country he adopts as his alh^enic as a volunteer soldier : S. v. Judge, 13 Ala. 805 ; Brewer v. Linnaeus, 36 Me. 428. Nor by absence to hold public office : Dennis v. S., 17 Fla. 389 ; Walden v. Caiifield, 2 Rob. (La.) 466 ; Venable v. Paulding, 19 Minn. 488 ; Hannon v. Griz- zarfl, 89 N. C. 115. But in cases of this kind the domicile will of course be changed if tin iPi[uisito intent exists. Doucet v. Geoghegan, 9 Ch. Div. 441; Mooar v. Harve)*, 128 Mass. 219 ; Wood v. Fitzgerald, 3 Or. 568. — Ei). ^ Only so much of the opinion as discusses the question of domicile is given. — Ea SECT. I.] HARRAL V. HARRAL. 201 domicile i s not essential. He need not do all that is necessary to divest himself of his original nationalitv. There must be a voluntary change of residence ; the residence at the place chosen for tlie domicile must be actual ; to the factum of residence there must be added the anhnus •manendi ; and that place is the domicile of a person in which he has voluntaril}' fixed his habitation, not for a mere temporary or special purpose, hut with a present intention of making it his home, unless or until something which is uncertain or unexpected shall happen to in- duce him to adopt some other permanent home. Haldane v. Eckford, L. R. 8 Eq. 631 ; King v. Foxwell, L. R. 3 Ch. D. 518 ; Lord v. Col- vin, 5 Jur. (N. S.) 351 ; Aikman v. Aikman, 7 Id. 1017, 1019 ; Douglas v. Douglas, L. R. 12 Eq. 617, 644 ; Udny v. Udny, L. R. 1 H. L. Sc. 441 ; Cadwalader v. Howell, 3 Harr. 144, 145. We think the evidence proves that the testator's domicile, arising from the factum of residence and the animus ma^iendi, was, at the time of his death, by the jus gentium, in France. But it is contended that, inasmuch as the decedent never obtained an authorization from the French government, he was incapable, b}' the law of that country, of acquiring a domicile in France, and that there- fore his domicile of origin, or his domicile before he took up his resi- dence in France, either revived, or, by the French law, would govern, in the disposition of his personal estate^ if it was administered upon in France. Article XIII. of the Code Napoleon is relied on to sustain this contention. That article is in these words: "The foreigner who shall have been admitted by the government to establish his domicile in France shall enjoy in that country all civil rights so long as he shall continue to reside there." It appears from the evidence that the authorization contemplated by this article of the Code is obtained b}^ an application to the head of the government, and is attended witii formalities almost as solemn as those required for naturalization in France. The construction of this article was before the English courts in Bremer ik Freeman, 10 Moore P. C. 306, and Hamilton v. Dallas, L. R. 1 Ch. D. 257, and was somewhat considered in the New York Court of Appeals in Dupuy v. Wurtz, 53 N. Y. 556. In Bremer v. Freeman it was held that, if by Ihejus gentium the decedent, who was an English woman by birth, was de facto domiciled in France, the authorization of the French government was not necessary to confer upon her the right of testacy, and that her will, not executed in con- formity' with the French law, was invalid. In Hamilton v. Dallas, Vice- Chancellor Bacon held that a de facto domicile, governing the suc- cession of the personal estate of a decedent, might be acquired b}' a foreigner resident in that country' who had not obtained the govern- ment authorization required b}' Article XIII. of the French Code, as the condition for the enjoyment b}' a foreigner resident in that countr}' of full civil rights. The learned judge who prepared the opinion in Dupuy V. "VYurtz expressed a contrary opinion, but the case did not call /2O2 ) BORLAND V. BOSTON. [CIIAP. 11. for a decision on that point. The counsel of the defendants have pro- duced several decisions of the French courts wliich hold that, in cases of intestacy, the inlieritance of a foreigner domiciled de facto in France will not be distributed under the French law unless he shall have ob- tained the authorization required by Article XIII. of the Code. Pepin's Case, decided in 1868; Melizet's Case, decided January, 1869; Ott's Case, decided January, 1869 ; Forgo's Case, decided in 1875 ; and Cuirana's Case, decided in 1881. It will be observed that all these cases relate to the transmission of property by inheritance, or by testa- mentary disposition. They do not touch the question in controversy in this case. The complainant does not claim the property in dispute by any right of succession, nor does she dispute the validity of the tes- tators will, as not being executed according to the laws of France. The claim sl^ makes to the one half of the personal property of her deceased husband she founds upon the marriage in France, and the incidents of the married relation, in virtue of which she claims that, by the French law, she became thereby ijjso facto entitled to that share in his movable property. The French jurists recognize a distinction between such a legal domi- cile as a foreigner can acquire by fulfilling the requirements of Article XIII. of the Code, and will entitle him to all the civil rights of native- born Frenchmen, and a domicile, in fact, which is acquired by a resi- dence without compliance with any legal formalities. The right of a foreigner to contract a lawful marriage is not made to depend on the observance of such forms as are necessary to the acquisition of citizen- ship ; it is given on the sole condition of six months' residence by either of the parties. ArtideJaXXIV.^of the Code provides that "Jbe marriage shall be celebrated in the commune in which the one or the other of the parties shall be domiciled," and declares that ''this domi- cile shall be estabUshed by six months' continued habitation within the same commune." These conditions were fulfilled, and the marriage was lawfully celebrated under the French law.^ i JV BORLAND v. BOSTON. /' 'Supreme Judicial Court of Massachusetts. 1882. n JL J- [Reported 132 Massachusetts, 89.] Lord, J.^ The evidence tended to show that the plaintiff was born in Boston in 1824, and had lived there until June, 1876, when he sailed for Europe with his family. He testified that when he left Boston he had definitely formed the intention of not returning to Boston as a resi- dent; that in the fall of 1876 he had decided to make AVaterford. 1 Jcc. Collier v. Kivaz, 2 Curt. Eccl. 855. — Ed. 3 Part of the opinion, dealing with a different question, is' omitted. — Ed. SECT. I.] BORLAND V. BOSTON. 203 Connecticut, his residence, and then formed the intention of purchas- ing land there, which he bought on May 28, 1877; and that he re- mained in Europe until 1879, when he returned to this countr}', and went to Waterford. On this evidence, the judge instructed the jury, " that a citizen, by the laws of this Commonwealth, must have a home or domicile somewhere on the first day of May for the purpose of taxation; that in order to change such home or domicile, once acquired, and acquire a new one, the intention to make the change and the fact must concur; that if the plaintiff, with no definite plan as to the length of time he should remain abroad, and no definite pur- pose about a change of domicile, went to Europe with his family, that would not effect a change of his domicile from Boston, and he would remain liable to taxation there; but that if he left Boston in 1876 with his family to reside in Europe for an indefinite length of time, with the fixed purpose never to return to Boston again as a place of residence, and with the fixed purpose of making some place other than Boston his residence whenever he should return to the United States, and had in his mind fixed upon such place of residence before May 1, 1877, and remained in Europe until after that time, he was not liable to this tax as an inhabitant of Boston on the first of May of that year; that whether he had done enough to make Waterford his home or not, was not essential in this case, — if he had lost his home in or ceased to be an inhabitant of Boston at the time, he was not taxable there." Certainly, the latter part of this instruction would be understood to be in conflict with the former; for, not referring now to the words used by the judge, the obvious meaning of the whole sentence is, first, to instruct the jury that a man once having a home here is taxable here until both the purpose to change his home and the fact of chang- ing his home concur; and afterwards to instruct them that, if his in- tention to make another place his home is formed after he leaves this couutr}^ and before the first of May, such intention removes his lia- bility to taxation, even although the fact of change does not concur with the intention. Although there is this obvious inconsistency, it arises partly from inherent difficulties in the case, partly from the im- possibility of stating a fixed rule which shall be applicable to all cases, under the infinite variety of circumstances attending them, and the various adjudications which have been made upon the subject. The source of the diflSculty is in the use of words of exactly, or sub- stantially, or partially, the same signification, but at different times used with different significations. There are certain words which have fixed and definite significa- tions. "Domicile" is one such word; and for the ordinary purposes of citizenship, there are rules of general, if not universal acceptation, applicable to it. "Citizenship," "habitancy," and "residence" are severally words which may in the particular case mean precisely the same as "domicile," but very frequently they may have other and 204 BORLAND V. BOSTON. [lHAF. II. inconsistent meanings; and while in one use of language the expres- sions a change of domicile, of citizenship, of habitaucy, of residence, are necessarily identical or synonymous, in a different use of lan- guage they import different ideas. The statutes of this Common- wealth render liable to taxation in a particular municipality those who are inhabitants of that municipality on the first day of May of the year. Gen. Sts. c. 11, §§ 6, 12. It becomes important, there- fore, to determine who are inhabitants, and what constitutes habitancy. The only case adjudged within this Commonwealth, in which the word of the statute, "inhabitant," is construed to mean something else than "being domiciled in," is Briggs v. Rochester, 16 Gray, 337, although that decision is subsequentlj recognized in Colton v. Longmeadow, 12 Allen, 598. In Briggs v. Rochester, Mr. Justice Metcalf, in speaking of the word "inhabitant," says that it has not the meaning of the word "domicile" "in its strictly technical sense, and with its legal incidents." He says also that the word "domicile " is not in the Constitution nor in the statutes of the Commonwealth. So far as the Constitution is concerned, tliis is correct, but he had evidently overlooked a statute of ten years before, in which the word "domicile" was used, and upon the very subject of taxation, in a pro- viso in these words: "Provided that nothing herein contained shall exempt said person from his liability to the payment of any tax legally assessed upon him in the town of his legal domicile." St. 1850, c. 276. Gen, Sts. c. 11, § 7. This language is a strong legis- lative assertion that domicile is the test of liability to taxation; and in an opinion given by the justices of this court to the House of Representatives in 1843, in reference to a student's right to vote in the municipality in which he is residing for the purposes of educa- tion, it was said, "And as liability to taxation for personal property depends on domicile." 5 Met. 587, 590. Nor do we think that the opinion in Briggs v. Rochester gives the true force as used in the Constitution of the word "inhabitant; " for we cannot doubt that for the purposes of taxation the word "inhabi- tant" must be used in the same sense as when used in reference to electing and being elected to office; especially as at that time the payment of a tax duly assessed was one of the qualifications of an elector; and more especially as the Constitution itself professes to give its definition of "inhabitant" for the purpose of removing all doubt as to its meaning. Its language is, "And to remove all doubts concerning the meaning of the word 'inhabitant' in this Constitu- tion, every person shall be considered as an inhabitant, for the pur- pose of electing and being elected into any office, or place within this State, in that town, district, or plantation, where he dwelleth, or hath his home." Const. Mass. c. 1, § 2, art. 2. Nor do we see how the construction given to the statute is consist- ent with the result at which the court arrived. The learned judge SECT. I.] BORLAND V. BOSTON. 205 says, "In tbe statute on which this case depends, we are of opinion that the words ' where he shall be an inhabitant on the first day of May,' mean where he shall have his home on that day." It is there- fore clear that the learned judge does not give to the word "inhabi- tant" the meaning which the construction of the statute before re- ferred to authorizes him to give, but he does give the exact definition of the Constitution, to wit, "where he dwelleth, or hath his home;" for these words have not in the Constitution two meanings, but the single signification given to them by the learned judge, "his home," the exact, strict, technical definition of domicile. We cannot construe the statute to mean anything else than "being domiciled in." A man need not be a resident anywhere. He must have a domicile. He cannot abandon, surrender, or lose his domicile, until another is acquired. A cosmopolite, or a wanderer up and down the earth, has no residence, though he must have a domicile. It surely was not the purpose of the Legislature to allow a man to abandon his home, go into another State, and then return to this Commonwealth, reside in different towns, board in different houses, public or private, with no intention of making any place a place of residence or home, and thus avoid taxation. Such a construction of the law would create at once a large migratory population. Although we have said that the case of Briggs v. Rochester has been recognized in Colton v. Longmeadow, 12 Allen, 598, yet we ought to state that the decision in Colton v. Longmeadow was placed upon entirely different grounds. It was there held that the plaintiff had lost his domicile in Massachusetts because he had actually left the Commonwealth, and was actually in itinere to his new domicile, which he had left this Commonwealth for the purpose of obtaining, and which in fact he did obtain. If it should be deemed sound to hold that a person, who, before the first of May, with an intention in good faith to leave this State as a residence and to adopt as his home or domicile another place, is in good faith and with reasonable dili- gence pursuing his way to that place, is not taxable here upon the first of May, the doctrine should be limited strictly to cases falling within these facts. And both of the cases cited, Briggs v. Rochester and Colton v. Longmeadow, would fall within the rule. In each of those cases, tbe plaintiff had determined, before starting upon his removal, not only upon his removal, but upon his exact destination, and in fact established himself, according to his purpose, without delay, and within a reasonable time. We think, however, that the sounder and wiser rule is to make tax- ation dependent upon domicile. Perhaps the most important reason for this ru'e is, that it makes the standard certain. Another reason is, that it i3 according to the general views and traditions of our people. One cannot but be impressed by certain peculiarities in Briggs v. Rochester. The bill of exceptions in that case begins thus: "It 206 BORLAND V. BOSTON. [ciIAP. II. was admitted by both parties and so presented to the jury, that the only question at issue was the domicile of the plaintiff on the first of May, 1858; and that if he was then an inhabitant of the defendant town, the tax was rightly imposed; but that if he was not on that day an inhabitant of said town, he was not then riglitly taxable and taxed therein." Nothing can be more clear than that all parties understood, and the case was tried upon the understanding, that domicile and in- habitancy meant the same thing; otherwise, domicile, instead of being "the only question at issue," would not have been in issue at all. And the judge in giving his opinion says that, if domicile in its strictly technical sense, and with its legal incidents, was the control- ling fact, the plaintiff was rightly taxed in Rochester. Another noticeable fact in Briggs v. Rochester is this, that if the tax-payer in the pursuit of his purpose is beyond the line of the State before the first of May, he is not liable to taxation in the State; but if by detention he does not cross the line of the State till the first of May, he is taxable here. We cannot adopt a rule which shall make liability to taxation depend upon proximity to a State line. We have said that we prefer the test of domicile, because of its cer- tainty and because of its conformity to the views and traditions of our people, and, we may add, more in accordance with the various adjudications upon the subject in this State, and more in accord with the general legal and judicial current of thought. It is true, that, as said by Mr. Justice Metcalf, "it has repeatedly been paid by this and other courts, that the terms 'domicile,' 'inhabitancy,' and 'residence 'have not precisely the same meaning." But it will be found upon examination that these three words are often used as sub- stantially signifying the same thing. In one of the earliest cases. Harvard College ?'. Gore, 5 Pick. 370, 377, Chief Justice Parker, in defining the word "inhabitant" as used in the laws, defined it as one which imported not only domicile, but something more than domicile. "It imports citizenship and municipal relations, whereas a man may have a domicile in a country to which he is an alien, and where he has no political relations. . . . An inhabitant, by our Constitution and laws, is one who being a citizen dwells or has his home in some particular town, where he has municipal rights and duties, and is subject to particular burdens; and this habitancy may exist or continue notwithstanding an actual residence in another town or another country." There are other passages in the same opinion which, although used alio intuitu^ yet clearly indicate the current of judicial thought; for example, "The term 'inhabitant' imports many privileges and duties which aliens cannot enjoy or be subject to," p. 373; "does not fix his domicile or habitancy," p. 372; "a pretended change of domicile to avoid his taxes," p. 378. There are other similar expressions running through the whole opinion. In Lyman v. Fiske, 17 Pick. 231, the views of Chief Justice Parker SECT. 1.] BORLAND V. BOSTON. 207 in Harvard College v. Gore were considered by Chief Justice Shaw; and although expressing no dissent from the views of Chief Justice Parker, it is evident that in his apprehension the word "inhabitant" as used in the Constitution imported one domiciled, and he did not deem it important to consider whether it imported anything else in relation to political rights, duties, and liabilities than the word "domi- ciled" would import. But as the views of that magistrate are never to be slightly regarded, and as he gave the opinion in both the cases decided by this court, cited by Mr. Justice Metcalf as settling that the words "domicile," "habitancy," and "residence" have not pre- cisely the same meaning, we cite from his opinion to show what his views were of "domicile" and "habitancy." "In some respects, per- haps, there is a distinction between habitancy and domicile, as pointed out in the case of Harvard College v. Gore, 5 Pick. 377, the former being held to include citizenship and municipal relations. But this distinction is believed to be of no importance in the present case; because all the facts and circumstances which would tend to fix the domicile would alike tend to establish the habitancy. It is difficult to give an exact definition of ' habitancy.' In general terms, one may be designated as an inhabitant of that place which consti- tutes the principal seat of his residence, of his business, pursuits, con- nections, attachments, and of his political and municipal relations. It is manifest, therefore, that it embraces the fact of residence at a place, with the intent to regard it and make it his home. The act and intent must concur, and the intent may be inferred from declar- ations and conduct." It is entirely clear that in his opinion, so far as relates to municipal rights, privileges, and duties, there is substantially no distinction between "domicile " and "habitancy." And, as further illustrating the views of that magistrate and the general sentiment of our people as to the use of such language in legislative enactments, we cite his language in Abiugton v. North Bridgewater, 23 Pick. 170, 176: "In the several provincial statutes of 1692, 1701, and 1767, upon this sub- ject, the terms ' coming to sojourn or dwell,' ' being an inhabitant,' ' residing and continuing one's residence,' ' coming to reside and dwell,' are frequently and variously used, and, we think, they are used indiscriminately, and all mean the same thing, namely, to desig- nate the place of a person's domicile. This is defined in the Consti- tution, c. 1, § 2, for another purpose, to be the place ' where one dwelleth, or hath his home.' " Authorities could be multiplied almost indefinitely in which it has been held by this court that, so far as it relates to municipal rights, privileges, powers or duties, the word " inhabitant" is, with the excep- tions before referred to, universally used as signifying precisely the same as one domiciled. See Thorndike w. Boston, 1 Met. 242, 245: Sears v. Boston, 1 Met. 250, 252; Blanchard v. Stearns, 5 Met. 298, 304; Otis v. Boston, 12 Cush. 44, 49; Bulkley ?•. WilliamstowD, 3 Gray, 493, 494. 208 BORLAND V. BOSTON. [CHAP II. As illustrative, however, of the fact that domicile and habitancy are, for the ordinary purposes of citizenship, such as voting, liability to taxation and the like, identical, and that when they are susceptible of different meanings they are used alio intuitu, we cite the language of Chief Justice Shaw in Otis v. Boston, 12 Cush. 44, 49: "Perhaps this question has heretofore been somewhat complicated, by going into the niceties and peculiarities of the law of domicile, taken in all its aspects; and there probably may be cases where the law of domi- cile, connected with the subject of allegiance, and affecting one's national character, in regard to amity, hostility, and neutrality, is not applicable to this subject. But as a man is properly said to be an inhabitant where he dwelleth and hath his home, and is declared to be so by the Constitution, for the purpose of voting and being voted for; and as one dwelleth and hath his home, as the name im- ports, where he has his domicile, most of the rules of the law of domi- cile apply to the question, where one is an inhabitant." A very strong case of retention of domicile, while in itinere to a new one which is subsequently reached, is Shaw v. Shaw, 98 Mass. 158, in which the court say that the rule of Colton v. Longmeadow, which merely followed Briggs v. Rochester, "is such an exception to the ordinary rule of construction as ought not to be extended." Upon the whole, therefore, we can have no doubt that the word "inhabitant" as used in our statutes when referring to liability to taxation, by an overwhelming preponderance of authority, means "one domiciled." While there must be inherent difficulties in the decisiveness of proofs of domicile, the test itself is a certain one; and inasmuch as every person by universal accord must have a domi- cile, either of birth or acquired, and can have but one, in the present state of society it would seem that not only would less wrong be done, but less inconvenience would be experienced, by making domi- cile the test of liability to taxation, than by the attempt to fix some other necessarily more doubtful criterion. Whether the cases of Briggs v. Rochester and Colton v. Long- meadow should be followed in cases presenting precisely similar circumstances, the case at bar does not require us to decide; and we reserve further expression of opinion on that question until it shall become necessary for actual adjudication. If they are to be deemed authority, they should. certainly be limited to the exact facts, where a person before leaving this Commonwealth has fixed upon a place certain as his future home, and has determined to abandon this Com- monwealth for the purpose of settling in his new home, and is, upon the first of May, without the Commonwealth, in good faith and with reasonable despatch actually upon his way to his new home. The plaintiff does not bring himself within this rule; for although he might have left the Commonwealth with the fixed purpose to abandon it as a residence, he did not leave it on his way to a place certain which he had determined upon as bis future residence, and was pro- SECT. I.] YOUNG V. POLLAK. 209 ceediug to with due despatch; and, upon the general rule that, having had a domicile in this Commonwealth, he remains an inhabitant for the purpose of taxation until he has acquired a new domicile, the intention and fact had not concurred at the time when this tax was assessed. The instructions of the presiding judge, therefore, inas- much as they were not based upon the rules here laid down, were not accurately fitted to the facts of the case, and the Jixceptions must be sustained.'^ YOUNG V. POLLAK. Supreme Court of Alabama, 1888. [^Reported 85 Alabama, 439.] The plaintiffs were merchants in the city of Montgomery, su ing on , common counts for goods sohl and delivered to Mrs. Effle Young, the defendant, who was a married woman. The defendant pleaded the general issue, and a special plea averring her coverture; the plaintiffs replied, alleging that her husband had abandoned her, and ha(l_ re moved fiom the State , and thereafter the defendant carried ou business on her own account and in her own name, as if sole and unmarried.^ •Stone, C. J. The fourth charge given at the request of plain tiffs in each of these cases is in the following language : " If AY. L. Young, husband of defendant, removed into the State of Alabama as a place of refuge, or to escape arrest in the State of Georgia, and that was his sole purpose, this would not give him a domicile in Alabama." Change of domicile consists of an act done, with an intent. The act is an actual change of residence. The intent, to effect the change, must be to acquire a new domicile, either permanent in purpose, or of indefinite duration. A temporary habitation, without intent to make it a permanent home, or one of indefinite duration, is not a change of domicile. Merrill v. Morrisset, 7G Ala. 433 ; 5 Amer. & Eng. Encyc. of Law, 863. The charge copied hinges the question of Young's change of domicile on the purpose with which he moved from Georgia to Alabama. Mlmi change their domiciles with very varying purposes or motives. The desire to live in a healthier region, to have better social or educa- tional advantages, to enjoy better church privileges, to be near one's relatives, to live in a new and growing country, and sometimes to be ^ Ace. Pfoutz V. Comford, 36 Pa. 420. No change of domicile takes place while one is in itincre to a new domicile : Lamar v. Mahony, Dudley, 92 ; Littlefield v. Brooks, 50 Me. 475 ; Bulkley v. Williamstown, 3 Gray, 493 ; Shaw v. Shaw, 98 Mass. 158. — Ed. '^ This .'itatement, containing all the facts necessary to understand the question of domicile raised, is substituted for the statement of the reporter. Part of the opinion is omitted. — Ed. ^a 210 DITSON V. DITSON. [CHAP. II. relieved of disagreeable surroundings, — these and many more ma}* be classed among the purposes — sole purposes, if you please — with which ,. men change their residence. Yet, if the change be in fact made with ithe intent to acquire a new residence, either permanent or of indefinite Iduration, this is a change of domicile. The intent that the new hab- itation shall, or shall not be, permanent, or of indefinite duration, and liot the purpose in making the change, is the pivot on which the inquirj' iurns. The cit}' court erred in giving this charge. The second charge at the instance of plaintiffs in each of these cases needs modification. If Young, under the rules declared above, be- came a resident of Alabama, then his return to Georgia under arrest, or involuntary confinement there, are, of themselves, no evidence of a change of domicile.^ DITSON V. DITSON. Supreme Court of Rhode Island. 1856. ^Reported 4 Rhode Island, 87 ] Ames, C. J.^ Although, as a general doctrine, the domicile of the husband is, by law, that of the wife, 3-et, \\\\ ^.n h e cotiimit,s.-fl.n oflFence, or is guilt}' of such dereliction of dut}' in the relation as entitles her to have it either partially or totally dissolved, she not only ma}', but must, to avoid condonation, establish a separate domicile of her own. This she may establish, nay, when deserted or compelled to leave her hus- band, necessity frequently compels her to establish, in a different judi- cial or State jurisdiction than that of her husband, according to the residence of her family or friends. Under such circumstances she gains, and is entitled to gain, for the purposes of jurisdiction, a domicile of her own ; and especially if a native of the State to which she flies for refuge, is, upon familiar principles, readily redintegrated in her old domicile. This is the well-settled doctrine of law upon the subject (Bishop on Marriage and Divorce, §§ 728-730 inch and cases cited), and has by no court been more ably vindicated than by the Supreme Court of Massachusetts. Harteau v. Harteau, 14 Pick. 181, 186. A more proper case for the application in fa^'or of a petitioner for divorce of the foregoing principles relating to the jurisdiction of the 1 One confined in prison does not become domiciled in the prison. Grant v. Dalliber, 11 Conn. 234 ; Barton v. Barton, 74 Ga. 761. So one forcibly removed from his home by military authorities does not lose his domicile. Hardy v. De Leon, 5 Tex. 211. Paupers in a poorhouse do not acquire a domicile there. Clark v. Robinson, 88 111. 498. Cnntra, Sturgeon v. Korte, 34 Ohio St. 525. Political refugees do not ordinarily relinquish their domicile. De Bonneval v. De Bonneval, 1 Curt. Eccl. 856 ; Ennis v. Smith, 14 How. 400 (scmhlc) ; but see S. v. De Casinova, 1 Tex. 401. —En. 2 Part of the opinion only, involving the question of domicile, is given. — Ed. SECT. I.J DITSON V. DITSON. 211 court over her case, and to the question of her domicile in tliis State, can hardly be imagined, than the case at bar. The petitioner is the daughter of a native of this State, who, though formerly resident in Boston, has for many years past been domiciled in his native place, Little Corapton. Whilst at school, the petitioner became acquainted MJth an Englishmp,n of the name of Ditson, and, in 1842, married him, without the knowledge or consent of her parents, in New York. Im- mediately after marriage the couple went to Europe, and from thence to Cuba, where they lived together several years. Upon their return to this country, she being in a feeble and emaciated condition, he de- serted her for the first time in Boston, and was absent in Europe, with- out leaving any provision for her, for about two years. Upon his return, they appear to have lived together again ; he, however, giving every indication of a morose as well as inattentive husband. After a short time, he deserted her again in Boston, declaring, upon his leaving it for Europe, that he cared nothing about it, or any person in it, point- ing, as the testimony is put to us, to his unfortunate wife. He has been absent from her now between three and four years, without com- municating with her, or providing, though of sufficient ability, anything for her support, nor does she know where he is, except that he has gone to Europe. In the mean time, deserted as she was, she was obhged to return to her father's house in Little Compton ; where, during this time, supported by him or by her own exertions, she has resided, with the exception of about three months passed by her in Newport, Rhode Island. For this desertion and neglect to provide for her, the proof, ex parte it is true, but coming from respectable sources, finds no excuse in her conduct, which, according to it, has always, so far as known, been that of a dutiful and faithful wife. . . . Whatever was the former domicile of thf uifititione r, we are satisfied that she is, and has, for up^ wards of the la st three year s, been a domiciled citi zen of Khode Island, — her only home, i n the house of her father.^ 1 "The law will recognize a wife, as having a separate existence, and separate inter- ests, and separate rights. In those cases where the express object of all proceedings is to show that the relation itself ought to be dissolved, or so modified as to establish sepa- rate interests, and especially a separate domicile and home, bed and board being put, a part for the whole, as expressive of the idea of koine. Otherwise, the parties in this respect would stand upon very unequal grounds, it being in the power of the husband to change his domicile at will, but not in that of the wife. The husband might deprive the wife of the means of enforcing her rights, and in effect of the rights themselves, and of the protection of the laws of the Commonwealth, at the same time that his own misconduct gives her a right to be rescued from his power on account of his own mis- conduct towards her." Shaw, C. J., in Harteau v. Harteau, 14 Pick. 181. "She may acquire a separate domicile whenever it is necessary or proper that she should_do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues." Swayne, J., in Cheever v. Wilson, 9 Wall. 108. Ace. Hanbury V. Hanbury, 20 Ala. 629 ; Chapman v. Chapman, 129 111. 386 ; Hunt v. Hunt, 72 N. Y- 217. Contra, Yelverton i;. Yelverton, 1 Sw. & Tr. 574 ; Maguire v. Maguire, 7 Dana, 181 ; and see Hinds v. Hinds, 1 la. 36. In some jurisdictions, it is held, that if a wi^ is living apart from her husband for cause, she must, for purposes of divorce, have_a 212 LAMAR V. MICOU. [CHAP. II. LAMAR V. MICOU. Supreme Court of the United States. 1884. [Reported 112 United 'States, 452.] This is an appeal by the executor of a guardian (Lamar) from a decree of tiie Circuit Court of tlie United States for the Southern Dis- trict of New York, in favor of the plaintiff, the administratrix of his ward. The bill prayed for an account of the ward's estate. The guardian alleged that the property had been lost through unfortunate investments ; and the question was whether the law which governed the duties of the guardian permitted such investments.^ Gray, J. An infant cannot change his own domicile. As infants have the domicile of their father, he may change their domicile by changing his own ; and after his death the mother, while she remains a widow, may likewise, by changing her domicile, change the domicile of the infants ; the domicile of the children, in either case, following the independent domicile of their parent. Kennedy v. R^-all, 67 N. Y. 379 ; Potinger v. Wightman, 3 Meriv. 67 ; Uedham v. Natick, 16 Mass. 135; Dicey on Domicile, 97-99. But when the widow, by marrying again, acquires the domicile of a second husband, she does not, by taking her children by the first husband to live with her there, makje the domicile which she derives from her second husband their domicile f and they retain the domicile which they had, before her second mar- riage, acquired from her or from their father. Cumner v. Milton, 3 Salk. 259 ; s. c. Holt, 578 ; Freetown v. Taunton, 16 Mass. 52 ; School Directors v. James, 2 Watts & Sergeant, 568 ; Johnson v. Copeland, 35 Alabama, 521 ; Brown v. Lynch, 2 Bradford, 214 ; Mears v. Sinclair, 1 West Virginia, 185 ; Pothier's Introduction Generale aux Coutumes, No. 19 ; 1 Burge Colonial and Foreign Law, 39 ; 4 Phillimore Inter- national Law (2d ed.) § 97. The preference due to the law of the ward's domicile, and the im- portance of a uniform administration of his whole estate, require that, as a general rule, the ma nagement and investment of his property separate domicile, and cannot claim that of her husband. White v. White, 18 R. I. 292, 27 Atl. 506 ; Dutcher v. Dutcher, 39 Wis. 651. For all purposes except that of bringing suit for divorce, the wife's domicile is that of her husband, even if she is living apart from him. Warrender v. Warrender, 9 Hligh, 103 ; Dolphin v. Robbins, 7 H. L. C. 390 ; Christie's Succession, 20 La. Ann. 383 ; Greeni! v. Windham, 13 Me. 225 ; Greene v. Greene, 11 Pick. 410 ; Hackettstown Bank 1-. Mitchell, 28 N. J. L. 516. Contra, Shute v. Sargent, 67 N. H. 305, infra, p. 211. If divorced from bed and board, however, the wife may and must have a separate domi- cile. Williams v. Dormer, 16 Jur. 366 ; Barbour v. BarVmur, 21 How. 582. — Ed. 1 This short statement of facts, presenting such facts as (in addition to those stated in the extract printed) are necessary for understanding so much of the case as is printed, is substituted for the statement by Mr. Justice Gray. Part of the oi>iniou is u:i]ilted. — Ed- SECT. I.] LAMAli V. MICOU. 213 should be f rnvfimed h y the law of tha Stntft of hia dnmifiilft. ftappcialW ■n-hen he actually resides there, rather than by the law of any State in wiiich a guardian may liave been appointed or may liave received some property of the ward. If the duties of tlie guardian were to be exclu- sively regulated by the law of the Slate of his appointment, it would follow that in any case in wliich the temporary residence of the ward was changed from State to Slate, from considerations of health, educa- tion, pleasure, or convenience, and guardians were appointed in each State, the guardians ap[)ointed in the different States, even if the same persons, might be held to diverse rules of accounting for different parts of the ward's property. The form of accounting, so far as con- cerns the remedy only, must indeed be according to the law of the court in which relief is sought ; but the general rule by which the guardian is to be held responsible for the investment of the ward's property is the law of the place of the domicile of the ward. Bar, In- ternational Law, § 106 (Gillespie's translation), 438; Wharton, Con- flict of Laws, § 259. It may be suggested that this would enable the guardian, by chang- ing the domicile of his ward, to choose for himself the law by which he sliould account. Not so. The father, and after his death the widowed mother, being the natural guardian, and the person from whom the ward derives his domicile, may change that domicile. But the ward does not derive a domicile from any other than a natural guardian. A . testamentary guardian nominated by the father may have the same control of the ward's domicile that the father had. Wood v. Wood, 5 Paige, 596, 605. And any guardian, appointed in the State of the domicile of the ward, has been generally held to have the power of changing the ward's domicile from one county to another within the same State and under the same law. Cutts v. Haskins, 9 Mass. 543 ; Holyoke v. Haskins, 5 Pick. 20 ; Kirkland y. Whately, 4 Allen, 462 ; Anderson v. Anderson, 42 Vermont, 350 ; ^a; parte Bartlett, 4 Brad- ford, 221 ; The Queen v. Whitby, L. R. 5 Q. B. 325, 331. But it is very doubtful, to say the least, whether eve,n a guardian appointed in the State of the domicile of the ward (not being the natural guardian or a testamentary guardian)' can remove the ward's domicile beyond the limits of the State in which the guardian is appointed and to which his legal authority is confined. Douglas v. Douglas, L. R. 12 Eq. 617, 625 ; Daniel v. Hill, 52 Alabama. 430 ; Story, Conflict of Laws, § J06^ note ; Dicey on Domicile, ^0QiJJi2— And it is quite clear that a guard- ian appointed in a State in which the ward is temporarily residing can- not change the ward's permanent domicile from one State to another. The case of such a guardian differs from that of an executor of, or a trustee under, a will. In the one case, the title in the property is in the executor or the trustee ; in the'olher, the ti^Ie^fiTthe property isln t^eward, and the guarZTan has only the custody and management of it, with power to change its investment. The executor or trustee is appointed at the domicile of the testator ; the guardian is most fitly 214 LAMAR V. MICOU. [CHAP. IL appointed at the domicile of the ward, and may be appointed in any State in which the person or any property of the ward is found. The ge neral rule which governs the ad m i n istratio n of the property in the one ease may be the law of the domicile~of t he testator ; in the other caseTTriFth e law of tlie domicile of the ward. " AS tlie law or the domicile of the ward has no extraterritorial effect, except by the comity of the State where the property is situated, or where the guardian is appointed, it cannot of course pi-evail against a statute of the State in which the question is presented for adjudication, expressly applicable to the estate of a ward domiciled elsewhere. Hoyt V. Sprague, 103 U. S. 613. Cases may also arise with facts so peculiar or so complicated as to modify the degree of influence that the court in which the guardian is called to account may allow to the law of the domicile of the ward, consistently with doing justice to the par- ties before it. And a guardian, who had in good faitli conformed to the law of the State in which he was appointed, might perhaps be ex- cused for not having complied with stricter rules prevailing at the domicile of the ward. But in a case in which the domicile of the ward has always been in a State whose law leaves much to the discretion of the guardian in the matter of investments, and he has faithfully and prudently exercised that discretion with a view to the pecuniary inter- ests of the ward, it would be inconsistent with the principles of equity to charge him with the amount of the moneys invested, merely because he has not complied with the more rigid rules adopted by the courts of the State in which he was appointed. The domicile of William W. Sims during his life and at the time of his death in 1850 was in Georgia. This domicile continued to be the domicile of his widow and of their infant children until the}* acquired new ones. In 1853, the widow, by marrying the Rev. Mr. Abercrom- bie, acquired his domicile. But she did not, by taking the infants to the home, at first in New York and afterwards in Connecticut, of her new husband, who was of no kin to the children, was under no legal obligation to support them, and was in fact paid for their board out of their property, make his domicile, or the domicile derived b}* her from him, the domicile of the children of the first husband. Immediately upon her death in Connecticut, in 1859, these children, both under ten 3'ears of age, were taken back to Georgia to the house of their father's mother and unmarried sister, their own nearest surviving relatives ; and they continued to live with their grandmother and aunt in Georgia imtil the marriage of the aunt in January, 1860, t o Mr. Micg u, a cit::. izen of Alabama, after which the grandmother and the cnildren resided with Mr. and Mrs. Micou at their domicile in that State. Upon these facts, the domicile of the children was always in Georgia from their birth until January, 1860, and thenceforth was either la Georgia or in Alabama. As the rules of investment prevailing before 18G3 in Georgia and in Alabama did not substantially differ, the ques- tion in which of those two States their domicile was is immaterial to SKCT. I.] LAMAB V. MICOU. 215 Cthfi, decision ^of this casa i-and 4^s therefore unnecessar}' to consider whether their ((grand mother was their natural g uardian, and as such had the powef'to cHangetheir domicile from one State to another. See Hargrave's note 66 to Co. Lit. 88 b ; Reeve, Domestic Relations, 315; 2 Kent, Com. 219; Code of Georgia of 1861, §§ 1754, 2452; Dardeu v. W3att, 15 Georgia, 414. Whether the domicile of Lamar in December, 1855, when lie was appointed in New York guardian of the infants, was in New York or in Georgia, does not distinctl}' appear, and is not material ;_becaus£^ for the reasons already stated, wherever his domicile was, his duties as guardian in the management and investment of the property of his wards were to be regulated b}' the law of their domicile. On petition for re-hearing. Gray, J., said (114 U. S. 218) : If the domicile of the father was in Florida at the time of his death in 1850, then, according to the principles stated in the former opinion, the dom- icile of his children continued to be in that State until the death of their mother in Connecticut in 1859. In that view of the case, the question would be whether the}' afterwards acquired a domicile in Georgia b}' taking up their residence there with their paternal grand- mother. Although some books speak only of the father, or, in the case of his death, the mother, as guardian by nature (1 Bl. Com. 461 ; 2 Kent, Com. 219), it is clear that the grandfather or grandmother, when the next of kin, is such a guardian.'" Hargrave, note 667 to CoT^Lit. 88 5; Reeve, Dom. Rel. 315. See also, Darden v. Wyatt, 15 Ga. 414. In the present case, the infants, when their mother died and they went to the home of their paternal grandmother, were under ten years of age ; the grandmother, who appears to have been their onl}' surviving grandparent and their next of kin, and whose only living child, an un- married daughter, resided with her, was the head of the family ; and upon the facts agreed it is evident that the removal of the infants after the death of both parents to the home of their grandmother in Georgia was with Lamar's consent. Under these circumstances, there can be no doubt that by taking up their residence with her, they acquired her domicile in that State in 1859, if their domicile was not already there.^ 1 The domicile of an infant follows that of his father : Metcalf v. Lowther, 56 Ala. 312 ; Kennedy v. Ryall, 67 N. Y. 379 ; and so long as the infant is not emancipated-- he can obtain no other domicile, though living away from his father's home : "Wheeler V. Burrow, 18 Ind. 14 ; even if he has run away from home : Bangor v. Readfield, 32 Me. 60 ; or has been bound out to service by the public authorities : Oldtown v. Fal- mouth, 40 Me. 106. Upon the death of the father, the mother's domicile ordinarily becomes that of tfco minor, and if she heing sui juris changes her domicile that of the child fo]lo\ss ; subject perhaps to the condition that the change be made bona Jide, and not for the purposejof securing an advantage at the expense of the child or the child's estate. Potiuger v. Wightman, 3 Mer. 67; Brown v. Lynch, 2 Bradf. 214 ; School Directors v. James, 2 W. & S. 568. A posthumous child, therefore, takes the domicile of the mother at its birth: Watson v. Bondurant, 30 La. Ann. 1303 (semble). If. however._ the mother marries ag ain,3i]ce she is no Innjfpr sif i iun'.i^ she r.amiot: flffisnt \]\ p. rl^miVn,^ nr ^h^ > .minor : School Directors v. James, 2 W. & S. 568 ; Allen v. Thomason, 11 Humph. s.-,-^- ._?' «> ' / • 216 SEIUTE V. SARGENT. [chap. II. CUTTTl? „ CAT?nT'Xr'T« ^i-tfvjv . . , , li, 0-^ . SuPREMT. Court of New Hampshire. 1892. [Reported 67 New Hampshire, 305.] Blodgett, J.^ The maxim that the domicile of the wife follows that of her husband "results from the general principle that a person who is under the power and authorit}'^ of another possesses no right to choose !i domicile.'" Story, Confl. Laws, s. 46. "B}' marriage, husband and wife become one person in law, — that is, the very being or legal exist- ence of the wife is suspended during the marriage, or at least is incor- poi'ated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything." 1 Bl. Com. 442. Such being the common-law status of the wife, her domicile necessarily fol- 536 {contra, Succession of Lewis, 10 La. Ann. 789 ; and see Wheeler v. Hollis, 19 Tex. 522) ; and therefore if the mother remarries before the birth of the posthumous child, the child takes the domicile of its mother before the second marriage : Oxford v. Bethany, 19 Conn. 229. An infant does not get the domicile of an appointed guardian ex officio if the infant actually lives elsewhere. Louisville v. Sherley, 80 Ky. 71 ; School Directors v. James, 2 \\\ & S. 568 ; Petigru v. Ferguson, 6 Rich. Eq. 378. The guardian may, however, change the infant's domicile by changing the actual home of the infant within the Stajtfi. Kirkland v. Whately, 4 All. 462 ; contra, Marheineke v. Grothaus, 72 Mo. 204. He cannot, however, change the ward's domicile outside the State, since his authority over the ward's person ceases at the State line. Douglas v. Douglas, L. R. 12 Eq. 617, 625 ; Robins v. Weeks, 5 Mart. N. s. 379 ; Trammell v. Trammell, 20 Tex. 406 ; but see Wood v. Wood, 5 Paige, 596, 605; Wheeler v. Hollis, 19 Tex. 522. A fortiori such a change cannot be made without the guardian's consent. Hiestand v. Kuns, 8 Blaekf. 345 ; Munday v. Baldwin, 79 Ky. 121. An emancipated minor may acquire a new domicile by his own will : Lubec v. East- port, 3 Me. 220 ; and such minor no longer shares a new domicile acquired by the father : Lowell v. Newport, 66 Me. 78 ; or by the mother, after the father's death : Dennysville v. Trescott, 30 Me. 470 ; Charlestown v. Boston, 13 Mass. 469. After emancipation the father cannot change the child's domicile. In re Vance, 92 Cal. 195, 28 Pac. 229. In Georgia, where a guardian has no right to restrain the person of a ward twenty years old, such a ward may acquire a domicile by his own choice. .Roberts v. AValker, 18 Ga. 5. An apprentice takes the domicile of his master. Maddox v. S., 32 Ind. 111. An insane person, though under guardianship, may yet change his domicile if he in fact retains sufficient power of will. Culver's Appeal, 48 Conn. 165; Concord v. Rumney, 45 N. H. 423 ; Mowry v. Latham, 17 R. I. 480, 23 Atl. 13. A person non compos from birth, continuing to live in his father's family after reaching his major- ity, follows his father's domicile. Sharpe v. Crispin, L. R. 1 P. & D. 611 ; Monroe ?;. ■lackson, 55 Me. 55 ; Upton v. Northbridge, 15 Mass. 237. If such a person has an appointed guardian, the latter may change the domicile of the ward into his own fam- ily by making him an inmate of it : Holyoke v. Haskins, 5 Pick. 20 ; Jackson v. Polk, 19 Ohio S. 28 ; or even, it has been held, to a new independent home : Anderson v Anderson, 42 Vt. 350. It has been held that if one non compos becomes emancipated by the death of his parents and the failure of appointment of a guardian, he may gain a residence where he actually lives. Gardiner v. Farmington, 45 Me. 537. — Ed. 1 The opinion only is given : it sufficiently states the case. — Ed. SrCT. l] SHUTE V. SAUGENT. 217 lowed her husband's, and the maxira applied without limitation or qualification. But the common-law theory of marriage has largely ceased to obtain everywhere, and especially in this State, where the law has long recog- nized the wife as having a separate existence, separate rights, and separate interests. In respect to tlic duties and obligations which ai'ise , I'iom the contract of marriage and constitute its object, husband ami wiTe^re still, ancf must continue to 1)l', a le^al uiut ; but so connjletel^ lias the ancient unity become dissevered, and The theory of the wife's servitude superseded by the theory of equality which has been estab- lished by the legislation and adjudications of the last half century, that she now stands, almost without an exception, upon an equality with the husband as to property, torts, contracts, and civil rigiits. Pub. Sts., c. 176 ; ib., c. 90, s."9 ; Seaver v. Adams, 66 N. H. 142, 143, and au- thorities cited. And since the law puts her upon an equality, so that he now has no more power and authority over her than she has over him, no reason would seem to remain why she may not acquire a sepa- rate domicile for every purpose known to the law. If, however, there are exceptional cases when for certain purposes it might properly be held otherwise, there can be in this jurisdiction no reason for holding that when the husband has forfeited his marital rights by his misbe- havior, the wife may not acquire a separate domicile, and exercise the appertaining rights and duties of citizenship with which married women have become invested. To hold otherwise would not only break the line of consistency and-^progress which has been steadily advanced until* the ancient legal distinstions between the sexes, which were adapted to a condition that has ceased to exist and can never return, have been largely swept away, but it would also be subversive of the statutory v,^ right of voting ancl being elected to office in educational matters which '^ wives now possess (Pub. Sts., c. 90, ss. 9, 14), inasmuch as it would compel the innocent wife to reside and make her home in whatever voting precinct the offending husband might choose to fix his domicile, or to suffer the deprivation of the elective franchise ; and if he should remove his domicile to another State, and she should remain here, the exercise of all her rights dependent upon domicile would be similarly affected. This cannot be the law. On the contrary, the good sense of the thing is, tha(tjL_wife cannot be divested of the right of suffrage, or be deprived_of any civil or Jegal right, by the act of herJi iisTjand ; anTso^ _jE£LiJike-^tlia law to be. jtVhenever it is necessary or proper for her to acquire a separate_domrcile3 she may^dj) so. This is the j;ule. for tlie Tai rpO'ge5"U f3Ivor.Qg, (Pay son v. Pay son, 34 N. H. 518 ; Cheever v. Wilson, 9 Wall. 108, 124; Ditson v. Ditson, 4 R.I. 87, 107; Harding V. Alden, 9 Greenl. 140), and it is the true rule for_all purposes^ Upon these views, the tgstatrix was' domic i led in this State at the jime of her dece ase, an d, as the consequence, distribution of her estate is to be made accordingly. Goodall v. Marshall, 11 N. H. 88; Vande- 218 BERGNEli & ENGEL BREWING CO. V. DREYFUS. [CHAP. II. walker v. Rollins, 63 N. H. 460, 463, 464. The rights of her husband therein are not affected b}' his written assent to the will. The Massa- chusetts statute, making such assent binding, has no extraterritorial force, and there is no principle upon which it can be given effect in this jurisdiction without violating the positive enactments of our statute relative to the husband's distributive share in his deceased wife's estate. Pub. Sts., c. 195, ss. 12, 13. This cannot be done. If the result shall be to give to this husband a benefit which the testatrix did not intend he should receive, and which in justice he ought not to have, it is to lie regretted ; but hard cases cannot be permitted to make bad equity any more than bad law. Case discharged.^ BERGNER & ENGEL BREWING CO. v. DREYFUS. Supreme Judicial Court of Massachusetts. 1898. [Reported 172 Massachusetts, 154.] Holmes, J.^ This is a suit by a Pennsylvania corporation to recover a debt for goods sold and delivered here. The only defence is a dis- charge in insolvency under our statutes, which of course commonly is no defence at all. This was reaffirmed unanimously in 1890, after full consideration of the objections now urged ; and it was decided also, not for the first time, that the general language of the insolvent law was not intended to affect access to Massachusetts courts b}' a local rule of procedure unless the substantive right was barred by the dis- charge. Phoenix National Bank v. Batcheller, 151 Mass. 589. The grounds u rge d for an exception in the present c ase aLej_J;liat t_he 4ilaiii=- tiff, althoiigh its brewery and main offices are in Pennsylvania, has au_ office in Boston, and maintains here a complete outfit for the distribu^ tion of its products ; that it has a license of the fourth clasS-iindfir-Eiib- Sts. c. 100, § 1^; and that it has complied with the laws regulating foreign corporationi_doin^T)Usiness here, including, we assume, th:it_ which requirej^ th e appointm ent of the commissioner of corporations its " attorney upon wliom all lawful processes in any action orj21!°?§?i. inY^against it may be served." St. 1884, c. 330, § 1. See 'St. 1895, lens?. ... The independent ground on which it is urged that the plaintiff is subject to the insolvent law in the present case is that the plaintiff is domesticated in this State, as shown by the facts above recited, of which the appointment of an attorney is only one. The word " domesticated," which was used in the argument for the defend- ant, presents no definite legal conception which has any bearing upon the case. We presume that it was intended to convey in a conciliatory form the notion that the plaintiff was domiciled here, — " resident," iu » Ace. In re Floraiice, 54 Hun, 328. — Ed. " The statement of facts and part of the opinion are omitted. — Ed. SECT. I.] BERGNER & ENGEL BREWING CO. V. DREYFUS. 219 the language of Pub. Sts. c. 157, § 81, — and therefore barred b}- the language and legal operation of the act. It could not be contended that the corporation was a citizen of Massachusetts. In such sense as it is a citizen of an}' State, it is a citizen of the State which creates it and of no other. But there are even greater objections to a double domicile than there are to double citizenship. Under the law as it has been, a man might find himself owing a double allegiance without any choice of his own. But domicile, at least for any given purpose, is single h^JikesJiencfi^ Dicey, Confl. of Laws, 95. A corporation does' not differ from a natural person in this respect. If any person, natural or artificial, as a result of choice or on technical grounds of birth or creation, has a domicile in one place, it cannot have one elsewhere, be- cause what the law means by domicile is the one technically pre-eminent headquarters, which, as a result either of fact or of fiction, every person is compelled to have in order that by aid of it certain rights and duties which have been attached to it by the law may be determined. It is settled that a corporation has its domicile in the jurisdiction of the State which created it, and as a consequence that it has not a domicile anywhere else. Boston Investment Co. v. Boston, 158 Mass. 461, 462, 463 ; Shaw v. Quincy Mining Co., 145 U. S. 444, 450; Martine v. In- ternational Ins. Co., 53 N. Y. 339, 346. The so-called modifications of this rule by statutes like the act of 1884 do not modify it, because jurisdiction of the ordinary personal actions does not depend upon domicile, but only upon such presence within the jurisdiction as to make ^rvicg possible. See In re Hohorst, 150 U. S. 653. But the operation" of our insolvent law by its very terms may, and in this case does, de- pend upon the domicile of the creditor, and as there can be no doubt either in fact or in law that the plaintiff was domiciled in Pennsylvania in such a sense that a statute like Pub. Sts. c. 157, § 1, would hit it there, it cannot have been domiciled here for the same purpose at the same time. Judgment for the plaintiff' affirmed.^ Field, C. J., dissenting. 1 Ace. Germania F. I. Co. v. Francis, 11 Wall. 210 ; Cook v. Hager, 3 Col. 386 ; Chafee v. Fourth Nat. Bank, 71 Me. 514 ; B. & 0. R. R. v. Glenn, 28 Md. 287. Dicta in the English cases are, however, contra. Newbv v. Van Oppen, L. R. 7 Q. B. 293; Eussell v. Cambefort, 23 Q. B. D. 526. "I think that this company may properly be deemed bothgca tch and Eng lish. It may, for purposes of juris- diction, be deemed to have t5:Q_doHUGiiea. Its business is necessarily carried on by •ngents, and I do not know why its domicil^ should be considered to be confined to tho place where the goods are manufactured. The business transacted in England is very extensive. The places of business may, for the purposes of jurisdiction, properly be deemed the domicile." — Lord St. Leonards in Carron Iron Co, v. Maclaren, 6 H. L. C. 416, 449. — Ed. In Martine v. International L. Ins. Soc, 63 N. Y. 339, an English company with a permanent general agency in New York was held, as to business done through such tigency, to have, in time of war, a com mercial (though not an ordinary civil) domicile it! New York. ' 220 HAYS V. PACIFIC MAIL STEAMSHIP CO. [cHAi'. II. SECTION II. TAXATION. > . HAYS V. PACIFIC MAIL STEAMSHIP CO. jt \ Supreme Court of the United States. 1855. } / [Eeported 17 Howard, 596.] "Nelson, J. This is a writ of error to the District Court for the Northern District of California. The suit was brought in the District Court by the compan}*, to recover baclt a sura of money wliicii they were com[)elled to pay to the defendant, as taxes assessed in the State of California, upon twelve steamships belonging to them, which were temporarily within the juris- diction of the State. The complaint sets forth that the plaintiffs are an incorporated com- pany by the laws of New York ; tliat all the stockholders are residents and citizens of that State ; that the principal office for transacting the business of the company is located in the city of New York, but, for the better transaction of their business, they have agencies in the city of Panama, New Grenada, and in the city of San Francisco, Califor- nia ; that they have, also, a naval dock and shipyard at the port of Benicia, of that State, for furnishing and repairing their steamers ; that, on the arrival at the port of San Francisco, they remain no longer than is necessary to land their passengers, mails, and freight, usually done in a day ; they then proceed to Benicia, and remain for repairs and refitting until the commencement of the next voyage, usually some ten or twelve days ; that the business in which they are engaged is in the transportation of passengers, merchandise, treasure, and the United States mails, between the city of New York and the city of San Francisco, by way of Panama, and between San Francisco and different ports in the Territory of Oregon ; that the company are sole owners of the several vessels, and no portion of the interest is owned by citizens of the State of California ; that the vessels are all ocean steamships, employed exclusively in navigating the waters of the ocean ; that all of them are duly registered at the custom-house in New York, where the owners reside ; that taxes have been assessed upon all the capital of the plaintiffs represented by the steamers in the State ot New York, under the laws of that State, ever since they have been employed in the navigation, down to the present time; that the said steamships have been assessed in the State of California and county of San Francisco, for the year beginning 1st July, 1851, and ending 30th June, 1852, claiming the aseessment as annually due, under an act of SECT. II.] HAYS V. PACIFIC MAIL STEAMSHIP CO. 221 the legislature of the Stale ; that the taxes assessed amount to 311,962.50, and were paid under protest, after one of the vessels was advertised for sale by the defendant, in order to prevent a sale of it. To this complaint the defendant demurred, and the court below gave judgment for the plaintiffs. B}- the 3d section of the Act of Congress of 31st December, 1792, it is provided that ever}' ship or vessel, except as thereafter provided, shall be registered by the collector of the district, in which shall be comprehended the port to which the ship or vessel shall belong at the time of her registry, and which port shall be deemed to be that at or nearest to which the owner, if there be but one, or, if more than one, nearest to the place where the husband, or acting and managing owner, usually resides ; and the name of the ship, and of the port to which she shall so belong, shall be painted on her stern, on a black ground, in white letters of not less than three inches in length ; and if any ship or vessel of the United States shall be found without having her name, and the name of the port to which she belongs, painted in the manner mentioned, the owner or owners shall forfeit fifty dollars. And by the Act of 29th July, 1850 (9 Stats, at Large, 440), it is provided that no bill of sale, mortgage, or conveyance of anj' vessel shall be valid against anj* person other than the grantor, etc., and per- sons having actual notice, unless such bill of sale, mortgage, or convey- ance be recorded in the office of the collector of the customs where such vessel is registered or enrolled. These provisions, and others that might be referred to, very clearly indicate that the domicile of a vessel that requires to be registered, if we ma}' so speak, or home port, is the port at which she is registered, and which must be the nearest to the place where the owner or owners reside. In this case, therefore, the home port of the vessels of the plaintiffs was the port of New York, where they were duly registered, and where all the individual owners are resident, and where is also the principal place of business of the company ; and where, it is admitted, the capital invested is subject to State, county, and other local taxes. These ships are engaged in the transportation of passengers, mer- chandise, etc., between the city of New York and San Francisco, by the way of Panama, and between San Francisco and different ports in the territory of Oregon. They are thus engaged in the business and commerce of the country, upon the highway of nations, touching at such ports and places as these great interests demand, and which hold out to the owners sufficient inducements by the profits realized or ex- pected to be realized. And so far as respects the ports and harbors within the United States, they are entered and cargoes discliarged or laden on board, independently of any control over them, except as it respects such municipal and sanitary regulations of the local authorities as are not inconsistent with the constitution and laws of the general government, to which belongs the regulation of commerce with foreign nations and between the States. 222 HAYS V. PACIFiC MAIL STEAMSHIP CO. [CHAP. II. Now, it is quite apparent that if the State of California possessed tlie autliority to impose the tax in question, any other Slate in tlie Union, into the ports of which the vessels entered in the prosecution of their trade and business, might also impose a like tax. It may be that the course of trade or other circumstances might not occasion as great a delay in other ports on the Pacific as at the port of San Francisco. But this is a matter accidental, depending upon the amount of business to be transacted at the particular port, the nature of it, necessary* repairs, etc., which in no respect can affect the question as to the situs of the propert3-, in view of the right of taxation by the State. Besides, whether the vessel, leaving her home port for trade and commerce, visits, in the course of her voyage or business, several ports, or confines her operations in the carrying trade to one, are questions that will depend upon the profitable i-eturns of the business, and will furnish no more evidence that she has become a part of the personal property within the State, and liable to taxation at one port than at the others. She is within the jurisdiction of all or any one of them tempo- rarily, and for a purpose wholly excluding the idea of permanently abid- ing in the State, or changing her home port. Our merchant vessels are not unfrequently absent for years, in the foreign carr3ing trade, seeking cargo, carrying and unlading it from port to port, during all the time absent ; but the}' neither lose their national character nor their home port, as inscribed upon their stern. The distinction between a vessel in her home port and when lying at a foreign one, or in the port of another State, is familiar in the admiralty law, and she is subjected, in many cases, to the application of a different set of principles. 7 Pet. 324 ; 4 Wheat. 438. We are satisfied that the State of California had no jurisdiction over these vessels for the purpose of taxation ; the}- were not, properly, abiding within its limits, so as to become incorporated with the other personal property of the State ; they were there but temporarily', en- gaged in lawful trade and commerce, with their situs at the home port, where the vessels belonged, and where the owners were liable to be taxed for the capital invested, and where the taxes had been paid. An objection is taken to the recover}- against the collector, on the ground, mainly, that the assessment under the law of California, by the assessors, was a judicial act, and that the party should have pur- sued his remedy to set it aside according to the provisions of that law. We do not think so. The assessment was not a judicial, but a ministerial act, and as the assessors exceeded their powers in making it, tlie officer is not protected. Tiie payment of the tax was not voluntar}-, but compulsory, to pre- vent the sale of one of the ships. Our conclusion is, that the judgment of the court below is right, and should be affirmed.^ 1 Arc. Johnson v. Debary-Baya Merchants' Line, 37 Fla. 499, 19 So. 640; Roberts V. Charlevoix, 60 Mich. 197 ; S. v. HaigLt, 30 N. J. L. 428. So generally as to BECT. II.] HOYT V. COMMISSIOI^EES OF TAXES. 223 HOYT V. COMMISSIONERS OF TAXES. Court of Appeals of New Yokk. 1861. [Reported 23 New York, 224.] COMSTOCK, C. J. The legislature, in defining property which is liable to taxation, have used the following language: "All lands and all personal estate within this State, whether owned by individuals or corporations, shall be liable to taxation subject to the exemptions here- inafter specified." (1 R. S., 387, § 1.) The title of the act in which this provision is contained, is, " of the property' liable to taxation," and it is in this title that we ought to look for controlling definitions on the subject. Other enactments relate to the details of the system of taxation, to the mode of imposing and collecting the public burdens, and not to the property or subject upon which it is imposed. In order, therefore, to determine the question now before us, the primary requisite is to interpret justly and fairly the language above quoted. " All lands and all personal estate within this State shall be liable to taxation." If we are willing to take this language, without attempt- ing to obscure it b}' introducing a legal fiction as to the situs of personal estate, its meaning would seem to be plain. Lands and personal property having an actual situation within the State are tax- able, and b}- a necessary implication no other property can be taxed. I know not in what language more appropriate or exact the idea could have been expressed. Real and personal estate are included in pre- cisely the same form of expression. Both are mentioned as being within the State. It is conceded that lands lying in another State or country, cannot be taxed against the owner resident here, and no one ever supposed the contrary. Yet it is claimed that goods and chattels situated in Louisiana, or in France, can be so taxed. The legislature I suppose could make this distinction, but that they have not made it, in the language of the statute is perfectly clear. Nor is the reason apparent why such a distinction should be made. Lands have an actual situs, which of course is immovable. Chattels also have an actual situs, although they can be moved from one place to anotner. Both are equally protected by the laws of the State or sov- ereignty in which they are situated, and both are chargeable there with public burdens, according to all just principles of taxation. A purely poll tax has no respect to propert}'. We have no such tax. With us taxation is upon propert}', and so it is in all the States of the Union. So also in general, it is in all countries. The logical result is, that the tax is incurred within the jurisdiction and under the laws of the country where it is situated. If we sa^' that taxation is on the person property merely in transitu. Standard Oil Co. v. Bachelor, 89 Ind. 1 ; Conley v. Che- dic, 7 Nev. 336 ; Robinson v. Longley, 18 Nev. 71 ; see Carrier r. Gordon, 21 Oh. SL 60o. — Ed. 224 HOYT V. COMMIS&IOXERS OF TAXES. [CHAP. II. in respect to the propert}-, we are still without a reason for assessing the owner resident here, in respect to one part of his estate situated elsewhere, and not in respect to another part. Both, I repeat, are the subjects of taxation in the foreign jurisdiction. If then the owner ought to be subjected to a double burden as to one, why not as to the other also ? I find then no room for interpretation, if we take the words of the statute in their plain ordinary sense. The legislative definition of taxable property refers in that sense to the actual situs of personal not less than real estate. If the intention had been different, it cannot be doubted that different language would have been used. It would have been so easy and so natural to have declared that all lands within this State, and all personal property wherever situated, owned by residents of this State, shall be liable to taxation, that we should have expected just such a declaration, if such had been the meaning of the law-making power. To me, it is evident that the legislature were not enunciating a legal fiction which, as we shall presently see, expresses a rule of law in some circumstances and relations, but which in others is not the law. They were speaking in plain words, and to the plain understanding of men in general. When the}' said all real and all personal estate within this State, I see no room for a serious doubt that they intended property actually within the State wherever the owner might reside. , It is said, however, that personal estate by a fiction of law has no situs away from the person or residence of the owner, and is always deemed to be present with him at the place of his domicile. The right to tax the relator's property situated in New Orleans and New Jerse}', rests upon the universal application of this legal fiction ; and it is accordingly insisted upon as an absolute rule or principle of law which, to all intents and purposes, transfers the property from the foreign to the domestic jurisdiction, and thus subjects it to taxation under our laws. Let us observe to what results such a theory will lead us. The necessary consequence is, that goods and chattels actuallj' within this State are not here in any legal sense, or for any legal purpose, if the owner resides abroad. They cannot be taxed here, because thej- are with the owner who is a citizen or subject of some foreign State. Ou the same ground, if we are to have harmonious rules of law, we ought to relinquish the administration of the effects of a person resident and dying abroad, although the claims of domestic creditdrs may require such administration. So, in the case of the bankruptcy of such a person, we should at once send abroad his effects, and cannot consist- ently retain them to satisfy the claims of our own citizens. Again, we ought not to have laws for attaching the personal estate of non-residents, because such laws necessarily assume that it has a situs entirely distinct from the owner's domicile. Yet we do in certain cases administer upon goods and chattels of a foreign decedent ; we refuse to give up the effects of a bankrupt until creditors here are paid ; and we have laws SECT. II.] HOYT V. COMMISSIONERS OF TAXES. 225 of attachment against the effects of non-resident debtors. These, and other illustrations which might be mentioned, demonstrate that the fiction or maxim niobUia personam seqmaUur is by no means of universal application. Like other fictions, it has its special uses. It may be resorted to when convenience and justice so require. In other circumstances the truth and not the fiction affords, as it plainly ought to afford, the rule of action. The proper use of legal fictions is to prevent injustice, according to the maxim, in fictione Juris semptr wnuitas existat. " No fiction," says lilackstone, " shall exteuci to work an injury ; its proper operation being to prevent a mischief or remedy an inconvenience, which might result from the genenil i-ule of law." So Judge Story, referring to the situs of goods and chatteU, observes: '"The general doctrine is not controverted, that although movables are for many purposes to be deemed to have no situs^ except that of the domicile of the owner, yet this being but a legal fiction it yields whenever it is necessary, for the purpose of justice, that the actual situs of the thing should be examined." He adds quite perti- nently, I think, to the present question, " A nation within whose territory any personal property is actually situated, has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there." (Confl. of Laws, § 550.) I can think of no more just and appropriate exercise of the sovereignty of a State or nation over property, situated within it and protected by its laws, than to compel it to contribute toward the maintenance of govern- ment and law. Accordingly there seems to be no place for the fiction of which we are speaking, in a well-adjusted sj'stem of taxation. In such a system a fundamental requisite is that it be harmonious. But harmony does not exist unless the taxing power is exerted with reference exclusively either to the situs of the propert}', or to the residence of the owner. Both rules cannot obtain unless we impute inconsistenc}' to the law, and oppression to the taxing power. Whichever of these rules is the true one, whichever we find to be founded in justice and in the reason of the thing, it necessarily excludes the other ; because we ought to suppose, indeed we are bound to assume, that other States and Govern- ments have adopted the same rule. If then proceeding on the true principles of taxation, we subject to its burdens all goods and chattels actually within our jurisdiction, without regard to the owner's domicile, it must be understood that the same rule prevails everywhere. If we also proceed on the opposite rule, and impose the tax on account of the domicile, without regard to the actual situs, while the same property is taxed in another sovereignty by reason of its situs there, we necessarily' subject the citizen to a double burden of taxation. For this no sound reason can be given. To put a strong case. The owner of a southern plantation with his thousand slaves upon it, may perfer to reside and spend his income in New York. Our laws protect him in bis person as a citizen of the State, and for this the State receives a sufficient con- 15 226 HOYT V. COMMISSIONERa OF TAXES. [cilAP. H. sideration without taxing the capital which it does not protect. Under our laws can we tax the wealth thus invested in slave property ? They ignore, on the contrar^^ the very existence of such propert}', ana therefore there is no room for the fiction according to which, and only according to which, the situs is supposed to be here. But if we could make room for that fiction, still it remains to be shown that some rule of reason or principle of equity can be urged in favor of such taxation. This cannot be shown, and the attempt has nut been made. "We may reverse the illustration. A citizen and resident of Massa- chusetts may own a farm in one of the counties of this State, and large wealth belonging to him may be invested in cattle, in sheep or horses which graze the fields, and are visible to the eyes of the taxing power. Now these goods and chattels have an actual situs, as distinctly so as the farm itself. Putting the inquiry then with reference to both, are they "real estate and personal estate within this State," so as to be subject to taxation under that definition? It seems to me but one answer can be given this question, and that answer must be according to the actual truth of the case. If we take the fiction instead of the truth, then the situs of these chattels is in Massachusetts, and they are not within this State. The statute means one thing or the other. It cannot have double and inconsistent interpretations. And as this is impossible so we cannot, under and according to the statute, tax the citizen of Massachusetts in respect to his chattels here, and at the same time tax the citizen of New York in respect to his chattels having an actual situs there. In both cases the property must be •* within this State," or there is no right to tax it at all. It cannot be true in fact, if a Massachusetts man owns two spans of horses, one of which draws his carriage at home and the other is kept on his farm here, that both are within the State. It cannot be true by any legal intendment, because the same intendment which locates one of them here, must locate the other abroad and beyond the taxing power. It seems to follow then inevitably that before we can uphold the tax which has been imposed upon the relator's property situated in New Orleans and New Jersey, we must first determine, that if he resided there, and the same goods and chattels were located here, they could not be taxed as being within the State. Such a determination I am satisfied would contravene the plain letter of the statute as well as all sound principles underlying the subject.^ 1 The remainder of the opinion is omitted. Jcc. Dunleith v. Rogers, 53 111. 45 ; Leonard v. New Bedford, 16 Gray, 292; S. v. Ross, 23 N. J. L. 517 ; Hardesty v. Fleming, 57 Tex. 395. "We have no difficulty in disposing of the last condition of the question, namely: the fact, if it be a fact, that the property was owned by persons residing in another State ; for, if not exempt from taxation for other reasons, it cannot be exempt by reason of being owned by non-residents of the State. We take it to be a point settled beyond all contradiction or question, that a State has jurisdiction of all persons and things within its territory which do not belong to some other jurisdiction, such as the representatives of foreign govenmieuls, with their houses and cfffcts, and property SECT. II.] McKEEN V. COUNTY OF NORTHA.MPTOX. 227 McKEEN V. COUNTY OF NORTHAMPTON. Supreme Court of Pennsylvania. 1865. [Reported 49 Pennsylvania, 519.] Agnew, J. James McKeen is the owner of four hundred and sev- enty-two shares of the capital stock of a manufacturing corapanj', incorporated under the laws of New Jerse}', doing business and hold- ing its property in Warren county in that State. McKeen himself is a resident of Easton, Pennsylvania, and the question is, whether his stock is taxable here for State and county purposes. The taxing power rests upon the reciprocal duties of protection and support between the State and the citizen, and the exclusive sover- eignty and jurisdiction of the State over the persons and property within its territory. In McCullough v. The State of Maryland, 4 Wheat. 487, Marshall, C. J., remarks of the taxing power: ''It is obvious that it. is an incident of sovereignty, and is co-extensive with that to which it is incident. All subjects over which the sovereign power of a State extends are objects of taxation ; but those over which it does not extend are, upon the soundest principles, exempt from taxation." Story, in his Contlict of Laws, § 19, says: "The sovereign has power and authority over his subjects, and over the property which they possess witliin his dominions." See Id. §§ 18 and 20. The defendant below being a citizen of this State, it is clear he is subject personally to its power to tax, and that all his propert}' accom- panying his person, or falling legitimately within the territorial juris- diction of the State, is equally within this authority. The interest which an owner of shares has in the stock of a corporation is personal. Whithersoever he goes it accompanies him, and when he dies his domi- cile governs its succession. It goes to his executor or administrator, and not to the heirs, and is carried into the inventory of his personal effects. When it is argued, therefore, that the foundry, machine-shop, and other estate of the corporation, being within the State of New Jersey, are subject wholly to the same exclusive State jurisdiction there which we claim for this State over property within its territory, another ownership is stated and a new issue introduced. But to that property the defendant below has no title ; his title being in the shares he holds, and not in the property of the corporation. No execution against him there would sell a spark of right to it, nor would his heirs at law suc- belonging to or in the use of the Government of the United States, If the owner of personal property within a State resides in another State which taxes hiin for that property as part of his general estate attached to his person, this action of the latter State does not in the least affect the right of the State in which the property is situated to tax it also. It is hardly necessary to cite authorities on a point so elemen- tary." — Bradley, J., in Coe v. Errol, 116 U. S. 517 (1886). Ace. Winkley v. New. ton, 67 N. H. 80; 36 Atl. 610. —Ed. 228 McKEEN V. COUNTY OF NORTHAMPTON. [CIIA?. 11. ceed to an}' estate in it. Unquestionably it may be taxed as the prop- erty of the corporation in New Jersey ; but the ownership there is that of the corporation, the legal entity, and not of the natural persons who own the shares of its stock. The stock of individuals may be controlled, to a certain extent, in New Jerse}' to make it liable to the claims of their domestic creditors, or legatees and next of kin. Even ancillary administration may be granted there to preserve the estate for resident claimants. But even then the residue of McKeen's stock would be remitted to the executors or administrators of the domicile in Pennsj'lvania, and the right of succession would be governed by our laws ; thus proving that though local authority may attach to the stock for special purposes, its owner- ship has its legal situs at the domicile of the owner. There is abun- dant authorit}' for this : Mothland v. Wireman, administrator of Thornburg, 3 Penn. 185 ; Miller's Estate, 3 Rawle, 312; Stokely's Es- tate, 7 Harris, 476 ; Dent's Appeal, 10 Id. 514. Another feature is noticeable. In the exercise of the authority to tax, the proceeding is personal only. Though different kinds of prop- erty are specified as the subjects of taxation, it is not as a proceeding in rem, but only as affording the means and measure of taxation. The tax is assessed personally, and the means of enforcement is a warrant against the person of the owner, and any propert}' he has whether taxed or not: Act 15th April, 1834, §§ 20, 21 ; Purd. 1861, pp. 938-939. We have authorities directl}' upon this question deciding the prin- ciple, though upon a different species of tax — the collateral inheritance tax: l7i re Short's Estate, 11 Harris, 63. The decedent, a resident of Philadelphia, owned half a million of dollars in stocks and corporations of other States, and bonds of the State of Kentucky, and a bank de- posit in New York ; all were held to be subject to the collateral inher- itance tax here. Gibson, C. J., opens his opinion by stating: " That Mr. Short's propert}' out of the State subjected him to personal liability for taxes assessed on it here in his lifetime, is not to be doubted. The general rule is, that the situs of personal property follows the domicile of the owner of it, insomuch that even a creditor cannot reach it in a foreign country, except by attachment or some other process provided by the local law ; certainly not by a personal action, without appear- ance or something equivalent to it." To the same effect is the case of Hood's Estate, 9 Harris, 106 ; the diff"erence of domicile merely lead- ing to an opposite result. The court below was right in entering judgment for the whole amount of the taxes, State and county. The question of liability for county taxes is disposed of in the opinion just read in the case of Whitesell v, Northampton County. Judgment affirmed.^ 1 Jcc. Seward v. Rising Sun, 79 Ind. 351 ; Dwight v. Boston, 12 All. 316 ; Hall V. Fayetteville, 115 N. C. 281, 20 S. E. 373 ; Bradley v. Bander, 36 Oh. S. 28 ; Dyer V. Osburn, 11 R. I. 321. '* In the absence of constitutional restriction.s, the citizen may be taxed in the dis- SECT. II.] STATE TAX ON FOREIGN-HELD BONDS. 229 STATE TAX ON FOREIGN-HELD BONDS. Supreme Court of the United States. 1873. [Reported 15 Wallace, 300.] Field, J.^ The question presented in this case for our determination is whether the eleventh section of the Act of Pennsylvania of May, 1868, so far as it applies to the interest on bonds of the railroad company, made and payable out of the State, issued to and held by non-residents of the State, citizens of other States, is a valid and constitutional exer- cise of the taxing power of the State, or whether it is an interference, under the name of a tax, with the obligation of the contracts between the non-resident bondholders and the corporation. If it be the former, this court cannot arrest the judgment of the State court; if it be the latter, the alleged tax is illegal, and its enforcement can be restrained. The case before us is similar in its essential particulars to that of The Railroad Company v. Jackson, reported in 7 Wallace. There, as here, the company was incorporated by the legislatures of two States, Penn- sylvania and Maryland, under the same name, and its road extended in a continuous line from Baltimore in one State to Sunbury in the other. And the company had issued bonds for a large amount, drawing inter- est, and executed a mortgage for their security upon its entire road, its franchises and fixtures, including the portion lying in both States. Coupons for the different instalments of interest were attached to each bond. There was no apportionment of the bonds to any part of the road lying in either State. The whole road was bound for each bond. The law of Pennsylvania, as it then existed, imposed a tax on money owing by solvent debtors of three mills on the dollar of the principal, payable out of the interest. An alien resident in Ireland was the holder of some of the bonds of the railroad company, and when he presented his coupons for the interest due thereon, the company claimed the right to deduct the tax imposed by the law of Pennsylvania, and also an al- leged tax to the United States. The non-resident refused to accept the interest with these deductions, and brought suit for the whole amount in the Circuit Court of the United States for the District of Maryland. That court, the chief justice presiding, instructed the jury that if the cretion of the legislature, either personally, by way of poll-tax, or upon the vahie of his property, wherever situate or however elsewhere taxed, to such extent as the public exigencies may require. . . . The very nature of choses in action is that they have no locality, but follow the person of the owner. As they sometimes virtually represent property that is situated elsewhere, and it may be taxed elsewhere, there is in some cases a double taxation ; but this results from our peculiar situation, and although undoubt- edly to be avoided, and not to be assumed as intended without plain enactments ad- niitting of no other reasonable interpretation, yet so far as it is produced by that conflict of laws which arises from a variety of sovereignties so intimately connected as ours, it frequently cannot be avoided, and at all events has not been attempted to be prevented, by either the national or the State constitutions." Elmer, J., in State r, Bentley, 23 N. J. L. 532 (1852). — Ed. ^ The opinion only is given. — Ed. 230 STATE TAX ON FOREIGN-HELD BONDS. [CIIAP. IL plaintiff, when he purchased the bonds, was a British subject, resident in Ireland, and still resided there, he was entitled to recover the amount of the coupons without deduction. The verdict and judgment were ia accordance with this instruction, and the case was brought here for review. This court held that the tax under the law of Pennsylvania could not be sustained, as to permit its deduction from the coupons held by the plaintiff would be giving effect to the acts of her legislature upon prop- erty' and effects lying beyond her jurisdiction. The reasoning by which the learned justice, who delivered the opinion of the court, reached this conclusion, maj' be open, perhaps, to some criticism. It is not per- ceived how the fact that the mortgage given for the security- of the bonds in that case covered that portion of the road which extended into Mary- land could affect the liability of the bonds to taxation. If the entire road upon which the mortgage was given had been in another State, and the bonds had been held by a resident of Pennsylvania, they would have been taxable under her laws in that State. It was the fact that the bonds were held by a non-resident which justified the language used, that to permit a deduction of the tax from the interest would be giving effect to the laws of Penns3lvania upon property beyond her jurisdiction, and not the fact assigned by the learned justice. The decision is, neverthe- less, authority for the doctrine that property l^'ing beyond the jurisdic- tion of the State is not a subject upon which her taxing power can be legitimately exercised. Indeed, it would seem that no adjudication should be necessarj' to establish so obvious a proposition. The power of taxation, however vast in its character and searching in its extent, is necessaril}' limited to subjects within the jurisdiction of the State. These subjects are persons, property, and business. Whatever form taxation may assume, whether as duties, imposts, excises, or li- censes, it must relate to one of these subjects. It is not possible to conceive of any other, though as applied to them, the taxation may be exercised in a great variety of ways. It may touch property in every shape, in its natural condition, in its manufactured form, and in its va- rious transmutations. And the amount of the taxation may be deter- mined bj' the value of the property, or its use, or its capacity, or its productiveness. It may touch business in the almost infinite forms in which it is conducted, in professions, in commerce, in manufactures, and in transportation. Unless restrained b}^ provisions of the Federal Constitution, the power of the State as to the mode, form, and extent of taxation is unlimited, where the subjects to which it applies are within her jurisdiction. Corporations may be taxed, like natural persons, upon their property and business. But debts owing by corporations, like debts owing by individuals, are not property of the debtors, in an}' sense ; they are obligations of the debtors, and only possess value in the hands of the creditors. With them the}' are property, and in their hands they may be taxed. To call debts property of the debtors is simply to misuse SECT. II.] STATE TAX ON FOREIGN-HELD BONDS. 231 terms. All the property there can be in the nature of things in deljts of corporations, belongs to tlie creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due. This principle might be stated in many different ways, and supported by citations from numerous adjudications, but no number of authorities, and no forms of expression could add anything to its obvious truth, which is recognized upon its simple statement. The bonds issued by the railroad company in this case are undoubt- edly property, but property in the hands of the holders, not property of the obligors. So far as they are held by non-residents of the State, they are property beyond the jurisdiction of the State. The law which requires the treasurer of the compan}' to retain five per cent of the inter- est due to the non-resident bondholder is not, therefore, a legitimate exercise of the taxing power. It is a law which interferes between the company and the bondholder, and under the pretence of levying a tax commands the compan}' to witliliold a portion of the stipulated interest and pay it over to the State. It is a law whicli thus impairs the obli- gation of the contract between the parties. The obligation of a contract depends upon its terms and the means which the law in existence at tlie time affords for its enforcement. A law which alters the terms of a con- tract by imposing new conditions, or dispensing with those expressed, is a law which impairs its obligation, for, as stated on another occasion, such a law relieves the parties from the moral duty of performing the original stipulations of the contract, and it prevents their legal enforce- ment. The Act of Pennsylvania of May 1, 1868, falls within this de- scription. It directs the treasurer of every incorporated company to retain from the interest stipulated to its bondholders five per cent upon ever}' dollar, and pa}' it into the treasury of the ComBQonwealth. It thus sanctions and commands a disregard of the express provisions of the contracts between the company and its creditors. It is onl}' one of man}' cases where, under the name of taxation, an oppressive exaction is made without constitutional warrant, amounting to little less than an arbitrary seizure of private property. It is, in fact, a forced contribution levied upon property held in other States, where it is subjected, or may be subjected, to taxation upon an estimate of its full value. The case of Maltby v. The Reading and Columbia Railroad Com- pany, decided by the Supreme Court of Pennsylvania in 18G6, was referred to by the Common Pleas in support of its ruling, and is relied upon by counsel in support of the tax in question. The decision in that case does go to the full extent claimed, and holds that bonds of corporations held by non-residents are taxable in that State, But it is evident from a perusal of the opinion of the court that the decision proceeded upon the idea that the bond of the non-resident was itself pro[)erty in the State because secured by a mortgage on property there. '• It is undoubtedly true," said the court, "that the Legislature of 232 STATE TAX ON FOREIGN-HELD BONDS. [CHAP. II Pennsj'lvania cannot impose a personal tax upon the citizen of another State, but the constant practice is to tax property within our jurisdic- tion which belongs to non-residents." And again: "There must be jurisdiction over either the property or the person of the owner, else the power cannot be exercised ; but when the property is within our jurisdiction, and enjoys the protection of our State government, it is justly taxable, and it is of no moment that the owner, who is required to pay the tax, resides elsewhere." There is no doubt of the correct- ness of these views. But the court then proceeds to state that the principle of taxation as the correlative of protection is as applicable to a non-resident as to a resident ; that the loan to the non-resident is made valuable by the franchises which the company derived from the Commonwealth, and as an investment rests upon State authority, and, therefore, ought to contribute to the support of the State government. It also adds that, though the loan is for some purposes subject to the law of the domicile of the holder, " yet, in a very high sense," it is also property in Pennsylvania, observing, in support of this position, that the holder of a bond of the compan}- could not enforce it except in that State, and that the mortgage given for its security was upon propert}' and franchises within her jurisdiction. The amount of all which is this : that the State which creates and protects a corporation ought to have the right to tax the loans negotiated by it, tliough taken and held by non-residents, a proposition which it is unnecessary to con- trovert. The legalit}' of a tax of that kind would not be questioned if in the charter of the company the imposition of the tax were author- ized, and in the bonds of the company, or its certificates of loan, the liabilit\' of the loan to taxation were stated. The tax in that case ■would be in the nature of a license tax for negotiating the loan, for in whatever manner made pa3'able it would ultimatel}' fall on the companj' as a condition of effecting the loan, and parties contracting with the company would provide for it by proper stipulations. But there is nothing in the observations of the court, nor is there anything in the opinion, which shows that the bond of the non-resident was propert}- in the State, or that the non-resident had an}' property in the State which was subject to taxation within the principles laid down by the court itself, which we have cited. The property mortgaged belonged entirely to the company, and so far as it was situated in Pennsylvania was taxable there. If taxation is the correlative of protection, the taxes which it there paid were the correlative for the protection which it there received. And neither the taxation of the property, nor its protection, was augmented or dimin- ished by the fact that the corporation was in debt or free from debt. The property in no sense belonged to the non-resident bondholder or to the mortgagee of the company. The mortgage transferred no title ; it created only a lien upon the property. Though in form a convey- ance, it was both at law and in equity a mere securit}' for the debt. That such is the nature of a mortgage in Pennsylvania has been fre- SECT. II.] STATE TAX OX FOREIGN-HELD BONDS. 233 qiientl}- ruled by her highest court. In Witmer's Appeal. 45 Penn. S. 463, the court said : ''The mort. American Dredging Company, 122 Penna, St. 386, it was held that a Penn- sylvania corpoi-ation was taxable in respect to certain dredges and other similar vessels which were built, but not permanently retained outside of the state. It was said that the non-taxability of tangible personal propert}' located permanently outside of the State was not "because of the technical principle that the situs of personal property is where the domicil of the owner is found. This rule is (lf)nl)tUss true as to intangible property, such as bonds, mortgages, and / SECT, II.] UNION TRANSIT CO. V. KENTUCKY. 2G7 Other evidences of debt. But the better opinion seems to be that it does not hold in the case of visible tangible personal property perma- nently located in another State. In such cases it is taxable within the jurisdiction where found, and is exempt at the domicil of the owner." The property in that case, however, was held not to be per- manently outsiile of the State, and therefore not exempt from taxation. The rule, however, seems to be well settled in Pennsylvania that so much of the tangil)le propert}' of a corporation as is situated in another State, and there employed in its corporate business, is not taxable in Pennsylvania. Commonwealth v. Montgomery &c. Mining Co., Pa. County Courts Rep. 89 ; 'Common wealth v. Railroad Co., 145 Pa. St. 96; Commonwealth /'. Westinghouse Mfg. Co., 151 Pa. St. 265 ; Commonwealth v. Standard Oil Co., 101 Pa. St. 119. The rule is the same in New York. Pacific Steamship Company* v. Commissioners, 46 How. Pr. 315. But there are two recent cases in this court which we think com- pletely cover the question under consideration and require the reversal of the judgment of the State court. The first of these is that of the Louisville &c. Ferry Co. v. Kentucky, 188 U. S. 385. That was an action to recover certain taxes imposed upon the corporate franchise of the defendant company', which was organized to establish and main- tain a ferry between Kentucky and Indiana. The defendant was also licensed by the State of Indiana. We held that the fact that such franchise had been granted b}- the Commonwealth of Kentucky did not bring within the jurisdiction of Kentucky for the purpose of tax- ation the franchise granted to the same company by Indiana, and which we held to be an incorporeal hereditament derived from and having its legal situs in that State. It was adjudged that such taxa- tion amounted to a deprivation of property without due process of law, in violation of the Fourteenth Amendment, as much so as if the State taxed the land owned b}' that compan}- ; and that the officers of the State had exceeded their power in taxing the whole franchise without making a deduction for that obtained from Indiana, the two being distinct, "although the enjoyment of both are essential to a complete ferry right for the transportation of persons and property across the river both ways." The other and more recent case is that of the Delaware &c. Rail- road Co. V. Pennsylvania, 198 U. S. 341. That was an assessment upon the capital stock of the railroad company, wherein it was con- tended that the assessor should have deducted from the value of such stock certain coal mined in Pennsylvania and owned by it, but stored in New York, there awaiting sale, and beyond the jurisdiction of the commonwealth at the time appraisement was made. This coal was taxable, and in fact was taxed in the State where it rested for the pur- poses of sale at the time when the appraisement in question was made. Both this court and the Supreme Court of Pennsylvania had held that a tax on the corporate stock is a tax on the assets of the corporation 268 UNION TRANSIT CO. V. KENTUCKY. [CIIAP, II. issuing such stock. The two courts agreed in the general proposition that tangible property permanently outside of the State, and having no situs within the State, could not be taxed. But they differed upon the question whether the coal involved was permanently outside of the State. In delivering the opinion it was said: " However temporary the stay of the coal might be in the particular foreign States where ft was resting at the time of the appraisement, it was definitely and for- ever beyond the jurisdiction of Pennsylvania. And it was within the jurisdiction of the foreign States for purposes of taxation, and in truth it was there taxed. We regard this tax as in substance and in fact, though not in form, a tax speciffcally levied upon the property of the corporation, and part of that property is outside and beyond the juris- diction of the State which thus assumes to tax it." The decision in that case was really broader than the exigencies of the case under consider- ation required, as the tax was not upon the personal property itself, but upon the capital stock of a Pennsylvania corporation, a part of which stock was represented by the coal, the value of which was held should have been deducted. The adoption of a general rule that tangible personal property in other States may be taxed at the domicil of the owner involves possi- bilities of an extremelj^ serious character. Not only would it author- ize the taxation of furniture and other property kept at country houses in other States or even in foreign countries, of stocks of goods and mer- chandise kept at branch establishments when already taxed at the State of their situs^ but of that enormous mass of personal property belong- ing to railways and other corporations which might be taxed in the state where they are incorporated, though their charters contemplated the construction and operation of roads wholly outside the State, and sometimes across the continent, and when in no other particular they are subject to its laws and entitled to its protection. The propriety of such incorporations, where no business is done within the State, is open to a grave doubt, but it is possible that legislation alone can furnish a remedy. Our conclusion upon this branch of the case renders it unnecessary to decide the second question, viz : Whether the Transit Company was denied the equal protection of the laws. It is unnecessary to say that this case does not involve the question of the taxation of intangible personal property, or of inheritance or succession taxes, or of questions arising between different municipali- ties or taxing districts within the same State, which are controlled by different considerations. We are of opinion that the cars in question, so far as they were located and employed in other States than Kentucky, were not subject to the taxing power of that commonwealth, and that the judgment of the Court of Appeals must be reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion. Mu. JusTicK WuiTE concurred in the result. SECT. II.] NEW YORK CENTRAL RAILROAD V. MILLER. 269 Mr. Justice Holmes : It seems to me that the result reached b}- the court probably is a desirable one, but I hardly understand how it can be deduced from the Fourteenth Amendment, and as the Chief Justice feels the same difficult}', I think it proper to say that my doubt has not been removed. NEW YORK CENTRAL RAILROAD v. MILLER. Supreme Court of the United States. 1906. [Reported 202 U. S. 584.] Holmes, J. These cases arise upon writs of certiorari, issued under the State law and addressed to the State comptroller for the time being, to revise taxes imposed upon the relator for the years 1900, 1901, 1902, 1903 and 1904 respectively. The tax was levied under New York Laws of 1896, c. 908, § 182, which, so far as material, is as follows : " Franchise Tax on Corporations. — Every corporation . . . incorporated . . . under . . . law in this State, shall pa}' to the State treasurer annually, an annual tax to be computed upon the basis of the amount of its capital stock employed within this State and upon each dollar of such amount," at a certain rate, if the dividends amount to six per cent or more upon the par value of such capital stock. " If such dividend or dividends amount to less than six per centum on the par value of the capital stock [as was the case with the relator], the tax shall be at the rate of one and one-half mills upon such portion of the capital stock at par as the amount of cap- ital emploj'ed within this State bears to the entire capital of the corpo- ration." It is provided further by the same section that every foreign corporation, etc., "shall pay a like tax for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this State, to be computed upon the basis of the capital emploj'ed by it within this State." The relator is a New York corporation owning or hiring lines without as well as within the State, having arrangements with other carriers for through transportation, routing and rating, and sending its cars to points without as well as within the State, and over other lines as well as its own. The cars often are out of the relator's possession for some time, and may be transferred to many roads successively, and even ma}* be used by other roads for their own independent business, before they return to the relator or the State. In short, by the familiar course of railroad business a considerable proportion of the relator's cars con- stantl}' is out of the State, and on this ground the relator contended that that proportion should be deducted from its entire capital, in order to find the capital stock employed within the State. This contention the comptroller disallowed. The writ of certiorari in the earliest case. No. 81, with the return set- ting forth the proceedings of the comptroller, Knight, and the evidence 270 NEW YORK CENTRAL RAILROAD V. MILLER. [cHAP. II. given before him, was heard by the Appellate Division of the Supreme Court, and a reduction of the amount of the tax was ordered. 75 App. Div. 169. On appeal the Court of Appeals ordered the proceedings to be remitted to the comptroller, to the end that further evidence might be taken upon the question whether any of the relator's rolling stock was used exclusively outside of the State, with directions that if it should bo found that such was the fact the amount of the rolling stock so used should be deducted. 173 N. Y. 255. On rehearing of No. 81 and with it No. 82, before the comptroller, now Miller, no evidence was offered to prove that any of the relator's cars or engines were used continuously and exclusively outside of the State during the whole tax year. In the later cases it was admitted that no substantial amount of the equipment was so used during the similar period. But in all of them evidence was offered of the movements of particular cars, to illustrate the transfers which they went through before they returned, as has been stated, evi- dence of the relator's road mileage outside and inside of the State, and also evidence of the car mileage outside and inside of the State, in order to show, on one footing or the other, that a certain proportion of cars, although not the same cars, was continuously without the State during the whole tax year. The comptroller refused to make any reduction of the tax, and the case being taken up again, his refusal was affirmed by the Appellate Division of the Supreme Court and by the Court of Appeals on the authority of the former decision. 89 App. Div. 127 ; 177 N. Y. 584. The later cases took substantially the same course. The relator saved the questions whether the statute as construed was not contrary to Article 1, § 8, of the Constitution of the United States, as to commerce among the States; Article 1, § 10, against impairing the obligation of contracts; Article 4, § 1, as to giving full faith and credit to the public acts of other States ; and the Fourteenth Amend- ment. It took out writs of error and brought the cases here. The argument for the relator had woven through it suggestions which only tended to shaw that the construction of the New York statute by the Court of Appeals was wrong. Of course if the statute as construed is valid under the Constitution, we are bound by the construction given to it by the State court. In this case we are to assume that the statute purports and intends to allow no deduction from the capital stock taken as the basis of the tax, unless some specific portion of the corporate property is outside of the State during the whole tax year. We must assume, further, that no part of the corporate property in question was outside of the State during the whole tax year. The proposition really was conceded, as we have said, and the evidence that was offered had no tendency to prove the contrary. If we are to suppose that the reports offered in evidence were accepted as competent to establish the facts which they set forth, still it would be going a very great way to infer from car mileage the average number or proportion of cars absent from the State. P'or, as was said by a witness, the reports show only that the cars made so many miles, but it might be ten or it SECT. II.] NEW YORK CENTRAL RAILROAD V. MILLER. 271 might be fifty cars that made them. Certainl}- no inference whatever could be drawn that the same cars were absent from the State all the time. In view of what we have said it is questionable whether the relator has offered evidence enough to open the constitutional objections urged against the tax. But as it cannot be doubted, in view of the well-known course of railroad business, that some considerable proportion of the relator's cars always is absent from the State, it would be unsatisfactory to turn the case off with a mcrel}" technical answer, and we proceed. Tlie most salient points of the relator's argument are as follows : This tax is not a tax on the franchise to be a corporation, but a tax on the use and exercise of the franchise of transportation. The use of this or any other franchise outside the State cannot be taxed by New York. The car mileage within the State and that upon other lines without the State afford a basis of apportionment of the average total of cars contin- uously employed by other cori)orations without the State, and the relator's road mileage within and without the State affords a l)asis of apportion- ment of ils average total equipment continuously employed by it re- spectively within and without the State. To tax on the total value within and without is beyond the jurisdiction of the State, a taking of propert}' without due process of law, and an unconstitutional interference with commerce among the States. A part of this argument we have answered alread}'. But we must go further. We are not curious to inquire exactly what kind of a tax this is to be called. If it can be -sustained b}* the name given to it b}" the local courts it mast be sustained by us. It is called a franchise tax in the act, but it is a franchise tax measured by property. A tax very like the present was treated as a tax on the propert}- of the corporation in Delaware, Lackawanna & Western R. R. v. Pennsylvania, 198 U. S. 341, 353. This seems to be regarded as such a tax by the Court of Appeals in this case. See People v. Morgan, 178 N. Y. 433, 439. If it is a tax on any franchise which the State of New York gave, and the same State could take awa}', it stands at least no worse. The relator's argument assumes that it must be regarded as a tax of a particular kind, in order to invalidate it, although it might be valid if regarded as the State court regards it. Suppose, then, that the State of New York had taxed the property directly, there was nothing to hinder its taxing the whole of it. It is true that it has been decided that property, even of a domestic corpora- tion, cannot be taxed if it is permanently out of the State. Union Re- frigerator Transit Co. v. Kentucky, 199 "u. S. 194, 201, 211 ; Delaware, Lackawanna &, Western R. R. r. Pennsylvania, 198 U. S. 341 ; Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385. But it has not been decided, and it could not be decided, that a State may not tax its own corporations for all their property within the State during the tax year, even if every item of that property should be taken successively into another State for a daj', a week, or six months, and then brought 272 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CHAP. II. back. Using the language of domicil, which now so frequently is ap- plied to inanimate things, the State of origin remains the permanent situs of the property, notwithstanding its occasional excursions to foreign parts. Ayer & Lord Tie Co. v. Kentucliy, May 21, 1906, 202 U. S. 409. See also Union Refrigerator Transit Co. v. Kentucky 199 U. S. 194, 208, 209. It was suggested that this case is but the complement of Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, and that as there a tax upon a foreign corporation was sustained, levied on such proportion of its capital stock as the miles of track over which its cars were run within the State bore to the whole number of miles over which its cars were run, so here in the domicil of such a corporation there should be an ex- emption corresponding to the tax held to be lawfully* levied elsewhere. But in that case it was found that the " cars used in this State have, during all the time for which tax is charged, been running into, through and out of the State." The same cars were continuously receiving the protection of the State and, therefore, it was just that the State should tax a proportion of them. Whether if the same amount of protection had been received in respect of constantly changing cars the same prin- ciple would have applied was not decided, and it is not necessar}' to decide now. In the present case, however, it does not appear that any specific cars or any average of cars was so continuousl}' in an}' other state as to be taxable there. The absences relied on were not in the course of travel upon fixed routes, but random excursions of casually chosen cars, determined b}- the varying orders of particular shippers and the arbitrary convenience of other roads. Therefore we need not consider either whether there is an}' necessary parallelism between liability elsewhere and immunity at home. Judgments affirmed. METROPOLITAN LIFE INSURANCE COMPANY v. NEW ORLEANS. SuPFvEME Court of the United States. 1907. {Reported 205 U. S. 395.] Moody, J. This is a writ of error to review the judgment of the Supreme Court of Louisiana, which sustained a tax on the " credits, money loaned, bills receivable," etc., of the plaintiff in error, a life insurance company incorporated under the laws of New York, where it had its home office and principal place of business. It issued poli- cies of life insurance in the State of Louisiana and, for the purpose of doing that and other business, had a resident agent, called a superin- tendent, whose duty it was to superintend the companj^'s business gen- erally in the State. The agent had a local office in New Orleans. The compan}' was engaged iu the business of lending money to the holders SECT. II.] METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. 273 of its policies, which, when they had reached a certain point of maturity, were regarded as furnishing adequate security for loans. The uione}' lending was conducted in the following manner: The polic}' holders desiring to obtain loans on their policies applied to the company's agent in New Orleans. If the agent thought a loan a desirable one he ad- vised the company of tlie application In- communicating with the home office in New York, and requested that the loan be granted. If the home office approved the loan the company forwarded to the agent a check for the amount, with a note to be signed by the borrower. The agent procured the note to be signed, attached the policy to it, and for- warded both note and policy to the home office in New York. He then delivered to the borrower the amount of the loan. When interest was due upon the notes it was paid to the agent and b}' him transmitted to the home office. It does not appear whether or not the notes were re- turned to New Orleans for the endorsement of the payments of interest. "When the notes were paid it was to the agent, to whom they were sent to be delivered back to the makers. At all other times the notes and policies securing them were kept at the home office in New York. The disputed tax was not eo nomine on these notes, but was expressed to be on "credits, money loaned, bills receivable," etc., and its amount was ascertained b}- computing the sum of the face value of all the notes held by the company at the time of the assessment. The tax was assessed under a law. Act 170 of 1898, which provided for a levy of annual taxes on the assessed value of all property situated within the State of Louisiana, and in Section 7 provided as follows : " That it is the dut}' of the tax assessors throughout the State to place upon the assessment list all propert}' subject to taxation, including mer- chandise or stock in trade on hand at the date of listing within their respective districts or parishes. . . . And jy^'ovided further, In assess- ing mercantile firms the true intent and purpose of this act shall be held to mean the placing of such value upon stock in trade, all cash, whether borrowed or not, money at interest, open accounts, credits, &c., as will represent in their aggregate a fair average on the capital, both cash and credits, employed in the business of the partj' or parties to be assessed. And this shall apply with equal force to any person or persons repre- senting in this State business interests that may claim domicile else- where, the intent and purpose being that no non-resident, cither by himself or through anj" agent, shall transact business here without pa3'ing to the State a corresponding tax with that exacted of its own citizens ; and all bills receivable, obligations or credits arising from the business done in this State are hereby declared as assessable within this State and at the business domicile of said non-resident, his agent or representative." The evident purpose of this law is to lay the burden of taxation equally upon those who do business within the State. It requires that in the valuation for the purposes of taxation of the property of mercan- tile firms the stock, goods, and credits shall be taken into account, to 18 274 METKOPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CHAP. IL the end that the average capital employed in the business shall be taxed. This method of assessment is applied impartially to the citizens of the State and to the citizens of other States or countries doing business, personally or through agents, within the State of Louisiana. To accom- l)Ush this result, the law expressly provides that " all bills receivable, obligations or credits arising from the business done in this Statj shall be assessable at the business domicile of the resident." Thus it is clear that the measui'e of the taxation designed by the law is the fair average of the capital employed in the business. Cash and credits and bills receivable are to be taken into account merely' because the}' represent the capital and are not to be omitted because their owner happens to have a domicile in another State. The law was so construed by the Supreme Court of Louisiana, where, in sustaining the assessment, it •was said : "There can be no doubt that the seventh section of the act of 1898, quoted in the judgment of the District Court, announced the policy of the State touching the taxation of credits and l)ills of exchange repre- senting an amount of the property of non-residents equivalent or corre- sponding to said bills or credits which was utilized by them in the prosecution of their business in the State of Louisiana. The evident object of the statute was to do away with discrimination theretofore ex- isting in favor of non-residents as against I'esidents, and place them on an equal footing. The statute was not arbitrary, but a legitimate exer- cise of legislative power and discretion." The tax was levied in obedience to the law of the State, and the only question here is whether there is anything in the Constitution of the United States which forbids it. The answer to that question depends upon whether the property taxed was within the territorial jurisdiction of the State. Property situated without that jurisdiction is beyond the State's taxing power, and the exaction of a tax upon it is in violation of the Fourteenth Amendment to the Constitution. Louisville Ferry Co. V. Kentucky, 188 U. S. 385 ; Delaware, &c.. Railroad Co. v. Penn- svlvania, 198 U. S. 341 ; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194. But personal property may be taxed in its permanent abiding place, although the domicile of the owner is elsewhere. It is usually easy to determine the taxable situs of tangible personal propert}'. But where personal propert}' is intangible, and consists, as in this case, of credits reduced to the concrete form of promissory notes, the inquiry is complicated, not only b}' the fiction that the domicile of personal property follows that of its owner, but also b}- the doctrine, based upon historical reasons, that where debts have assumed the form of bonds or other specialties, they are regarded for some purposes as being the property itself, and not the mere representative of it, and may have a taxable situs of their own. How far promissor}- notes are assimilated to specialties in respect of this doctrine, need not now be considered. The question in this case is controlled b}' the authority of the pre- vious decisions of this court. Taxes under this law of Louisiana have SECT. II-] METKOPOLITAN LIFE INS. CO. V. KEW ORLEANS. 275 been twice considered here, and assessments upon credits arising out of investments in the State have been sustained. A tax on credits evi- denced by notes secured by mortgages was sustained where the owner, a non-resident who had inherited them, left them in Louisiana in the possession of an agent, who collected the principal and interest as they became due. New Orleans v. Stempel, 175 U. S. 309. Again, it was held tliat where a foreign banking company did business in New Orleans, and through an agent lent mone}' which was evidenced by checks drawn upon the agent, treated as overdrafts and secured by collateral, the checks and collateral remaining in the hands of the agent until the trans- actions were closed, the credits thus evidenced were taxable in Loui- siana. Board of Assessors r. Comptoir National, 191 U. S. 388. In both of these cases the written evidences of the credits were continuously' present in the State, and their presence was clearly the dominant factor in the decisions. Here the notes, though present in the State at all times when they were needed, were not continuoush' present, and during the greater part of their lifetime were absent and at their owner's dom- icile. Between these two decisions came the case of Bristol v. Wash- ington County, 177 U. S. 133. It appeared in that case that a resident of New York was engaged through an agent in the business of lending money in Minnesota, secured by mortgages on real property. The notes were made to the order of the non-resident, though payable in Minnesota, and the mortgages ran to her. The agent made the loans, took and kept the notes and securities, collected the interest and re- ceived payment. The property thus invested continued to be taxed without protest in Minnesota, until finally the course of business was changed by sending the notes to the domicile of the owner in New York, where they were kept by her. The mortgages were, however, retained by the agent in Minnesota, though his power to discharge them was revoked. The interest was paid to the agent and the notes forwarded to him for collection when due. Taxes levied after this change in the business were in dispute in the case. In delivering the opinion of the court, Mr. Chief Justice Fuller said : " Nevertheless, the business of loaning money through the agency in Minnesota was continued during all these years, just as it had been carried on before, and we asree with the Circuit Court that the fact that the notes were sent to Mrs. Bristol in New York, and the fact of the revocation of the power of attorney, did not exempt these investments from taxation under the statutes as expounded in the decisions to which we have referred. ..." Referring to the case of New Orleans v. Stempel, the Chief Justice said : •' There the moneys, notes, and other evidences of credits were in fact in Louisiana, though their owners resided elsewhere. Still, under the circumstances of the case before us, we think, as we have said, that the mere sending of the notes to New York and the revocation of the power of attorney did not take these investments out of the rule. " Persons are not permitted to avail themselves, for their own benefit. 276 METROPOLITAN LIFE INS. CO. V. NEW ORLEANS. [CIIAP. IL of the laws of a State in the conduct of business within its limits, and then to escape their due contribution to the public need, through action of this sort, whetlier taken for convenience or by design." Accordingly it was held that the tax was not forbidden by the Fed- eral Constitution. In this case, the controlling consideration was the presence in the State of the capital employed in the business of lending money, and the fact that the notes were not continuously present was regarded as immaterial. It is impossible to distinguish the case now before us from the Bristol case. Here the loans were negotiated, the notes signed, the security taken, the interest collected, and the debts paid within the State. The notes and securities were in Louisiana whenever the business exi- gencies required them to be there. Their removal with the intent that they shall return whenever needed, their long continued though not per- manent absence, cannot have the eifect of releasing them as the repre- sentatives of investments in business in the State from its taxing power. The law may well regard the place of their origin, to which the}' intend to return, as their true home, and leave out of account temporary ab- sences, however long continued. Moreover, neither the fiction that personal propert}' follows the domicile of its owner, nor the doctrine that credits evidenced b\- bonds or notes may have the sitics of the lat- ter, can be allowed to obscure the truth. Blackstone v. Miller, 188 U. S. 189. We are not dealing here merelv with a single credit or a series of separate credits, but with a business. The insurance compan}' chose to enter into the business of lending mone}- within the State of Louisiana, and employed a local agent to conduct that business. It was conducted under the laws of the State. The State undertook to tax the capital employed in the business precisel_y as it taxed the capital of its own citizens in like situation. For the purpose of arriving at the amount of capital actually emplo3-ed, it caused the credits arising out of the business to be assessed. We think the State had the power to do this, and that the foreigner doing business cannot escape taxation upon his capital by removing temporarily from the State evidences of credits in the form of notes. Under such circumstances, they have a taxable situs in the State of their origin. The judgment of the Supreme Court of Louisiana is Affinyied. SECT. II.] IN KE ESTATE OF SWIFT. 277 In re estate OF SWIFT. Court of Appeals of New York. 1893. [Reported 137 New York, 77.] Gray, J. James T. Swift died in July, 1890, being a resident of this State and leaving a will, by which he made a disposition of all his property among relatives. After many legacies of money and of various articles of personal property, he directed a division of his residuary estate into four portions, and he devised and bequeathed one portion to each of four persons named. The executors were given a power of sale for the purpose of paying the legacies and of making the distribution of the estate. At the time of his death, the testator's estate included certain real estate and tangible personal property in chattels, situated within the State of New Jersey, which were realized upon by the executors and converted into money's in hand. When, upon their application, an appraisement was had of the estate, in order to fix its value under the requirements of the law taxing gifts, legacies, and inheritances, the surrogate of the county of New York, before whom the matter came, held, with respect to the appraisement, that the real and personal property situated without the State of New York were not subject to appraisal and tax under the law, and the excep- tions taken by the comptroller of the city of New Y''ork to that deter- mination raise the first and the pinncipal question which we shall consider. Surrogate Ransom's opinion, which is before us in the record, con- tains a careful review of the legal principles which limit the right to impose the tax, and his conclusions are as satisfactory to my mind, as they evidently were to the minds of the learned justices of the General Term of the Supreme Court, who agreed in affirming the surrogate's decree upon his opinion. The Attorney-General has argued that this law, commonly called the collateral inheritance tax law, imposes not a property tax but a charge for the privilege of acquiring property, and, as I apprehend it, the point of his argument is that, as there is no absolute right to succeed to property, the State has a right to annex a condition to the permis- sion to take by will, or by the intestate laws, in the form of a tax, to be paid by the persons for whose benefit the remedial legislation has been enacted. That is, substantial!}-, the wav in which he puts the proposition, and if the premise be true that the tax imposed is upon the privilege to acquire, and, as he says in his brief, is like "a duty imposed, payable by the beneficiary," possi!)ly enough, we should have to agree with him. We might think, in that view of the act, that the situs of property in a foreign jurisdiction was not a controlling circum- stance. But if we take up the provisions of the law bj' which the tax is imposed, and if we consider them as they are framed and the prin* 278 IN EE ESTATE OF SWIFT. [CHAP. 11. ciple which then seems to underlie the peculiar system of taxation created, I do not think that his essential proposition finds adequate support. The law in force at the time of the decease of tlie testator is contained in chapter 713 of the Laws of 1887, amending chapter 483 of the Laws of 1885, and is entitled " An act to tax gifts, legacies, and collateral inheritances in certain cases." By the first section it is provided that " all property which shall pass bj' will . . . from an_y person who ma}' die seized or possessed of the same, while a resident of this State, or, if such decedent was not a resident of this State at the time of his death, which property or any part thereof shall be within this State, . . . shall be and is subject to a tax ... to be paid ... for the use of the State," etc. In the fourth section it is provided that " all taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent," etc. By the sixth section, it is provided that the executor shall " deduct the tax from the legacy or property, subject to said tax, or if the legacy or property be not money, he shall collect the tax thereon upon the appraised value thereof from the legatee, or person entitled to such property, and he shall not deliver, or be compelled to deliver, any spe- cific legacy or property subject to tax to any person until he shall have collected tlie tax thereon," etc. The language of the act has been justly condemned, for being involved and difficult to read clearly; but considering the language employed in these and in other sections of the law, in its ordinary sense, I think we would at once say that if the legislature had not actually imposed a tax upon the property itself, upon the death of its owner, it had certainly- intended to impose a tax upon its succession, which was to be a charge upon the property, and which operated, in effect, to diminish pro tanto its value, or the capi- tal, coming to the new owner under a will, or by the intestate laws. Could anj' one sa}', after reading the provisions of this law, that it was the legatee, or person entitled, who wjis taxed ? I doubt it. Propert\*, which was the decedent's at the time of his death, is subjected to the payment of a tax. The tax is to be deducted from the legacy ; or, when deduction is not possible from the legacy not being in money, and a collection from the legatee or the person entitled to the property is authorized to be made, the tax so to be collected is described as " the tax thereon," that is, on the property. If it should be said that such an interpretation of the law is in con- flict with a doctrine which some judges have asserted, respecting the nature of this tax, I think it might be sufficient to say that the phrase- ology of the New York law differs, more or less, from that of other States, and seems peculiarly to charge the subject of the succession with the payment of the tax. But I do not think it at all important to our decision here that we should hold it to be a tax upon property precisely. A precise definition of the nature of this tax is not essential, if it is SECT. II.] IN RE ESTATE OF SWIFT. 279 susceptible of exact definition. Thus far, in this court, we have not thought it necessar}', in the cases coming before us, to determine whether the object of taxation is the propert}- which passes, or not ; tiiough, in some, expressions may be found which seem to regard the tax in that light. Matter of McPherson, 104 N. Y. 306; Matter of p:nston, 113 id. 174; Matter of Sherwell, 125 id. 379; Matter of Ro- raaine, 127 id. 80; and Matter of Stewart, 131 id. 274. The idea of this succession tax, as we maj' conveniently term it, is more or less compound ; the principal idea being the subjection of property, owner- ship of which has ceased b}' reason of the death of its owner, to a diminution, by the State reserving to itself a portion of its amount, if in mone}', or of its appraised value, if in other forms of propertj'. The accompanying, or the correlative idea should necessaril}- be that the property, over which such dominion is thus exercised, shall be within the territorial limits of the State at its owner's death, and, therefore, subject to the operation and the regulation of its laws. The State, in exercising its power to subject I'ealty, or tangible propert}', to the operation of a tax, must, b}' every rule, be limited to property within its territorial confines. The question here does not relate to the power of the State to tax its residents with respect to the ownership of property situated else- where. That question is not involved. The question is whether the legislature of the State, in creating this system of taxation of inherit- ances, or testamentar}' gifts, has not fixed as the standard of right the property passing by will, or by the intestate laws. What has the State done, in effect, by the enactment of this tax law? It reaches out and appropriates for its use a portion of the property at the moment of its owner's decease , allowing only the balance to pass in the way directed by testator, or permitted by its intestate law, and while, in so doing, it is exercising an inherent and sovereign right, it seems very clear to my mind that it affects only property which lies within it, and, consequently, is subject to its right of eminent domain. The theory of sovereignty, which invests the State with the right and the power to permit and to regulate the succession to property upon its owner's decease, rests upon the fact of an actual dominion over that propert}'. In exercising such a power of taxation, as is here in question, the principle, obviously, is that all property in the State is tributary for such a purpose and the sovereign power takes a portion, or percentage of the property, not because the legatee is subject to its laws and to the tax, but because the State has a superior right, or ownership, by force of which it can intercept the property, upon its owner's death, in its passage into an ownership regulated by the en- abling legislation of the State. The rules of taxation have become pretty well settled, and it is fun- damental among them that there shall be jurisdiction over the subject taxed; or, as it has been sometimes expressed, the taxing power of the State is coextensive with its sovereignty. It has not the power to 280 IN EE ESTATE OF SWIFT. [CHAP. IL tax directly either lands or tangible personal property situated in an- other State or country. As to the latter description of property no fiction transmuting its situs to the domicile of the owner is available, when the question is one of taxation. In this connection the observa- tions of Chief Judge Corastock, in Hoyt ik Commissioners of Taxes, 23 N. Y. 224, and of some text-writers, are not inappropriately referred to. He had said that lands and personal property having an actual situation within the State are taxable, and, by a necessary implication, that no other property can be taxed. He says, further, " If we say that taxation is on the person in respect to the propert}', we are still without a reason for assessing the owner resident here in respect to one part of his estate situated elsewhere and not in respect to another, part. Both are the subjects of taxation in the foreign jurisdiction." In Judge Cooley's work on Taxation it is remarked (p. 159) that " a State can no more subject to its power a single person, or a single article of property, whose residence or situs is in another State, than it can subject all the citizens, or all the property of such other State to its power." Judge Cooley had reference in his remarks to the case of bonds of a railroad; for he cites the case of "the State Tax on Foreign-Held Bonds " in the United States Supreme Court (15 Wallace, 300), where Mr. Justice Field delivered the opinion, and, in the course of it, observed that " the power of taxation, however vast in its character and search- ing in its extent, is necessarily limited to subjects within the jurisdic- tion of the State." Judge Story, in his work on the Conflict of Laws, speaking of the subject of jurisdiction in regard to propert}', said (section 550) that the legal fiction as to the situs of movables yields when it is necessary for the purpose of justice, and, further, " a nation within whose terri- tory any personal property is actually situated has an entire dominion over it while therein, in point of sovereignty and jurisdiction, as it has over immovable property situated there." The proposition which suggests itself from reasoning, as from author- ity, is that the basis of the power to tax is the fact of an actual domin- ion over the subject of taxation at the time the tax is to be imposed. The effect of this special tax is to take from the property a portion, or a percentage of it, for the use of the State, and I think it quite immaterial whether the tax can be precisely classified with a taxation of property or not. It is not a tax upon persons. If it is called a tax upon the succession to the ownership of property, still it relates to and subjects the property itself, and when that is without the jurisdic- tion of the State, inasmuch as the succession is not of property within the dominion of the State, succession to it cannot be said to occur hy permission of the State. As to lands this is clearly the case, and viglits in or power over them are derived from or through the laws of the foreign State or country. As to goods and chattels it is true ; for their transmission abroad is subject to the permission of and regulated SECT. II.] IN RE ESTATE OF SWIFT. 281 b}- the laws of the State or countrj- where actually situated. Jurisdic- tion over them belongs to the courts of that State or country for all purposes of policy, or of administration in the interests of its citzens, or of those having enforceable riglits, and their surrender, or transmis- sion, is upon principles of comity. When succession to the ownership of property is by the permission of the State, then the permission can relate only to property over which the State has dominion and as to which it grants the privilege or permission. Nor is the argument available that, by the power of sale conferred upon the executors, there was an equitable conversion worked of the lands in New Jerse}', as of the time of the testator's death, and, hence, that the property sought to be reached by the tax, in the eye of the law, existed as cash in this State in the executor's hands, at the moment of the testator's death. There might be some doubt whether the main proposition in the argument is quite correct, and whether the land did not vest in the residuary legatees, subject to the execution of the power of sale. But it is not necessary to decide that question. Neither the doctrine of equitable conversion of lands, nor an}* fiction of situs of movables, can have any bearing upon the question under advisement. The question of the jurisdiction of the State to tax is one of fact and cannot turn upon theories or fictions ; which, as it has been observed, have no place in a well adjusted system of taxation. We can arrive at no other conclusion, in my opinion, than that the tax provided for in this law is only enforceable as to property which, at the time of its owner's death, was within the territorial limits of this State. As a law imposing a special tax, it is to be strictly construed against the State and a case must be clearly made out for its application. We should incline against a construction which might lead to double taxation ; a result possible and probable under a dif- ferent view of this law. If the property in the foreign jurisdiction was in land, or in goods and chattels, when, upon the testator's death, a new title, or ownership, attached to it, the bringing into this State of its casli proceeds, subsequently, no matter by what authority of will, or of statute, did not subject it to the tax. A different view would be against every sound consideration of what, constitutes the basis for such taxation, and would not accord with an understanding of the intention of the legislature, as more or less plainly expressed in these acts. Another question, which I shall merely advert to in conclusion, arises upon a ruling of the surrogate with respect to appraisement, in connection with a clause of the will directing that the amount of the tax upon the legacies and devises should be paid as an expense of administration. The appraiser, in ascertaining the value of the residu- ary estate for the purpose of taxation, deducted the amount of the tax to be assessed on prior legacies. The surrogate overruled him in this, and held that there should be no deduction from the value of the resid- 282 FROTHINGHAM V. SHAW. fCHAP. 11. uary estate of the amount of the tax to be assessed, either upon prior legacies, or upon its value. He held that the legacies taxable should be reported, irrespective of the provision of tlie will ; and that a mode of payment of the succession tax prescribed b}- will is something with which the statute is not concerned. I am satisfied with his reasoning and can add nothing to its force. Manifestly, under the law that which is to be reported by the appraiser for the purpose of the tax is the value of the interest passing to the legatee under the will, without any deduction for any purpose, or under any testamentary direction. A question is raised as to the effect upon the law, as contained in the acts of 1885 and 1887, of the passage of chapter 215 of the Laws of 1891 ; but as that has been the subject of another appeal, and is fully discussed in the opinion in the Matter of the Estate of Prime, 136 N. Y. 347, reference will be made to it here. My brethren are of the opinion that the tax imposed under the act is a tax on the right of succession, under a will, or b}' devolution in case of intestacy ; a view of the law which my consideration of the question precludes my assenting to. They concur in my opinion so far as it relates to the imposition of a tax upon real estate situated out of this State, although owned b}- a decedent, residing here at the time of his decease ; holding with me that taxation of such was not intended, and that the doctrine of equi- table conversion is not applicable to subject it to taxation. But as to the personal property of a resident decedent, wheresoever situated, whether within or without the State, they are of the opinion that it is subject to the tax imposed by the act. The judgment below, therefore, should be so modified as to exclude from its operation the personal property in New Jersey*, and, as so modified, it should be affirmed, without costs to either party as against the other.* FROTHINGHAM v. SHAW. Supreme Judicial Court of Massachusetts. 1899. [Eeporied 175 Massachusetts, 59.] Morton, J. This is a petition by the plaintiff, as executor of the will of one Joseph Frothingham, for instructions in regard to the pay- ment of a collateral inheritance tax on the residuary legacies. The case was heard on agreed facts, and comes here by successive appeals from decrees of the probate court and of a single justice of this court finding that the tax was payable, and directing the executor to pay the same. At the time of his death the testator was domiciled at Salem, in this Commonwealth, and his estate, except certain real estate situ- > See In re Bronson, 150 N. Y. 1. — Ed. SECT. II.] FIJOTHINGIIAM V. SHAW. 283 ated here, and appraised at 82100, and cash in a savings bank in Salem amounting to §993, was, and for many years had been, in the hands of his agents in New York, and consisted of bonds and stock of foreign corporations, a certificate of indebtedness of a foreign cor- poration, bond secured by mortgage on real estate in New Hampshire, the makers living in New York, and of cash on deposit with a savings hank and with individuals in Brooklyn ; the total being upwards of 840,000. There has been no administration in New York, and the petitioner has taken possession of all the property except the real estate, and has paid all of the debts and legacies except the residuary legacies. None of the legacies are entitled to exemption if otherwise liable to the tax. The appellants contend that the stocks, bonds, etc., were not " property within the jurisdiction of the Commonwealth," within the meaning of St. 1891, c. 425, § 1, and that, if they were, the succession took place by virtue of the law of New York, and not of this State. It is clear that, if the question of the liability of the tes- tator to be taxed in Salem for the property had arisen during his life- time, he would have been taxable for it under Pub. St. c. 11, §§4, 20, notwithstanding the certificates, etc., were in New York (Kirkland v. Hotchkiss, 100 U. S. 491 ; State Tax on Foreign-Held Bonds Case, 15 Wall. 300; Cooley, Tax'n [2d ed.], 371); and the liability would have extended to and included the bonds secured by mortgage (Kirk- land V. Hotchkiss, supra ; State Tax on Foreign-Held Bonds Case, supra; Hale v. Commissioners, 137 Mass. 111). It is true that the Public Statutes provide that personal property, wherever situated, whether within or without the Commonwealth, shall be taxed to the owner in the place where he is an inhabitant. But it is obvious that the legislature cannot authorize the taxation of property over which it has no control, and the principle underlying the provision is that personal property follows the person of the owner, and properly may be regarded, therefore, for the purposes of taxation, as having a situs at his domicile, and as being taxable there. After the testator's death the prop<^rt3' would have been taxable to his executors for three years, or till distributed and paid over to those entitled to it, and notice thereof to the assessors ; showing that the fiction, if it is one, is con- tinued for the purposes of taxation after the owner's death. Pub. St. r. 11, § 20, cl. 7; Hardy v. Inhabitants of Yarmouth, 6 Allen, 277. In the present case the tax is not upon property as such, but upon the privilege of disposing of it by will, and of succeeding to it on the death of the testator or intestate ; and it " has," as was said in Minot V. Winthrop, infra, " some of the characteristics of a duty on the administration of the estates of deceased persons." Minot v. "Win- throp, 162 Mass. 113; Callahan v. "Woodbridge, 171 Mass. 595; Greves v. Shaw, 173 Mass. 205; Moody v. Shaw, 173 Mass. 375. In arriving at the amount of the tax, the property within the jurisdiction of the Commonwealth is considered, and we see no reason for suppos- ing that the legislature intended to depart from the principle heretofore 2S4 FllOTHINGHAM V. SHAW. [CIIAP. 11. adopted, which regards personal property, for the purposes of taxation, as having a situs at the domicile of its owner. Tliis is the general rule (Coole^^, Tax'n [2d ed.], 372), and, though it may and does lead to double taxation, that has not been accounted a sufficient objection to taxing personal property to the owner during his life at the place of his domicile, and we do not see that it is a sufficient objection to the imposition of succession taxes or administration duties, under like circumstances, after his death. In regard to the mortgage bonds, it is to be noted, in addition to what has been said, that this case differs from Callahan v. Woodbridge, supra. In that case the testator's domicile was in New York, and it does not appear from the opinion that the note and mortgage deed were in this State. In this case the domicile was in this Commonwealth, and we think that, for the purposes of taxation, the mortgage debt may be regarded as having a situs here. This is the view taken in Hanson, Death Duties (4th ed.), 239, 240, which is cited apparently with approval by Mr. Dicey, though he calls attention to cases which may tend in another direction. See Dicey, Confl. Laws, 319, note 1. It seems to us, therefore, that for the purposes of the tax in question the property in the hands of the executor must be regarded as having been within the jurisdiction of this Commonwealth at the time of the testator's death. See In re Swift, 137 N. Y. 77 ; Ifi re Miller's Estate, 182 Pa. St. 162. The petitioner further contends that the succession took place by virtue of the law of New York. But it is settled that the succession to movable property is governed by the law of the owner's domicile at the time of his death. This, it has been often said, is the universal rule, and applies to movables wherever situated. Stevens v. Gaylord, 11 Mass. 256 ; Dawes v. Head, 3 Pick. 129, 144, 145 ; Fay v. Haven, 3 Mete. (Mass.) 109; Wilkins v. Ellett, 9 Wall. 740; id. 108 U. S. 256 ; Freke v. Carbery, L. R. 16 Eq. 461 ; Attorney-General v. Camp- bell, L. R. 5 H. L. 524; Duncan v. Lawson, 41 c'h. Div. 394; Sill v. Worswick, 1 H. Bl. 690 ; Dicey, Confl. Laws, 683 ; Story, Confl. Laws (7th ed.), §§ 380, 481. If there are movables in a foreign country, the law of the domicile is given an extra-territorial effect by the courts of that country, and in a just and proper sense the succession is said to take place by force of, and to be governed by, the law of the domi- cile. Accordingly it has been held that legacy and succession duties, as such, were payable at the place of domicile in respect to movable property wherever situated, because in such cases the succession or legacy took effect by virtue of the law of domicile. Wallace v. Attor- ney-General (1865) 1 Ch. App. 1 ; Dicey, Confl. Laws, 785 ; Hanson, Death Duties (4th ed.), 423, 526. With probate or estate or adminis- tration duties, as such, it is different. They are levied in respect of the control which every government has over the property actually situated within its jurisdiction, irrespective of the place of domicile. Laidloy v. Lord Advocate, 15 App. Cas. 468, 483; Hanson, Death Duties (4th ed.), 2, 63. Of course, any state or country may impose SECT. II.] FROTHINGIIAM V. SHAW. 285 a tax, and give it such name or no name as it chooses, which sliall embrace, if so intended, the various grounds upon which taxes arc cr may be levied in respect of the devoUition of estates of deceased persons, and which shall be leviable according as the facts in each particular case warrant. In England, for instance, the " estate duty," as it is termed, under the Finance Act of 1894 (57&58 Vict. c. 30), has largely superseded the probate duty, and under some circumstances takes the place of the legacy and succession duty also. Hanson, Death Duties (4th ed.), 62, 63, 81. But, whatever the form of the tax, the succession takes place and is governed by the law of the domicile, and if the actual situs is in a foreign country, the courts of that country cannot annul the succession established bj* the law of the domicile. Damraert v. Osborn, 141 N. Y. 564. In further illustration of the extent to which the law of the domicile operates, it is to be noted that the domicile is regarded as the place of principal administration, and any other administration is ancillar}' to that granted there. Payment b}' a foreign debtor to the domiciliary administrator will be a bar to a suit brought by an ancillar}^ administrator subsequentl}' appointed. Wilkins v. Ellett, supra; Stevens v. Gaylovd,- supra / Hutchins v. Bank, 12 Mete. (Mass.) 421 ; Martin v. Gage, 147 Mass. 204. And the domiciliar}' administrator has sufficient standing in the courts of another State to appeal from a decree appointing an ancillary adminis- trator. Smith V. Sherman, 4 Cush. 408. Moreover, it is to be observed — if that is material — that there has been no administration in New York, that the executor was appointed here, and has taken possession of the propert}' b}- virtue of such appointment, and must distribute it and account for it according to the decrees of the courts of this Com- monwealth. To say, therefore, that the succession has taken place by virtue of the law of New York, would be no less a fiction than the petitioner insists that the maxim, Mobilia seqimntur personam, is when applied to matters of taxation. The petitioner contends that in Callahan v. Woodbridge, supra, it was held that the succession to the personal property in this State took place by virtue of the law of this State, although the testator was domiciled in New York. We do not so understand that case. That case and Greves v. Shaw, sujjra, and Moody V. Shaw, supra, rest on the right of a State to impose a tax or dut}' in respect to the passing on the death of a non-resident of personal property belonging to him, and situated within its jurisdiction. "VVe think that the decree should be affirmed.^ So ordered. 1 Tor the English doctrines as to the effect of their Revenue Laws on non-residents and on foreign property, see Dicey, Conflict of Laws, 781. For cases on the Income Tax, see Calcutta Jute Mills v. Nicholson, 1 Ex. D. 428; Colquhoun v. Brooks, 14 App. Cas. 493. On Probate Duty, see Att.-Gen. v. Hope, 1 C. M. & R. 530; Sudeley v. Att.-Gen., [1897] A. C. IL On Legacy Duty, see Thompson v. Adv. -Gen., 12 CI. & F. 1 ; Chatfield v. Berchtoldt, L. R. 7 Ch. 192. On Succession Duties, see Att.-Gen. v. Campbell, L. R. 5 H. L. 524 ; Wallace v. Att.- Gen., L. R. 1 Ch. 1. — Ed. 286 MATTER OF COOLET. [CHAP. II. MATTER OF COOLEY. Court of Appeals, Xkw York. 1906. [Reported 186 N. Y. 220.] HiscoCK, J. The appellants com plain because in fixing the transfer tax upon certain shares of the capital stock of the Boston and Albany Railroad Company which belonged to the estate and passed under the will of the deceased vviio was a non-resident, said stock has boon ap- praised at its full market value as representing an interest in the prop- erty of said corporation situate both in the State of New York and elsewhere. It is insisted by them that under the peculiar facts of this case the valuation placed for such purpose upon the stock should not have been predicated upon the idea that the latter represented an in- terest in all of the property of said corpor.ition, but should have been fixed upon the theor}' that it represented an interest in only a portion of said property. I think that their complaint is well founded and that the order appealed from should be reversed and the assessment corrected accordingly. The Boston and Alban}' Railroad Company is a consolidation formed by the merger of one or more New York corporations and one Massa- chusetts corporation. The merger was autiiorize 1 and the said consoli- dated corporation duly and separately created and organized under the laws of each state. It was, so to speak, incorporated in duplicate. There is but a single issue of capital stock representing all the prop- ert}' of the consolidated and dual organization. Of the track mileage about five-sixths is in Massachusetts and one-sixth in New York. The principal offices, including the stock transfer office, are situated in Boston, and there also are regular!}- held the meetings of its stock- holders and directors. The deceased was a resident of the State of Connecticut, and owned four hundred and twentj'-six shares of the capital stock, the value of which for the purposes of the transfer tax was fixed at the full market value of $252.50 per share of the par value of $100. The provisions of the statute (L. 1896, ch. 908, § 220, as amd. L. 1897, ch. 284, § 2), authorizing the imposition of this tax are familiar, and read in part as follows : " A tax shall be and is hereby imposed upon the transfer of any propert}', real or personal, of the value of five hundred dollars or over, or of an}' interest therein ... in the following cases : . . . " 2. When the transfer is by will or intestate law, of property within the State, and the decedent was a non-resident of the State at the time of his death." The present assessment is under the last clause, and as already inti- SECT. IL] matter OF COOLEY. 287 ranted, the sole question, stated in practical form, is whether the authorities of this State ought to levy a tax upon the full value of de- cedent's holdings, recognizing simpl}' the New York corporation and regarding it as the sole owner of all of the property- of the doubly in- corporated New York-Massachusetts corporation, or whether they should limit the tax to a portion of the total value, upon the theory that the company holds its property in Massachusetts at least under its incorporation in that State. B}' seeking the aid of our laws and becoming incorporated under them, the consolidated Boston and Albany Railroad Company' became a domestic corporation. (Matter of Sage, 70 N. Y. 220.) The decedent, therefore, as the owner of Boston and Albany stock, nia}' l)e regarded as holding stock in a domestic corporation, and it is so clearly settled that we need only state the proposition that capital stock in a domestic corporation, although held by a non-resident, will be re- garded as having its situs where the corporation is organized, and is, therefore, taxable in this State. (Matter of Bronson, 150 N. Y. 1.) There is, therefore, no question l)ut that the decedent, holding stock in the Boston and Albany road, which was incorporated under the laws of this State, left " property within the State " which is taxable here. There is no doubt about the meaning of "■ property within the State," as applied to this situation, or that it justifies a taxation by our au- thorities of decedent's interest as a shareholder in the corporation created under the laws of this State. The only doubt is as to the extent and value of that interest for the purposes of this proceeding. For, altiiough the tax is upon the transfer and not upon the property itself, still its amount is necessarily measured b}- the value of the property transferred, and, therefore, we come to consider briefly the nature of the stock here assessed as property and the theory upon which its value should be computed. The general nature of a shareholder's interest in the capital stock of a corporation is easily understood and defined. In Plympton v. Bige- low (93 N. Y. 592) it is said that " The right which a shareholder in a corporation has by reason of his ownei-ship of shares is a right to par- ticipate according to the amount of his stock in the surplus profits of the corporation on a division, and ultimately on its dissolution, in the assets remaining after payment of its debts." In Jermain v. L. S. & M. S. Ry. Co. (91 N. Y. 483, 491) it was said : " A share of stock represents the interest which the shareholder has in the capital and net earnings of the corporation." Therefore, since the shares of capital stock under discussion repre- sented a certain interest in the surplus of assets over liabilities of the Boston and Albany Railroad Company, the value of that stock is to be decided b}' reference to the amount of property which said railroad com- pany as incorporated in this State is to be regarded as owning for the purposes of this proceeding. 288 MATTER OF COOLEY. [CIIAP. II. In the majority of cases at least a corporation has but a single corporate creation and existence under the laws of one State, and by virtue of such single existence owns all of its corporate property. There is no difficulty in deterraining in such a case that a shareholder under such an incorporation has an interest in uU of the cor|)Oi:ite property wherever and in liow many different States situated. I shall have occasion to refer to that principle hereafter in another connection. Even in the case of a corporation incorporated and having a separate existence under the laws of more than one State, the stockholder would for some purposes be regarded as having an interest in all the cor- porate property independent of the diflerent incorporations. In tlie present case the decedent, by virtue of his stock as between liim and the corporation, would be regarded as having an interest in all of its property and entitled to the earnings thereon when distributed as dividends and to his share of the surplus npon dissolution and liquida- tion proceedings independent of the fact that there were two separate incorporations. But, as it seems to me, different considerations and principles apply to this proceeding now before us for review. Our jurisdiction to assess decedent's stock is based solely and exclusively upon the theory that it is held in the Boston and Albany Railroad Company as a New York corporation. The authorities are asserting jurisdiction of and assessing his stock only because it is held in the New York corporation of the Boston and Albany Railroad Company. But we know that sai(i com- pany is also incorporated as a Massachusetts corporation, and presum- ably by virtue of such latter incorporation it has the same powers of owning and managing corporate property which it possesses as a New York corporation. In fact the location of physical property and the exercise of various corporate functions give greater importance to the Massachusetts than to the New York corporation, and the problem is whether for the purpose of levying a tax upon decedent's stock upon the theory that it is held in and under the New York corporation we ought to say that such latter corporation owns and holds all of the property of the consolidated corporation wherever situated, thus entirely ignoring the existence of and the ownership of property by the Massa- chusetts corporation. It needs no particular illumination to demon- strate that if we take such a view it will clearly pave the way to a corresponding view by the authorities and courts of Massachusetts that the corporation in that State owns all of the corporate property wherever situated, and we shall then further and directly be led to the unreasonable and illogical result that one set of property is at the same time solely and exclusively owned by two different corporations, and that a person holding stock should be assessed upon the full value of his stock in each jurisdiction. Whether we regard such a tax as is here being imposed, a recompense to the State for protection afforded durino- the life of the decedent or as a condition imposed for creating SECT. II.] MATTER CF COOLEY. 289 and allowing certain rights of transfer or of succession to propert\- upon death, we shall have each State exacting full compensation upon one succession and a clear case of double taxation. And if the corporation had been compelled for sufKcient reasons to take out incorporation in six or twent\' other States each one of them might take the same view and insist upon the same exaction uutil the value of the property was in whole or large proportion exhausted in paying for the privilege of succession to it. While undoubtedl}' the legislative authority is potent enough to prescribe and enforce double taxation, it is plain that, measured by ordinary principles of justice, the result suggested would be inequitable and might be seriously burdensome. Double taxation is one which the courts should avoid whenever it is possible within reason to do so. (Matter of James, 144 N. Y. 6, 11.) It is never to be presumed. Sometimes tax laws have that effect, but if they do it is because the legislature has unmistakably so enacted. All presumptions are against such an imposition. (Tennessee v. Whit- worth, 117 U. S. 129.) The law of taxation is to be construed strictl}' against the State in favor of the taxpayer, as represented by the executor of the estate. (Matter of Fayerweather, 143 N. Y. 114.) It seems prett}' clear that within the principles of the foregoing and many other cases which might be cited, we ought not to sanction a course which will lead to a tax, measured by the full value of the dece- dent's stock in each State upon the conflicting theories that the corpo- ration in that State owns all of the property of the consolidated compan}', unless there is something in the statute, or decisions under the statute, which compels us so to do. I do not think there is iu either place such compelling authority. No doubt is involved, as it seems to me, about the meaning and ap- plication of the statute. The decedent's stock was "property within the State," which had its situs here as being held in the New York cor- poration, and the transfer of it was taxable here. There can l)o no dispute about that. The question is simply over the extent and value of his interest as such stockholder, in view of the other incorporation in Massachusetts. I see nothing in the statute which prevents us from paying decent regard to the principles of interstate comity, and from adopting a policy which will enable each State fairl}' to enforce its own laws without oppression to the subject. This result will be attained by regarding the New York corporation as owning the property situate in New York and the Massachusetts corporation as owning that situate in Massachusetts, and each as owning a share of any property situate out- side of either State or moving to and fro between the two States, and assessing decedent's stock upon that theory. That is the obvious basis for a valuation if we are to leave any room for the Massachusetts corporation and for a taxation by that State similar in principle to our own without double taxation. 19 290 MATTI'R OF COOLEY. [CHAP. II. Some illustrations may he referred to which by analogy sustain the general principles involved. Where a tax is levied in this State upon the capital or franchises of a corporation organized as this railroad was, the tax is levied upon an equitable basis. Thus by the provisions of section 6 of chapter 19 of tlie Laws of 1869, under which the Boston and Albany railroad was organized, the assessment and taxation of its capital stock in this State is to be in the proportion "that the number of miles of its railroad situated in this State bears to the number of miles of its railroad situated in the other State," and under section 182 of the General Tax Law of the State of New York the franchise tax of a corporation is based upon the amount of capital within the State. Again, assume that for purposes of dissolution or otherwise, re- ceivers were to be appointed of the Boston and Albany railroad, there can be no doubt that the receivers of it as a New York corporation would be appointed by the courts of that State, and the receivers of it as a Massachusetts corporation would be appointed by the courts of that State, and tliat the courts would hold that in the discharge of their duties the New York receivers should take possession of and admin- ister upon the property of the New York corporation within the limits of that State, and would not permit the Massachusetts receivers to come within its confines and interfere with such ownei'ship, and the JMassachusetts courts would follow a similar policy. Wh}' should not tlie State authorities for purposes of this species of taxation and valua- tion, involved therein, adf)pt a similar theory of division of property? "We are not apprehensive lest, as suggested, New York corpora- tions may take out incorporation in other States for the purpose of ex- empting transfers of their capital stock from taxation under the principles of this decision. We do not regard our decision as giving encouragement to an}- such course. It is based upon and limited by the facts as they are here presented, and there is no question whatever luit that the Boston and Albanv railroad, in good faith and for legitimate reasons, was equallv and contemporaneously created both as a New York and a Massachusetts corporation. It can no more be said that being originally and properly a New York corporation it subsequenth* and incidentally became a Massachusetts one than could be maintained the reverse of such proposition. If in the future a corporation created and organized under the laws of tliis State, or properly- and really to be regarded as a New York corporation, shall see fit either for the pur- pose suggested, or for anj- other reason subsequently and incidentallj' and for ancillary reasons, to take out incorporation in another State, a case would arise not falling within this decision. But it is said that this court has alreadv made decisions which pre- vent it from adopting such a construction as I have outlined, and reference is made to Matter of Bronson (150 N. Y. 1) and Matter of J'almer (183N.Y. 238). s;:cr. ii.] mattee of cooley. 291 T do not find anything in those decisions which, interpreted as a whole, with reference to the facts there being discussed, conflicts with the views which I have advanced. In the first case the question arose whether a tax might be imposed upon a transfer of a non-resident decedent's residuarv estate which " consisted in shares of the capital stoclv and in the bonds of corpora- tions incorporated under the laws of this State." So far as tlie discus- sion relates to the question of taxing the bonds, it is immaterial. It was held that the shares of capital stock were property which was taxa- ble, it being said : " The shareholders are persons who are interested in the operation of the corporate propert}- and franchises, and their shares actuall}' represent undivided interests in the corporate enterprise. The corporation has the legal title to all the properties acquired and appurte- nant, but it holds them for the pecuniary benefit of those persons who hold the capital stock. . . . Each share represents a distinct interest in the whole of the corporate property." In other words, Judge Grat, in writing the majority opinion, was discussing the situation of a share- holder in a domestic corporation which, so far as appears, was not incorporated under the laws of another State. Under such circum- stances, of course, the New York corporation would be the owner of all the property there was, and the shareholder's interest in such corpo- ration would represent his interest in all of said property and he fairl}' and justly taxable upon its full amount and value. No such situation was presented as here arises. There was no second or third corporation under the laws of another State, which corporation might just as fairly be said to be the owner of all the property as the New York corpora- tion, thus raising the question here presented whether each corporation should be regarded as owning and holding all of the property there was for the purpose of laying the basis for taxation, or whether we should adopt an equitable and reasonable view, giving credit to each corporation for the purpose of taxation of owning some certain portion of the entire property. In the Palmer case again the question arose over taxing shares of stock hold by a non-resident decedent in a domestic corporation which was not proved or considered to have been incorporated under the laws of another State. It was insisted that the amount of the tax should be reduced by the proportion of property owued by the corpo- ration and located in other States, and this contention was overruled, and, as it seems to me, for a perfectly good reason upon the facts in that case and which is not applicable to the facts here. As stated, there was a single incorporation under the laws of this State, and that domestic corporation owned all of the property in whatever State situ- ated. Its corporate origin was under the laws of this State, and there its corporate existence was centred. It just as fully and completely owned and managed property situated in the State of Ohio as if it was situated in the State of New York, and if the property in the foreign 292 MATTER OF COOLEY. [CIIAP. II. State was reduced to money, such money would be turned into its treasury in the State of New York. Under such circumstances there was nothing else that could reasonably be held than that the corpora- tion owned all property wherever situated, and that the sharehold- er's interest in such corporation represented and was based upon such ownership of all the property. There was no double incorporation and no chance for conflict between an incorporation under the laws of this State and a second one existing under the laws of another State, which must either be reconciled bj' a just regard for the rights of both States and the rights of the incorporation under each, or else double taxation imposed upon a shareholder. It is also argued that the courts of Massachusetts have passed upon the very contention here being made by appellants, and in the case of Moody V. Shaw (173 Mass. 375) have rejected the claim that the valu- ation of stock in this same corporation for the purposes of transfer taxation in Massachusetts should be based upon any apportionment of property between the Massachusetts and New York corporations. The opinion in that case does not seem to warrant any such con- struction. Apparently the only question under discussion was whether the transfer of stock in such corporation was taxable at all in Massa- chusetts, and the question of any apportionment was not passed upon. Such expressions as are found in the opinion touching that point cer- tainl}' do not indicate to my mind that if involved and passed upon it would have been decided adversely to the views here expressed. Lastl}', it is urged that there will be great practical difficulty in making an apportionment of property for the purposes of valuation and taxation upon the lines suggested, and the learned counsel for the re- spondent has suggested man}- difficulties and absurdities claimed to be incidental to such course of procedure. Most of them certainly will not arise in this case and they probably never will in an}' other. Of course an appraisal based upon an apportionment of the entire prop- erty of the consolidated company between the New York and Massachu- setts corporations may be made a source of much labor and expense if the parties so desire. Possibly it might be carried to the extent of a de- tailed inventory and valuation of innumerable pieces of property. Upon the other hand, an apportionment based upon trackage or figures drawn from the books or balance sheets of the company may doubtless be easily reached which will be substantially correct, and any inaccuracies of which when reflected in a tax of one per cent upon 426 shares of stock will be inconsequential. The order of the Appellate Division and of the Surrogate's Court of the county of New York should be reversed, with costs, and the pro- ceedings remitted to said Surrogate's Court for a reappraisal of the stock in question in accordance with the views herein expressed. CuLLEN, Ch. J., Gray, O'Brien, and Edward T. Bartlett, JJ., concur ; "Werner and Chase, JJ., dissent. Order reversed, etc. SECT. III.] CALDWELL V. VAN VLISSENGEN. 293 SECTION III. TEMPORARY PRESENCE. CALDWELL v. VAN VLISSENGEN. Chancery. 1851. [Reported 9 Hare, 415.] Turner, V. C.^ The plaintiffs in these causes are the assignees of a patent granted to James Lowe in the year 1838, for a mode of pro- pelling vessels by means of one or more curved blades set or affixed on a revolving shaft below the water-line of the vessel, and running from stem to stern of the vessel. The defendants in the first two causes are owners of vessels trading between Holland and this countr}', and the defendant in the third cause was the captain of a vessel en- gaged in the same trade. . . . It was insisted, on the part of the defendants, that there was in each of these cases a sufficient ground for the interference of the court being withheld. In the first place, the ground is thus stated in the affidavit of Izebbe Swart, of Amsterdam. He says, in his affidavit, that he is the master of the ship called the Burgemeester Huidekoper, . . . that the vessel belongs to a company formed in Holland ; . . . that some time before the vessel was built and fitted, the same pro- pelling power with that used for the vessel had been openly used and exercised in Holland ; . . . that no patent has been granted, or, as he is informed and believes, applied for in Holland, for or in respect of such alleged invention. . . . It is to be observed, that in none of these cases is it attempted to be denied, on the part of the defendants, that the screw propellers used in their respective vessels fall within the invention claimed b}^ this patent ; and after anxiously considering the case, I am of opinion that I cannot withhold these injunctions, upon the grounds which are stated. I take the rule to be universal, that foreigners are in all cases sub- ject to the laws of tlie country in which they may happen to be ; and if in any case, when they are out of their own country, their rights are rog-ulated and governed by their own laws, I take it to be not bv force of those laws themselves, but by the law of the country in which tliey ma}' be, adopting those laws as part of their own law for the purpose of determining such rights. Mr. Justice Story, in his Treatise on the " Conflict of Laws," addressing himself to this subject (s. 541), says: "In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate over them, it would 1 Part of the opinion is omitted. — Ed. 294 CALDWELL V. VAN VLISSENGEN. [CHAP. II. seem clear, upon general principles of international law, that such a right does exist, and the extent to which it should be exercised is a matter purely of municipal arrangement and policy. Huberus lays down the doctrine in his second axiom : ' All persons who are found within the limits of a government, whether their residence is perma- nent or temporary, are to be deemed subjects thereof BouUenois says, ' That the sovereign has a right to make laws to bind foreigners in relation to their propert}' within his domains, in relation to contracts and acts done therein, and in relation to judicial proceedings i'f the}' implead before his tribunals. And further, that he may of strict right make laws for all foreigners who merely pass through his domains, although commonly this authority is exercised only as to matters of police.' Vattel asserts the same general doctrine, and says that for- eigners are subject to the laws of a State while the}' reside in it." Page 789, 2d edit. Lond. In this countr}', indeed, the position of for- eigners is not left to rest upon this general law, but is provided for b}'' statute ; for, by the 32 Hen. VIII., c. 16, s. 9, it is enacted, " that every alien and stranger born out of the King's obeisance, not being denizen, which now or hereafter shall come in or to this realm or elsewhere within the King's dominions, shall, after the 1st of September next coming, be bounden by and unto the laws and statutes of this realm, and to all and singular the contents of the same." Natural justice, indeed, seems to require that tliis should be the case ; when countries extend to foreigners the protection of their laws, they ma}' well require obedience to those laws as the price of that protection. These de- fendants, therefore, whilst in this country, must, I think, be subject to its laws. . . . Undoubtedly this grant gives to the grantee a right of action against persons who infringe upon the sole and exclusive right purported to be granted by it. Foreigners coming into this country ai'e. as I appre- hend, subject to actions for injuries done by them whilst here to the subjects of the crown. Why, then, are they not to be subject to actions for the injury done by their infringing upon the sole and ex- clusive right, which I have shown to be granted in conformity with the laws and constitution of this country? And if tlicy are sub- ject to such actions, why is not the power of this court, which is founded upon the insufficiency of the legal remedy, to be a|)plied against them as well as against the subjects of the (;rown. It was said that the prohibitory words of the patent were addressed only to the subjects of the crown ; but these prohibitory words arc in aid of tlie grant and not in derogation of it; and they were probably introduced at a time wlien the prohibition of the crown could be enforced person- ally against parlies who ventured to disobey it. The language of this part of the patent, therefore, does not appear to me to alter the case. In the course of the argument upon these motions, I put the ques- tion wliether, in the case of a railway engine patented in England, and not in Scotland, the engine, if made in Scotland, could be permitted SECT. III.] CALDWELL V. VAN VLISSENGEN. 295 to run into England ; and I might have added, whether, if the inven- tion we are now considering was patented in England and Scotland, and not in Ireland, steamboats propelled by means of it would be per- mitted to run from Dublin into Holyhead, Bristol, and Glasgow. The; answer which I received to this question was, that in the case of patcnhs there was a difference between Scotland and foreign countries ; that a prior user in Scotland would, although a prior user in foreign countries would not, invalidate an English patent ; but this answer does not ap- pear to me to meet the question. What previous user will invalidate a patent, and what user, if any, can be permitted in contravention of the patent right, are dilferent questions depending on whollj' different considerations ; the one upon the extent of previous knowledge, the other upon the effect of the grant. . . . In the argument on the part of the defendants, much was said on the hardship of this court's interfering against them, and upon the inconveniences which would result from it, and some reference was made to the policy of this countr\- ; but it must be remembered that British shi[)S certainly cannot use this invention without the license of the patentees, and the burthens incident to such license ; and foreign- el's caniKjt justly complain that their ships are not permitted to enjoy, without license and without payment, advantages which the ships of this country cannot enjoy otherwise than under license and upon pay- ment. It must be remembered that foreigners ma}' take out patents in this country, and thus secure to themselves the exclusive use of their inventions within her Majesty's dominions ; and that if they neglect to do so, the}', to this extent, withhold their invention from the subjects of this country. It is to be observed also, that the enforcement of the exclusive right under a patent does not take away from foreigners an}' privilege which they ever enjoyed in this country ; for, if the invention was used by them in this country before the granting of the patent, the patent, I apprehend, would be invalid. One principal ground of inconvenience suggested was that if foreign \ ships wei'e restrained from using this invention in these dominions, English ships might equally be restrained from using it in foreign do- minions ; but I think this argument resolves itself into a question of national policy, and it is for the legislature, and not for the courts, to deal with that question ; ray duty is, to administer the law and not to make it.^ . . . • 1 Ace. Morin v. Goupillat (Cassation, France), Journal du Palais, 1855, 2, 503 : Teschen v. Molir (Rouen, 1874), Journal du Palais, 1874, 1165. — Ed. 296 BKOWN V. DUCHESNE. [CilAP. IL BROWN V. DUCHESNE. Supreme Court of the United States. 1857. [Reported 19 Howard, 183.] Taney, C. J. This case comes before the court upon a writ of error to the Circuit Court of the United States for the district of Massa- chusetts. The plaintiff in error, who was also plaintiff in the court below, brought this action against the defendant for the infringement of a patent which the plaintiff had obtained for a new and useful improve- ment in constructing the gaff of sailing vessels. The declaration is in the usual form, and alleges that the defendant used this improvement at Boston without his consent. The defendant pleaded that the im- provement in question was used by him only in the gaffs of a French schooner, called the '• Alcyon," of which schooner he was master; that he (the defendant) was a subject of the Empire of France ; that the vessel was built in France, and owned and manned by French sub- jects ; and, at the time of the alleged infringement, was upon a lawful voyage, under the flag of France, from St. Peters, in tlie island of Miquelon, one of the colonies of France, to Boston, and thence back to St. Peters, which voyage was not ended at the date of the alleged infringement ; and that the gaffs he used were placed on the schooner at or near the time she was launched by the builder in order to fit her for sea. There is also a second plea containing the same allegations, with the additional averment that the improvement in question had been in common use in French merchant vessels for more than twenty years before the "Alcyon" was built, and was the common and well-known property of every French subject long before the plaintiff obtained his patent. Tbe plaintiff demurred generally to each of these pleas, and the de- fendant joined in demurrer ; and the judgment of the Circuit Court being in favor of the defendant, the plaintiff thereupon brought this writ of error. The plaintiff, b}" his demurrer, admits that the "Alcyon " was a foreign vessel, lawfully in a port of the United States for the purposes of com- merce, and that the improvement in question was placed on her in a foreign port to fit her for sea, and was authorized by the laws of the country to which she belonged. The question, therefore, presented by the first plea is simply this : whether any improvement in the construc- tion or equipment of a foreign vessel, for which a patent has been ob- tained in the United States, can be used by such vessel within the jurisdiction of the United States, while she is temporarily there for the purposes of commerce, without the consent of the patentee? SECT. III.] BROWN V. DUCHESNE. 297 This question depends on the construction of the patent laws. For undoubtedly ever}' person who is found within the limits of a govern- ment, whether for temporary purposes or as a resident, is bound by its laws. The doctrine upon this subject is correctly stated by Mr. Justice Story, in his " Commentaries on the Conflict of Laws" (chap. 14, sec. 541), and the writers on public law to whom he refers. A difficulty ma}- sometimes arise in determining whether a particular law applies to the citizen of a foreign country, and intended to subject him to its provisions. But if the law applies to him, and embraces his case, it is unquestionably binding upon him when he is within the jurisdiction of the United States. The general words used in the clause of the patent laws granting the exclusive right to the patentee to use the improvement, taken by them- selves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tri- bunal — because it is evident that in many cases it would defeat the object which the legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute (or statutes on the same subject) and the objects and policy of the law, as indicated by its various pro- visions, and give to it such a construction as will carry into execution the will of the legislature, as thus ascertained, according to its true intent and meaning. Neither will the court, in expounding a statute, give to it a construc- tion which would in any degree disarm the government of a power which has been confided to it to be used for the general good — or which would enable individuals to embarrass it, in the discharge of the high duties it owes to the community — unless plain and express words indicated that such was the intention of the legislature. The patent laws are authorized by that article in the Constitution which provides that Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discov-* eries. The power thus granted is domestic in its character, and neces- sarily confined within the limits of the United States. It confers no power on Congress to regulate commerce, or the vehicles of commerce which belong to a foreign nation, and occasionally visit our ports in I tlieir commercial pursuits. That power and the treaty-making power of the general government are separate and distinct powers from the one of wliich we are now speaking, and are granted by separate and different clauses, and are in no degree connected with it. And when ' Congress are legislating to protect authors and inventors, their atten- tion is necessarily attracted to the authority under which they are act- ing, and it ought not lightly to be presumed that they intended to go beyond it, and exercise another and distinct power conferred on them for a different purpose. I) 298 BROWN V. DUCHESNE. [CHAP. II. Nor is there anything in the patent laws that should lead to a differ- ent conclusion. They are all manifestly intended to carry into exe- cution tliis particular power. They secure to the inventor a just remuneration from those who derive a profit or advantage, within the United States, from his genius and mental labors. But the right of property which a patentee has in his invention, and his rio;ht to its exclusive use, is derived altogether from these statulorv provisions ; and this court have always held that an inventor lias no right of property in his invention, upon which he can maintain a suit, unless he obtains a patent for it, according to the acts of Congress ; and that his rights are to be regulated and measured b}' these laws, and cannot go beyond them. But these acts of Congress do not, and were not intended to, operate beyond the limits of the United States ; and as the patentee's right of propert}' and exclusive use is derived from them, they cannot extend be3'ond the limits to which the law itself is confined. And the use of it outside of the jurisdiction of the United States is not an infringe- ment of his rights, and he has no claim to an}- compensation for the profit or advantage the party may derive from it. The chief and almost only advantage which the defendant derived from the use of this improvement was on the high seas, and in other places out of the jurisdiction of the United States. The plea avers that it was placed on her to fit her for sea. If it had been manufac- tured on her deck while she was Ijing in the port of Boston, or if the captain had sold it there, he would undoubtedl}' have trespassed upon the rights of the plaintifl", and would have been justly answerable for the profit and advantage he thereby obtained. For, by coming in com- petition with the plaintiff, where the plaintiff was entitled to tlie ex- clusive use, he thereby diminished the value of his property'. Justice, therefore, as well as the act of Congress, would require that he should compensate the patentee for the injur}- he sustained, and the benefit and advantage which he (the defendant) derived from the invention. But, so far as the mere use is concerned, the vessel could hardly be said to use it while she was at anchor in the port, or laj- at the wharf. It was certainly- of no value to her while she was in the harbor ; and the onl}- use made of it, which can be supposed to interfere with the rights of the plaintiflf, was in navigating the vessel into and out of the harbor, when she arrived or was about to depart, and while she was within the jurisdiction of the United States. Now, it is obvious that the plaintiff sustained no damage, and the defendant derived no mate- rial advantage, from the use of an improvement of this kind by a for- eign vessel in a single voyage to the United States, or from occasional voyages in the ordinary pursuits of commerce ; or if any damage is sustained on the one side, or any profit or advantage gained on the other, it is so minute that it is incapable of an}' appreciable value. But it seems to be supposed tliat this user of the improvement was, by legal intendment, a trespass upon the rights of the plaintiff ; and SECT. III.] BROWN V. DUCHESNE. 299 that although no real damage was sustained by the plaintiff, and no profit or advantage gained by the defendant, the law presumes a dam- age, and that the action may be maintained on that ground. In otlier words, tliat there is a technical damage, in the eye of the law, althougli none has really been sustained. This view of tlie subject, however, presupposes that the patent laws embrace improvements on foreign sliips, lavvfuliy made in their own country, whicli have been patented liere. But that is the question in controversy. And the court is of opinion tliat cases of that kind were^/ not in the contem[)lalion of Congress in enacting the patent laws, aii^ cannot, upon any sound construction, be regarded as embraced In them. For such a construction would be inconsistent with the prin- ciples that lie at the foundation of these laws; and instead of confer- ring legal rights on the inventor, in order to do equal justice between him and those who profit by his invention, the}' would confer a power to exact damages where no real damage had been sustained, and would moreover seriousl}' embarrass the commerce of the country with foreign nations. We think these laws ought to be construed in the spirit in ■which they were made — that is, as founded in justice — and should not be strained by technical constructions to reach cases which Con- gress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object thej' intended to accomplish. The construction claimed bj' the plaintiff would confer on patentees not only rights of property, but also political power, and enable them to embarrass the treaty-making power in its negotiations with foreign nations, and also to interfere with the legislation of Congress when ex- ercising its constitutional power to regulate commerce. And if a treaty should be negotiated with a foreign nation, by which the vessels of each party were to be freely admitted into the ports of the other, upon equal terms with its own, upon the payment of the ordinary port charges, and the foreign government faithfully carried it into execution, yet the government of the United States would find itself unable to fulfil its obligations if the foreign sliip had about her, in her construction or equipment, anything for which a patent had been granted. And after paying the port and other charges to which she was subject b^' the treaty, the master would be met with a further demand, the amount of which was not even regulated b}' law, but depended upon the will of a private individual. And it will be remembered that the demand, if well founded in the patent laws, could not be controlled or put aside b}- the treaty. For, by the laws of the United States, the rights of a part}' under a patent are his private property ; and by the Constitution of the United States, private property cannot be taken for public use without just compensa- tion. And in the case I have stated, the government would be unable to carry into effect its treaty stipulations without the consent of the patentee, unless it resorted to its right of eminent domain, and went 300 BROWN V. DUCHESNE. [CHAP. H. through the tedious and expensive process of condemning so much of the right of property of the patentee as related to foreign vessels, and paying him such a compensation therefor as should be awarded to him by the proper tribunal. The same difficulty would exist in executing a law of Congress in relation to foreign ships and vessels trading to this I countr}'. And it is impossible to suppose that Congress in passing 1 these laws could have intended to confer on the patentee a right of \ private property, which would in effect enable him to exercise political \ power, and which the government would be obliged to regain by pur- \chase, or by the power of its eminent domain, before it could fully and Vreely exercise the great power of regulating commerce, in which the whole nation has an intei'est. The patent laws were passed to accom- lish a different purpose, and with an eye to a different object ; and he right to interfere in foreign intercourse, or with foreign ships visit- ng our ports, was evidently not in the mind of the legislature, nor in- tended to be granted to the patentee. Congress ma}' unquestionabl}-, under its power to regulate commerce, prohibit any foreign ship from entering our ports, which, in its con- struction or equipment, uses any improvement patented in this country-, or may prescribe the terms and regulations upon which such vessel shall be allowed to enter. Yet it may perhaps be doubted whether Congress could by law confer on an individual, or individuals, a right which would in any degree impair the constitutional powers of the leg- islative or executive departments of the government, or which might put it in their power to embarrass our commerce and intercourse with foreign nations, or endanger our amicable relations. But however that may be, we are satisfied that no sound rule of interpretation would justify the court in giving to the general words used in the patent laws the extended construction claimed b}' the plaintiff, in a case like this, where public rights and the interests of the whole community are con- cerned. The case of Caldwell v. Vlissengen (9 Hare, 416, 9 Eng. L. & Eq. Rep. 51), and the statute passed by the British Parliament in con- sequence of that decision, have been referred to and relied on in the argument. The reasoning of the Vice-Chancellor is certainl}- entitled to much respect, and it is not for this court to question the correctness of the decision, or the construction given to the statute of Henry VIII. J But we must interpret our patent laws with reference to our own Constitution and laws and judicial decisions. And the court are of opinion that the rights of pro[)erty and exclusive use granted to a patentee does not extend to a foreign vessel lawfull}' entering one of our ports ; and that the use of such improvement, in the construction, fitting out, or equipment of such vessel, while she is coming into or going out of a port of the United States, is not an infringement of the rights of an American patentee, provided it was placed upon her in a foreign port, and authorized by the laws of the country to which she belongs. SECT. III.] BROWN V. DUCHESNE. HOI In this view of the subject, it is unnecessary to say anything in re- lation to the second plea of the defendant, since the matters relied on in the first are sufficient to bar the plaintiff of his action, without the aid of the additional averments contained in the second. The judgment of the Circuit Court must therefore be affirmed. CHAPTER III. JURISDICTION OF COURTS. SECTION I. JURISDICTION IN REM. THE BELGENLAND. Supreme Court of the United States. 1885. [Reported 114 United States, 355.] Bradley, J.^ This case grew out of a collision which took place on the high seas between the Norwegian barque " Luna " and the Belgian steamship " Belgenland," by which the former was run down and sunk. Part of the crew of the "Luna," including the master, were rescued by the "Belgenland" and brought to Piiiladelphia. The master immedi- ately libelled the steamship on behalf of the owners of the " Luna" and her cargo, and her surviving crew, in a cause civil and maritime. . . . The District Court decided in favor of the libellant, and rendered a decree for the various parties interested to the aggregate amount of $50,278.23. An appeal was taken to the Circuit Court. . . . A decree was thereupon entered, affirming the decree of the District Court. ... A reargument was had on the question of jurisdiction, and the court held and decided that the Admiralty Courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners of different nationalities ; and overruled the plea to the jurisdiction. 9 Fed. Rep. 576. The case was brought before this court on appeal from the decree of the Circuit Court. See also 108 U. S. 153. The first question to be considered is that of the jurisdiction of the District Court to hear and determine the cause. It is unnecessary here, and would be out of place, to examine the question which has so often engaged the attention of the common law courts, whether, and In what cases, the courts of one country should take cognizance of controversies arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully dis- 1 Only 80 much of the opinion aa diacussea the question of jurisdiction is given. SECT. I.] THE BELGENLAND. 303 cussed in Mostyn v. Fabrigas, Cowp. 161, and the notes thereto in 1 Smith's Leading Cases, 340 ; and an instructive analysis of the law will be found in the elaborate arguments of counsel in the case of the San Francisco Vigilant Committee, Malony v. Dows, 8 Abbott Pr. 316, argued before Judge Dal}- in New York, 1859. We shall content ourselves with inquiring what rule is followed b}' Courts of Admiralt}' ill dealing with maritime causes arising between foreigners and others on the high seas. Tliis question is not a new one in these courts. Sir William Scott had occasion to pass upon it in 1799. An American ship was taken b}' the French on a voyage from Philadelphia to London, and afterwards rescued bv her crew, carried to England, and libelled for salvage ; and the court entertained jurisdiction. The crew, however, thdiTgliengaged in the American ship, were British born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks : " But it is asked, if they were American seamen would this court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean- time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case ; or conversely, if American courts were to hold pleas of this nature re- specting the merits of British seamen on such occasions. For salvage is a question of J i^gj^iitium^ and materially different from the question of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained b}' its own particular rules. There might be good reason, therefore, for this court to decline to interfere in such cases, and to remit them to their own do- mestic forum ; but this is a general claim, upon the general ground of qvantum meruit^ to be governed by a sound discretion, acting on gen- eral principles ; and I can see no reason wh}' one countr}' should be afraid to trust to the equity of the courts of another on such a question, of such a nature, so to be determined." The Two Friends, 1 Ch. Rob. 271, 278. The law has become settled very much in accord with these views.] That was a case of salvage ; but the same principles would seem to ap- ply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nation- alities, come within the domain of the general law of nations, or com- munis Jicris, and are prima facie proper subjects of inquiry in any Court of Admiralty which first obtains jurisdiction of the rescued oi'j offending ship at the solicitation in justice of the meritorious, or injured,! parties. The same question of jurisdiction arose in another salvage case which came before this court in 1804, Mason v. The Blaireau, 2 Cranch, 240. There a French ship was saved by a British ship, and brought into a port of the United States ; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, however, did not press the 304 THE BELGENLAND. [CHAP. III. point, and referred to the observations of Sir William Scott in The Two Friends. Chief Justice Marshall, speaking for the court, disposed of the question as follows: "A doubt has been suggested," said he, *' respecting the jurisdiction of the court, and upon a reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy, this court ought not to take cognizance of a case entirely be- tween foreigners, than from any positive incapacity to do so. On Weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it." In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect the jurisdiction of the court, however much it may influence its discretion in taking jurisdiction. For circumstances often exist which render it inexpedient for the court to take jurisdiction of controversies between foreigners in cases- not arising in the country of the forum ; as, where they are governed by the laws of the country to which the parties belong, and there is no difficulty in a resort to its courts ; or where they have agreed to resort to no other tribunals. The cases of foreign seamen suing for wages, or because of ill treatment, are often in this category' ; and the consent of their consul, or minister, is frequently required before the court will proceed to entertain jurisdiction ; not on the ground that it has not jurisdiction, but that, from motives of convenience or interna- tional comity, it will use its discretion whether to exercise jurisdiction or not ; and where the voyage is ended, or the seamen have been dis- missed or treated with great cruelty, it will entertain jurisdiction even . against the protest of the consul. This branch of the subject will be found discussed in the following cases : The Catherina, 1 Pet. Adm. 104 ; The Forsoket, 1 Pet. Adm. 197; The St. Olofl", 2 Pet. Adm. 428; The Golubchick, 1 W. Rob. 143; The Nina, L. R. 2 Adm. and Eccl. 44 ; s. c. on appeal, L. R. 2 Priv. Co. 38; The Leon XIII., 8 Prob. Div. 121 ; The Havana, 1 Sprague, 402 ; The Becherdass Ambaidass, 1 Lowell, 669 ; The Pawashick, 2 Lowell, 142. Of course, if any treaty stipulations exist between the United States and the country to which a foreign ship belongs, with regard to the right of the consul of that country to adjudge controversies arising be- tween the master and crew, or other matters occurring on the ship exclusively subject to the foreign law, such stipulations should be fairly and faithfully observed. The Elwin Kreplin, 9 Blatchford, 438, revers- ing s. c. 4 Ben. 413 ; see s. c. on application for mandamus, Ex parte Newman, 14 Wall. 152. Many public engagements of this kind have been entered into between our government and foreigh States. See Treaties and Conventions, Rev. ed., 1873, Index, 1238. In the absence of such treaty stipulations, however, the case of for- SECT, l] the bhlgenland. 305 eign seamen is undoubtedly a special one, when they sue for wages under a contract which is generall3- strict in its character, and framed according to the laws of the countr}" to which the ship belongs ; framed also with a view to secure, in accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as when she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the mas- ter of their ship for ill-treatment. On general principles of comity, j Admiralt}' Courts of other countries will not interfere between the par-/ ties in such cases unless there is special reason for doing so, and wilj require the foreign consul to be notified, and, though not absolutely bound b}', will always pay due respect to, his wishes as to takinji jurisdiction. Not alone, however, in cases of complaints made by foreign seamen, but in other cases also, where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow subjects, as to matters of contract or tort solely affecting themselves and deter- minable by their own laws, such tribunals will exercise their discretion whether to take cognizance of such matters or not. A salvage case of this kind came before the United States District Court of New York in 1848. The master and crew of a British ship found another British ship near the English coast apparently abandoned (though another vessel was in sight), and took off a portion of her cargo, brought it to New York, and libelled it for salvage. The British consul and some owners of the cargo intervened and protested against the jurisdiction, and Judge Betts discharged the case, delivered the property to the owners upon security given, and left the salvors to pursue their remedy in the Eng- lish courts. One Hundred and Ninety-four Shawls, 1 Abbott Adm. 317. So in a question of ownership of a foreign vessel, agitated between the subjects of the nation to which the vessel belonged, the English Admiralty, upon objection being made to its jurisdiction, refused to interfere, the consul of such foreign nation having declined to give his consent to the proceedings. The Agincourt, 2 Prob. Div. 239. But in another case, where there had been an adjudication of the ownership under a mortgage in the foreign country, and the consul of that country requested the English court to take jurisdiction of the case upon a libel filed by the mortgagee, whom the owners had dispossessed, the court took jurisdiction accordingl}'. The Evangelistria, 2 Prob. Div. 241, note. But, although the courts will use a discretion about assuming juris- diction of controversies between foreigners in cases arising beyond the I territorial jurisdiction of the country' to which the courts belong, yet where such controversies are communis juris ^ that is, where the}- arise under the common law of nations, special grounds should appear to induce the court to den}' its aid to a foreign suitor when it has jurisdic- tion of the ship or party charged. The existence of jurisdiction in all. . such cases is beyond dispute ; the onl}' question will be, whether it is \ | expedient to exercise it. See 2 Parsons Ship, and Adm. 226, and cases 20 ^^ t>v^ 306 THE BELGENLAND. [CHAP. IIL cited in notes. In the case of The Jerusalem, 2 Gall. 191, decided by Mr. Justice Story, jurisdiction was exercised in the case of a bottomrj' bond, although the contract was made between subjects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lieu on the ship, an Admiralty Court can take jurisdiction on Ithe principle of the civil law, that in proceedings in rem the proper I forum is the locus rei sitce. He added: "With reference, therefore, to what ma}- be deemed the public law of Europe, a proceeding 17% rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authorit}' clashes with any principles of public policy." That, as we have seen, was a case of bottomry, and Justice Story, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: "In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in almost all civiHzed countries these are in general substantially governed bj- the same rules." Justice Story's decision in this case was referred to b}' Dr. Lushing- ton with strong approbation in tlie case of The Golubchick, 1 W. Rob. 143, decided in 1840, and was adopted as authority for his taking juris- diction in that case. In 1839, a case of collision on the high seas between two foreign ships of different countries (the very case now under consideration) came be- fore tlie English Admiralty. The Johaun Friederich, 1 W. Rob. 35. A Danish ship was sunk by a Bremen shi p, and on the latter being libelled, the respondents entered a protest agamst the jurisdiction of the court. But jurisdiction was retained by Dr. Lushington, who, amongst other things, remarked: "An' alien friend is entitled to sue [in our courts} jon tlie same footing a& a3ritish_bprn subject^jind if the foreigner in this case had Jaeen resident heiiei and the cause of action had originated infra corpus comitatus, no objection could have been taken." Refer- ence being made to the observations of Lord Stowell in cases of sea- men's wages, the judge said : "All questions of collision are questions com munis J ur is / but in case of mariners' wages, whoever engages vol- untarily to serve on board a foreign ship, necessarily undertakes to be bound b}' the law of the country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most im- portant distinctions, therefore, respecting cases where both parties are foreigners \s^ whether the csLse he communis Juris or not. . . . If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost, for she might never return, and, if she did, there is no part of the world to which they misht not be sent for their redress." In the subsequent case of The Griefswald, 1 Swaboy, 430, decided by the same judge in 1859, which arose out of a collision between a 8ECT. I.] THE BELGENLAND. 307 British barque and a Persian ship in the Dardanelles, Dr. Lushington said: "In cases of collision, it has been the practice of this country, and, so far as I know, of the European States and of the United States of America, to allow a part}' alleging gricA'ance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, IS most conducive to justice, because in very many cases a remedy in personam would be impracticable." The subject has frequently been before our own Admiralty Courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that the}' will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice Blatchford, while district judge of the Southern District of New York, The Jupiter, 1 Ben. 536, and The Steamship Russia, 3 Ben. 471. In the former case the law was taken veryTnuch for granted ; in the latter it was tersely and accuratelj* ex- pounded, with a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The general doctrine on the subject is recognized in the case of The Maggie Ham- mond, 9 Wall. 435, 457, and is accurately stated by Chief Justice Tane}' in his dissenting opinion in Taylor v. Carry], 20 How,^583, 611. As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, it is necessar\- to inquire how far an appellate court should undertake to review its action. We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII., 8 Prob. Div. 121, the subject was discussed in the Court of Appeal. That was the case of a Spanish vessel libelled for the wages of certain British seamen,who had shipped on board of her, and the Spanish consul at Liverpool pro- tested against the jurisdiction of the Admiralty Court on the ground that the shipping articles were a SjDanish contract, to be governed by Spanish law, and any controvers}" arising thereon could onh' be settled before a Spanish court, or consul. Sir Robert Phillimore held that the seamen were to be regarded for that case as Spanish subjects, and, under the circumstances, he considered the protest a proper one and dismissed the suit. The Court of Appeal held that the judge below was right in regarding the libellants as Spanish subjects ;-and on the ques- tion of reviewing his exercise of discretion in refusing to take jurisdiction of the case, Brett, M. R., said : "It is then said that the learned judge lias exercised his discretion wrongly. What then is the rule as regards this point in the Court of Appeal ? The plaintitTs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutel}' differently from the view which the Court of Appeal holds, that they are justified in saying he has exercised it wrongly. I cannot see that any wrong principle has been acted on hy the learned judge, or anything done in the exercise of his discretion so unjust or unfair as to entitle us to overrule his discretion." 308 ARNDT V. GRIGGS. [CHAP. III. This seems to us to be a very sound view of the subject ; and acting on this principle, we certainly see nothing in the course taken by tlie District Court in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. iNeither party has any peculiar claim to be judged by the municipal law , of his own countr}', since the case is pre-eminently one communis juris, and can generally' be more impartially and satisfactorily adjudicated hy the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge Dead\' very justly said, in a case before him in the district of Oregon : "The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jtts gentium is any court of admiralty within the reach of whose process they ma}' both be found." Bernhard v. Greene, 3 Sawyer, 230, 235. ARNDT V. GRIGGS. Supreme Coukt of the United States. 1890. [Reported \Z4c United States, S\&.'] Brewer, J, The statutes of Nebraska contain these sections : Sec. 57, chap, 73, Compiled Statutes 1885, p. 483 : " An action ma}' be brought and prosecuted to final decree, judgment, or order, by any person or per- sons, whether in actual possession or not, claiming title to real estate, against any person or persons, who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate." Sec. 58: "All such pleadings and proofs and subsequent proceedings shall be had in such action now pending or hereafter brought, as may be necessary to fully settle or determine the question of title between the parties to said real estate, and to decree the title to the same, or any part thereof, to the party entitled thereto ; and the court may issue the appropriate order to carry such decree, judgment, or order into effect." Sec. 77, Code of Civil Procedure, Compiled Statutes 1885, p. 637 : " Service may be made by publication in either of the following cases : " Fourth. In actions which relate to, or the subject of which is, real or personal pro[)erty in this State, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, and such defendant is a nbn-resident of the State or a foreign corporation. Sec. 78 of the Code: "Before service can be made by publicationj SECT. I.] ARNDT V. GRIGGS. 309 an affidavit must be filed tliat service of a summons cannot be mada within tliis State, on tlie defendant or defendants, to be served b}- i>ub4 lication, and that the case is one of those mentioned in the preceding section. When such affidavit is filed the part}' may proceed to make service by publication." Sec. 82 of tlie Code ; " A party against whom a judgment or decree has been rendered without other service tlian by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened and be let ia to defend ; . . . but the title to any property, the subject of the judg- ment or order sought to be opened, which by it, or in consequence of it, shall have passed to a purchaser in good faith, shall not be affected by any proceedings under this section, nor shall they aflfect the title to any property sold before judgment under an attachment." Sec. 429 5, of the Code : '' When any judgment or decree shall be rendered for a conveyance, release, or acquittance, in any court of this State, and the •''^ party or parties against wliom the judgment or decree shall be rendered -IPt.^ do not comply therewith within the time mentioned in said judgment ^ y *'^ or decree, such judgment or decree shall have the same operation and "^ '^ ^^^^Tj^ effect, and be as available, as if the conveyance, release, or acquittancCi' ^^ /y ^^ had been executed conformable to such judgment or decree." "" '^^ -i . Under these sections, in March, 1882, Charles L. Flint filed his peti- r lJ^ tion in the proper court against Michael Hurley and another, alleging fh^'*^^ \ji)^ that he was the owner and in possession of the tracts of land in con- "a - f'-^iioj/t troversy in this suit ; that he held title thereto by virtue of certain tax \ ^^^iU/'iA>'^ his title. The defendants were brought in by publication, a decree was i^ i a i ^' entered in favor of Flint quieting liis title, and it is conceded that all (Xs-P^ the proceedings were in full conformity with the statutory provisions n V- . J^ ^ above quoted. ^ ** The present suit is one in ejectment, between grantees of the respec- tive parties to the foregoing proceedings to quiet title ; and the ques- tion before us, arising upon a certificate of division of opinion between the trial judges, is whether the decree in such proceedings to quiet title, rendered in accordance with the provisions of the Nebraska statute, upon service duly authorized by them, was valid and operated to quiet the title in the plaintiff therein. In other words, has a State tlie power to provide by statute that the title to real estate within its limit s \(jL. v^^t^ shall be settled and determined by a suit in which the defendant, bein g _ a non-resident, is brought into court only by publication ? '^He'Supreme^ Court of Nebraska has answered this question in the affirmative. Watson V. Ulbrich, 18 Neb. 189 — in which the court says : " The principal question to be determined is whether or not the decree ia \ a 310 ARNDT V. GRIGGS. [CHAP. III. favor of Grdy, rendered upon constructive service, is valid until set aside. No objection is made to the service, or an}' proceedings con- nected with it. The real estate in controversy was within the jurisdic- tion of the District Court, and that court had authority, in a proper case, to render the decree confirming the title of Gray. In Castriquo V. Imrie, L. R. 4 H. L. 414, 429, Mr. Justice Blackburn sa3's: ' 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 jurisdiction to decide as to the disposition of the thing, and the court has acted within its jurisdiction. If these conditions are fulfilled, the adjudication is conclusive against all the world.' The court, therefore, in this case, having authority to render the decree, and jurisdiction of the subject-matter, its decree is conclusive upon the property until vacated under the statutes or set aside." Section 57, enlarging as it does the class of cases in which relief was formerly afforded by a court of equity in quieting the title to real property, has been sustained by this court, and held applicable to suits in the Federal court. Holland v. Challen, 110 U. S. 15. But it is ear- nestly contended, that no decree in such a case, rendered on service by publication onl}', is valid or can be recognized in the Federal courts. And Hart v. Sansom, 110 U. S. 151, is relied on as authori ty for this ""proposition. The propositions are,Cthat an action to quiet title is a _ suit in equity Mhat equity acts upon the person ifand that the person is^^ brought mto court by/service by publication alone.^ ~~~" While these propositions are doubtless correct as statements of the general rules respecting bills to quiet title, and proceedings in courts of equity, they are not applicable or controlling here. The question is not what a court of equity, In- virtue of its general powers and in the absence of a statute, might do, but it is, what jurisdiction has a State over titles to real estate within its limits, and what jurisdiction may it " give by statute to its own courts, to determine the \^dity and extent •^jaLthe claims of non-residents to such real estate ? If a State has no power to bring a non-resident into its courts for any purposes by pub- lication, it is impotent to perfect the titles of real estate within its limits held by its own citizens ; and a cloud cast upon such title by a claim of a non-resident will remain for all time a cloud, unless such non-resident shall voluntarily come into its courts for the purpose of having it adju- dicated. But no such imperfections attend the sovereigntj* of the State. It has control over property within its limits ; and the condition of ownership of real estate therein, whetlier the owner be stranger or citi- zen, is subjection to its rules concerning the holding, the transfer, lia- bility to obligations, private or public, and the modes of establishing titles thereto. It cannot bring the person of a non-resident within its limits — its process goes not out beyond its borders — but it may deter- mine the extent of his title to real estate within its limits ; and for the SECT. I.] ARNDT V. GRIGGS. 311 purpose of such determination ma}* provide any reasonable methods of imparting notice. The well-being of evwy community requires that the title of real estate therein shall be secure, and that there be convenient and certain methods of determining any unsettled questions respecting it. The duty of accomplishing this is local in its nature ; it is not a matter of national concern or vested in the general government ; it remains with the State ; and as this duty is one of the Slate, the manner of discharg- ing it must be determined by the State, and no proceeding which it provides can be declared invalid, unless in conflict with some special inhibitions of the Constitution, or against natural justice. So it has been held repeatedly that the procedure established by the State, in this respect, is binding upon the Federal courts. In United States v. Fox, 94 U. S. 315, 320, it was said : " The power of the State to regu- late the tenure of real property within her limits, and the modes of its acquisition and transfer, and the rules of its descent, and the extent to which a testamentary disposition of it may be exercised b}- its owners is undoubted. It is an established principle of law, everywhere recog- nized, arising from the necessity of the case, that the disposition of immovable property, whether by deed, descent, or any other mode, is exclusively subject to the government within whose jurisdiction the property is situated." See also McCormick v. SuUivant, 10 Wheat. 192, 202 ; Beauregard v. New Orleans, 18 How. 497; Suydara v. Wil- liamson, 24 How. 427 ; Christian Union v. Yount, 101 U. S. 352 ; Lathrop v. Bank, 8 Dana, 114. Passing to an examination of the decisions on the precise question it may safel}' be affirmed that the general, if not the uniform, ruling of State courts has been in favor of the power of the State to thus quiet the title to real estate within its limits. In addition to the case from Nebraska, heretofore cited, and which only followed prior rulings in that State, — Scudder v. Sargent, 15 Neb. 102; Keene v. Sallen- bach, 15 Neb. 200 — reference may be had to a few cases. In Cloyd V. Trotter, 118 111. 391, the Supreme Court of IlHnois held that under the statutes of that State the court could acquire jurisdiction to quiet title by constructive service against non-resident defendants. A sTftSilafruIing as to jurisdiction acquired in a suit to set aside "a coTP" veyance as fraudulent as to creditors was affirmed in Adams v. Cowles, 95 Mo. 50U_ la Wunstel v. Landry, 39 La. Ann. 312, it was held That a non-resident party could be brought into an action of partition by constructive service. In Essig v. Lower, 21 Northeastern Rep. 1090, the Supreme Court of Indiana thus expressed its views on the question : "It is also argued that the decree in the action to quiet title, set forth in the special finding, is .in per& nnam an4- not in retji^ and that the court had no power to render such decree on publication. While it may be true that such decree_is not in rem, strictly speak ing, yet it must be conceded that it fixed and settled the title to the land then in controversy, and to that extent partakes of the nature of a judg- ment in rem. But we do not deem it necessary to a decision of this case 312 ARNDT V. GKIGGS. [CHAP. III. to determine whether the decree is in personam or in rem. The action was to quiet the title to the land then involved, and to remove there- from certain apparent liens. Section 318, Rev. Stat. 1881, expressly authorizes the rendition of such a decree on publication." This was since the decision in Hart v. Sansom, as was also the case of Dillen v. Heller, 39 Kansas, 599, in which Mr. Justice Valentine, for the court, says : ' ' For the present we shall assume that the statutes authorizing service of summons b}- publication were strictly complied with in the present case, and then the only question to be considered is whether the statutes themselves are valid. Or, in other words, we think the question is this : Has the State an}- power, through the legislature and the courts, or by any other means or instrumentalities, to dispose of or control property in the State belonging to non-resident owners out of the State, where such non-resident owners will not voluntarily sur- render jurisdiction of their persons to the State or to the courts of the State, and where the most urgent public policy and justice require that the State and its courts should assume jurisdiction over such property? Power of this kind has already been exercised, not only in Kansas, but in all the other States. Lands of non-resident owners, as well as of resident owners, are taxed and sold for taxes; and the owners thereby may totally be deprived of such lands, although no notice is ever given to such owners, except a notice by publication, or some other notice of no greater value, force, or efficacy. Beebe v. Doster, 36 Kansas, 66Q, 675, 677 ; s. c. 14 Pac. Rep. 150. Mortgage liens, mechanics' liens, material-men's liens, and other liens are foreclosed against non-resi- dent defendants upon service by publication only. Lands of non-resi- dent defendants are attached and sold to pay their debts ; and, indeed, almost any kind of action may be instituted and maintained against non-residents to the extent of any interest in property the}* may have in Kansas, and the jurisdiction to hear and determine in this kind of cases may be obtained wholly and entirely by publication. Gillespie V. Thomas, 23 Kansas, 138 ; Walkenhorst v. Lewis, 24 Kansas, 420 ; Rowe V. Palmer, 29 Kansas, 337; Venable v. Dutch, 37 Kansas, 515, 519. All the States by proper statutes authorize actions against non- residents, and service of summons therein by publication onlj', or ser- vice in some other form no better; and, in the nature of things, such must be done in ever}' jurisdiction, in order that full and complete justice may be done where some of the parties are non-residents. We think a sovereign State has the power to do just such a thing. . All things within the territorial boundaries of a sovereignty are within its jurisdiction; and, generall)*, within its own boundaries a sovereignty is supreme. Kansas is supreme, except so far as its power and author- ity are limited by the Constitution and laws of the United States ; and within the Constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons and things within the State which the constitution and laws of Kansas may give to them ; and the mode of obtaining this jurisdiction may be prescribed wholh', SECT. I.] ARNDT V. GEIGGS. 81 .'3 entirely, and exclusively by the statutes of Kansas. To obtain juris- diction of everything witliin the State of Kansas, the statutes of Kan- sas may make service by publication as good as any other kind of service.*' Turning now to the decisions of this court: In Boswell's Lessee v. Otis, 9 How. 336, 348, was presented a case of a bill for a specific performance and an accounting, and in which was a decree for specific performance and accounting ; and an adjudication that the amount due on such accounting should operate as a judgment at law. Service was had by publication, the defendants being non-residents. The validity of a sale under such judgment was in question ; the court held that portion of the decree, and the sale made under it, void ; but with refer- ence to jurisdiction in a case for specific performance alone, made these observations: "Jurisdiction is acquired in one of two modes : first, as against the person of the defendant, by the service of i)rocess ; or, secondly', by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case the defendant is not personally bound by the judgment, beyond the property in question. And it is immaterial whether the proceeding against the property be by an attachment or bill in chancery. It must be substantially a pro- ceeding in rem. A bill for the specific execution of a contract to con- vey real estate is not strictly a proceeding in rem., in ordinary cases ; but where such a procedure is authorized by statute, on publication, without personal service or process, it is substantially of that character." In the case of Parker v. Overman, 18 How. 187, 140, the question was presented under an Arkansas statute, a statute authorizing service by publication. While the decision on the merits was adverse, the court thus states the statute, the case and the law applicable to the proceedings un- der it : "It had its origin in the State court of Dallas County, Arkansas, sitting in chancery. It is a proceeding under a statute of Arkansas, pre- scribing a special remedy for the confirmation of sales of land by a sheriff or other public officer. Its object is to quiet the title. The purchaser at such sales is authorized to institute proceedings by a public notice in some newspaper, describing the land, stating the authority under which it was sold, and ' calling on all persons who can set up any right to the lands so purchased, in consequence of any informality, or any irregu- larity or illegality connected with the sale, to show cause why the sale so made should not be confirmed.' In case no one appears to contest the regularity of the sale, the court is required to confirm it, on finding certain facts to exist. But if opposition be made, and it should ap- pear that the sale was made ' contrary to law,' it became the duty of the court to annul it. The judgment or decree, in favor of the grantee in the deed, operates ' as a complete bar against any and all persons who may thereafter claim such land, in consequence of any informality or illegality in the proceedings.' It is a very great evil in any com- munity to have titles to land insecure and uncertain ; and especially in new States, where its result is to retard the settlement and improve- Q 14 ARNDT V. GRIGGS. [cHAP. III. ment of their vacant lands. Where such lands have been sold for taxes there is a cloud on the title of both claimants, which deters the settler from purchasing from either. A prudent man will not purchase a lawsuit, or risk the loss of his money and labor upon a litigious title. The act now under consideration was intended to remedy this evil. It is in substance a bill of peace. The jurisdiction of the court over the controvers}" is founded on the presence of the property ; and, like a proceeding iti rem, it becomes conclusive against the absent claimant, as well as the present contestant. As was said by the court in Clark V. Smith, 13 Pet. 195, 203, with regard to a similar law of Kentucky: * A State has an undoubted power to regulate and protect individual rights to her soil, and declare what shall form a cloud over titles ; and, having so declared, the courts of the United States, by removing such clouds, are onl}' applying an old practice to a new equity created by the legislature, having its origin in the peculiar condition of the countr}'. The State legislatures have no authority to prescribe forms and modes of proceeding to the courts of the United States ; yet having created a right, and at the same time prescribed the remedy to enforce it, if the remedy* prescribed be substantially consistent with the ordinary modes of proceeding on the chancery side of the Federal courts, no reason exists why it should not be pursued in the same form as in the State court.' In the case before us the proceeding, though special in its form, is in its nature but the application of a well known chancery remedy ; it acts upon the land, and may be conclusive as to the title of a citizen of another State." In the case of Pennoyer v. Neff, 95 U. S. 714, 727, 734, in which the question of jurisdiction in cases of service b}' publication was con- sidered at length, the court, by Mr. Justice Field, thus stated the law : " Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some inter- est therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a public purpose. In other words, such service may answer in all actions which are substantially proceed- ings i?i rem. ... It is true that, in a strict sense, a proceeding m rem is one taken directly against property, and has for its object the dis- position of the property, witliout reference to the title of individual claimants; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced by attachment against the property of rlebtors, or instituted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings in rem in the liroader sense which we have mentioned." These cases were all before the decision of Hart v. Sansom. Passing to a case later than that, Iluling v. Kaw Valley Railway, SECT. I.] ARXDT V. GRIGGS. 315 130 U. S. 559, 563, it was held that, in proceedings commenced under a statute for the condemnation of lands for railroad purposes, publica- tion was sufficient notice to a non-resident. In the opinion, Mr. Jus- tice Miller, speaking for the court, says: '-Of course, the statute goe« upon the presumption that, since all the parties cannot be served per- sonally witii such notice, the publication, which is designed to meet the eyes of everybody, is to stand for such notice. The publication itself is sufficient if it had been in the form of a personal service upon the party himself within the county. Nor have we any doubt that this form of warning owners of property to appear and defend their interests, where it is subject to demands for public use when authorized by statute, is sufficient to subject the property to the action of the tribunals ap- pointed by proper authority to determine those matters. The owner of real estate, who is a non-resident of the State within which the property lies, cannot evade the duties and obligations, which the law imposes upon him in regard to such property, by his absence from the State. Be- cause he cannot be reached by some process of the courts of the State, which, of course, have no efficacy beyond their own borders, he cannot, therefore, hold his property exempt from the liabilities, duties, and obli- gations which the State has a right to impose upon such property ; and in such cases, some substituted form of notice has always been held to be a sufficient warning to the owner, of the proceedings which are being taken under the authorit}" of the State to subject his property to those demands and obligations. Otherwise the burdens of taxation and the liability of such property to be taken under the power of eminent domain, would be useless in regard to a verj' large amount of property in every State of the Union." In this connection, it is well to bear in mind, that by the statutes of the United States, in proceedings to enforce any legal or equitable lien, or to remove a cloud upon the title of real estate, non-resident holders of real estate may be brought in by publication, 18 Stat. 472; and the validitj of this statute, and the jurisdiction conferred by publication, has been sustained by this court. Mellen v. Moline Iron Works, 131 U. S. 352. These various decisions of this court establish that, in its judgment, a State has power by statute to provide for the adjudication of titles to veal estate within its limits as against non-residents who are brought into court only by publication ; and that is all that is necessary to sus- tain the validity of the decree in question in this case. Nothing inconsistent with this doctrine was decided in Hart v. San- som, supra. The question there was as to the effect of a judgment. That judgment was rendered upon a petition in ejectment against one Wilkerson. Besides the allegations in the petition to sustain the eject- ment against Wilkerson, were allegations that other defendants named had executed deeds, which were described, which were clouds upon plaintilfs' title ; and in addition an allegation that the defendant Hart set up some pretended claim of title to the land. This was the only averment connecting him with the controversy. Publication was made 316 ARNDT V. GRIGGS. [CHAP. III. against some of the defendants, Hart being among the number. There was no appearance, but judgment upon default. That judgment was, that the plaintiffs recover of the defendants the premises described ; " that the several deeds in plaintiffs' petition mentioned be, and the same are, hereby annulled and cancelled, and for naught held, and that the cloud be thereby removed ; " and for costs, and that execution issue therefor. This was the whole extent of the judgment and decree. Obviously in all this there was no adjudication affecting Hart. As there was no allegation that he was in possession, the judgment for possession did not disturb him ; and the decree for cancellation of the deeds referred specifically to the deeds mentioned in the petition, and there was no allegation in the petition tliat Hart had anything to do with those deeds. There was no general language in the decree quieting the title as against all the defendants ; so there was nothing which could be construed as working any adjudication against Hart as to his claim and title to the land. He might apparently be affected by the judg- ment for costs, but they had no effect upon the title. So the court held, for it said : " It is difficult to see how any part of that judgment (except for costs) is applicable to Hart ; for that part which is for recover}' of possession certainly cannot apply to Hart, who was not in possession ; and that part which removes the cloud upon the plaintiffs' title appears to be limited to the cloud created by the deeds mentioned in the petition, and the petition does not allege, and the verdict nega- tives, that Hart held any deed." An additional ground assigned for the decision was that if there was any judgment (except for costs) against Hart, it was, upon the most liberal construction, onl}' a decree removing the cloud created by his pretended claim of title, and therefore, according to the ordinary and undisputed rule in equity, was not a judgment in rem^ establishing against him a title in the land. But the power of the State, b^- appro- priate legislation, to give a greater effect to such a decree was dis- tinctly recognized, both by the insertion of the words " unless otherwise expressly provided by statute," and by adding: " It would doubtless be within the power of the State in which the land lies to provide by statute that if the defendant is not found within the jurisdiction, or refuses to make or to cancel a deed, this should be done in his behalf by a trustee appointed by the court for that purpose." And of course it follows that if a State has power to bring in a non-resident by publica- tion for the purpose of appointing a trustee, it can, in like manner, bring him in and subject him to a direct decree. There was presented no statute of the State of Texas providing directly for quieting the title of lands within the State, as against non-residents, brought in only by service by publication, such as we have in the case at bar, and the only statute cited by counsel or referred to in the opinion was a mere general provision for bringing in non-resident defendants in any case by publication ; and it was not the intention of the court to overthrow that scries of earlier authorities heretofore referred to, which affirm the SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 317 power of the State, b}' suitable statutor}' proceedings, to determine the titles to real estate within its limits, as against a non-resident defend- ant> notified only b^- publication. It follows, from these considerations, that the first question presented in the certificate of division, the one heretofore stated, and which is decisive of this case, must be answered in the affirmative.^ TYLER V. JUDGES OF THE COURT OF REGISTRATION. Supreme Judicial Court of Massachusetts. 1900 [Reported 175 Massachusetts, 71.] Holmes, C.J. This is a petition for a w rit of prohibition against the judges of the Court of Registration, established by St. 1898, c. 562, and is brough t to prev ent their proceeding upon an applica- ti on concerning land in w lncb the petitioner claims an interest. The ground of the petition is that the act estahlisliing the court is uncon- stitutional. Two reasons are urged against the act, both of which are thought to go to the root of the statute, and to make action under it impossible. The first and most important is, that the original registra- tion deprives all persons except the registered owner of any interjast in the land, without due process of law. There is no dispute that the object of the sj-stem, expressed in sect. 38, is, that the decree of regis- tration " shall bind the land and quiet the title thereto," and "shall be conclusive upon and against all persons," whether named in the pro- ceedings or not, subject to few and immaterial exceptions ; and, this being admitted, it is objected that there is no sufficient process against, or notice to, persons having adverse claims, in a proceeding intended to bar their possible rights. The application for registration is to be in writing, and signed and sworn to. It is to contain an accurate description of the land, to set forth clearh' other outstanding estates or interests known to the peti- tioner, to identif}' the deetl by which he obtained title, to state the name and address of the occupant, if there is one, and also to give the names and addresses, so far as known, of the occupants of all lands adjoining (sect. 21). As soon as it is filed, a memorandum containing a copy of the description of the land concerned is to be filed in the registry of deeds (sect. 20). The case is immediately referred to an examiner appointed by the judge (sect. 12), who makes as full an in- vestigation as he can, and reports to the court (sect. 29). If, in the opinion of the examiner, the applicant has a good title, as alleged, or if the applicant, after an adverse opinion, elects to proceed further, the 1 Ace. McLaughlin v. McCroiy, 55 Ark. 442, 18 S. W. 762 ; Loaiza v. Superior Court, 85 Cal. 11, 24 Pac. 707 ; Felch v. Hooper, 119 Mass. 52 ; Short v. Caldwell, 155 Mass. 57, 28 N. E. 1124. — Ed. 318 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CHAP. III. recorder is to publish a notice, by order of the court, in some news- paper published in the district where any portion of the laud lies. This notice is to be addressed, by name, to all persons knowa^io haxfi an lidvcrse interest, and to the adjoiinng owners and occupajitSi^sofar as known, and to all wliom it may concern. It is to contain a description of the land, the name^of the applicant, and the time and place of the hearing (sect. 31). A copy is to b e mailed Jj^ p.very pei-son nained_in_the_ notice whos e address is known, and a duly attest ed co]>y [ s tu be posted in a conspicuous place 'on each parcel of land inclu ded in the applica- tion, by a sheriff or deput y sheriff,. fourteen days at least before the return day. Further notice may be ordered bj- the court (sect. 32). It will be seen that the notice is required to name all persons known to have an adverse interest, and this, of course, includes any adverse claim, whether admitted or denied, that may have been discovered by the examiner, or in any wa3' found to exist. Taking this into account, we should construe the requirement in sect. 21, concerning the appli- cation, as calling upon the applicant to mention, not merely outstanding interests which he admits, but equall}- all claims of interest set up, although denied by him. We mention this here to dispose of an ob- jection of detail urged b}' the petitioner, and we pass to the general objection that, however construed, the mode of notice does not satisfy the constitution, either as to persons residing within the State upon whom it is not served, or as to persons residing out of the State and not named. If it does not satisfy the constitution, a judicial proceeding to clear titles against all the world hardly is possible; for the very meaning of such a proceeding is to get rid of unknown as well as known claims, — indeed, certainty against the unknown may be said to be its chief end ; and unknown claims cannot be dealt with by personal service upon the claimant. It seems to have been the impression of the Supreme Court of Ohio, in the case most relied upon by the petitioner, that such a judicial proceeding is impossible in this country. State v. Guilbert, 56 Ohio St. 575, G29, 47 N. E. 551. But we cannot bring ourselves to doubt that the constitutions of the United States and of Massachu- setts at least permit it as fully as did the common law. Prescription or a statute of limitations may give a title good against the world, and destroy all manner of outstanding claims, without any notice or judicial proceeding at all. Time, and the chance which it gives the owner to find out that he is in danger of losing rights, are due process of law in that case. Wheeler v. Jackson, 137 U. S. 245, 258. The same result used to follow upon proceedings which, looked at apart from history, may be regarded as standing half-waj? between statutes of limitations and true judgments in rem, and which took much less trouble about giving notice than the statute before us. We refer to the effect of a judgment on a writ of right after the mise joined and the lapse of a year and a da}' (Booth, Real Act. 101, in margin ; Fitzh. Abr. " Con- tinual Claim," pi. 7 ; Faux Recovere, pi. 1 ; Y. B. 5 Edw. III. 51, SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 319 pi. 60) ; and of a fine, with proclamations after the same time ; or by a later statute after five years (2 Bl. Coram. 354; 2 Inst. 510, 518; St. 18 Edw. I., "Modus Levandi Fines;" St. 34 Edw. III. c. 16; St. 4 Hen.VII. c. 24 ; St. 32 Hen. VIII. c. 36). It would have astonished John Adams to be told that the framers of our constitution had put an end to the possibility of these ancient institutions. A somewhat similar statutory contrivance of modern days has been held good. Turner v. People, 168 U. S. 90. Finally, as was pointed out by the counsel for the petitioners, a proceeding m rem, in the proper sense of the words, might give a clear title without other notice than a seizure of the res and an exhibition of the warrant to those in charge. 2 Browne, Civil Law, 398. The general requirement of advertisement in admiralty cases is said to be due to rules of coui't. U. S. Adm. Rule 9 ; Betts, Adm. (1838) 33, 34, App. 14. The prohibition in the Fourteenth Amendment against a State de- priving any person of his property without due process of law, and that in the twelfth article of the Massachusetts Bill of Rights, refer to some- what vaguely determined criteria of justification, which may be found in ancient practice (Murray's Lessee v. Improvement Co., 18 How. 272, 277) ; or which may be found in convenience and substantial jus- tice, although the form is new. (Hurtado v. California, 110 U. S. 516, 528, 531 ; Holden v. Hardy, 169 U. S. 366, 388, 389.) The prohibi- tions must be taken largely with a regard to substance rather than to form, or they are likely to do more harm than good. It is not enough to show a procedure to be unconstitutional to say that we never have heard of it before. Hurtado v. CaUforuia, 110 U. S. 516, 537. Looked at either from the point of view of history or of the necessary require- ments of justice, a proceeding in rem, dealing with a tangible res, ma}' be instituted and carried to judgment without personal service upon claimants within the State, or notice by name to those outside of it, and not encounter an^- provision of either constitution. Jurisdiction is secured by the power of the court over the res. As we have said, such a proceeding would be impossible were this not so ; for it hardly would do to make a distinction between the constitutional rights of claimants who were known and those who were not known to the plaintiff, when the proceeding is to bar all. Pennoyer v. Neff, 95 U. S. 714, 727 ; "The Mary," 9 Cranch, 126, 144; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030; Brown v. Board, 50 Miss. 468, 481, 2 Freem. Judgm. (4th ed.) §§ 606, 611. In Hamilton v. Brown, 161 U. S. 256, a judgment of escheat was held conclusive upon persons notified only b}- advertisement, to all persons interested. It is true that the statute under consideration required the petition to name all known claimants, and personal service to be made on those so named. But that did the plaintiffs no good, as they were not named. So,_a decree allowing or disallowing a will binds everybody, although the only notice of the proceedings given be a general notice to all persons interested. And in this case, as in that of escheat just cited, the con UmM (flJ 320 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CIIAP. III. elusive effect of the decree is not put upon the ground that the State has an absolute power to determine the persons to whom a man's [)rop- erty shall go at his death, but upon the characteristics of a proceed- ing m rem. Bonnemort v. Gill, 167 Mass. 338, 340, 45 N. E. 768. See 161 U. S. 263, 274. Admiralty proceedings need only to be mentioned in this connection, and further citation of cases seems unnecessar}'. Speaking for myself, I see no reason why what we have said as to proceedings in rem in general should not apply to such proceedings concerning land. In Arndt v. Griggs, 134 U. S. 316, 327, it is said to be estabUshed that " a State has power, by statute, to provide for tlie adjudication of titles to real estate within its limits as against non- residents who are brought into court only by publication." In Hamil- ton V. Brown, 161 U. S. 256, 274, it was declared to be within the power of a State "to provide for determining and quieting the title to real estate within tlie limits of the State, and within the jurisdiction of the court, after actual notice to all known claimants, and notice by pubhcation to all other persons." I doubt whether the court will not take the further step when necessary, and declare the power of the States to do the same thing after notice by publication alone. See Huling V. Improvement Co., 130 U. S. 559, 564 ; Parker v. Overman, 18 How. 137, 140, 141. But in the present case provision is made for notice to all known claimants by the recorder, who is to mail a copy of the published notice to every person named therein whose address is known (sect. 32). We shall state in a moment one reason for thinking this form of notice constitutional. See, further, Cook v. Allen, 2 Mass. 462, 469, 470 ; Dascomb v. Davis, 5 Met. 335, 340 ; Brock v. Railroad Co., 146 Mass. 194, 195, 15 N. E. 555. But it is said that this is not a proceeding in rer)%. It is certain tliat no phrase has been more misused. In the past it has had little more Qj\A significance than that the right alleged to have been violated. was a ' right in rem,. Austin thinks it necessary to quote Leibnitz for the sufficiently obvious remark that every right to restitution is a right in personam. So as to actions. If the technical object of the suit is to establish a claim against some particular person, with a judgment which generally, in theory at least, binds his body, or to bar some individual claim or objection, so that only certain persons are entitled to be heard in defence, the action is in personam, although it may concern the \» right to, or possession of, a tangible thing. Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. If, on the other hand, the object is to bar indifferently all who might be minded to make an objec- tion of any sort against the right sought to be established, and if any one in the world has a right to be heard on the strength of alleging facts which, if true, show an inconsistent interest, the proceeding is in rem. 2 Freem. Judgm. (4th ed.) § 606, ad fin. All proceedings, like all rights, are really against persons. Whether they are proceed- ings or rights in rem depends on the number of persons affected. SECT. I.] TYLER V. JUDGES OF THE COURT OF REGISTRATION. 321 Hence the res need not be personified, and made a party defendant, as happens with tlie ship in the admiralt}'. It need not even be a tangible thing at all, as sufficientk appears b}- the ease of the probate of wills. Personification and naming the res as defendant are mere symbols, not the essential matter. They are fictions, conveniently expressing the nature of the process and the result, nothing more. It is true, as an historical fact, that these symbols are used in admi- ralty proceedings ; and also, again, merely as an historical fact, that proceedings in rem have been confined to cases where certain classes of claims, although of very divers sorts, for indemnification for injury, for wages, for salvage, etc., are to be asserted. But a ship is not a person. It cannot do a wrong or make a contract. To say that a ship has com- mitted a tort is merely a shorthand way of saying that you have decided to deal with it as if it had committed one, because some man has com- mitted one in fact. There is no a p7'iori reason why any other claim should not be enforced in the same way. If a claim for a wrong com- mitted b}' a master may be enforced against all interests in the vessel, there is no juridical objection to a claim of title being enforced in the same way. The fact that it is not so enforced under existing practice affords no test of the powers of the legislature. The contrary view would indicate that you really believed the fiction that a vessel had an independent personality as a fact behind the law. Furthermore, naming the res as defendant, although a convenient wa}- of indicating that the proceeding is against property alone, — that is to sa}-, that it is not to establish an infinite personal liability, — is not of the essence. If, in fact, the proceeding is of that sort, and is to bar all the w^orld, it // is a proceeding in rem. So, as to seizure of the res. It is convenient in the case of a vessel, in order to secure its being on hand to abide judgment, although in the case of a suit against a man jurisdiction is regarded as established by service, without the need of keeping him in prison to await judgment. It is enough that the personal service shows that he could have been seized and imprisoned. Seizure, to be sure, is said to be notice to the owner. Scott v. Shearman, 2 W. Bl. 977, 979 ; Mankin v. Chandler, 2 Brock. 125, 127, Fed. Cas. No. 9030. But fastening the process or a cop3' to the mast would seem not necessarily to depend for its effect upon the continued custody of the vessel by the marshal. However this may be, when we come to deal with immovables, there would be no sense whatever in declaring seizure to be a constitutional condition of the power of the legislature to make a proceeding in rem. Hamilton v. Brown, 161 U. S. 256, 274. The land cannot escape from the jurisdic- tion, and, except as security against escape, seizure is a mere form of no especial sanctity, and of much possible inconvenience. I do not wish to ignore the fact that seizure, when it means real dispossession, is another security for actual notice. But when it is considered how purely formal such an act maj' be, and that even ad- verse possession is possible without ever coming to the knowledge of 21 322 TYLER V. JUDGES OF THE COURT OF REGISTRATION. [CHAP. III. a reasonabl}' alert owner, I cannot think that the presence or absence of the form makes a constitutional difference ; or, rather, to express my view still more cautiously, I cannot but think that the immediivte recording of the claim is entitled to equal effect from a constitutional point of view. I am free to confess, however, that, with the rest of my brethren, I think the act ought to be amended in the direction of still further precautions to secure actual notice before a decree is entered, and that, if it is not amended, the judges of the court ought to do all that is in their power to satisfy themselves that there has been no failure in this regard before the}- admit a title to registration. The quotations which we have made show the intent of the statute to bind the land, and to make the proceedings adverse to all the world, even if it were not stated in sect. 35, or if the amendment of 1899 did not expressly provide that they should be proceedings in rem. St. 1899, c. 131, § 1. Notice is to be posted on the land just as admi- ralty process is fixed to the mast. Ain- person claiming an interest may appear and be heard (sect. 34). But perhaps the classification of the proceeding is not so important as the course of the discussion thus far might seem to impl}*. I have pursued that course as one which is stitisfactory to my own mind ; but, for the purposes of decision, a majority of the court prefer to assume that in cases in which, under the constitutional requirements of due process of law, it heretofore has been necessary to give to parties inter- ested actual notice of the pending i)roceeding by personal service or its equivalent, in order to render a valid judgment against them, it isjnot in the power of the legislature, In changing the form of the proceeiiuig from an action in personam to a suit hi rem., to avoid the necessity of giving such a notice, and to assume J.hat, under this statute, personal rights in property are so involved, and ma y be so affected, that effectual notice, and an opportunity to be beaj d, sjiould be given to all claimants who are known, or who b^- reasonahle_iiflbrt_can be ascertained. It would hardl}' be denied that the statute takes great precautions to discover outstanding claims, as we already* have shown in detail, or that notice b^' publication is sufficient with regard to claimants outsjde the_State. With regard to claimants living within the State, and re- maining undiscovered, notice by publication must suffice, of necessity. As to claimants living within the State and known, the question seetns to come down to whether we can say that there is a constitutional difl!'crence between sending notice of a suit In- a messenger and sending it by the [)Ost-officc, besides publishing in a newspaper, recording in the registr}*, and posting on the land. It nuist l)e remembered that there is no-^on- stitutional requirement that the summons, even in a personal action, shall be served by an officer, or that the copy served shall be officially attested. Apart from local practice, it may be served by an}- indif- ferent person. It may be served on residents by leaving a copy at the last and usual place of abode. When we are considering a proceeding of this kind, it seems to us within the power of the legislature to say SECT. II.] BUCHANAN V. RUCKEK. 323 that the mail, as it is managed in Massachusetts, is a sufficient mes- senger to convey the notice, wiieu other means of notifying the party, like publishing and posting, also are required. We agi'ee that such an act as this is not to be upheld witliout anxiety. But the difference in degree between the case at bar and one in which the constitutionality of the act would be unquestionable seems to us too small to warrant a distinction. If the statute is within the power of the legislature, it is not for us to criticise the wisdom or expedienc}' of what the legislature has done. We do not think it necessar}' to refer to the elaborate collection of statutes presented by the attorney-general for the purpose of showing that the principle of the present act is old. Although no question is made on that point, we ma\" mention that an appeal is given to the Superior Court, with the right to claim a jury. In our opinion, the main objection to the act fails. See Shepherd v. Ware, 46 Minn. 174^ 48 N. W. 773 ; People v. Simon, 176 111. 165, 52 N. E. 910 ; Short v. Caldwell, 155 Mass. 57, 59, 28 N. E. 1124; Loring v. Hildreth, 170 Mass. 328, 49 N. E. 652.^ LoRiNG and Lathrop, JJ., dissented. SECTION II. PERSONAL JURISDICTION. BUCHANAN v. RUCKER. King's Bench. 1808. [Reported 9 East, 192.] The plaintiff declared in assum jjsit for £2,000 on a foreign judgment of lh e_Island Court in_T alugai and at the trial ( Vide 1 Campbells Ni. Pri. Cas. 63) before Lord Ellenborough, C. J., at Guildhall, pro- duced a copy of the proceedings and judgment, certified under the handwriting: of the Chief Justice and the seal of the island, which were proved ; which, after containing an entry of the declaration, set out a summons to the defendant, therein described as " formerly of the city of Dunkirk, and now of the city of London, merchant," to appear at the ensuing court to answer the plaintiff's action ; which . summons was r eturned ^^ s erved^_etc^, bv nailing; uj3_a__co py of the > 1!eclaratioir"arTHecourt-house door /' etc., on which judgment was ^afterw ards given by default. Whereupon it was objected, that the "judg ment w as^obCained against the defendant, who never appeared t6~ Tiavebeen within ^he limits^ the islaiid_^nor to^ve had an_v attor ney there! nor t ojaye been in any other way subject toTt he jurisdjjc tion of 1 The remainder of the opinion and the dissenting opinion are omitted. — Ed. 324 BUCHANAN V. RUCKER. [cHAP. III. the court at the time ; and was therefore a nullity. And of this opinion was Lord EllenborouglT; though it was all eged (of which however there was no other than parol proof) that thisjnode of sum monin g ; absentees was warranted by a law of the island, and was commonlj;_practised__ there ; and the plaintiff was thereupon nonsuited.^ And now T^ddy moved to set aside the nonsuit, and for a new trial, on an affidavit verifj'ing the island law upon this subject, which stated, "'• That every defendant against whom any action shall be entered, shall be served with a summons and an office copy of the declaration, with a copy of the account annexed, if an}-, at the same time, by the Provost Marshal, etc., six daj's before the sitting of the next court, etc. ; and the Provost Marshal is required to serve the same on each defendant in person. But if such defendant cannot be found, and is not absent from the island ; then it shall be deemed good service by leaving the summons, etc., at his most usual place of abode. And if the defendant be absent from the island, and hath a power of attorney recorded in the secretary's or registrar's office of Tobago, and the attorney be resident in the island, or any manager or overseer on his plantation in the island, the service shall be either upon such attorney personally, or by leaving it at his last place of abode, or upon such overseer or manager personally, or by leaving it at the house upon the defendant's plantation where the overseer or manager usually resides.' But if no such attorne}*, overseer, or manager, then the nailing up a\ copy of the declaration and summons at the entrance of the court- 1 house shall be held good service." •'* Lord Ellexborough, C. J. There is no foundation for this motion even upon the terms of the law disclosed in the affidavit. Bv persons absent from the island m ust necessarily be_ _understop_d_4)£j:s pns whp _ have been present and~within the jiirisd-jctionj sp_a3L-lQ_haYe_heen_ "subject to the process of the court; but it can never be appli£d__to_a_ j2erson who for aught appears iiever~u-as present within or suliJ££t_tQ^ _the jurisdiction. Supposing, however, that the act had said in terms, ^ that though a person sued in the island had never been present within the jurisdiction, yet that it should bind him upon proof of nailing up the summons at the court door: how could that be obligatory upon the subjects of other countries? Can the island of Tobago pass a law to bind the rights of the whole world? Would the world submit to such an assumed jurisdiction? The law itself, however, fairly construed, /. does not warrant such an inference: for "absent from the island '*r- must be taken only to apply to persons who had been present there, » and were subject to the jurisdiction of the court out of which the process issued ; and as nothing of that sort was in proof here to show that the defendant was subject to the jurisdiction at the time of com- mencing the suit, there is no foundation for raising an assumpsit in law upon the judgment so obtained. Per Curiam. Hule refused.^ % 1 Jcc. Wood V. Watkinson, 17 Cnnn, 500; Howell v. Gordon, 40 Ga. 302j Beard i>. Beard, 21 Ind. 821 ; Rand v. Haiiv i., 154 Mass. 87; Cocke v. Brewer, 68 Miss. SECT. II.] DOUGLAS V. FORREST. 325 DOUGLAS V. FORREST. Court of Common Pleas. 1828. [Reported 4 Bingham, 686.] Best, C. J.^ This was an action brought by the assigne es of Steia^ and Co., l" mn)fr^]p|,c)^ ncrninst t.l io pvpciitor of the will of John Hunter. Un ilie 31st May, 1799, the testator acknowledged himself to be- indebted to Stein and Co. in the sum of £447 6s. 3d.; 'and on the. 11th June, in the same year, he acknowledged that he owed £75 to' Robert Smith, one of the bankrupts, and one of the firm of Stein and Co. These debts were contracted in Scotland, of which countr}' the '' deceased was a native, and in which he had a heritable property. '' Shortly after the year 1799, the deceased went to India. He died in India in 1817, having never revisited Scotland. On the 25th Februar}*, 1802, two decrees were pronounced in the Court of Session in Scotland against the deceased, one at the instance of Stein and Co., and the other at the instance of Robert Smith. In the first of these^the deceased was ordered to pay to Stein and Co. £447 6s. Bd., with interest, from the day of besides expenses of process, etc. In the second decree the deceased was ordered to pay Robert Smith the sum of £75, with interest, from the of , besides expenses of process, etc. It appeared, from these decrees, that the deceased was out of Scotland at the time the proceedings were instituted in these causes. He never had any notice of those proceedings. The decrees stated^ that the deceased had been (accord- ing to the la w of Scotland) sum moned at the market cross of Edinburgh. and at the pier and shore of l^eith. A Scotch advocate proved, that, b}" the law of Scotland, the Court of Sessio n might pronounce judgment against a native Scotchman who had heritable prop ert}' in that countr}-, " lor a dep Fcontracted in Scotland, altliougli ttie debtor had no notice of ^iy of tEelJiTTCeecnngs^a ndwas out of Scotland at tue time. After such proclamations as were mentioned in these decreesTiad been made, • the same witness proved, that a person against whom such a decree was r-, pronounced might, at any time within forty j'ears, dispute the merits -• of such decree ; but that after the expiration of forty 3'ears, it was - conclusive against him, and all who claimed under him. *" By a decree of the Court of Session, of the date of the 5th July, 1804, that court adjudged that certain property which the deceased possessed in Scotland should belong to Robert Smith and his heirs, in payment and satisfaction of the sum of £75, with interest, from the 11th June, 1799. By another decree of the same date, the Court of Sessions 775. 9 So. 823 ; Whittier v. Wendell, 7 N. H. 257 ; Schwinger v. Hickok, 53 N. Y. 280 ; Price v. Schaeffer, 161 Pa. 530, 29 Atl. 279. — Ed. ^ Part of the opinion is omitted. — Ed. 326 DOUGLAS V. FOKREST. [CIIAP. III. adjudged, that certain other property of the deceased in Scotland should belong to Stein and Co. and their heirs, in pajment and satis- faction of the sum of £447 Qs. 3(Z., with interest, from the 11th of June, 1799. The two last decrees fill up the blanks left in the first decrees, b}' giving the time from which interest was to be paid on the debts, namel}', from the 11th June, 1799; and if the plaintiffs can maintain their action, entitles them to a verdict for the sum of £862. The terms in which the two last decrees are expressed, seem to import that the lands adjudged to Stein and Co. and Smith were given to and accepted bj" them, in satisfaction of these debts; but this cannot be the true construction of these decrees, because none of the decrees are fconclusive against the deceased and those who claim under him, until ithe expiration of forty years from the time of pronouncing the two first /decrees. The advocate who was examined in the cause proved, that by the law of Scotland, these decrees would not operate as satisfaction of the debts, during the period that the debtor had a right to dispute the validity of the first judgments. A Scotch statute, which we have looked into, shows the accuracy of the opinion given to us on the Scotch laws b}' the learned advocate ; and I feel it due to him to say, that, from the manner in which he gave his evidence, the clearness and precision with which he explained the grounds of his opinion, I have no doubt that he is extremelj* well acquainted with the Scotch law, and that we may safeh' rely on every part of his evidence. The two last decrees, proving that interest was to run from 1799, and the testimony of the learned advocate, who proved, that when decrees adjudged that interest should be paid, but did not show the time from which it was to run, interest was payable from the time of the citation, — disposes of the ol)jection that no interest could be recovered upon these decrees. The plaintiffs rested their claim on these decrees. The defendant insisted that these decrees would not support an action in our courts, ^ because they were repugnant to the principles of justice, having been pronounced whilst the deceased was at a great distance from Scotland, and without any notice given to him that any proceedings were insti- tuted against him. This defence was made on the general issue. The / defendant also pleaded, that the plaintiff's cause of action did not accrue within six years before the commencement of the suit. To this ^ there was a replication, that the deceased, at the time wiien the cause of action accrued, was beyond seas, and remained beyond the seas . until the 3ear 1817, when he died; and that the plaintiffs sued out their writ against the defendant within six years after he first took on ..^.^^ himself the burthen and execution of the will of the deceased in Great Britain, and that he had no other executor in Great Britain. This replication was fully proved, and, therefore, the issue taken on it ^ was properly found for the plaintiffs. Tlie questions to be decided arc, first, whether an action can be maintained in England on these judgments of the Court of Session in ■i SECT. II. J DOUGLAS V. FORREST. 327 Scotland ; secondly, whether the replication is an answer to the pleas of the statute of limitations. On the first question we agree with the defendant's counsel, that if these decrees are repugnant to the principles of universal justice, this court ought not to give effect to them ; but we think that these decrees are perfectly consistent with the principles of justice. If we held thai they were not consistent with the principles of justice, we should con demn the proceedings of some of our own courts. If a debt \>^- contracted within the city of London, and the creditor issues a sum luons against the debtor to which a return is made, that the debtor hath nothing within the city by which he may be summoned, or, in plainer words, hath nothing by the seizure of which his appearance may be en- forced, goods belonging to the debtor in the hands of a third person, or money due from a third person to the debtor, may be attached ; and unless the debtor appears within a year and a da}", and disputes his ' debt, he is forever deprived of his property or the debts due to him. In such cases the defendant ma}' be in the East Indies whilst the proceedings are going on against him in a court in London, and may not know that any such proceedings are instituted. Instead of the forty years given by the Scotch law, he has only one 3'ear given to him to appear and prevent a decision that finally transfers from him his property. Lord Chief Justice De Grey thought this custom of foreign attachment was an unreasonable one, but it has existed from the earliest times in London, and in other towns in England, and in many of our colonies from then- first establishment. Lord Chief Justice De Gre}' and the Court of Common Pleas, after much consideration, decided against the validity of the attachment, according to the report of Fisher v. Lane in 3 Wilson, 297, because the party objecting to it had never been sum- moned or had notice. The report of the same case in 2 Blackstone, 834, shows that the court did not think a personal summons necessary, or any summons that could convey any niformation to the person sum- moned, but a summons with a return of nihil; that is, such a summons as I have mentioned, namely, one that shows that the debtor is not within the city, and has nothing tliere, by the seizing of which he may be compelled to appear. The 54 G-. III. c. 137 not only recognizes the practices on which these decrees are founded, as being according to the law of Scotland, but enacts, that on notices being given at the market cross at Edinburgh, and on the pier and shore of Leith, to debtors out of the kingdom, in default of their appearance the creditors may issue a sequestration against their eflTects. Can we say that a practice which the legislature of the United Kingdom has recognized and extended to other cases is contrary to the principles of justice? A natural-born subject of an}' country, quitting that country, but leaving property under the protection of its law, even during his absence, owes obedience to those laws, particularly when those laws enforce a moral obligation. The deceased, before he left his native country, acknowledged, under 328 SCHIBSBY V. WESTENHOLZ. [CHAP. III. his hand, that he owed the debts ; he was under a moral obligation to discharg;e those debts as soon as he could. It must be talten for granted, from there being no plea of /)/e/je adtninistravit, that the deceased had the means of paying what was due to the bankrupts. The law of Scotland has only enforced the performance of a moral obligation, b}' making his executor pay what he admitted was due, with interest during the time that he deprived his creditors of their just debts. ' The reasoning of Lord Ellenborough, in the case of Buchanan v. Rucker (1 Campb. 63, and 9 East, 192), is in favor of these decrees. Speaking of a case decided by Lord Kenyon, his Lordship says, in* that case the defendant had property in the island, and might be con-^ sidered as virtually present. The court decided against the validity of the attachment, because it did not appear that the party attached ever was in the island, or had an}^ propert}- in it. In both these respects that case is unlike the present. In the case of Cavan v. Stewart, Lord Ellenborough says, you must prove him summoned, or, at least, that he was once in the island of Jamaica, when the attachment issued. To be sure^if attachments issued against persons who never were within the jurisdiction of the court issuing them could be supported . and enforced in the country in which the person attached resided, the legislature of any country might authorize their courts to decide on the • rights of parties who owed no allegiance to the government of such country, and were under no obligation to attend its courts, or obey its • laws. We confine our judgment to a case where the part}' owed alle-*^ giance to the country' in which the judgment was so given against him, from being born in it, and by the laws of which country- his property was, at the time those judgments were given, protected.-^ The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it. *** SCHIBSBY V. WESTENHOLZ. Queen's Bench. 1870. [^Reported Law Reports, 6 Queen's Bench, 155.] Blackburn, J. Thiswas an action on a judgment of a French tribu- nal given agai nst the def endants for defiinlf, of jjt^^eara nce. Tlie pleas to the action were, amongst others, a plea of never in- debted, and, thirdly, a special plea asserting that the defend ants were_ not resident or domiciled i n France, or in any way subject to tlie jm'is-_^ diction of th e French cour t, nor did they appear ; and that they \vere_ not summoned, nor had any notice or knowledge of the pendiu^i^jiLHie, proceedings, or any opportunit}- of defending themselves therefrom. On these pleas issue was joined. SECT. II.] SCHIBSBY V. WESTENHOLZ. 329 On the trial before me the evidence of a French avocat was given, b}' which it appeared that by the law of France, a Fren ch s ubject ma^ sueaJ breigner ,_yKni^h_n ot resident in France^ and that for this pii r- pose an ali en, if resident in France, v v as considered b^' the French law as a i^ rench subje ct.^ The mode of citation in such a case, according to tlie French law, is b}' serving the summons on the Procureur Im- perial. If the foreign defendant, thus cited, does not, within one month; appear, judgment may be given against him, but he may still, at any time within two months after judgment, appear and be heard on the merits. After that lapse of time the judgment is final and conclusive. The practice of the imperial government is, in such a case, to forward the summons thus served to the consulate of the country where the de- fendant is resident, with directions to intimate the summons, if prac- ticable, to the defendant ; but this, as was explained by the avocat, is not required by the French law, but is simply done by the imperial government voluntaril}' from a regard to fair dealing. It appeared by other evidence that the plaintiff in this case was a Dane resident .m Fmnce. The defendaiits were also Danes, resident in Lond on and carrying on business there. A written contract had been made between the plaintiff and defendants, which was in English, and dated in London, but no distinct evidence was given as to where it was signed. We tliink, however, that, if that was material, the fair intendment from the evidence was that it was made in London. By this contract the defendants were to ship in Sweden a cargo of Swedish oats free on board a French or Swedish vessel for Caen, in France, at a certain rate for all oats delivered at Caen. Pa3'ment was to be made on receipt of the shipping documents, but subject to correction for excess or deficiency according to what might turn out to be the delivery at Caen. From the correspondence it appeared that the plaintiff as- serted, and the defendants denied, that the deliver}' at Caen was short of the quantity for which the plaintiff had paid, and that the plaintiff made some other complaints as to the condition of the cargo, which were denied by the defendants. The plaintiff very plainly told the de- fendants that if they would not settle the claim he would sue them in the French courts. He did issue process in the manner described, and the French consulate in London served on the defendants a copy of the citation. The following admissions were then made, namelj": that the judg- ment was regular according to French law; that it was given in favor of the plaintiff, a foreigner domiciled in France, against the defendants, 1 See Article 14 of the Code Civil: "L'etranger meme non residaut en France poiirra etre cite devant les tribunaux fran9ais, pour I'execution des obligations par lui contract^es en France avec un fran^ais ; il j)ourra etre traduit devant les tribunaux de France pour les obligations par lui contractees en pays etranger en vers des frangais." Codes Annotes de Sirey : Code Civil, Art. 14, Note 42 : " Un etranger qui a nne maison de commerce etablie et patente en France, peut, aussi blen qu'un franjais, assigner un autre etranger devant un tribunal frangais." 330 SCIIIBSBY V. WESTENIIOLZ. [CIIAP. III. domiciled in England, and in no sense French subjects, and having no property in France. I then ruled that I could not enter into the question whether the French judgment was according to the merits, no fraud being alleged or shown. I expressed an opinion (which I have since changed) that, subject to the third plea, the plaintiff was entitled to the verdict, but reserved the point. The jur}' found that the defendants had notice and knowledge of the summons and the pendenc}' of the proceedings in time to have appeared and defended the action in the French court. I then directed tlie ver- dict for the plaintiff, but reserved leave to enter the verdict for the defendants on these facts and this finding. No question was raised at the trial as to the sufficiency of the pleas to raise the defence. If there had been, I should have made any amendment neoessarj', but, in fact, we are of opinion that none was required. A rule was accordingly obtained b}' Sir George Honyman, against which cause was shown in the last term and in the sittings after it be- fore m}' Brothers Mellor, Lush, Hannen, and myself. During the interval between the obtaining of the rule and the sliowing cause, the case of Godard v. Gray, L. R. 6 Q. B. 139, on which we have just given judgment, was argued before my Brothers Mellor, Hannen, and myself, and we had consequenth' occasion to consider the whole subject of the law of England as to enforcing foreign judgments. M}' Brother Lush, who was not a party to the discussions in Godard V. Gray, L. R. 6 Q. B. 139, 147, has, since the argument in the ()iesent case, perused the judgment prepared by the majorit}' in Godard vjt Graj', and approves of it; and, after hearing the argument in tlie present case, we are all of opinion that the rule should be made absolute. It is unnecessary to repeat again what we have already said Jn Godard v. Gray. We think that, for the reasons there given, the true principle on ■which the judgments of foreign tribunals are enforced in England is that stated by Parke, B., in Russell v. Smyth, 9 M. & W. 819, and /again repeated by him in Williams v. Jones, 13 M. & W. 633, that the / judgment of a court of competent jurisdiction over the defendant im- j poses a duty or obligation on the defendant to pay the sum for which I judgment is given, which the courts in this countr3- are bound to en- \ force ; and consequently- that anything which negatives that duty, or ^ 1 forms a legal excuse for not performing it, is a defence to the action. pressed on the argument with the fact that the British by the Common Law Procedure Act, 1852 (15 & 16 r6), ss. 18 & 19, conferred on our courts a power of summon- ^ ing foreigners, under certain circumstances, to appear, and in case they do not, giving judgment against them by default. It was this consid- V I forms a legal exc n lfl«^'**'^^-> ^^® ^^^^ much y^^J^ /legislature has, b >^^ Vict. c. 76), ss. li / SECT. II.] SCHIBSBY V. WESTENIIOLZ. 331 eration principally which induced me at the trial to entertain the opinion which I then expressed and have since changed. And we tliink that if the principle on which foreign judgments were enforced was tliat which is loosely called " comit}-," we could hardly decline to enforce a foreign judgment given in France against a resident in Great Britain under circumstances hardly, if at all, distinguishable from those under which we, mutatis mutandis, might give judgment against a resident in France ; but it is quite different if the principle be that which we have just laid down. Should a foreigner be sued under the provisions of the statute re- ferred to, and then come to the courts of this country and desire to l)e discharged, the onl^' question which our courts could entertain would be whether the acts of the British legislature, rightl}' construed, gave us jurisdiction over this foreigner, for we must obej* them. But if, judgment being given against hirn in our courts, an action were brought . upon it in the courts of the United States (where the law as to the enforcing foreign judgments is the same as our own), a further question would be open, viz., not only whether the British legislature had given the English courts jurisdiction over the defendant, but whether he was under any obligation which the American courts could recognize to submit to the jurisdiction thus created. This is precisely the question which we have now to determine with regard to a jurisdiction assumed . by the French jurisprudence over foreigners. Again, it was argued before us that foreign judgments obtained by default, where the citation was (as in the present case) by an artificial mode prescribed by the laws of the country in which the judgment was given, were not enforceable in this country because such a mode of citation was contrary to natural justice, and if this were so, doubtless the finding of the jur}' in the present case would remove that objection. But though it appears by the report of Buchanan v. Rucker, 1 Camp. ^ 63, that Lord EUenborough in the hurry of Nisi Prius at first used ex- pressions to this effect, yet when the case came before him in banco in Buchanan v. Rucker, 9 East, 192, he entirely abandoned what (with all deference to so great an authorit}') we cannot regard as more than declamation, and rested his judgment on the ground that laws passed by our country were not obligatory on foreigners not subject to their jurisdiction. "Can," he said, " the Island of Tobago pass a law to bind the rights of the whole world? " The question we have now to answer is, Can the empire of France pass a law to bind the whole world? We admit, with perfect can- dor, that in the supposed case of a judgment, obtained in this country against a foreigner under the provisions of the Common Law Pro- cedure Act, being sued on in a court of the United States, the question for the court of the United States would be, Can the Island of Great Britain pass a law to bind the whole world? We think in each case the answer should be, No, but every country can pass laws to bind a great many persons ; and therefore the further question has to be de- ^ u/ 332 SCHIBSBY V. WESTENHOLZ. [CHAP. III. termined, whether the defendant in the particular suit was such a per- son as to be bound by the judgment which it is sought to enforce. Now on tills we think some things are quite clear on principle. If the defendants had been at the time of the judgment subjects of the coun- tr}- whose judgment is sought to be enforced against them, we think (^ that its laws would have bound them. Again, if the defendants had been at the time when the suit was commenced resident in the country, so as to have the benefit of its laws protecting them, or, as it is some- times expressed, owing temporary allegiance to that country, we think that its laws would have bound them. If at the time when the obligation was contracted the defendants kp I \ were within the foreign co^intry, but left it before the suit was insti- \ J tuted, we should be inclined to think the laws of that country bound *^ them ; though before finally deciding this we should like to hear the j question argued. But every one of those suppositions is negatived ia the present case. Again, we think' it clear, upon principle, that if a person selected, as plaintiff, the tribunal of a foreign country as the one in which he would sue, he could not afterwards say that the judgment of that tribunal was not binding upon him. In the case of General Steam Navigation Company v. Guillou, 11 M. &, W. 877, 894, on a demurrer to a plea, Parke, B., in delivering the considered judgment of the Court of Exchequer, then consisting of Lord Abiuger, C.B., Parke, Alderson, and Gurney, BB., thus expresses himself: "The substance of the plea is that the cause of action has been already adjudicated upon, in a competent court, against the plain- tiffs, and that the decision is binding upon them, and that they ought not to be permitted again to litigate the same question. Such a plea ought to have had a proper commencement and conclusion. It be- comes, therefore, unnecessary to give any opinion whether the pleas are bad in substance ; but it is not to be understood that we feel much doubt on that question. They do not state that the plaintiffs were French subjects, or resident, or even present in France when the suit began, so as to be bound by reason of allegiance or temporary pres- ence 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 fi-om this that those very learned judges, besides ex- pressing an opinion conformable to ours, also expressed one to the effect that the plaintifl!s 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. Fogo, 1 John. & H. 18, 29 L. J. (Ch.) 657, 1 Hem. & M. 195, 32 L. J. (Ch.) 249, where the mortgagees of an English ship had come into the courts of SECT. II.] SCHIBSBY V. WESTENIIOLZ. 333 Louisiana, to endeavor to prevent the sale of their ship seized under an execution against the mortgagors, and the courts of Louisiana de- cided against them, the Vice-ChanceJIor and the very learned counsel who argued 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 English law. The case of General Steam Navigation Company v. Guillou, 11 M. & W. 877, 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 onl}' comes in to try to save some prop- ert}^ in the hands of the foreign tribunal. But we must observe that the decision in De Cosse Brissac v. Rathbone, 6 H. & N. 301, 30 L. J. ) (Ex.) 238, is an authority that where the defendant voluntarily appears ^ and takes the chance of a judgment in his favor he is bound. In Douglas v. Forrest, 4 Bing. 703, the court, deciding in favor of the party suing on a Scotch judgment, say : ' ' We confine our judg- ment to a case where the party owed allegiance to the cbuhtr3'ln wEIch the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments"^ ^ere given, protected. The debts were contracted in the countiy iTTwhich the judgments were given, whilst the debtor resided in it." Those circumstances are all negatived here. We should, however, point out that, whilst we think that there ma}' be other grounds for holding a person bound by the judgment of the tribunal of a foreign country than those enumerated in Douglas v. Forrest, we doubt very much whether the possession of property, locally situated in that country and protected by its laws, does afford such a ground. It should rather seem that, whilst ever}* tribunal may ver}* properly exe- cute process against the property within its jurisdiction, the existence of such property, which may be very small, affords no sufficient ground for imposing on the foreign owner of that property a duty or obligation to fulfil the judgment. But it is unnecessary to decide this, as the de- fendants had in this case no property in France. As to this, see Lon- don and North Western Railway Companj' v. Lindsay, 3 Macq. 99. 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 think, therefore, that the rule must be made absolute. Hule absolute,^ 1 Jcc. McEwenv. Zimmer, 38 Mich. 765; Scott v. Noble, 72 Pa. 115 ; Tillinghast \ V. Boston, &c., Co., 39 S. C. 484, 18 S. E. 120. See Comber v. Leyland, [1898J A. 0. 1 624. — Ed. 334 SIRDAK GUEDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. III. SIRDAR GURDYAL SINGH v. THE RAJAH OF FARIDKOTE. Judicial Committee of the Privy Council. 1894. [Reported [1894] Appeal Cases, 670.] The judgment of their lordships was delivered by the Earl of Selborne. The respondent, the Rnjiili of Faridkote, ob- tained in the civil court of that native state, in 1879 and 1880, two ex parte judgments, in two suits instituted bj- him against the appel- lant, for sums amounting together to Rs. 76,474 Ha. 3p., and costs. For all the purposes of the question to be now decided, those two suits may be treated as one ; the appeals to Her Majesty in council having been consolidated. Two actions, founded on these judgments, were brought by the rajah against the appellant in the court of the assistant commissioner of Lahore, and were dismissed by that court, on the ground that the judgments were pronounced by the FaridUoto court, without jurisdiction as against the api)ellant. On appeal to the addi- tional commissioner of Lahore, the judgments of the first court ^jere upheld. The rajah then appealed to the chief court of the Punjaub, which differed from both those tribunals, and upheld the jurisdiction of the Faridkote court. Faridkote is a native state, the rnjah of which has been recognized by Her Majesty as having an independent civil, criminal, and fiscal jurisdiction. The judgments of its courts are, and ought to be, regarded in Her Majesty's courts of British India as foreign judgments. The additional commissioner of Lahore thought that no action could be brought in Her Majesty's courts upon a judgment of a native state; but in this opinion their lordships do not concur. / The appellant was for five years, beginning in 1869, in the service of 'the late Rajah of Faridkote as his treasurer; and the causes of action, on which the suits in the Faridkote court were brought, arose within that state, and out of that employment of the appellant by the late rajah. The claim made in each of the suits was merely personal, for money alleged to be due, or recoverable in the nature of damages, from the appellant. It is immaterial, in their lordships' view, to the question Ipf jurisdiction (which is the only question to be now decided) whether the case, as stated, ought to be regarded as one of contract or of tort. The appellant left the late rajah's service, and ceased to reside within his territorial jurisdiction, in 1874. He was from that time generally resident in another independent native state, that of Jhind, of which he was a native subject and in which he was domiciled ; and he never re- turned to Faridkote after he left it in 1874. He was in Jhind when he was served with certain processes of the Faridkote court, as to which it is unnecessary for their lordships to determine what the effect would have lieen if there had been jurisdiction. He disretrardpd them, nnd never appeared in either of the suits instituted by the rajali, or other- SECT. II.] SIKDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. 335 wise submitted himself to that jurisdiction. He was under no obliga- tion to do so, b}' reason of the notice of tlie suits which he thus received or otherwise, unless that court had lawful jurisdiction over him. Under these circumstances there was, in their lordships' opinion, nothing to take this case out of the general rule, that the plaintiff must sue in the court to which tlie defendant is siil)ject at the time of suit {actor sequitUT forum rei), whicli is rightly slated by Sir Robert Phil- limore (International Law, vol. iv., s. yjl) to "lie at the root of all international, and of most domestic, jurisprudence on this matter." All jurisdiction is properly territorial, and ext7'a ten'itoriumjus dicentij imj)une nan jijareiMr. Territorial jurisdiction attaches (with special! exceptions) upon all persons either permanently or temporarily resident within the territory while the}' are within it ; but it does not follow them after they have withdrawn from it, and when they are living in another independent country. It exists always as to land within the territory, and it may be exercised over movables within the territory ; and, in questions of status or succession governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory. As between different provinces under one sover- eignty (e. g,, under the Roman Empire) the legislation of the sovereign may distribute and regulate jurisdiction ; but no territorial legislation can give jurisdiction which any foreign court ought to recognize against foreigners, who owe no allegiance or obedience to the power which so legislates. In a personal action, to which none of these causes of jurisdiction appl}', a decree pronounced in absentem by a foreign coiu't, to the juris-/ diction of which the defendant has not in any way submitted himself,! is by international law an absolute nullity. He is under no obligation' of any kind to obey it; and it must be regarded as a mere nullity hy the courts of ever}' nation except (when authorized by special local legislation) in the country of the forum by which it was pronounced. These are doctrines laid down by all the leading authorities on inter- national law ; among others, by Story (Conflict of Laws, 2d ed., sects. 646, 549, 553, 554, 556, 586), and by Chancellor Kent (Commentaries, vol. i., p. 284, note c, 10th ed.), and no exception is made to them, in favor of the exercise of jurisdiction against a defendant not otherwise subject to it, by the courts of the country in which the cause of action arose, or (in cases of contract) by the courts of the locus solutionis. In those cases, as well as all others, when the action is personal, the courts of the country in which a defendant resides have power, and they ought to be resorted to, to do justice. The conclusion of the learned judges in the chief court of the Pun- jaub is expressed in the following sentence of the judgment delivered by Sir Meredyth Plowden in the first of the two actions : — " On the whole, I think it may be said, that a State assuming to exer- cise jurisdiction over an absent foreigner, in respect of an obligation arising out of a contract made by the foreigner while resident in the 336 SIRDAR GURDYAL SINGH V. RAJAH OF FARIDKOTE. [CHAP. III. State and to be fulfilled there, is not acting in contravention of the general practice or the principles of international law, so that its judg- ment should not be binding merely on the ground of the absence of the defendant." If this doctrine were accepted, its operation, in the enlargement of territorial jurisdiction, would be very important. No authority, of any relevancy, was cited at their lordships' bar to support it, except Becquet V. Macarthy, 2 B. & Ad. 951, and a passage from the judgment deliv- ered by Blackburn, J., in Schibsby v. Westenholz. Of Becquet v. Macarthy, it was said by great authority in Don v. Lippman, 5 CI. & F. 1, that it "had been supposed to go to the verge of the law ; " and it was explained (as their lordships think, cor- rectly) on the ground that " the defendant held a public office in the very colony in which he was originally sued." He still held that office at the time when he was sued ; the cause of action arose out of, or was connected with it ; and, though he was in fact temporarily absent, he might, as the holder of such an office, be regarded as constructively present in the place where his duties required his presence, and there- fore amenable to the colonial jurisdiction. If the case could not be distinguished on that ground from that of any absent foreigner who, at some previous time, might have been in the employment of a colonial government, it would, in their lordships' opinion, have been wrongly decided; and it is evident that Fry, L.J., in Rousillon v. Rousillon, 14 Ch. D. 351, took that view. The words of Blackburn, J.'s, judgment, in Schibsby v. Westenholz, which were relied upon, are these : — " If, at the time when the obligation was contracted, the defendants were within the foreign country, but left it before the suit was insti- tuted, we sliould be inclined to think the laws of that country bound them ; though, before finally deciding this, we should like to hear the question argued." Upon this sentence it is to be observed, that beyond doubt in such a case the laws of the country in which an obligation was contracted might bind the parties, so far as the interpretation and effect of the obligation was concerned, in whatever forum the remedy might be sought. The learned judge had not to consider whether it was a legiti- mate consequence from this, that they would be bound to submit, on the footing of contract or otherwise, to any assumption of jurisdiction over them in respect of such a contract, by the tribunals of the country in which the contract was made, at any subsequent time, although tlicy might be foreigners resident abroad. That question was not argui-d, and did not arise, in the case then before the court ; and, if this was what Blackburn, J., meant, their lordships could not regard any mere inclination of opinion, on a question of such large and general impor- tance, on which the judges themselves would have desired to hear argu- ment if it had required decision, as entitled to the same weight which might be duo to a considered judgment of the same authority. Upon SECT. II.] HENDERSON V. STANIFORD. 337 the question itself, which was determined in Schibsby v. Westenholz, Blackburn, J., had at the trial formed a different opinion from that at which he ultimately arrived ; and their lordships do not doubt that, if he had heard argument upon the question, whether an obligation to accept the forum loci contractus, as having, by reason of the contract, a conventional jurisdiction against the parties in a suit founded upon that contract for all future time, wherever they might be domiciled or resident, was generally to be implied, he would have come (as their lordships do) to the conclusion, that such obligation, unless expressed, could not be implied. Their lordships will therefore humbly advise Her Majesty to reverse the decrees of the chief court of the Punjaub, and to restore those of the additional commissioner of Lahore. The respondent will pay the costs of the appeals to the courts below and of these appeals. HENDERSON v. STANIFORD. Supreme Judicial Court of Massachusetts. 1870. [Reported 105 Massachusetts, 504.] .QoNTRACT on a promissory note d ated October 20, 1864, made by the defendant pa3'able in one month to the order of the plaintiff, who was described in the wn'it (which was dated January 20, 1869), as of Crescent City in the county of Del Norte and State of California. The answer put the plaintiff to his proof concerning the making of the note, and set up "that if the plaintiff shall show that the defendant made the note, then the defendant answers that there is a judgm ent upon_ ^aidj xat&4ft-^the-f'^unty nf D'^1 Xm-f.p nnd Stntp nf Cnlifm- nin., ngn.in,c^ the defendant and in fa ^oi- of the plaintiff, and the same has never been reversed, reviewed, or annulled, but is still in force against the defendant in said State, where said contract was made, and where said defendant for a long time, to wit, from the year 1849 until some time in the year 1867, had his residence, — that he came to the State of Massachusetts some time in the j'ear 1867, but with the intention in a short time of returning to the State of California." The parties stated the case, referring to the pleadings, admitting the making of the note by the defendant, and continuing as follows : "In the year 1849 the defendant went from Massachusetts to California, and voted and was taxed there until he returned to Massachusetts in the year 1867. When he came to Massachusetts it was his intention to return to California, but in consequence of domestic affliction he has remained here. While in California he had his residence in tlie township of Crescent, otherwise known as Crescent City. In June, 1868, the plaintiff commenced an action before a justice's court, against 22 338 DAKEAH V. WATSON. [CHAP. III. this defendant, in Crescent township and county of Del Norte, whore said defendant had resided, upon the note in this suit, notice of the l)endenc3' of said action being duly given by publication ; and the same was prosecuted to final judgment upon default, the defendant not appearing personally or b}' counsel. Said judgment has never been arrested, reversed, reviewed, or annulled, but is now a valid and unsatisfied judgment in full force in the State of California. Upon the above facts it is agreed that the court may render such judgment as is warranted by the pleadings." The superior court gave judgment for the defendant, and the plaintiff appealed. Wells, J. The defendant was not in California when the action was commenced against him there ; nor at any time during its pend- ency. No service of process or notice was ever made upon him ,_4ier«anally. He did not appear b^* counsel, or otherwise, nor assent to the judgment, which was rendered upon his default of appearance. But he had been, for a long time before that, a citizen of California ; the contract was made there ; and that continued to be his legal domicile when the judgment was rendered. He was, therefore, upon principles of international right, subject to the laws, and to the juris- diction of the courts of that State. Stor}' Confl. Laws, §§ 546, 548; tlall V. Williams, 6 Pick. 232, 240 ; Gillespie v. Commercial Insurance Co., 12 Gray, 201. In Massachusetts, jurisdiction is assumed to be exercised in suits against parties who have been inhabitants of the State, although not so at the time of action brought. Gen. Sts. c. 126, § 1 ; Morrison v. Underwood, 5 Cush. 52 ; Orcutt v. Ranney, 10 Cush. 183. We must presume that the exercise of jurisdiction, in the suit in question, was in accordance with the laws of California. The agreed facts state that the judgment '' i s. now a valid and unsatisfied iudti;ment^ ___ia_£uil_force in the State of California." ^ y DARRAH V. WATSON. Supreme Court of Iowa. 1873. [Reported 36 Iowa, 116.] I ^ Miller, J.* The judgment record, on which this action is brought, shows that the action was commenced in the county court of Monon- galia County, Virginia (now West Virginia), by the issuance of a sum- mons, returnable on the first Monday of June, 1859. The sheriff's return on the summons shows a a personal service thereof on the 6th day of June, 1859. . . , 1 The remainder of the opinion, in which the effect of the judgment is discussed, is here omitted. Ace. Hunt V. Hunt, 72 N. Y. 217 ; Frothingham v. Barnes, 9 R. I. 474 (scvihlc).— Ed. * Part of the opinion is omitted. — Ed. SECT. II.J DARRAH V. WATSON. 339 On the trial the defendant Watson was sworn as a witness, and tes- tified that during tlie 3ear 1859, he resided in Greene County, Penns}'!- vai'.ia, and had so resided there for about three or four 3 ears prior to Juue, 1859, and never afterward resided in the State of Virginia; that during the month of June, 1859, he went from his residence in Penn- sylvania into Monongalia County, Virginia, temporarily and on business ; was there only two or three hours and returned again to Greene County, Pennsylvania, which latter county adjoins Monongalia County, Vir- ginia ; that while thus in the latter county he was served with some kind of paper or process, which was the only paper or process ever served on him in said county ; that he paid no attention to the matter, never appeared in the action, made no defence and authorized no one to appear for him. Whereupon defendant's counsel asked the court to instruct the jury in substance, that if the}- found tliat the defendant, at the time of the rendition of the judgment in Virginia, was not a resident of or domiciled in said State, but was a resident of and domi- ciled in the State of Pennsylvania ; that defendant, when the summons or original process was served upon him, was in the State of Virginia only for a few hours temporarily and on business ; that defendant never afterward resided in said State; that defendant did not appear to the action or authorize any one to appear for him, then the county court of Monongalia County, Virginia, did not, b}- virtue of such service or by any proceedings in said action, acquire jurisdiction of the person of defendant to render a personal judgment as would be binding against him in tliis State. This instruction was refused, and this ruling is assigned as error. We have before said that the insufficiency of the service of the sum- mons would not have the effect to render the judgment void as for want of jurisdiction. But it is insisted by appellant's counsel that " even admitting that the summons had been served in time and per- sonally on defendant in Virginia," the court did not acquire juris- diction of the defendant who was a resident of another State, and never afterward was a resident of Virginia, but was raereh* temporarily therein when he was served with original process in the action. The position assumed by counsel is, that the courts of Virginia could not acquire jurisdiction of the person of a citizen and resident of Pennsyl- vania b}' the service of original process upon him while temporarily in the former State on business. The doctrine is well settled that no State can b}' its judgments ren- dered in its courts bind personally a defendant who is not within its jurisdiction, and on whom no notice has been served. Melhop & Kingman v. Doane & Co., 31 Iowa, 397, and cases cited. And that to entitle a judgment rendered in one State to the full faith and credit mentioned in the Constitution and laws of the United States the couit must have had jurisdiction not only of the subject-matter, but of the person of the defendant. Ibid. Rut is it true that the courts of one ^tate cannot acquire jurisdiction of the person of a citizen and resi* 340 ' ST. CLAIR V. COX. [CHAP. III. m dent of a sister State by the service of original process upon sucli citizen within the jurisdiction of the former State? We think it is not. In the only case cited b}' appellant's counsel, Bissell v. Briggs, 9 Mass. 462, Chief Justice Parsons, on page 470, sa3's : " Now, an inhabitant of one State ma}', without changing his domicile, go into another ; he may there contract a debt or commit a tort, and while there he owes a temporary allegiance to that State, is bound by its laws, and is amen- able to its courts." We have found no case holding a contrary doctrine to this. ' Applying this doctrine to the case before us, we hold that the count}' court of Virginia did acquire jurisdiction of the person of the defend- ant by the service of the summons upon him while temporarily within its local jurisdiction, and that its judgment is entitled to the same faith and credit in this State as it was entitled by the laws of the State where rendered. The court below did not err, therefore, in refusing the in- struction asked, and its judgment is Affirmed.^ ST. CLAIR V. COX. Supreme Court of the United States. 1882. [Reported 106 United States, 350.] Field, J. This action was brought by the plai nti ff in the court below, to recover the amount due on two promissory notes of the defendants, each for the sum of S2,500, bearing date on the 2d of August, 1877, and payable five months after date, to the order of the Winthrop Mining Company, at the German National Bank, in Chi- cago, with interest at the rate of seven per_^entper annum. To the action the defendants set up various defences, and, among others, substantially these: That the consideration of the notes had failed; that they were given, with two others of like tenor and amount, to the Winthrop Mining Company, a corporation created under the laws of Illinois, in part payment for ore and other prop- erty sold to the defendants upon a representation as to its quantity^ which proved to be incorrect; that only a portion of the quantity sold was ever delivered, and that the value of the deficiency exceede(f the amount of the notes in suit; that at the commencement of the action, and before the transfer of the notes to the plaintiff, the Winthrop JMining Company was indebted to the defendants in a large sum, viz. S10,000, upon a judgment recovered by them in the Circuit Court of Marquette County, in the State of Michigan, and that the notes^ were transferred to him after their nuUurity and dishonor, and after he had notice of the defences to them. 1 Jcc. Alley v. Caspari, 80 Me. 234, 14 Atl. 12; Thompson v. Covvell, 148 Mass. 652. — Ed. I SECT. II.] ST. CLAIR V. COX. 341 On the trial, evidence was given by the defendants tending to show that the plaintiff was not a bona fide holder of the notes for value. A certified copy of that judgment was also produced by them and offered in evidence; but on his objection that it had not been shown that the court had obtained jurisdiction of the parties, it was excluded, and to the exclusion an exception was taken. The jury found for him for the full amount claimed; and judgment having been entered thereon, the defendants brought the case here for review. The ruling of the court below in excluding the record constitutes the only error assigned. The judgment of the Circuit Court in Michiga n was rendered in an action comm enced by^ attachment. If the plaintiffs in that action were, at its commencement, residents of the State, of which some doubt is expressed by counsel, the jurisdiction of the court, under the writ, to dispose of the property attached, cannot be doubted, so far as was necessary to satisfy their demand. No question was raised as to the validity of the judgment to that extent. The objec- tion to it was as evidence that the amount rendered was an existing obligation or debt against the company. If the court had not ac-_ q uired jurisdi ction ove r the comp any, t he judgment estab lis hed notI> _ ing as to its liability beyond the amount which the proceeds of tbe __ ' property discharged. There was no appearance of the company in the action, and judgment against it was rendered for S6,450 by default. The officer, to whom the writ of attachment was issued, retu r ned that^ _b y virtue of it, he had seized and attached certain spe cified personal property of the defendan t, and had also served, n__£n py nf the writ, with a copy of the inv entor y of the property atta ched^ on the defen d_ant_^^bv_deliver ing the same to Henry J. Colwell, Esq., ag ent of the said Winthrop Mining Company, person- aHyjJji^aaiiLcounty . " The laws of JVlTchigan provide for attaching property of abscond- ing, fraudulent, and non-resident debtors and of foreign corpora- tions. They require that the writ issued to the sheriff, or other oflflcer by whom it is to be served, shall direct him to attach the property of the defendant, and to summon him if he be lo und within the county, and also to serve on him a copy of the attachment and of the inventory of the property attached. They also declare that where a copy of the writ of attachment has been personally served on the defendant, the same proceedings may be had thereon in the suit in all respects as upon the return of an original writ of sum- mons personally served where suit is commenced by such summons. 2 Comp. Laws, 1871, sects. 6397 and 6413. They also provide, in the chapter regulating proceedings by and against corporations, that "suits against corporations may be com- menced by original writ of summons, or by declaration, in the same manner that personal actions may be commenced against individuals, and such writ, or a copy of such declaration, in any suit against a 342 ST. CLAIR V. COX. [chap. III. corporation, may be served on the presiding officer, the cashier, the secretary, or the treasurer thei-eof ; or, if there be no such officer, or none can be found, such service may be made on such other officer or member of such corporation, or in such other manner as the court in which such suit is brought may direct; " and that "in suits com- menced by attachment in favor of a resident of this State against any corporation created by or under the laws of any other State, government, or country, if a copy of such attachment and of the inventory of property attached shall have been personally served on any officer, member, clerk, or agent of such corporation within this State, the same proceedings shall be thereupon had, and with lilte effect, as in case of an attachment against a natural person, which shall have been returned served in like manner upon the defendant." 2 Comp. Laws, 1871, sects. 6544 and 6550. The courts of the United States only regard judgments of the State courts establishing personal demands as having validity or as importing verity where they have been rendered upon personal cita- tion of the party, or, what is the same thing, of those empowered to receive process for him, or upon his voluntary appearance. In Pennoyer v. Neff we had occasion to consider at length the manner in which State courts can acquire jurisdiction to render a personal judgment against non-residents which would be received as evidence in the Federal courts; and we held _t bat personal service of_citation on the p arty or his voluntary appearance jwas^with some exceptions, essentiaPt o the ju risdictioiL-Qf thp nnnrt. The~eXCep- tioHis-Tetated^to those cases where proceedings are taken in a State to determine the status of one of its citizens towards a non-resident, or where a party has agreed to accept a notification to others or service on them as citation to himself. 95 U. S. 714. The doctrine of that case applies, in all its force, to personal judg- ments of State courts against foreign corporations. The courts rendering them must have acquired jurisdiction over the party by personal service or voluntary appearance, whether the party be a corporation or a natural person. There is only this difference: a corporation being an artificial being, can act only through agents, and only through them can be reached, and process must, therefore, be served upon them. In the State where a corporation is formed it is not difficult to ascertain who are authorized to represent and act for it. Its charter or the statutes of the State will indicate in whose hands the control and management of its affairs are placed. Directors are readily found, as also the officers appointed by them to manage its business. But the moment the boundary of the State is passed difficulties arise; it is not so easy to determine who repre- sent the corporation there, and under what circumstances service on them will bind it. Formerly it was held that a foreign corporation could not be sued in an action for the recovery of a personal demand outside of the SECT. II.] ST. CLAIR V. COX. 343 State by which it was chartered. The principle that a corporal ion must dwell in the place of its creation, and cannot, as said by J\Ir. Chief Justice Taney, migrate to another sovereignty, coupled with the doctrine that an officer of the corporation does not carry his func- tions with him when he leaves his State, prevented the maintenance* of personal actions against it. There was no mode of compelling! its appearance in the foreign jurisdiction. Legal proceedings there! against it were, therefore, necessarily confined to the disposition of such property belonging to it as could be there found; and to author- ize them legislation was necessary. In McQueen v. Middleton Manufacturing Co., decided in 1819, the Supreme Court of New York, in considering the question whether the law of that Stale authorized an attachment against the property of a foreign corporation, expressed the opinion that a foreign cor- poration could not be sued in the State, and gave as a reason that the process must be served on the head or principal officer within the jurisdiction of the sovereignty where the artificial body existed; observing that if the president of a bank went to New York from another State he would not represent the corporation there; and that "his functions and his character would not accompany him when he moved beyond the jurisdiction of the government under whose laws he derived this character." 16 Johns. (N. Y".) 5. The opinion thus expressed was not, perhaps, necessary to the decision of the case, but nevertheless it has been accepted as correctly stating the law. It was cited ^\ith approval by the Supreme Court of Massachusetts, in 1834, in Peckham v. North Parish in Haverhill, the court adding that all foreign corporations were without the jurisdiction of the process of the courts of the Commonwealth. 16 Pick. (Mass.) 274. Similar expressions of opinion are found in numerous decisions, accompanied sometimes with suggestions that the doctrine might be otherwise if the foreign corporation sent its officer to reside in the State and transact business there on its account. Libbey v. Hodg- don, 9 N. H. 394; Moulin v. Trenton Insurance Co., 24 N. J. L. 222. This doctrine of the exemption of a corporation from suit in a State other than that of its creation was the cause of much incon- venience, and often of manifest injustice. The great increase in the number of corporations of late years, and the immense extent of their business, only made this inconvenience and injustice more fre- quent and marked. Corporations now enter into all the industries of the country. The business of banking, mining, manufacturing, transportation, and insurance is almost entirely carried on by them, and a large portion of the wealth of the country is in their hands. Incorporated under the laws of one State, they carry on the most extensive operations in other States. To meet and obviate this inconvenience and injustice, the legislatures of several States inter- posed, and provided for service of process on officers and agents of 344 ST. CLAIR V. COX. [CHAP. III. foreign corporations doing business therein. Whilst the theoretical and legal view, that the domicile of a corporation is only in the State where it is created, was admitted, it was perceived that when a foreign corporation sent its officers and agents into other States and opened offices, and carried on its business there, it was, in effect, as much represented by them there as in the State of its crea- tion. As it was protected by the laws of those States, allowed to carry on its business within their borders, and to sue in their courts, it seemed only right that it should be held responsible in those courts to obligations and liabilities there incurred. All that there is in the legal residence of a corporation in the State of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise as a body certain functions, with a right of succession in its members. Its officers and agents constitute all that is visible of its existence; and they may be authorized to act for it without as well as within the State. There would seem, therefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to repre- sent it in the States for which they are respectively appointed when it is called to legal responsibility for their transactions. The case is unlike that of suits against individuals. They can act by themselves, and upon them process can be directly served, but a corporation can only act and be reached through agents. Serv- ing process on its agents in other States, for ma sters, witbiii ^ the splmy p. -ft f t 44 £ir ag ero,j\) is, in'^ effect, serving process on it as much K^m as if such agents resided in the State where it was created. A corporation of one State cannot do business in another State without the latter's consent, express or implied, and that consent may be accompanied with such conditions as it may think proper to impose. As said by this court in Lafayette Insurance Co. v. French: "These conditions must be deemed valid and effectual by other States and by this court, provided they are not repugnant to the Constitution or laws of the United States, or inconsistent with those rules of public law which secure the jurisdiction and authority of each State from encroachment by all others, or that principle of natural justice which forbids condemnation without opportunity for defence." 18 How. 404, 407; Paul v. Virginia, 8 Wall. 168. The State may, therefore, impose as a condition upon which a foreign corporation shall be permitted to do business within her limits, that it shall stipulate that in iany litigation arising out of its transactions in the State, it will accept as sufficient the service of process on its agents or persons specially designated ; and the condi- tion would be eminently fit and just. And such condition and stipu- lation may be implied as well as expressed. If a State permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, proc- ess shall be served upon its agents, the provision is to be deemed a SECT. II.] ST. CLAIR V. COX. 345 Condition of the permission; and corporations that subsequently do business in the State are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. The decision of this court in Lafayette Insurance Co. v. French, to which we have already referred, sustains these views. ^ The State of Michigan permits foreign corporations to transact business within her limits. Either by express enactment, as in the case of insurance companies, or by her acquiescence, they are as free to engage in all legitimate business as corporations of her own creation. H er statu _t e8 exp i:eBgIx J3rovide for suits being brought by them in her courts ; and for suits by atta chment being brought agai nst them in favor of residents of the State._ And in these attachment suits they authorize the service of a copy of the writ of attachment, with a copy of the inventory of the property attached, on "any officer, member, clerk, or agent of such corporation" within the State, and give to a personal service of a copy of the writ and of the inventory on one of thes€ persons the force and effect of personal service of a summons on a defendant in suits commenced by summons. I ^ thus seems that a writ of forei gii_alta£hinent injthat State_i3_ _m ade to serv e^double purposcj-^ as a_CQTnmand to tha officer^ to attach property of jthe_corp pration, and as a sum mons_to_th e latter to_appe ar in the _8uit. We j o not, how ever, understand the laws as_ authorizi ng the service of a~copy or the w rit, as a summocs, upon an agent of a f oreign corporation, unless the corporation be engaged in business in the State, and the agent be appointed to act there.. We so c onstrue the words "agent of such corporation within this State/' They do not sanction service upon an officer or agent of the corporation who resides in another State, and is only casually in the State, and not charged with any business of the corporation there. The decision in Newell v. Great Western Railway Co., reported in the 19th of Michigan Reports, supports this view, although that was the case of an attempted service of a declaration as the commence- ment of the suit. T^h e defendant was a Canadian corporatio n Ojvn- ing and operating a railroad from Suspension Bridge in Canada to the Detroit line at Windsor opposite Detroit, and carrying passen- gers in connection with the Michigan Central Railroad Company, upon tickets sold by such companies respectively. The suit was commenced in Michigan, the declaration alleging a contract by the defendant to carry the plaintiff over its road, and its violation of the 1 Ace. Compagnie G^n^rale Tratisatlantique v. Law, .[1899] A. C. 431 j Fireman's Ins. Co. V. Thompson, 156 111. 204, 40 N. E. 488 ; Reyer v. Odd Fellowa' Ace, Assoc, 157 Mass. 367. —Ed, 316 ST. CLAIR V. COX. [CHAP. III. contract by removing him from its cars at an intermediate station. The declaration was served upon Joseph Price, the treasurer of the corporation, who was only casually in the State. The corporation appeared specially to object to the jurisdiction of the court, and pleaded that it was a foreign corporation, and had no place of busi- ness or agent or officer in the State, or attorney to receive service of legal process, or to appear for it; and that Joseph Price was not in the State at the time of service on him on any official business of the corporation. The plaintiff having demurred to this plea, the court held the service insufficient. "The corporate entity," said the court, "could by no possibility enter the State, and it could do nothing more in that direction than to cause itself to be represented here by its officers or agents. Such representation would, however, neces- sarily imply something more than the mere presence here of a person possessing, when in Canada, the relation to the company of an officer or agent. To involve the representation of the company here, the supposed representative would have to hold or enjoy in this State an actual present official or representative status. He would be re- quired to be here as an agent or offi.cer of the corporation, and not as an isolated individual. If he should drop the official or represent- ative character at the frontier, if he should bring that character no further than the territorial boundary of the government to whose laws the corporate body itself, and consequently the official positions of its officers also, would be constantly indebted for existence, it could not, with propriety, be maintained that he continued to possess such character by force of our statute. Admitting, therefore, for the purpose of this suit, that in given cases the foreign corporation would be bound by service on its treasurer in Michigan, this could only be so when the treasurer, the then official, the officer then in a manner impersonating the company, should be served. Joseph Price was not here as the treasurer of the defendants. He did not then represent them. His act in coming was not the act of the company, nor was his remaining the business or act of any besides himself. He had no principal, and he was not an agent. He had no official status or representative character in this State." 19 Mich. -344. AjK^ordjng_to_tbe_viey_ thug-gHl£g8^^-<^ ^y thft_S" prP!nip. Q nnrt of 3\Iic higan, service u pon^n agent of a for £ign corpora tion wil LjlOt- _be__deemed_8ufficjent3_UBlj^^ ^ate^^ This representation implies that the corporation does busi- ness, or has business, in the State for the transaction of which it sends or appoints an agent there. If the agent occupies no repre- sentative character with respect to the business of the corporation in the State, a judgment rendered upon service on him would hardly be considered in other tribunals as possessing any probative force. In a case where similar service was made in New York upon an officer of a corporation of New Jersey accidentally in the former State, the Supreme Court of New Jersey said, that a law of another SECT. II.] ST. CLAIR V. COX. 347 State which sanctioned such service upon an officer accidenta"ly within its jurisdiction was *^s o contrary to natural jus tice and to the principles of internatio nal law, that the courts of other Stat es ought "^ot to sanction it." Moulin v. Trenton Insurance Co., 24 J^. J. L. 2^234. Without considering whether authorizing service of a copy of a writ of attachment as a summons on some of the persons named in the statute — a member, for instance, of the foreign corporation, that is, a mere stockholder — is not a departure from the principle of natural justice mentioned in Lafayette Insurance Co. v. French, which forbids condemnation without citation, it is sufficient to ob- serve that we are of opinion that when service is made within the State upon an agent of a foreign corporation, it is essential, in order to s upport the jurisd icti on of the court to render a personal ju dgz. meut, that it sho uld appe ar soniewEere iiTt Ee record — either in thp. lEpplica tion~for t he writ, ofltccom £anyiugjtsjeijnf^f'< ov ^^ ^^"^ p1pnd-_ '' iTi^^S'oir'the find Ing_^f_j££lcourtj~lbaj_t^ ^ corporation was engaged i n bu s jness j_n the State. The transaction of bu8iness~15y~the cor-" poration in the StaT^T'general or special, appear in g, a certificate of service by the proper officer on a person who is its agen t there would, in o ur opinion, bB -auffieifin t jonwa facie evidence that the agen t ^rep- rese nted the company in the business. It would t hen be open, when the record is offered as eviden ce in another State, to s h ow that the agent stood2t p~D0 r6presehtat jve_chaiacter to the c^^mpany^jjinijviR^ 'duties wer e limited to those of a subordinate employd, or to a par- ticular transaction, or that his ^ency had ceased when the matter in suit aros^jJH^ TTTtEe record, a copy of which was offered in evidence in this case, there was nothing to show, so far as we can see, that the Winthrop Mining Company was engaged in busineaa in the State when service WAR mni^p fm_r!r)1wpl1. ""The rctum of the officer, on which alone reli- ance was placed to sustain the jurisdiction of the State court, gave no information on the subject. It did not, therefore, appear even prima facie that Colwell stood in any such representative character to the company as would justify the service of a copy of the writ on him. The certificate of the sheriff, in the absence of this fact in the record, was insufficient to give the court jurisdiction to render a per- sonal judgment against the foreign corporation. The record was, therefore, properly excluded. Judgment affirmed. J B48 COPIN V. ADAMSON. [cHAP. III. COPIN V. ADAMSON. Exchequer. 1874. [Reported Law Reports, 9 Exchequer, 345.] Declaration by the assignee in bankruptcy of tiie Society de Com- merce de France, Limited, on a judgment for £151 15^. recovered on the 7th of February, 1867, in the empire of France, by him against the defendant in the Court of the Tribunal of Commerce of the Department of the Seine, being a court duly holden, and having jurisdiction in that behalf. Plea. 3. That the suit was commenced, according to the French law, by process and summons, and that the defendant was not at any time previous to the recovery of judgment resident or domiciled within the jurisdiction of the said court, nor is he a native of France, and he was not served with any process or summons, nor did he appear, nor had he any notice or knowledge of any process or summons, or any opportunity of defending himself. Keplications. 1. That defendant wss shareholder in a French com- pany, tlic articles of which provided that every shareholder must elect some domicile in Paris, or in default tliereof would be taken to be domi- jcik'd at the office of an imperial procurator, for the purpose of service 'of process in all disputes arising out of the liquidation of the company between the shareholders and the company ; and that such disputes should be submitted to the proper French court. That service was made accordingly, as provided by French law. 2. That the law of France contained similar provisions.^ Amphlett, B.'^^^n important question is raised on these replica- tions, involving the liability of a British subject to be sued in the courts of a foreign oountr}'. As to the first replication demurred to, the court is unanimously of opinion that the defendant is shown upon the fa ceof it to have contracted with the company, of which he is a shareholder, and whose representative the plaintiff is, that he would, under the cir- cumstances disclosed, be amenable to the jurisdiction of the Court of the Tribunal of Coinmer ce of the Department of the Seine. But as to the second replication, my brother Pigott and myself think that although the allegations are sufficient to show that the defendant's con- tract is to be governed by French law, still that they do not show that he is subject to the jurisdiction of the French court. The contract must be interpreted by an English tribunal. Now, the plaintiff seems to have thought that all he need allege is that French law is to govern the contract. But it by no means fol- lows that the defendant has subjected himself to a foreign jurisdiction. The cases which have been referred to show that before an English- man can be made amenable to a foreign court, he must bear either 1 The replications, stated at length by the leiiorter, are here abridged. — Ed. SECT. II.] COPIN V. ADAMSON. 349 an absolute or a qualified or temporary allegiance to the country in which the court is. He must, as is pointed out b}- Blackburn, J., in Schibsby v. Westenholz, Law. Rep. 6 Q. B. 155, p. 161, be a subject of the country-, or as a resident there when the action was commenced (or perhaps it would be enough if he were there when the obligation was contracted, though upon this point doubt is expressed), so as to be under the protection of or amenable to its laws. The learned judge also puts two other cases in which a person might be bound, — one where he, as plaintiff, has selected his tiibunal, and the other where he has voluntarily appeared before it and takes the chance of a judgment in his favor. The defendant's liability in the latter case, however, is left an open question. But independently of that question, I appreA hend that a man ma}- contract with others tliat his rights shall be de- termined not only by foreign law, but by a foreign tribunal, and thus, b}' reason of his contract, and not of anv allegiance absolute or quali- fied, would become bound b}- that tribunal's decision. It is upon tliis ground that I decide the demurrer to the first replication in the plain- tiff's favor. I think tliat the defendant must be taken to have agreed that if he did not elect a domicile one should be elected for him ; for the articles of association provide for its being done. It is said that it is not suflBciently stated that he had notice of this particular provision ; but I think it must be implied that he had notice, from the fact of his becoming a shareliolder in the compan}'. I now proceed to consider the second replication, which is silent as to the statutes or articles of association, but simply alleges that according to French law the members of the company w'e bound to elect a domicile ; and that, according to French law, upon default a domicile would be elected for them at a public office, where process might be served, and that they would be bound thereby. I confess I cannot find a case which has gone so far as to hold a defendant liable, under such circumstances, upon a foreign judgment obtained, as this was, without any knowledge on his part of the proceedings. Can it be said tliat an Englishman, for example, who buys a share in a foreign company on the London Stock Exchange, thereby becomes necessarily bound b}- an\' decision to which the foreign tribunal may come upon a matter affecting his interests? Suppose there had been a provision Iw the law of France that whenever a member neglected to elect a domi- cile he should pay double calls, are we to enforce his liabilit}' in an action on a judgment for such calls obtained against him without his knowledge in the foreign court? No doubt in the present case, where the law of France is in question, the probability is that the shareholder would not be subjected to an}' extraordinary or unjust liabilities. But if the principle of law is that which the plaintiff contends for, it must be applied in cases of countries where the law might be very much more open to objection than it is likely to be in a country such as France. It is said, however, that the authorities upon the point are decisive, 350 COPIN V. ADAMSON. [CHAP. III. and two were especially relied on. The first was the Bank of Austral- asia V. Harding, 9 C. B. GGl, 19 L. J. (C. P.) 315 ; and it is, 1 agree, a strong autliority in support of the first replication, but not of the second. In that case there had been a local act obtained giving power to tlie company's creditors to obtain judgment against a representative of all the members, and enacting that by that judgment all the mem- bers should be bound ; and it was upon the circumstance that the act existed that the judgment of the court was founded ; and nothing falls from any of the judges to indicate that they would have held the defendant bound if there had been no such act. In their opinion the defendant was to be considered as a consenting party to the passing of the act, or as one of the parties at whose request it was passed, and therefore bound by its provisions. See per Wilde, C. J., and Cress- well, J., pp. 685, 687. In the absence of such consent, it seems to me that the court would have come to a contrary conclusion. The second case relied on was Valle'e v. Duraergue, 4 Ex. 290, 18 L. J. (Ex.) 398 ; but here, again, although the decision supports the first, it fails to support the second replication. There the defendant had become by transfer the owner of shares in a French company ; and upon accepting the shares was bound, according to French law, to elect a domicile. He actually did so, and gave notice of his election to the company. He was, therefore, aware of what the French law was, and had complied with it. Then, having left the country, notice of process was, as here, left at the elected domicile, but never reached the defend- ant against whom judgment by default was recovered. It was held he was liable on the judgment, but upon the ground that he had done something more than become a sliareholder in the company ; he had so conducted himself as to warrant the inference that he had agreed to be bound by the decision of the foreign court. " The replication consists," says Alderson, B. (p. 303) '' of a statement of facts which show that by the agreement to which the defendant has become a party, no actual notice need be given to him;" and, again (p. 303), "It is not con- trary to natural justice that a man who has agreed to receive a partic- ular mode of notification of legal proceedings should be bound by a judgment in which that particular mode has been followed, even though /^/ he may not have had actual notice of them." Im^ For these reasons my judgment (in which my brother Pigott con- ^^r J ^"'^'' ^^ ^^' ^^^^ plaintiff upon the demurrer to the first replication, and / ^ 't*'^ ^^'' ^^^^ defendant upon the demurrer to the second. j-^^ Judgment accordingly.^ Keli.y, C. B.2 [dissenting on the second replication.] I apprehend that it is now established by the law of this country that one who lie- comes a shareliolder in a foreign company, and therefore and thereby 1 Ace. liank of Australasia v. Harding, 9 C. B. 661 ; Bank of Australasia v. Nias, 16 Q. B. 717. — Ed. - Part of this opinion is omitted. — Ed. SECT. II.] EX PARTE BLAIN. 351 a member of that compain*, — such compan)- existing in a foreign countr}-, and subject in all things to the law of that country, — himself becomes subject to the law of that country', and to the articles or con- stitutions of that company construed and interpreted according to the law of that country in all things, and as to all matters and all questions existing or arising in relation to or connected with the acts and affairs and the rights and liabilities of such company and its members sever- ally and collectively ; and if that company, by the law of the countjy in which it exists, or by the articles of its constitution, is subject to the jurisdiction of a particular court within that country, so also is each shareholder or member subject to its jurisdiction in all cases in relation to or connected with such company. Ex PARTE BLAIN. Court of Appeal. 1879. [Reported 12 Chancery Division, 522.] This was an appeal from a decision of Mr. Register Pepys, acting as Chief Judge in Bankruptcy. James Sawers, of Liverpool, and six other persons, traded at Liver- pool and in London under the firm of James Sawers & Co., and at Valparaiso and other places in South America under the firm of Sawers, Woodgate, & Co. The principal place of business of the firm in England was at Liverpool. Two of the partners were Chilian subjects, domiciled and permanently resident in Chili, and they had never been in England or in any part of Great Britain. On the 16th of December, 1878, William Blain commenced an action in the Queen's Bench Division against the firm of James Sawers & Co., in respect of a debt of £2,500 contracted by the firm in England. The writ was served the same day on James Sawers personally, at the place of business of the firm in Liverpool. It was not served on any of the other partners. On the 24th of January, 1879, the defendants not having appeared to the writ, judgment for £2,500 and costs was entered for the plaintiff against the defendant firm. A writ of fi. fa. was issued upon the judgment, under which the sheriff seized goods of the firm at Liverpool and sold them on the 29th of January, 1879. On the same day the plaintiff presented a bankruptcy petition in the London court against all the members of the firm of James Sawers & Co., alleging that the levy of the exe- cution by seizure and sale was an act of bankruptcy committed by them. An ex jmrtp. order was made, under rule 66 of the Bank- ruptcy Rules, 1870, giving the petitioning creditor leave to serve the petition on the two Chilian partners in Chili. Before the hearing of the petition as against them they appeared under protest, not submit- 352 EX PARTE BLAIN. [CHAP. HI. ting to the jurisdiction of the court, and asked that the order for service might be discharged, on the ground that the court had no jurisdiction over them. The registrar discharged the order. The petitioning creditor appealed. James, L. .J.^ It appears to me that the registrar's order was per- fectly right. The respondents come here under protest, as they havo a perfect right to do, to discharge an order which was made in this country, by a court of this country, on the ground that it is an order which improperly emanated, and they ask to have the order dis- charged, so that they may never be embarrassed, or be liable to be embarrassed, by the fact of such an order having been issued. It appears to me that the whole question is governed by the broad, general, universal principle that English legislation, unless the con- trary is expressly enacted or so plainly implied as to make it the duty of an English court to give effect to an English statute, is applicable only to English subjects or to foreigners, who by coming into this country, whether for a long or a short time, have made themselves during that time subject to English jurisdiction. Every foreigner who comes into this country, for however limited a time, is, during his residence here within the allegiance of the sovereign, entitled to the protection of the sovereign and subject to all the laws of the sovereign. But, if a foreigner remains abroad, if he has never come into this country at all, it seems to me impossible to imagine that the English legislature could have ever intended to make such a man subject to particular English legislation, English legislation has said that, if a debtor allows his goods to be taken in execution, certain consequences shall follow, and English legislation has a right to say that with regard to an English subject. But what right has it to say so with regard to a Chilian? No doubt it has a right to say to a Chilian, or to any other foreigner, " If you make a contract in England, or commit a breach of a contract in England, under a particular act of Parliament a particular procedure may be taken by which we can effectually try the question of that contract, or that breach, and give execution against any property of yours in this country." But that is because the property is within the pro- tection and subject to the powers of the English law. To what extent the decision of such a question would be recognized abroad remains to be considered, and must be determined by the tribunals abroad. If a foreigner, being served with a writ under the provi- sions of the Judicature Act, did not choose to appear, and the legis- lature said, " If you do not appear you will commit a default in that way, and we will give judgment against you," whether that judg- ment would, under such circumstances, be recognized by foreign tribunals, as being consistent with international law and the general ^ Arguments of counsel and the concurring opinions of Brett and Cotton, L.JJ., are omitted. — Ed. SECT, il] ex parte blain. 353 principles of justice, is a matter which must be determined by them. But we have to consider a matter, not of British, but of peculiarly English legislation, because the^B.ankruptcy Act is confined to Eng- land, and does not extend to Scotland or Ireland, except in cerfain cases expressly provided for, and I believe it does not extend to the colonies. And we have to deal with the case of a Chilian who says, "lam a Chilian, and I wish to be a Chilian; I have never made myself subject to English legislation or English tribunals. I do not wish to come here to be made a bankrupt." It seems to me he ha« a right to say that. As I happen to know, there is in the Sand- wich Islands a code of bankruptcy, which was introduced by Kame- hameha II., and I think it would be monstrous if an English merchant of Liverpool, having business transactions in the Sandwich Islands, was summoned by the court there to appear in a bankruptcy proceeding at Honolulu. It is not consistent with ordinary princi- ples of justice or the comity of nations that the legislature of one country should call on the subject of another country to appear before its tribunals when he has never been within their jurisdiction. Of course, if a foreigner has come into this country and has committed an act of bankruptcy here, he is liable to the consequences of what he has done here; but, in the absence of express legislative provi- sion, compelling me to say that the legislature has done that which, in my opinion, would be a violation of international law, I respect- fully decline to hold that it has done anything of the kind. I therefore entirely agree with the decision of the registrar, that the order for service ought to be discharged. The other ground on which he put his decision would, I think, be sufficient, namely, that the whole of the provisions of the Bankruptcy Act with regard to acts of bankruptcy proceed on the commission of some act or default by the debtor. Sect. 6 begins with saying that the following "acts or defaults" are to be included under the expression "acts of bank- ruptcy," and the registrar was of opinion that it would be impossible to say that these Chilian subjects had been guilty of any default. I do not at all differ from him in that conclusion.^ 1 Jcc. In re Pearson, [1892] 2 Q. B. 263 ; In re A. B. & Co., [1900] 1 Q. B. 541. In the latter case Lindley, M. R., said : "Bankruptcy is a very serious matter. It alters the status of the bankrupt. This cannot be overlooked or forgotten when we are dealing with foreigners, who are not subject to our jurisdiction. "What authority or right has the court to alter in this way the status of foreigners, who are not subject to our jurisdiction ? If Parliament had conferred this power in express words, then of course the court would be bound to exercise it. But the decisions go to this ex- tent, and rightly, I think, in principle, that unless Parliament has conferred upon the court that power in language which is unmistakable, the court is not to assume that Parliament intended to do that which might so seriously affect foreigners who are not resident here, and might give offence to foreign governments." — Ed. 23 354 G. AND B. SEWING MACHINE CO. V. RADCLIFFE. [ciIAP. III. GROVER AND BAKER SEWING MACHINE CO. v. RADCLIFFE. Supreme Court of the United States. 1890. [Reported 137 United States, 287.] Error to the Court of Appeals of the State of Maryland. This was an action brought in the Circuit Court of Cecil County, Maryland, by the Grover and Baker Sewing Machine Company against James and John Benge, citizens of Delaware, by summons and attachment served on William P. Radcliffe as garnishee. The suit was upon a judgment for the sum of three thousand dollars, entered by the prothonotary of the Court of Common Pleas in and for the county of Chester, Pennsylvania, against James and John Benge (who were not citizens or residents of Pennsylvania and were not served with process) upon a bond signed by them, giving author- ity to "any attorney of any court of record in the State of New York or any other State" to confess judgment against them for the amount of the bond. The law of Pennsylvania authorized the prothonotary^ of any court to enter judgment upon such a bond.^ Fuller, C. J. The Maryland Circuit Court arrived at its conclu- sion upon the ground that the statute of Pennsylvania relied on did not authorize the prothonotary of the Court of Common Pleas of that State to enter the judgment; and the Court of Appeals of Maryland reached the same result upon the ground that the judgment was void as against John Benge, because the court rendering it had acquired no jurisdiction over his person. It is settled that notwithstanding the provision of the Constitution of the United States, which declares that "full faith and credit shall be given in each State to the public acts, records, and judicial pro- ceedings of every other State," Art. IV., section I, and the acts of Congress passed in pursuance thereof, 1 Stat. 22, Rev. Stat. § 905 — and notwithst anding the aver ments in the record of the judgment jts'elt, tfi e~ jurisdiction of the_court_by_wbic h a judg ment is vfjidpTgd^ in any S tate may De qiiestion ed in a collateral proceed ing; that the jurisdiction of a foreign court over the person or the slibject-matter, embraced in the judgment or decree of such court, is always open to inquiry; that, in this respect, a court of another State is to Be regarded as a foreign court; and that a personal judgment is without validity if rendered by a State court in an action upon a money demand against a non-resident of the State, upon whom no personal service of process within the State was made, and who did not appear. D'Arcy v. Ketchum, 11 How. 165; Thompson v. Whitman, 18 Wall. 457; Hall v. Lanuing, 91 U. S. 160; Pennoyer v. Neff, 95 U. S. 714. 1 This statement is abridged from the statement of Fuller, C. J. — Ed. SECT. II.] G. AND B. SEWING MA.CIIINE CO. V. RADCLIFFE. 355 The rule is not otherwise in the State of Pennsylvania, where the judgment in question was rendered; Guthrie v. Lowry, 84 Penn. St. 533; Scott v. Noble, 72 Penn. St. 115; Noble v. Thompson Oil Co., 79 Penn. St. 354; Steel v. Smith, 7 W. & S. 447; nor in the State of Maryland, where the action under review was brought upon it; Bank of the United States v. Merchants' Bank, 7 Gill, 415; Clark V. Bryan, IG Maryland, 171; Weaver v. Boggs, 38 Maryland, 255. And the distinction between the validity of a judgment rendered in one State, under its local laws upon the subject, and its validity in another State, is recognized by the highest tribunals of each of these States. Thus in Steel v. Smith, 7 W. & S. 447, it was decided, in 1844 , that a judgment of a court of another State does not bind the person of the defendant, in a nother jurisdiction, though it might do so under the laws of the State i n whic h ih e'^acTion was bro ught, aiT5 that the act of Congress does^uqt_preclucle inquiry into the jurisd i c- tiouj, or tliajigiit^ < )f the State to confer U . The action was~5rSiigbt- on a judgment rendered in Louisiana, and^Ir. Chief Justice Gibson, in delivering the opinion of the court, said: "The record shows that there was servic e on one of the jo int owners, -which, in the estima- tion of the law of the court, is service ^m- fl-U ; for it is affirmed in Hill V. Bowman, already quoted [14 La. 445], that the State of Louisiana holds all persons amenable to the process of her courts, whether citizens or aliens, and whether present or absent. It was ruled in George v. Fitzgerald, 12 La. 604, that a defendant, though he reside in another State, h aving nejlher domicile, intprf^st nnr_ age nt in Louisi ana^ and having never been within its territorial^ ^ lim its, may yet be sued in its courts by the instrumentality of a curator appolnted__b y the court _to_r£pres e ii t and defend him . All this is clear enough, as well as that there was in this instance a general appearance by attor ney, and a judgment against all the defendants, which would have full faith and credit given to it in the courts of the State. But that a judg ment is always regular when there has been an appearance by attorney, with or without warrant, and that it cannot be impeached collaterally, for anything but fraud or collusion, is a muriicipal principle, and not an international one having place in a question of State jurisdiction or sovereigiity. Now, though the courts of Louisiana would enforce this judgment against the persons of the defendants, if found within reach of their process, yet, where there is an attempt to enforce it by the process of another State, it behooves the court whose assistance is invoked to look narrowly into the constitutional injunction, and give the statute to carry it out a reasonable interpretation." pp. 449, 450. Referring to § 1307 of Mr. Justice Story's Commentaries on the Constitution, and the cases cited, to which he added Benton v. Burgot, 10 S. «& R. 240, the learned Judge inquired: "What, then, is the right of a State to exercise authority over the persons of those 356 G. AND B. SEWING MACHINE CO. V. RADCLIFFE. [CHAP. IIL who belong to another jurisdiction, and who have perhaps not been out of the boundaries of it?" (p. 450) and quoted from Vattel, Burge, and from Mr. Justice Story (Conflict of Laws, c. 14, § 539), that " ' no sovereignty can extend its process beyond its own territo- rial limits, to subject other persons or property to its judicial deci- sions. Every exertion of authority beyond these limits is a mere nullity, and incapable of binding such persons or property in other tribunals,'" and thus continued: "Such is the familiar, reasonable, and just principle of the law of nations; and it is scarce supposable that the framers of the Constitution designed to abrogate it between States which were to remain as independent of each other, for all but national purposes, as they were before the revolution. Certainly it was not intended to legitimate an assumption of extraterritorial jurisdiction which would confound all distinctive principles of sepa- rate sovereignty ; and there evidently was such an assumption in the proceedings under consideration. . . . But I would perhaps do the jurisprudence of Louisiana injustice, did I treat its cognizance of the defendants as an act of usurpation. It makes no claim to extra- territorial authority, but merely concludes the party in its own courts, and leaves the rest to the Constitution as carried out by the act of Congress. When, however, a creditor asks us to give such a judgment what is in truth an extraterritorial effect, he asks us to do what we will not, till we are compelled by a mandate of the court in the last resort." p. 451. In Weaver v. Boggs, 38 Maryland, 255, it was held that suit could not be maintained in the courts of Marj'land upon a judgment of a court of Pennsylvania rendered upon returns of nihil to two succes- sive writs of scire facias issued to revive a Pennsylvania judgment of more than twenty years' standing, where the defendant had for more than twenty years next before the issuing of the writs resided in Maryland and out of the jurisdiction of the court that rendered the judgment. The court said: "It is well settled that a judgment obtained in a court of one State cannot be enforced in the courts and against a citizen of another, unless the court rendering the judgment has acquired jurisdiction over the defendant by actual service of process upon him, or by his voluntary appearance to the suit and submission to that jurisdiction. Such a judgment may be perfectly valid in the jurisdiction .where rendered| and enforced there even against the property, effects, and credits, of a non-resident defendant there situated ; but it cannot be enforced or made the foundation of an action in another State. A 1 aw which substitutes construfijiv^ for actual notice, is binding upon persons domiciled within the State where such law prevails, and as respects the property of others there situated, but can bind neither person nor property beyond its limits. This rule is based upon international law, and upon that natural protection which every country owes to its own citizens. It con- cedes the jurisdiction of the court to the extent of the State where SECT. II.] G. AND B. SEWING MACHINE CO. V. RADCLIFFE. 357 the judgment is rendered, but upon the principle that it would be unjust to its own citizens to give effect to the judgments of a foreign tribunal against them when they had no opportunity of being heard, its validity is denied." Publicists concur that domicile generally determines the particular territorial jurisprudence to which every individual is subjected. As correctly said by Mr. Wharton, the nationality of our citizens is that of the United States, and by the laws of the United States^ they are bound in all matters in which the United States are sovereign; but in other matters, their domicile is in the particular State, and that determines the applicatory territorial jurisprudence. A foreign judg- ment is impeachable for want of personal service within the juris- diction of the defendant, this being internationally essential to jurisdiction in all cases in which the defendant is not a subject of the State entering judgment; and it is competent for a defendant in an action on a judgment of a sister State, as in an action on a for- eign judgment, to set up as a defence, want of jurisdiction, in that he was not an inhabitant of the State rendering the judgment and had not been served with process, and did not enter his appearance. Whart. Conflict Laws, §§ 32, 654, 6G0; Story, Conflict Laws, §§ 539, 540, 586. John Benge was a citizen of Maryland when he executed this obli- gation. The subject-matter of the suit agaiust him in Pennsylvania was merely the determination of his personal liability, and it was necessary to the validity of the judgment, at least elsewhere, that it should appear from the record that he had been brought within the jurisdiction of the Pennsylvania court by service of process, or his; voluntary appearance, or that he had in some manner authorized the proceeding. By the bond in question he authorized "any attorney of any court of record in the State of New York, or any other State, to confess judgment agaiust him (us) for the said sum, with release of errors, etc." But the record did not show, nor is it contended, that he was served with process, or voluntarily appeared, or that" judgment was confessed by an attorney of any court of record_Q/' Pennsylvania. Upon its face, then, the judgment was invalid, and to be treated as such when offered in evidence in the Maryland court. It is said, however, that the judgment was entered against Benge by a prothonotary, and that the prothonotary had power to do this under the statute of Pennsylvania of February 24, 1806. Laws of Penn. 1805-6, p. 347. This statute was proved as a fact upon the trial in Maryland, and may be assumed to have authorized the action taken, though under Connay v. Halstead, 73 Penn. St. 354, that may, perhaps, be doubtful. And it is argued that the statute, being in force at the time this instrument was executed, should be read into it and considered as forming a part of it, and therefore that John Benge had consented that judgment might be thus entered up against him without service of process, or appearance in person, or by attorney. 358 FITZSIMMONS V. JOHNSON. [CHAP. III. But we do not think that a citizen of another State than Pennsyl- vania can be thus presumptively held to knowledge and acceptance of particular statutes of the latter State. What Benge authorized was a confession of judgment by any attorney of any court of record in the State of New York or any other State, and he had a right to insist upon the letter of the authority conferred. By its terms he did not consent to be bound by the local laws of every State in the Union relating to the rendition of judgment against their own citi- zens without service or appearance, but on the contrary made such appearance a condition of judgment. And even if judgment could have been entered against him, not being served and not appearing, in each of the States of the Union, in accordance with the laws therein existing upon the subject, he could not be held liable upon such judgment in any other State than that in which it was so rendered, contrary to the laws and policy of such State. The courts of Maryland were not bound to hold this judgment as obligatory either on the ground of comity or of duty, thereby per- mitting the law of another State to override their own. No color to any other view is given by our decisions in Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 400, and Hopkins v. Orr, 124 U. S. 510, cited for plaintiff in error. Those cases in- volved the rendition of judgments against sureties on restitution and appeal bonds if judgment went against their principals, and the sureties signed with reference to the particular statute under which each bond was given; nor did, nor could, any such question arise therein as that presented in the case at bar. Judgment affirmed.^ FITZSIMMONS v. JOHNSON. Supreme Court of Tennessee. 1891. [Reported 90 Tennessee, 416.] Caldwell, J.'^ John "W. Todd died, testate, at his residence in Clermont County, Ohio, in the early part of the year 1864. He nominated his friends, John Johnson and C. W. Goyer, of Memphis, Tennessee, as executors of his will. They accepted the trust, went to Ohio, and, on April 27, 1864, were duly qualified by the Probate Court of Clermont County as executors of the will. 1 See First Nat. Bank v. Cunningham, 48 Fed. 510 ; Snyder v. Critchfield, 44 Neb. 66, 62 N. W. 306 ; Teel v. Yost, 128 N. Y. 387. On consent as a ground of jurisdiction of the person, see "Wright v. Bovnton, 37 N. H. 9 ; McCormick v. R. R., 49 N. Y. 303. — Ed. 2 Only so much of the opinion as deals with the question of jurisdiction is here given. — Ed. ^SECT. II.] FITZSIMMONS V. JOHNSON. 359 On November 6, 1865, the executors made what purported to be a final settlement of the estate of their testator, showing that they had received assets to the amount of 663,495.25, and that, of this, the^ had paid to the widow of the testator, as sole distributee, S6 UI40.10. and that the other $2,455.15 had been used in the payment of debts and expenses of administration. This settlement was made in the Probate Court_Ql^C4et'fflmrtr6«iiaty,_Qhip, on whose record the follow- ing entry was made: "This day the court examined the accounts and vouchers of C. W. Goyer and John Johnson, executors of the estate of John W. Todd, deceased, and found the same to be in all things correct; that they have been regularly advertised for excep- tions, and none having been filed thereto, the same are hereby approved and confirmed. And the court finds that said executors have paid all just claims against said estate, and have distributed the remainder according to the wall of the testator. And the said accounts are ordered to be recorded, and the executors are discharged." The testator left no children or representatives of children. By the first ten clauses of his will.he expressed certain desires, which need not be mentioned in this opinion, and made provision for his widow; and by the eleventh clause he devised and bequeathed the residuum of his estate, both real and personal, to his four sisters and one brother. The provision made for the widow proved unsatisfac- tory to her; hence, she failed to accept it. And her non-acceptance had the same legal efi'ect under the Ohio law that an affirmative dissent has under our law. She had the same claims upon her hus- band's estate as she would have had if he had died intestate. The executors assumed that she was entitled to the whole of his personal estate after the payment of debts and expenses, and upon that assumption they paid her the $61,040.10. Such had been the statute law of Ohio, but it was changed, so as to allow the widow only one-third of her husband's net personal estate, a few years before the final settlement. On January 15, 1887, Mary A. Fitzsimmons, one of the residuary i legatees, filed her petition in error, in the Court of Common Pleas of Clermont County, Ohio, for the purpose of having the judgment of the Probate Court reviewed and reversed. Goyer having died in the meantime, Johnson alone, as surviving executor, was made defend- ant to this petition. The petition was accompanied with an affi- ', davit that Johnson was a non-resident of the State of Ohio, and 1 could not, therefore, be personally served with summons, that he had \ no attorney of record in the State, and that it was a proper case for j publication. Thereupon publication was made for Johnson, as a ! non-resident, requiring him to appear and plead to the petition; and a copy of a newspaper containing the published notice was sent to him at his residence in Memphis, Tennessee. Johnson made default, and on January 20, 1888, the petition in error was heard in the Court of Common Pleas, and the judgment of 360 riTZSIMMONS V. JOHNSON. [CHAP. III. the Probate Court was reversed and set aside, and the cause was remanded to the Probate Court for furtlier proceedings. After the remand, Mrs. Fitzsimmons and Mrs. Young, another of the residu- ary legatees, appeared in the Probate Court and filed exceptions to the accounts of Goyer and Johnson, which had been confirmed by that court in 1865. These exceptions were set for hearing, and a copy thereof, together with a notice of the time and place of hearing the same by the court, was mailed to Johnson at Memphis. Johnson again failed to appear. The exceptions were sustained, and, on February 2, 1888, the Probate Court adjudged that the exec- utors had been improperly credited in the former settlement with tilt' SOI, 040. 10 paid the widow, and that they had received $30,000 besides, which they had not reported or accounted for in any way. The court further adjudged that these two sums, together with inter- est thereon, in all $130,640, remained, or should be, in the hands of the executors for distribution; and it was ordered that Johnson, as surviving executor, proceed to distribute said sum of $130,640 according to the will of John W. Todd, deceased, and according to law. That judgment is the principal ground of the present action. On March 28, 1888, Mrs. Fitzsimmons and the other four residuary legatees, by themselves and their representatives, filed this bill in the Chancery Court at Memphis, to recover from Johnson, as surviv- ing executor, and from the estate of Goyer, the deceased executor, the said $130,640, and other sums alleged to have been received by the same persons as executors of John W. Todd's estate in Tennessee. The chancellor dismissed the bill on demurrer, so far as relief was sought on the Ohio record, but retained it for other purposes, to be hereafter stated. After final decree on the merits of the other branch of the cause, both complainants and defendants appealed to this court. All material questions raised in the Chancery Court are presented here by assignments of error. Was that part of the bill seeking relief on the judgment of the Probate Court in Ohio properly dismissed? The main ground of demurrer to that part of the bill was want of jurisdiction in that court to pronounce the judgment. The question of the court's jurisdiction of the subject-matter need not be discussed or elaborated, for, b y the statntg , , ftf Ohi o, her Pro- bate Courts are given general jurisdiction to settle the accounts of executors and administrators, and to direct distribution of balance found in their hands. Jurisdiction of the subject-matter was, there- fore, ample and complete. Rev. Stat. Ohio, sect. 534. Whether the court had jurisdiction of the person of Johnson is not so easily answered. It is conceded in the bill and recited on the face of the record that Goyer was dead, and that Johnson, the surviving executor, was not iipersonally served with notice, either of the appellate proceedings in SECT. II.] riTZSIMMONS V. JOHNSON. 361 the Court of Common Pleas or of the subsequent proceedings in the Probate Court, which resulted in the judgment sued on; and that, being a non-resident, and without an attorney of record in the State, only publication was made for him. It is now well settled that a personal judgment against a non- resident, rendered in an original suit, upon constructive notice — that is, upon notice by publication merely — is an absolute nullity, and of no effect whatever. Though a State may adopt an^^ rules of practice and legal procedure^ she may deem best as to her own citi- zens, she can adopt none that will give her courts jurisdiction of non-residents so as to authorize personal judgments against them without personal service of process upon them. By personal judgments we mean judgments in personam — as, for payment of money — in contradistinction from judgments in rem, whereby the property of non-residents, situated within the territorial limits of the State, may be im.pounded; for when non-residents own property in a particular State^ it is subject to the laws of that State, and may be attached or otherwise brought into cnstodia legis as security for the debts of the owners, and actually sold and applied by direction of the court, without personal service and by construc- tive notice merely. Pennoyer v. Neff, 95 U. S. 714. The jud^rpent before us is confessedly a personal judgment. Hence, i^f^ the appellate proceedings in the Court of Common Pleas and the subsequent proceedings in the Probate Court were original proceedings, standing upon the same ground with respect to notice as an original action, that judgment is void for want of jurisdiction of the person. The demurrer assumed, and, in sustaining it, the chancellor held, that the petition in error, by which the cause was removed from the Probate Court to the Court of Common Pleas, was, in effect, an original action, and that it could be prosecuted only on notice by personal service; and that, it appearing that no such notice was given, the judgment sued upon was null and void. We do not concur in the view that the petition in error was a new suit, or, that to entitle petitioner to prosecute the same, she must have given the defendant therein the same notice required in the commencement of an original action. In saying this, we are not unmindful of the fact that many of the authorities speak of a writ of error, whose office seems to be the same in most cf the States as the petition in error under the Ohio law, as a new suit. Such is the language of some of the earlier decisions in Ohio. 3 Ohio, 337. In some of the cases in our own State a writ of error has been called a new suit (1 Lea, 290; 13 Lea, 151); in others it is said to be in the nature of a new suit (6 Lea, 83; 13 Lea, 206); and in still another^ the court says ^it is to be regarded as a new suit. 3 Head, 25. But in no case^that we have been able to find, or to which our attention has been called, does the court decide that a writ of error 362 FITZSIMMONS V. JOHNSON. [CHAP. III. is a new suit in the sense of being the commencement of an original action, or that it requires the same character and stringency of notice as an original action. In the very nature of the case. a writ of error cannot be an original actio n. A writ of error lies alone in behalf of a party or privy to an / original suit already finally determined in the lower court, and it \ must run against another party or privy to such original suit. A writ of error has no place in the law unless there has been an origi- nal action ; and, where given scope, it is but a suit on the record in the original case. The Supreme Court of the United States has several times said that a writ of error is rather a continuation of a certain litigation than the commencement of an original action, and we think that such it is, most manifestly, Cohens v. Virginia, 6 Wheaton, 410; Clark V. Matthewson, 12 Peters, 170; Nations v. Johnson, 24 Howard, 205; Pennoyer v. Neff, 95 U. S., 734. , i A writ of error is like a new suit, in that it can be prosecuted only I upon notice to the opposite party. But that notice need not be per- sonal^ as in the commencement of an original action ; it may be either personal or constructive, as the State creating the tribunal may provide. 95 U. S., 734; 24 Howard, 206. ; In 1865^Goyer and Johnson submitted themselves to the jurisdic- tion of the Probate Court of Ohio, for the purpose of settling their accounts, and then obtained a judgment in their favor. That judg- ment was subject to review, and, if erroneous, to reversal, by error j i proceedings in the Court of Common Pleas. Rev. Stat. Ohio, sect. 6708. To obtain such revision or reversal, it was incumbent on the com- plaining pai-ty to give Goyer and Johnson, or the survivor of them, notice. Such notice was, by statute, authorized to be given in any one of three ways — namely, by service of summons on the adverse party in person, or by service on his attorney of record, or by publi- cation. Rev. Stat., 6713. Goyer being dead, and Johnson being a non-resident, and having no attorney in the State, publication was duly made at the instance )f petitioner in error. That was all that was required by the law of )hio, and we are of opinion that it gave the Appellate Court full 1 jurisdiction of Johnson's person, and authorized any judgment that \the merits of the case required, so far as he was concerned. That court had complete power to reverse the judgment of the Probate Court, if found to be erroneous, and either to render such judgment as should have been rendered below in the first instance or to remand the case for further proceedings in the latter court. Rev. Stat., 6726. The latter course was pursued, as has already been seen. John- son, being properly before the Appellate Court by constructive ser- vice, was chargeable with notice of the reversal and remand of his 'K aECT. II.] FITZSIMMONS V. JOHNSON. 363 case, and of the subsequent proceedings in the Probate Court, with- out additional notice b}' publication or otherwise as to the steps taken under the ^^rocct/t'uc/w. In that way he had his day in court when the large judgment was pronounced against him, and he is bound by ij,. the same as if he had been personally served with^ process. That constructive notice of a writ of error to a non-resident party, when such part}' was properly brought before the lower court, is sufficient to bind him by the judgment or decree rendered in the Appellate Court, was expressly decided in the case of Nations v. Johnson, 24 Howard, 195. In that case Johnson had sued Nations in the Chancery Court in Mississippi for some slaves. Deci'ee was for Nations, and he afterward removed himself and the slaves to the State of Texas. Johnson prosecuted a writ of error to the Appellate Court of Mississippi, giving to Nations notice by publication only. The Appellate Court reversed the decree of the chancellor and pro- nounced a decree in favor of Johnson. Subsequently Johnson sued Nations in one of the District Courts of the United States, in the State of Texas, on his decree rendered by the State Court in Mississippi. Nations defended on the ground that he had not been personally served with notice of the writ of error to the Appellate Court. That question being decided against him, not upon the facts but upon the law, in the District Court, Nations prosecuted a writ of error to the Supreme Court of the United States, with the result already stated. In the opinion, Mr. Justice Clifford, speaking for a unanimous court, said: "No rule can be a sound one which, by its legitimate operation, will deprive a party of his right to have his case submitted to the Appellate Court; and where, as in this case, pei'soual service was impossible in the Appellate Court, through the act of the defendant in error, it must I be held that publication according to the law of the jurisdiction, is constructive notice to the party, provided the record shows that ( process was duly served in the subordinate court, and that the party appeared and litigated the merits. . . . Common justice requires that a party, in cases of this description, should have some mode of giving notice to his adversary; and where, as in this case, the record shows that the defendant appeared in the subordinate court and litigated the merits to a final judgment, it cannot be admitted that he can defeat an appeal by removing from the jurisdiction, so as to render personal service of the citation impossible. On that state of facts, service by publication according to the law of the jurisdic- tion and the practice of the court, we think, is free from objection, and is amply sufficient to support the judgment of the Appellate Court." 24 Howard, 205, 206. The same rule is announced in Pennoyer v. Neff, 95 U. S. 734. Text-writers lay it down as a general rule that jurisdiction once I (^^_C/N acquired over the parties in the lower court may be continued until ^i.,^ 364 BUILDING AND INVESTMENT ASSOC. V. HUDSON. [CHAP. Ill the final termination of the controversy in the Appellate Court by giving proper notice of the appellate proceedings, and that notice to a non-resident party by publication merely is sufficient. Freeman on Judgments, sect. 569; 2 Black on Judgments, sect. 912. This rule commends itself to all men for its wisdom and justice. If it did not prevail, a man having an unjust judgment in a subordi- nate court, might, by removal from that State, cut off, absolutely, the right of the adverse party to a hearing in the Appellate Court on writ of error: and, having done so, he might then enforce his unjust judgment. The adverse party would be powerless in such a case. He could get relief neither in the courts of the State in which the judgment was rendered, nor in those of the State to which the other party had removed; for, in the former jurisdiction, the judgment would be conclusive upon him, and if he should go to the latter to relitigate his rights, he would be met and defeated by the previous adjudication of the same rights. One judgment would control the other, on the doctrine that the judgment of a competent court in one State is entitled to the same faith and credit in the courts of every other State as it would receive in those of the State where rendered; which doctrine will be considered hereafter. It is not to be implied that Johnson and Goyer returned to Ten- nessee to hold or obtain any supposed advantage, for they were bona fide citizens of this State all along. But the bona fides of the removal does not affect the rule.^ PERMA NENT BUILDING AND INVESTMENT ASSOCIATION V. HUDSON. Supreme Court of Queensland. 1896. [Reported 7 Queensland Law Journal, 23.] Application by the Permanent Building and Investment Associa- tion, Ltd., to enforce a judgment for £130 95. 5(/., recovered by them in the Supreme Court of New South Wales, against Geoi;gQ Hudson, of Ipswich, in the colony of Queensland. In 1887 Hudson, who was then residing in Sydney, bought 190 shares in the plaintiff company, and was duly registered as owner of the shares. In 1889, he came to reside in Queensland, and from that year onward he continued to reside in Queensland, paying occasional holiday visits to New South Wales. In 1896 j an action was com- menced in the Supreme Court of New Soutli Wales against the defendant for calls due in respect of his shares in the plaintiff' com- pany. The defendant was served with the writ at Ipswich, but did 1 SeeWeaverr. Boggs, 38 Md. 255; Elsasser y. Haines, 52 N. J. L. 10, 15 Atl. 1095. - Ed. SECT. 11,] BUILDING AND INVESTMENT ASSOC. V. HUDSON. 365 not enter an appearance, and the plaintiflfs obtained judgment by default for £130 9s. bd. On the 8th of May leave was granted by Cooper, J., to the plain- tiffs to issue a summons under s. 22 of the Common Law Process Act of 18G7, calling on the defendant to show cause why the judg- ment should not be enforced by the Supreme Court of Queensland. The summons, which was returnable before the Chief Justice in Chambers, was adjourned into court. ^ Griffith, C. J. I do not think there is room for any doubt in this matter. 1 think the law upon it has been free of doubt for the last ten years. The courts of a country have jurisdiction over the per- sons within that country. Also, as a matter of practice, they assert jurisdiction — always under the authority of some statute of their own country — in their own country, with respect to persons out of i the jurisdiction as to contracts made or acts done within the juris-j diction. That is extremely convenient. It is a power conferred by their own legislature, and it holds good within their own jurisdic- tion, but the voice of the legislature does not extend beyond its jurisdiction. International Law does not, as far as I know, require any country to recognize the jurisdiction or authority of any foreign body or tribunal over its citizens, or over any one who was not a citizen of the country within which that foreign body or tribunal has jurisdiction. Writs in New South Wales run as far as the border of New South Wales, and no further. Beyond that they are mere pieces of paper — mere notices. In the case of the colonies which have joined the Federal Council it is different. Their writs in cases where the cause of action arose in the colony in which the action is brought, run throughout federated Australia. New South Wales has not thought fit to join in that federation, and writs from that colony, , as I have said, stop at the border. This judgment, therefore, was j^f-^ji^ obtained in the Supreme Court of New South Wales against a person who owed no allegiance to that court. The document served on him was only a piece of paper, to which, in my opinion, he was in no way bound to pay attention, and which had no effect in this colony, although in New South Wales, it had ample effect, but only because the legislature there had said so. The application must be dis- missed with costs.'* 1 The argnraenta of counsel are omitted. — Ed. 2 Ace. Brisbane Oyster Fishery Co. v. Emerson, Knox (N, S. W.) 80 ; Polack v. Schumacher, 3 So. Austr. R. 76 ; Bangarusami v, Balasubramanian, Ind. L. R. 13 Mad. 496. — Ed. " . 366 VAN HEYDEN V. SAUVAGE. [CHAP. III. VAN HEYDEN v. SAUVAGE. Civil Court of the Seine. 1894. [Reported 22 Clunet, 592.] The Court. By a parol contract of sale, March 11, 1893, at Paris, Vanderheyclen sold Count de Sauvage-Vercourt, with all usual wai- rantiea, for 3,000 francs, a saddle horse, to be delivered at the buyer's house at Emptinne, county of Dinant, Belgium. The very day after the delivery, the buyei asserted that not only did the animal sold pos- sess none of the qualities represented, but had many serious defects. All proposals of compromise, however advantageous to the seller, were checked by the refusal of the latter to take back the horse. In these circumstances, Sauvage sued Vanderheyden for a rescission of the sale in the court of his domicile, at Dinant. Vanderheyden having suffered judgment by default, consented to contest the ques- tion in the Belgian court and opposed the judgment. As a result of a new decree, confirmed by a judgment of the court of Li^ge, an examination by experts was made, at which Vanderheyden was present. The experts fully recognized the defects, and declared the horse absolutely "unfit for the use to which it was destined." Con- sequently, the court of Dinant rescinded the sale; Vanderheyden appealed, and the matter is now pending before the court of Li^ge. Without waiting the final result of a suit the issue of which he feared, Vanderheyden, abandoning the first process, sued his adver- sary in his turn before the court of his own domicile in the present action to recover the price of the horse. Sauvage prays for a con- tinuance till the court of Liege shall finally determine the suit pend- ing before it; but Vanderheyden opposes the motion on the ground that the plea of litisi^endance, cannot be allowed, since the French and Belgian courts are independent. The French courts, to be sure, are not bound by foreign judgments; but a Frenchman is not for- bidden in an action against him by a foreigner to accept trial before the court of his adversary's domicile; but by this very acceptance he has clearly substituted the foreign judges for his own natural judges, and consequently has attributed to their decision the same effects as a decision of the court of his own domicile would have. Now Vander- heyden wishes to turn to the French courts after having pleaded before the Belgian; that is to say, to litigate the same question suc- cessively before two courts, so as to take advantage of the chances of a double process. Such an attempt is allowed neither in equity nor in law. In fact, it is impossible to allow any process, before whatever court, French or foreign, it be brought, to be abandoned at the caprice or at the interest of a party who thus retains in advance the chance of accepting or of rejecting the decision of the court according as it may be favorable or the reverse. The accept- SECT. II.] GIRARD V. TRAMONTANO. 367 ance of such a rule would as a result give the most shocking advan- tage to the rash or dishonest party who could thus, on his own authority and to his sole profit, nullify a decision which finds his adversary entitled, and compel the latter to submit to the chances of a new suit before foreign judges. In short, two courts of the same sort cannot take cognizance at the same time of the same suit, though one be French, the other foreign. Vanderheyden, in accepting Belgian jurisdiction, has at the same time closed every means of recourse to the jurisdiction of hia own country; after having submitted to trial before the court of Dinant, been present at the expert examination and taken an appeal from the decision, it is not now lawful to disregard all its effects, and to consider the former suit as non-existent. In a word, he has by his own will entered into a judicial contract with his adversary, by virtue of which the Belgian jurisdiction has been and should remain alone competent to decide the case. The Court for these reasons declares itself incompetent; declares Vanderheyden without right to sue, and sends the affair back to the court which has already taken jurisdiction. GIRARD V. TRAMONTANO. Court of Appeal of Naples. 1883. [Reported 12 Clunet, 464.] In accordance with the terms of Art. 14 of the French Civil Code, Mr. Tramontano, an Italian subject domiciled in Italy, was sued by Girard & Co. in the Tribunal of Commerce of the Seine, upon the balance of an account. Judgment for the plaintiff, and application to the Court of Appeal of Naples for an exequatur. The Court. When the execution of a foreign judgment is asked for in Italy, the first duty of the Italian judges, by Art. 941 of the Code of Civil Procedure, is to make sure that the judgment was ren- dered by a court that had jurisdiction. It is usually necessary, to be sure, in determining this point, to be governed by the law of the country in which the judgment was rendered (Art. 10 of the prelimi- nary dispositions of the Civil Code). Rut the provisions of Art. 14 of the French Civil Code are not sufficient to confer jurisdiction on the Tribunal of Commerce of the Seine. . . . This text, to be sure, provides that even a foreigner non-resident in France may always be cited before a French court upon obliga- tions toward a Frenchman, though contracted abroad. But this un- limited power given to the French creditor is manifestly opposed to Art. 12 of the Preliminary Dispositions of the Civil Code.^ It is 1 "In no case shall the laws, contracts, or judgments of a foreign country or the provisions of a private contract have power to derogate from the lawe of this kingdom 368 MASSIE V. WATTS. [ciIAP. III. contrary to the provisions of Art. 105, number 2, of the Code of Civil Procedure, submitting to Italian jurisdiction suits relative to obligations performable in Italy, or resulting from contracts made or acts done in the kingdom. It thus contains a usurpation of juris- diction that belongs to the Italian courts. It sets up an extravagant claim of jurisdiction, contrary to the law of nations, and therefore not to be recognized in any State whose municipal public law il violates. It is in vain to urge that a foreigner in contracting with a French- man, whenever he knows the provisions of Art. 14 of the Code Napoleon, is regarded as having waived the right of being judged by his natural judges. For the individual who cannot by his own will obtain within his own country other judges than those provided by the laws of the State, cannot, a fortiori^ escape the rules of com- petence established by public international law. 0^' ?v^ SIE V. WATTS. MASS] Supreme Court of the United States. 1810. ■ {Reported 6 Crunch, 148.] This was an appeal from the decree of the Circuit Court of the United States for the District of Kentucky, in a suit in equity) brought by "Watts, a citizen of Virginia, against Massie, a citizen of Kentucky, to compel the latter to convey to the former 1,000 acres of land in the State of Ohio, the defendant having obtained the legal, title with notice of the plaintiff's equitable title. ^ Marshall, C. J. This suit having been originally instituted, in the court of Kentucky, for the purpose of obtaining a conveyance for lands lying in the State of Ohio, an objection is made by the plaintiff in error, who was the defendant below, to the jurisdiction of the court by which the decree was rendered. Taking into view the character of the suit in chancery brought to establish a prior title originating under the land law of Virginia against a person claiming under a senior patent, considering it as a substitute for a caveat introduced by the peculiar circumstances attending those titles, this court is of opinion, that there is much reason for considering it as a local action, and for confining it to the court sitting within the State in which the lands lie. Was thi.-^ cause, therefore, to be considered as involving a naked question of relating to persons, to property, or to obligations, nor from those which in any way concern the public order and good morals." 1 The statement of facts is omitted. Only ao much of the opinion as deals with the (question of jurisdiction is givi-n. — Ed. < SECT. II.] MASSIE V. WATTS. 369 title, was it, for example, a contest between Watts and Powell, the jurisdiction of the Circuit Court of Kentucky would not be sus- tained, liut where the question changes its character, where the defendant in the ori ginal act i on is liable to the plaintiff, either in consequence of contract, or as trustee, or na thp holder of a legal tittCacquired by any species of 7nala fides practised on t li£_iJLLaJntiffv_ the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. In the celebrated case of Penn v. Lord Baltimore, the Chancellor of England decreed a specific performance of a contract respecting lands lying in North America. The objection to the jurisdiction of the court, in that case, as reported by Vezey, was not that the lands lay without the jurisdiction of the court, but that, in cases relathig to boundaries between provinces, the jurisdiction was exclusively in the king and council. It is in reference to this objection, not to an objection that the lands were without his jurisdiction, that the chan- cellor says, "This court, therefore, has no original jurisdiction on the direct question of the original right of boundaries." The reason why it had no original jurisdiction on this direct question was, that the decision on the extent of those grants, including dominion and political power, as well as proper t}', was exclusively reserved to the king in council. In a subsequent part of the opinion, where he treats of the objec- tion to the jurisdiction of the court, arising from its inability to enforce its decree in re??/, he allows no weight to that argument. The strict primary decree of a court of equity is, he says, hi per- sonam, and may be enforced in all cases where the person is within its jurisdiction. In confirmation of this position he cites the prac- tice of the courts to decree respecting lands lying in Ireland and in the colonies, if the person against whom the decree was prayed be found in England. In the case of Arglasse v. Muschamp, 1 Vernon, 75, the defend- ant, residing in England, having fraudulently obtained a rent charge on lands lying in Ireland, a bill was brought in England to set it aside. To an objection made to the jurisdiction of the court the chancellor replied: "This is surely only a jest put upon the jurisdic- tion of this court by the common lawyers; for when you go about to bind the lands and grant a sequestration to execute a decree, tlien they readily tell you that the authority of this court is only to regu- late a man's conscience, and ought not to affect the estate, but that this court must agere in 2)erso7iar72 only; and when, as in this case, you prosecute the person for a fraud, they Lell you that you nnisi not intermeddle here, because the fraud, though committed here, con- cerns lands that lie in Ireland, which makes the jurisdiction local, 24 370 MASSIE V. WATTS. [CHAP. IIL and so wholly elude the jurisdiction of this court." The chancellor, in that case, sustained his jurisdiction on principle, and on the authority of Archer and Preston, in which case a contract made respecting lands in Ireland, the title to which depended on the act of settlement, was enforced in England, although the defendant was a resident of Ireland, and had only made a casual visit to England. On a rehearing before Lord Keeper North this decree was affirmed. In the case of The Earl of Kildare v. Sir Morrice Eustace and Fitzo'erald, 1 Vern. 419, it was determined that if the trustee live in England, the chancellor may enforce the trust, although the lands lie in li-eland. In the case of Toller y. Carteret, 2 Vern. 494, a bill was sustained for the foreclosure of a mortgage of lands lying out of the jurisdic- tion of the court, the person of the mortgagor being within it. Subsequent to these decisions was the case of Penn against Lord Baltimore, 1 Vez. 444, in which the specific performance of a con- tract for lands lying in North America was decreed in England. Upon the authority of these cases, and of others which are to be ffound in the books, as well as upon general principles, this court is of opinion that, in_a case of fraud, of trust, or of contract, t be_ juris- diction of a court of chancery is sustainable wherever the person be foun d, althou g h lands not within the jurisdiction of that court m ay be affect ed by the decree. The inquiry, therefore, will be, whether this be an. unmixed que s- tion of tit le, or a case of frau^, trust, or contract. The facts in this case , so far as they affect the question of juris- diction, are, that, in 1787, the land warrant, of which Watts is now the proprietor, and which then belonged to Oneal, was placed with- out any special contract in the hands of Afns^ip^ na n pommnn local^ of lands. In the month of August in the same year he located 1,000 "acTPST-'part of this warrant, to adjoin a previous location made on the same day for Robert Powell. In the year 1793 Massie, as deputy-surveyor, surveyed the lauds of Thomas Massie, on which Robert Powell's entry depended, and the land of Robert Powell, on which Oueal's entry, now the property of Watts, depended. On the 27th of June, 1795, Nathaniel Massie, the plaintiff in error, entered for himself 2,.36G acres of land to adjoin the surveys made for Robert Powell, Thomas Massie, and one Daniel Stull. The entry of Daniel Stull commences at the upper corner of Ferdinand Oneal's entry on the Scioto, and the entry of Ferdinand Oneal commences at the upper corner of Robert Powell's entry on the Scioto; so that the land of Oneal would be supposed, from the entries, to occupy the space on the Scioto between Powell and Stull. Nathaniel Massie's entry, which was made after survey- ing the lands of Thomas Massie and of Robert Powell, binds on the Scioto, and occupies the whole space between Powell's survey and StuU's survey. SECT. II.] MASSIE V. WATTS. 371 Id the year 1796, Nathaniel Massie surveyed 530 acres of Oneal's entry, chiefly within Stull's survey, and afterwards, in the spring of 1797, purcliased Powell's survey. Nathaniel Massie's entry is sur- veyed aud patented. In 1801 Massie received from Watts , iu^monej', the customary co mpensation for making his locatio n. It is alleged that Nathaniel Massie has ac quired for himself the i \ land which was comprehended within Oneal's entry, and has sui- i I ^eyed for Oueal land to which his entry can by no construction be* ' extended. If this allegation be unsupported by evidence, there is an end of the case. I f it be supported, had the court of K f.nfno.k-y jurisdictiiuj ; o ^ the c ause? Although, no expr ess contract be made, yet it cannot be doubjed that the law implies a contract between every man who transacts business for another at the request of that oth_er and the person for whom it is transacted. A common locator who undertakes to l«:)ca_te lands for an absent person is bound to perform the usual duties of a locatoj-, and is entitled to the customary compensation for those duti_es. If he fails in the performance of those duties, he is liable to the action of the injured party, which may be instituted wherever his v person is found. If his compensation be refused, he may sue there- for in any court within whose jurisdiction the person for whom the location was made can be found. In either action ^the manner in which the service was performed is inevitably the subject of investi- gation, and the difficulty of making it cannot oust the court of its jurisdiction. From the nature of the business^ and the situation of the parties, / the person for whom the location is made being generally a non- resident, and almost universally unacquainted with the country in which his laud is placed, it is the duty of the locator not only_to / locate the lan(i§, but to show them to the surveym-. He also neces- sarily possesses the power to amend or to change the location if he has sufficient reason to believe that it is for the interest of his employer so to do. So far as respects the location* he is substituted in the place of the owner, and his acts done bona fide are the acts of the owner. If, under these circumstances, a locator find ing that the entry^e/ has made cannot be surveyed, in stead of withdrawing it or amemi- ? ing it so as to render it susceptible of being carried into executi^oii, secures the adjoining land for himself, and shows other land to tlje surveyor which the location cannot be construed to comprehend, it i appears to this court to be a breach of dujy, which amounts to ji violation of the implied contract, and subjects him to the action oj the party injured. If the loc ation be sustai nable, and the locator, instead of showing t he land r eally covered by the entry, sh ows other land, and n impro- priates to himself the land actually entered, tliis appears to the court 372 WHITE V. WHITE. [CHAP. III. to be a sp ecies of mala fides whic h willj in equit y, convert him into, aTTruste e j orthe party originally entitled to the land. In either case the jurisdiction of the court of the State in which the person is found is sustainable. If we reason by analogy from the distinction between actions local and transitory at common law, this action would follow the person, because it_.would be founded on an implied contract, or on neglect Df duty. If we reason from those principles which are laid down in the books relative to the jurisdiction of courts of equity, the jurisdiction of the court of Kentucky is equally sustainable, because the defend- ant, if liable, is either liable under his contract, or as trustee.^ WHITE V. WHITE. Court of Appeals, Maryland. 1835. [Reported 7 Gill ^ Johnson, 208.] Buchanan, C. J. The bill in this case was filed for the sale of the real estate of Abraham White, deceased, and the distribution of the proceeds among his heirs, after deducting the amount of a subsisting lien, by mortgage, on a part of it; on the ground that it will not admit of an advantageous division, and that it would be to the advantage of all the parties interested, that it should be sold, which is admitted by the answers. A tract of land, part of this estate, is stated in the bill, to lie in the State of Pennsylvania, as to which the chancellor dismissed the bill for the want of jurisdiction, and decreed a sale of that portion of the property, which lies in this State, appointing a trustee for that purpose. And the only question is, whether he should not also have decreed a sale by the trustee, of the tract of land in Pennsylvania. It would be rather an idle thing in chancery, to entertain jurisdic- tion of a matter not within its reach, and make a decree which it could have no power to enforce, or to compel a compliance with. And the absence of that very power is a good test by which to try the question of jurisdiction. It would be a solecism to say, that the chancellor has jurisdiction to decree in rem, where the thing against 1 Ace. Penn v. Lord Baltimore, 1 Ves. Sr. 444 ; McGee v. Sweeney, 84 Cal. 100, 23 Pac. 1117 ; Cloud v. Greasley, 125 111. 313, 17 N. E. 826 ; Reed v. Reed, 75 Me. 264 ; Brown v. Desmond, 100 Mass. 267 ; Vreeland v. Vreeland, 49 N. J. Eq. 322, 24 Atl. 551 ; Gardner v. Ogden, 22 N. Y. 327 ; Guerrant v. Fowler, 1 Hen. k M. 5 ; Poindexter v. Burwell, 82 Va. 507. So ^ court of equity has jurisdiction to enjoin thejcpnyeyance of foreign land: Frank v. Peyton, 82 Ky. 150 ; inid to enjoin the obstruction of aj'oreign ))rivate \vaj' : Alexander u. Tollestou'ciub, 110 111. 65. — Ed. f SECT. II.] WHITE V. WHITE. 373 which the decree goes, and is alone the subject of, and to be operated upon by it, is beyond the territorial jurisdiction of the Chancery Court, and not subject to its authority, and the decree, if passed, would itself be nugatory for the want of power, or jurisdiction to give it effect. Chancery can have no jurisdiction where it can give- no relief . Now^wh'at jurisdiction has the Chancery Court of Mary- land over lands lying in a foreign country, or in another State; and having no jurisdiction of lands so situated, what authority has it to decree a sale of them, and impart to its trustee authority to go into such State, or foreign country, to carry its decree into effect, by making sale of them. It is true that where the decree sought is in personam^ and may be carried into effect by process of contempt, the Court of Chancery here may have jurisdiction, although it may affect land lying in another State, the defendant being in the State of Maryland, as in a ^ase of trnat, or fraud, or of contract. As where a bill is filed against a person in this State, for the specific performance of a con- tract, or agreement, relating to land in another State. In such a case, the decree does not act directly upon the land, but upon the defendant here, and within the jurisdiction of the court. So where the land itself that is sought to be affected lies within the State, and the proceedings are against a person residing out of the State. But in this case the bill seeks a sale of land in Pennsylvania, not within the jurisdiction of the Court of Chancery of Maryland; and the decree if made would not be in personam^ but for the sale of the land, through the instrumentality of a trustee, and could not be enforced by any process from that court. It is not like the case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, where the bill was for the specific performance of articles concerning the boundaries of the then provinces of Maryland and Pennsylvania, Lord Baltimore the de- fendant being in England, and subject to the compulsory process of chancery there. Nor like the other cases to be found in the English Chancery reports, affecting lands not lying in England, where the proceedings were in personam^ the defendants residing there, and subject to process of contempt, etc. Decree affirmed with costs.^ 1 Ace. Watkins v. Holman, 16 Pet. 25 ; Johnson v. Kimbro, 3 Head, 557 ; Gibson V. Burgess, 82 Va. 650. But see Dunlap v. Byers, llX.Mich^9, 67 N. ^W. 1067 ; Wood V. Warner, 15 N. J. Eq. 81. ^ Similarly, a court of equity may not order the abatement of a foreign nuisance : P. wT^Central R. R., 42 N. Y. 283 ; nor grant specific performance of a contract to dig a ditch in a foreign state : Port Royal R. R. v. Hammond, 58 Ga. 523 ; nor declare a deed of foreign land void: Carpenter v. Strange, 141 U. S. 8^; Davis v. Headley, 22 N. J. Eq. 115 ; but see C. v. Levy, 23 Grat. 21. — Ed. W. 374 LYNDE V. COLUMBUS, ETC. RAILWAY. [CHAP. IIL LYNDE V. COLUMBUS, CHICAGO AND INDIANA CENTRAL RAILWAY. Circuit Court of the United States. 1893. [Eeported 57 Federal Reporter, 993.] Baker, District Judge. The plaintiff brings this suit as a bond- holder for whom the trustee has refused to bring suit against the Columbus, Chicago & Indiana Central Railway Company, Archibald Parkhurst, trustee, and the Pittsburgh, Cincinnati, Chicago & St. Louis Railwa}' Company, for the foreclosure of a trust deed or mort- gage executed by the Columbus, Chicago & Indiana Central Railway- Company to Archibald Parkhurst, as trustee, to secure 1,000 bonds, of 61,000 each, issued by it, and asking for the sale of its railroad em- braced in said trust deed, extending from Indianapolis, Ind., to Columbus, Ohio, together with its franchises, equipments, property, tolls, and interests, — that is to say, the lands, tenements, heredita- ments, fixtures, goods, and chattels of the Columbus, Chicago & Indiana Central Railway Company ; its property, rights, privileges, interest, and estate of every description and nature ; its rails, ties, fences, buildings, and erections ; its right of way, cars, engines, tools, and machinery ; its rents, reservations, and reversions, of every nature, or so much thereof as lies and is within the State and district of Indiana. The bill avers that the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company claims some interest in the said premises, and prays that it may be required to make answer to, all and singular, the allegations and charges contained in the bill, and that said prop- erty may be decreed to be sold free and discharged from an}" and all claims or interest of the parties respondent to the bill. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company has filed a plea alleging, in substance, that the plaintiff herein, as plain- tiff, brought suit against the defendants herein, as defendants, on the same bonds and trust deed or mortgage, in the common pleas court of Franklin County, Ohio ; that said court is a court of general jurisdic- tion in law and equity ; that the cause was tried, and that the court found the bonds in question to be valid obligations of the Columbus, Chicago & Indiana Central Railway Company, and that the plaintiff was entitled to a decree for their payment ; and the court decreed that unless the defendant the Columbus, Chicago & Indiana Central Rail- way Company should, within thirty days, pay, or cause to be paid, the sum so found due, the mortgage should be foreclosed, and the mort- gaged property sold, and that upon the sale the purchaser should be entitled to hold said railway and property free and discharged from the lien or incumbrance of all the parties to the suit. The plaintiff has set the plea down for argument, and the question raised is whether the SECT. II.] LYNDE V. COLUMBUS, ETC. RAILWAY. 375 facts pleaded are sufficient to constitute a bar to the maintenance of the present suit. The plaintiff contends that the plea is insufficient because it contains no averment tliat either the mortgagor, the Columbus, Chicago & Indiana Central Raihva}- Compan}-, or the mortgagee, Archibald Park- hurst, trustee, was brought within the jurisdiction of the court in Ohio by process personally served, or by appearance in person or by attor- ney. The plea avers that the said Charles R. Lynda filed his bill of complaint, denominated by the law of the State of Ohio a " petition," against this defendant and its codefendauts the Columbus, Chicago & Indiana Central Railway Compan}' and Archibald Parkhurst, trustee, and it then proceeds to aver that the cause was heard, and a decree rendered against all the defendants ; but it fails to show affirmativelj' that the court acquired jurisdiction of the persons of the defendants, either b}' service of process or bj- appearance. Pleas in bar, in suits in equity, are not favorites of the law, because the defendant has other and ample modes of defence open to him. The}' are therefore required to be drawn with precision, and must disclose upon their face a complete defence. The facts necessary to render the plea, an equitable bar to the case made b}' the bill must be clearly and distinctly averred, and such plea will not be aided by argument, inference, or intendment. McCloske}' v. Barr, 38 Fed. Rep. 165. This rule, however, is not to be construed as conflicting with that other salutary rule that legal presumptions ought not to be stated in a pleading. Steph. PI. (1871) p. 312 et seq. When the facts are stated from which the law raises a certain legal presumpt'on, it isV- not necessary for the pleader to do more, in order to have the benefit of such legal presumption. In the case of Galpin v. Page, 18 Wall. 350, the rule is thus stated: " It is undoubtedly true that a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law, in such cases, are in favor of its acts. It is presumed to have jurisdiction to give the judgment it rendered, until tiie contrarj' appears ; and this presumption embraces jurisdiction, not only of the cause or subject- matter of the action in which the judgment is given, but of the parties also. The former will generally appear from the character of the judg- ment, and will be determined b}' the law creating the court, or prescrib- ing its general powers. The latter should regularly appear b}' evidence in the record of service of process upon the defendant, or his appear- ance in the action. But when the former exists the latter will be presumed. This is familiar law, and it is asserted in all the adjudged cases. The rule is different with respect to courts of special and limited authorit}'. As to them, there is no presumption of law in favor of their jurisdiction. That must affirmatively appear by sufficient evi- dence or proper averment in the record, or their judgments will be deemed void on their face." Tlie_4udgment in question was rendered by a court having general 376 LYNDE V COLUMBUS, ETC. RAILWAY. [CIIAP. III. Jurisdigj^ni u law and equity, and the legal presumption is that the court fiaT juHsdicti on of the parties and subject-matter, and bad power to pronounce the judgment it did ; and tliis presumption cannot be_ overcome, except by averment and prooTTliat it proceed edwithout Jurisdiction. It is true tbat, wlien tlie record of a former judgment is set up as establishing some collateral fact involved in a subsequent litigation, it must be pleaded strictly as an estoppel ; and the rule is that such pleading must be framed with the utmost precision, and it cannot be aided by inference or intendment. When, however, a former judgment or decree is set up in bar of a subsequent action, or as having determined the entire merits of the controversj-, it is not required to be pleaded with any greater strictness than any other plea in bur, or any plea in avoidance of the matters set up in the antecedent pleading of the opposite party. Aurora City v. West, 7 Wall. 82 ; Gray v. Pingry, 17 Vt. 419; Perkins o. Walker, '^ID Vt. 144; 1 Greenl. Ev. (12th ed.) p. 566 ; Shelley v. Wright, Willes, 9. The^pleaj s not bad for failing 1 q aver that the court had acquired j urisdiction over~"t he tiaiitiea-by_service of p rocgMoiL^pSarailce^ lf,TnTruth, the court proceeded to render the llecree in question without having acquired jurisdiction of the defend- ants, that fact, to avail the plaintiff here, should have been set up by replication, instead of setting the plea down for argument. Rogers v. Odell, 39 N. H. 452; Spaulding v. Baldwin, 31 Ind. 376; Biddle v. Wilkins, 1 Pet. 686; Pennington v. Gibson, 16 How. 65; Campe V. Lassen, 67 Cal. 139, 7 Pac. Rep. 430; Vanfleet, Collat. Attack, §§ 846 and 847, and authorities there cited. It follows that th e suffic iency o f the plea must he determined on the _assu mption that the court in Ohio h ad jurisdiction of the defendants when the cause before it was heard and decided. The cause of "actiotT" there was founded on the same bonds and mortgage or trust deed which constitute the cause of action here. The mortgage or trust deed in suit was executed by a railroad corporation (n-ganized by the consolida- tion of two corporations, one of vvliich was organized under the laws of the State of Ohio, and the other under the laws of the State of Indiana. The consolidated company, presumably, became invested with all the property and franchises of the constituent corporations. Its franchise to be a consolidated corporation, and to build, ov^n, and operate a line of railway extending from Columbus, Ohio, to Indian- apolis, Ind., is undoubtedly an entirety, while the immovable property of the company covered by the mortgage has its situs in both States. It is earnestly insisted that the decree of the Ohio court is binding and conclusive because the court had jurisdiction of the parties and of the subject-matter, and that the present suit to foreclose the same mortgage or trust deed cannot be maintained because by that decree the right of action growing out of the bonds and mortgage has passed in remjudi- catam. It isundoubtedl yjtniethat^our ts possessing general chancery powers_bave Jurisdiction toTcTieve against fra ud, toentorceTrusts, andT lo comp el the specific perf ormance of contracts in relation to immovable SZCT. II.] LYNDE V, COLUMBUS, ETC. RAILWAY. 377 property having its s itus elsewhere tlian in tlie state O LCOu ntrj^ where the courts exist , whene vet' jui'isdiction has been acquired, by appear- _ ance, or bj- personaTservice o f process^ _oye r the persons on whom the oi^li^atioji re sts. Ir'enn v. Lord Baltimore, 1 Ves. Sr. 444 ; Earl of Kihlarc o. Eustace, 1 Vern. 419 ; Arglasse v. Muschamp, Id. 75 ; Toller V. Carteret, 2 Vern. 494 ; Massie v. Watts, 6 Cranch, 148 ; Mills v. I^uryea, 7 Cranch, 481 ; Hampton v. McConnell, 3 Wheat. 234 ; Mc- Gilvray v. Avery, 30 Vt. 538; Davis v. Headley, 22 N.J. Eq. 115; Dobson V. Pearce, 12 N. Y. 156 ; U. S. Bank v. Merchants' Bank of Baltimore, 7 Gill, 415 ; Burnley v. Stevenson, 24 Ohio St. 474. In the case of fraud, trust, or contract, the jurisdiction of a court possessing general equity powers is sustainable wlierever the person to be bound by the decree is found, thougli the decree may incidentally affect lands without its territorial jurisdiction. The decree proceeds in 2)er3onam, and is binding on the conscience of the party ; and the court may, by attachment or sequestration, compel the party to i)erform that which, in equity and good conscience, he ought to have done without coercion. Aequitas agit in personam. Conceding that the court in Qhio lad juris- ■< dictio n_o£^thejpaTt[es_and of the a ubjgct- matter, had it po wer, by i t8_ decree7l Fjne rge~tlie lien of thj _jnortgage on the p rnpert^jgn ^h raced __ "there ln7 bavi"g its siUis in Iiid lanalT The Ohio court may compel the defendants to execute a conveyance or release of the mortgaged prem- ises in such form as may be necessary to transfer the legal title to the property according to the law of this State, and such as will be sufficient to bar an action elsewhere.^ The plea does not aver that the execu- tion of any such conveyance or release has been compelled. Until such conveyance or release has been executed, the lien of the mortgage on the immovable property embraced in it, situated in this State, remains unaffected, unless the court in Ohio was clothed with power enabling it to affect the status of real estate outside of the State which created the court, by a decree operating iti rem. It is elementary that no sovereignty can extend its process beyond its own territorial limits, to subject persons or property to its judicial decisions. Every attempted exertion of authority of this sort beyond its limits is a mere nullitj-, incapable of binding such person or property in any other forum. Story, Confl. Laws (7th ed.), § 539. A suit can- not be maintained against a person so as absolutely to bind his prop- erty situated in another sovereignty, nor so as absolutely to bind his right and title to immovable property whose situs is elsewhere. " It is true," says Story in his Conflict of Laws (7th ed. § 543), " that some nations do, in maintaining suits in personam, attempt indirectly, by their judgments and decrees, to bind property situate in other countries ; l)ut it is always with the reserve that it binds the person only in their own courts, in regard to such property. And certainly there can be no pretense that such judgments or decrees bind the property itself, or the 1 Ace. Mead v. N. Y. H. & N. R. R., 45 Conn. 199 ; Eaton v, McCall, 86 Me. 346, 29 Atl. 1103 ; Union Trust Co. v. R. R., 102 N. Y. 729, 7 N. E. 822. — Ed. 378 LYNDR V. COLUMBUS, ETC. RAILWAY. [CHAP. IIL rights over it wliich are established b}' the laws of the place where it is situate." And again he says : "In respect to immovable propertj', ever}' attempt b}" any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterlj- uugator}-, and its decree must be forever incapable of execution in rem." These principles have been recognized and acted upon by all courts as having their founda- tion in I'eason, and as essential to the peace and security of independent states. In Watkins v. Holraan, 16 Pet. 25, it was held that a court of chancery might decree the conveyance of land in any other State, and might enforce the decree by process against the defendant, but tliat neither the decree itself, nor an}* conve3'ance under it, except b}- the person in whom the title is vested, could operate beyond the jurisdic- tion of the court. The same principle is affirmed and acted ui)on in Bos well V. Otis, 9 How. 336, and Northern Indiana R. Co. v. Michigan Cent. R. Co., 15 How. 233. Indeed, no principle is more firml}- settled tlian that the disposition of real estate, whether b}' deed, descent, or any other mode, must be governed b}' the laws of the State where the land is situated. It is argued that, in respect of immovable property mortgaged by an interstate railwa}* compan}', a different rule has been established b}* the case of MuUer v. Dows, 94 U". S. 444. It is con- tended that the court there held that, as the railroad and its franchise were an entirety, any court having jurisdiction of the parties and subject-matter could make a valid decree of foreclosure, which would operate on the entire railroad property, as well without as within the State where the decree was pronounced, and that it would completely merge the lien of the mortgage. What was there said, giving apparent support to this contention, was merel}' arguendo, and was not essential \ to the judgment pronounced. In that case the Circuit Court of thai United States for the District of Iowa passed a decree of foreclosure/ and sale of a railroad extending from a point in Iowa to a point in Missouri, and owned by a corporation formed by the consolidation of a corporation of Missouri with a corporation of Iowa. The entire line was covered by one trust deed, and the suit to foreclose was brought by the trustee. The mortgagees were also before the court, and the sale was made by a master at the instance of the trustee. It was held that the decree was not void, so far as it directed the foreclosure and sale of that part of the railroad lying in Missouri, and that the trustee could be required by the court in Iowa to make a deed to the purchaser in confirmation of the sale. In my judgment, this case does not over- turn the well-established doctrine that a court in one State cannot pass a decree which shall operate to change the title to, or merge a lien upon, immovable property in another State. The title in that case wns transferred by the court compelling the execution of a power of sale, and not by force of the decree. Mercantile Trust Co. v. Kanawha & O. Ry. Co., 39 Fed. Rep. 337 ; Farmers' Loan & Trust Co. v. Postal Tel. Co., 65 Conn. 334, 11 Atl. Rep. 184. The case last cited is exactly in point. The Postal Telegraph Company, a New York corpo- SECT. II.] YOUNG V. DREYFUS. , 379 ration, mortgaged all its property, which was situated in several States, including Connecticut and New York, to the plaintiffs, in trust, to secure the payment of its bonds. Upon a failure to pay the interest, the plaintiffs brought a suit for a foreclosure in the Supreme Court in the city of New York. Judgment was rendered for the plaintiffs, pur- suant to which a referee was appointed, who sold all the property, including the real estate in Connecticut, and executed a conveyance of the same to the purchaser. Suit was brought to foreclose the mort- gage on the Connecticut property, according to the laws and practice in that State. The defendant, the Benedict & Burnham Manufacturing Company, an attaching creditor, appeared, and set up a special defence, alleging the foreclosure and proceedings in the State of New York. The defence was held insufficient, on the ground that the decree and proceedings had thereunder were nugatory as to the real estate situate in Connecticut. In my judgment, the doctrine of this c as e presents, the better_vi ew, and it must be held that the decree of the Ohio court didnotjnergethe li en of the mortgage on the real estate in Indiana. It resultsfrom these views that the plea is insufficient, and it is so ordered, with leave to the defendant to answer within thirty days. YOUNG V. DREYFUS. Court of Appeal of Paris. 1885. [Reported 12 Clunet, 639.] A COMPANY was formed at London in 1864 under the name of "The Saint-Nazaire Company, Limited." Its principal object was the pur- chase and resale of vast tracts of land situated in the neighborhood of the city of Saint-Nazaire, which they proposed to convert into docks, basins, quays, etc. The capital of the company, made up in accordance with the English law, was divided into shares of £20 each, £5 payable upon subscription, and the balance, as the company should need it, on call by the board of management. After various vicissitudes, especially its consolidation with a com- pany formed in France (the " Soci^t^ de Commerce de France"), the English Saint-Nazaire Company was put into liquidation in England, and Mr. Young was appointed official liquidator b}* a decree of the Court of Chancery. In 1877 Mr. Young, to meet the liabilities of the company, called upon the shareholders to complete the payment for their shares, amoun^ ing to £11 per share. Several shareholders not having satisfied the call, Mr. Young summoned them all before the Court of Chancery, and a decree of the Master of the Rools [Rolls?] condemned them to pay the amounts claimed. To secure the execution of this decree against the French share* 380 YOUNG V. DREYFUS. [CHAP. III. holders, Mr. Young brought an action against them, in his own name, before the Civil Tribunal of the Seine, to have the decree of the Court of Chancer^' of December 7, 1877, declared executory in France. By additional and subsidiar}' demands alleged to the lower court, Mr. Young claimed in his own name, in case the tribunal should not de- clare the English decree executory, that each of the defendants be adjudged to pay the amounts decreed against them in said decree, which represented the balances unpaid of the sums subscribed. On their part, the shareholders set up the lack of jurisdiction of the Eng- lish court, and, as a result, the nullity of the decree; alleging also, as to the additional claims, the incompetence of the Civil Tribunal of the Seine, because "The Saint-Nazaire Companj', Limited" was a com- mercial company. On August 24, 1881, the Civil Tribunal of the Seine rejected the liquidator's claim. On his appeal, the Court of Paris affirmed the judgment in the following terms : — The Court. As to the jurisdiction of the English courts, Article 14 of the Civil Code authorizes a French i)laintiff to cite a foreigner before the French tribunals, even upon obligations contracted in foreign coun- tries. The oliject of this provision, containing as it does an exception to the rule actor forum, sequitur rei^ is to assure to a Frenchman the benefit of the national courts. It follows, a fortiori^ that a defendant cannot, contrary to the rules of the common law, be witlidravvn from his natural judges. Foreign courts are therefore, on principle, incom- petent as concerns him. Nor is tiie case changed b}' the terms of Art. 59, § 5, of the Code of Civil Procedure, giving jurisdiction, in the case of partnerships, to the court of the place where the principal office is established. The provisions of this article govern the com- petence of French courts only with respect to persons justiciable in France ; they are not to be extended further. Though the rules of competence in favor of French citizens are not rules of public order, and in consequence a Frenchman may waive the benefit of them, such waiver of a right cannot be presumed, and should be as certain and explicit as the right itself. In this case it is established neither by the by-laws of the English company nor by any of the documents produced. The mere fact of having subscribed to or bought shares in a foreign company cannot be considered as conferring jurisdiction. SECT. III.] PENNOYER V. NEFF. 381 SECTION III. JURISDICTION QUASI IN REM. PENNOYER V. NEFF. Supreme Court of the United States. 1878. {Reported 95 United States, 714.] Field, J.^ This i s an action to recover the possession of a tract of land, of the a lleg ed value of $15,000, situated in the Statp nf Ore gon. The plaintiff asserts title to the premises by a patent of tlie United States issued to him in 1866, under tlie act of Congress of September 27, 1850, usually known as tlie Donation Law of Oregon. The defend- ant claims to have acquired the premises under a sheriffs deed, made upon a sale of the* property on execution issued upon a judgment re- covered against the plaintiff in one of the circuit courts of the State. The case turns upon the validit}' of this judgment. It appears from the record that the judgment was rendered in Feb- ruary, 1866, in favor of J. H. Mitchell, for less than $300, including costs, in an action brought by him upon a demand for services as an attorne}' ; that, at the time the action was commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State ; that he was not personally served with process, and did not appear therein ; and that the judgment was entered upon his de- fault in not answering the complaint, upon a constructive service of summons by publication. The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant who has property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the property of the non- resident. And it also declares that no natural person is subject to the jurisdiction of a court of the State, " unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein, and in the last case only to the extent of such property at the time the jurisdiction attached." Construing this latter provision to mean, that in an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial limits of the State in which it is 1 Arguments of counsel and part of the dissenting opinion are omitted. — Ed. ^^2 PENNOYER V. NEFF. [CHAP. III. established. Any attempt to exercise authority beyond those limits would be deemed in every other forum, as has been said by tliis court, an illegitimate assumption of power, and be resisted as mere abuse. D'Arcy v. Ketchum et al, 11 How. 165. In the case against the plain- tiflf, the property here in controversy sold under the judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudi- cation, but only in enforcement of a personal judgment, having no rela- tion to the property, rendered against a non-resident without service of process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property was essential to its jurisdiction or to the validity of the sale, but held that the judg- ment was invalid from defects in the affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved. There is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The majority are of opinion that inasmuch as the statute requires, for an order of publica- tion, that certain facts shall appear by affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advan- tage of on appeal, or by some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the " affidavit of the printer, or his foreman, or his principal clerk," is satisfied when the affidavit is made by the editor of the paper. The term " printer," in their judgment, is there used not to indicate the person who sets up the type — he does not usually have a foreman or clerks; it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case, — observing that, for the purpose of making the required proof, publishers were " within the spirit of the statute." Bunce v. Reed, 16 Barb. (N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a "pub- lisher and proprietor" was sufficient. Sharp v. Daugney, 33 Cal. 512. The term "editor," as used when the statute of New York was passed, from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary, gives as one of the definitions of an editor, a person "who superintends the publication of a newspaper." It is principally since that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent profession. U, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be unable to uphold its decision. But it was also contended in that court, and is insisted SECT. III.] PENNOYEK V, NEFF. 383 upon here, that the judgment in the State court against the plaintiff was void for want of personal service of process on him, or of his ap- pearance in the action in which it was rendered, and that the premises in controversy could not be subjected to the pa3raent of the demand of a resident creditor except by a proceeding in rem ; that is, by a direct proceeding against the property for that purpose. If these posilions) are sound, the ruling of the Circuit Court as to the invalidit}- of that/ judgment must be sustained, notwithstanding our dissent from the/ reasons upon which it was made. And that the}' are sound would seem to follow from two well-established principles of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union are not, it is true, in every respect independent, many of the rights and powers which originally belonged to them being now vested in the government created by the Consti- tution. But, except as restrained and limited by that instrument, they possess and exercise the authority of independent States, and the prin- ciples of public law to which we have referred are applicable to tliem. One of these principles is, that every State possesses exclusive juris- diction and sovereignty over persons and property within its territory. As a consequence ever}' State has the power to determine for itself the civil status and capacities of its inhabitants ; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall be executed, the rights and obligations arising from them, and the mode in which their validit}' shall be determined and their obligations enforced ; and also to regulate the manner and conditions upon which property situated within such territor}', both personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the one men- tioned ; that is, that no State can exercise direct jurisdiction and au- thority over persons or property without its territory. Story, Confl. Laws, c. 2 ; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists as an elementary principle that the laws of one State have no operation outside of its territory except so far as is allowed by comity ; and that no tribunal established by it can extend its process beyond that terri- tory so as to subject either persons or property to its decisions. " An}- exertion of authority of this sort beyond this limit," says Story, " is a mere nullity, and incapable of binding such persons or property in any other tribunals." Story, Confl. Laws, sect. 539. But as contracts made in one State may be enforceable only in an- other State, and property may be held by non-residents, the exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will often affect persons and property without it. To any influence exerted in this way by a State affecting persons resident or property situated elsewhere, no objection can be justly taken ; whilst any direct exertion of authority upon them. 384 PENNOYER V. NEFF. [CHAP. III. in an attempt to give exterritorial operation to its laws, or to enforce an exterritorial jurisdiction by its tribunals, would be deemed an en- croacliment upon the independence of the State in which the persons are domiciled or the propert}- is situated, and be resisted as usurpation. Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their contracts respecting property elsewhere situated, instruments in such form and witli such solemnities as to transfer the title, so far as such formalities can be complied with ; and the exercise of this jurisdiction in no manner in- terferes with the supreme control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie o. Watts, 6 Cranch, 148; Watkins v. Holman, 16 Pet. 25 ; Corbett y. Nutt, 10 Wall. 464. So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them ; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens ; and when non-residents deal with them, it is a legitimate and just exer- cise of authority to hold and appropriate any propert}' owned by such non-residents to satisf\" the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident's obliga- tions to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the non-resident have no property in the State, there is nothing upon which the tribunals can adjudicate. These views are not new. They have been frequentl}' expressed, with more or less distinctness, in opinions of eminent judges, and have been carried into adjudications in numerous cases. Thus, i n Picquet t?. Swan, 5 Mason, 35, Mr. Justice Story said : — " Where a party is within a territory, he may justl}' be subjected to its process, and bound personally b}- the judgment pronounced on such process against him. Where he is not within such territory, and is not personally' subject to its laws, if, on account of his supposed or actual property being witliin the territory, process by the local laws ma^j by attachment, go to compel his appearance, and for his default to appear judgment m^y be pronounced against him, such a judgment must, upon general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive judgment in per- y ^'sonam^ for the plain reason that, except so far as the property is con- cerned, it is a judgment coram non judice." And in Roswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a slieriff's sale, under a mone}' decree rendered ui)on pul»licalion of notice against non-residents, in a suit brought to enforce a contract relating to land, Mr. Justice McLean said : — SECT. III.] PENNOYER V. NEFF. 385 " Jurisdiction is acquired in one of two modes : first, as against the person of the defendant by the service of process ; or, secondly, by a procedure against the property of the defendant within the jgrisd i ction of the courtr In the latter case, the defendant i s not ue rsonullv bouiuT by the Judgment beyond the property in dueslion. And it is ini ma- te rial whether the proceeding against tlie property bp liy nn nttm Inncnt. or hill in clmnce rv. It must be,substantiall\ - 4a uroceeding in r<:m" These citations are not made as authoritative expositions of the law ; for the language was perhaps not essential to the decision of the cases in which it was used, but as expressions of the opinion of eminent jurists. But in Cooper v. Reynolds, reported in the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent party, without the jurisdiction of the court, not served with process or voluntarily submitting to the tribunal, when it w£vs sought to subject his property to the payment of a demand of a resident complainant; and; in the opinion there delivered we have a clear statement of the law, as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the action was for damages for alleged false imprisonment of the plaintiff ; and upon his affidavit that the defendants had fled from the State, or had absconded or concealed themselves so that the ordinary" process of law could not reach them, a writ of attachment was sued out against their property. Publication was ordered by the court, giving notice to them to appear and plead, answer or demur, or that the action would be taken as confessed and proceeded in ex parte as to them. Publication was had ; but they made default, and judgment was entered against them, and the attached property was sold under it. The purchaser having been put into pos- session of the propert}-, the original owner brought ejectment for its recovery. In considering the character of the proceeding, the court, speaking through Mr. Justice Miller, said : — " Its essential purpose or nature is.to establish, by the judgment of the court, a demand or claim against the defendant, and subject his property lying within the territorial jurisdiction of the court to the pay- ment of that demand. But the plaintiff is met at the commencement of his proceedings by the fact that the defendant is not within the terri- torial jurisdiction, and cannot be served with anj' process by which he can be brought personally within the power of the court. For this difficulty the statute has provided a remed}-. It s ays that, u pon affi-. davit being made of that fact, a writ of attachment may be issued and levied on any of the defendant's property, and a publication may be- made warning him to appear, and that thereafter the court may proceed in the case whether he appears or not. If the defendant appears, the cause becomes mainly a suit in personam^ with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes in its do 386 PENNOYER V. NEFF. [CHAP. IIL essential nature a proceeding in rem; the onl}' effect of which is to sub- ject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well- established propositions. First, the judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other ; nor can it be used as evidence in any other proceeding not affecting the attached property ; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second, the cour ^ in such a suit, j ;annotj3rocee(i.anless, the offi cer fi nds_somejo roperty of d efendant on which to levy the writ, of attach ment. AjretxinilhfLt^njjne^^^ "and deprives the~cou rrof further juri sdiction, tliongh t he publicatioj i__ may have^een d uly"mad ^_and ^ proven i n court." — TlieTacf that the defendants in that case had fled from the State, or had concealed themselves, so as not to be reached by the ordinary pro- cess of the court, and were not non-residents, was not made a point in the decision. The opinion treated them as being without the territorial jurisdiction of the court ; and the grounds and extent of its authority over persons and property thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance. The writer of the present opinion considered that some of the objec- tions to the preliminary proceedings in the attachment suit were well taken, and therefore dissented from the judgment of the court ; but to the doctrine declared in the above citation he agreed, and he may add, that it received the approval of all the judges. It is the only doctrine consistent with proper protection to citizens of other States. If, with- out personal service, judgments in j^ersonam, obtained ex parte against non-residents and absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized, when the evidence of the trans- actions upon which they were founded, if they ever had any existence, had perished. Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The l;nv assumes that property is always in the possession of its owner, in peisou or by agent ; and it proceeds upon the theory that its seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings SECT. III.] PENNOYER V. NEFF. 387 authorized by law upon such seizure I'or its condemnation and sale. Such service ma}' also be sufficient in cases where the object of the action is to reach and dispose of property in the State, or of some in- terest therein, by enforcing a contract or a lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it for a pul)Uc purpose. In other words, such service may answer in all actions which are substantially proceed- ings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in 'personam^ constructive service in this form upon a non-resident is ineffectual for any purpose. Process, from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond to proceedings against them. Publication of process or notice within the State where the tri- bunal sits cannot create any greater obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally unavailing in proceedings to establish his personal liability. The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below ; but the position is assumed, that, where they have property witliin the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards ap- plied by its judgment to the satisfaction of demands against its owner ; or such demands be first established in a personal action, and the prop- erty of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the_jurisdiction of the court to inquire into and determine his obli- gations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will not become valid by the sub- sequent discovery of property of the defendant, or by his subsequentJ acquisition of it. The judgment, if void when rendered, will always\ remain void ; it cannot occupy the doubtful position of being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the non-resident defendant pos- sessed property in the State at the commencement of the action, it would still make the validity of the proceedings and judgment depend upon the question whether, before the levy of the execution, the de- fendant h9,d or had not disposed of the property. If before the levy the property should be sold, then, according to this position, the judg- ment would not be binding. This doctrine would introduce a new ele- ment of uncertainty in judicial proceedings. The contrary is the law. The validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur subsequently. In 388 PENNOYER V. NEFF, [CHAP. III. Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territor\-, without service of process ; and the court said : — "These suits were not a proceeding in rem against the land, but' were in personam against the owners of it. Whether they all resided within the territor}' or not does not appear, nor is it a matter of any importance. No person is required to answer in a suit on whom pro- cess has not been served, or whose property has not been attached. In this case, there was no personal notice, nor an attachment or other pro~^ '^ ceeding against the land, until after the judgmeivts. The judgments, therefore, are nullities, and did not authorize the executions on which /the land was sold." ^ The force and effect of judgments rendered against non-residents without personal service of process upon them, or their voluntar}' ap- pearance, have been the subject of frequent consideration in the courts of the United States and of the several States, as attempts have been made to enforce such judgments in States other than those in which the}- were rendered, under the provision of the Constitution requiring that " full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; " and the act of Congress providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated, " they shall have such faith and credit given to them in ever\' court within the United States as they have by law or usage in the courts of the State from which the}' are or shall be taken." In the earlier cases, it was supposed that the act gave to all judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards qualified so as to make the dct applicable only when the 6ourt rendering the judgment had jurisdiction of the parties and of the subject-matter, and not to preclude an inquiry into the juris- diction of the court in which the judgment was rendered, or the right of the State itself to exercise authority over the person or the subject- matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against two joint debtors, only one of whom had been served with process, the other being a non-resident of the State. The Circuit Court held the judgment conclusive and binding upon the non- resident not served with process ; but tins court reversed its decision, oliserving, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the person, where the defendant liad not been served with process nor had a day in court ; that national comity was never thus extended ; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse ; that no faith and credit or force and effect had been given to such judgments SECT. III.] PENNOTER V. NEFF. 389 by any State of the Union, so far as known ; and that the State courts had uniformly, and in many instances, held them to be void. "The international law," said the court, "as it existed among the States in 1790, was, that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void within the foreign State when the defendant had not been served with process or voluntarily made defence; because neither the legislative jurisdiction nor that of courts of justice had binding force." And the court held that the act of Congress did not intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine of this court is, that the act " was not designed to displace that principle of natural justice which requires a person to have notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and property within one State from the exercise of jurisdiction over them by another." The Lafayette Insurance Co. v. French tt al., 18 How. 404. This whole subject has been very fully and learnedly considered in the recent case of Thompson v. Whitman, 18 Wall. 457, where all the authorities are carefully reviewed and distinguished ; and the conclu- sion above stated is not only reaffirmed, but the doctrine is asserted, that tlie record of a judgment rendered in another State ma}' be con- tradicted as to the facts necessary to give the court jurisdiction against its recital of their existence. In all the cases brouoht in the State and Federal courts, where attempts have been made under the act of Con- gress to give effect in one State to personal judgments rendered in another State against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has been held, without an exception, so far as we are aware, that such judgments were without any binding force, except as to property, or interests in propert}-, within the State, to reach and affect which was the object of the action in which the judgment was rendered, and which propert}' was brought under control of the court in connection with the process against the person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was not ol)tained, and the party did not voluntarily appear, as effectual and binding .merely as a proceeding in rem. and as having no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has been that which we have alread}' stated, that the tribunals of one State have no jurisdiction over j)ersons beyond its limits, and can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property- within its limits. In Bissell v. Briggs, decided by the Supreme Court of i\Iassachusetts as early as 1813, the law is stated substantially in conformity with these views. In that case, the court considered at length the effect of the constitutional provision, and the act of Congress mentioned ; and after stating tliat, in order to entitle the judgment ren- dered in any court of the United States to the full faith and credit 390 PENNOYER V. NEFF. [CHAP. III. mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the parties, it proceeded to illustrate its posi- tion by observing, that, where a debtor living in one State has goods, effects, and credits in another, his creditor living in the other State may have the propert}' attached pursuant to its laws, and, on recovering judgment, have the property applied to its satisfaction ; and that the party in whose hands the propert}' was would be protected by the judg- ment in the State of the debtor against a suit for it, because the court rendering the judgment had jurisdiction to that extent ; but that if the property attached were insufficient to satisfy the judgment, and the creditor should sue on that judgment in' the State of the debtor, he would fail, because the defendant was not amenable to the court ren- dering the judgment. In other words, it was held that over the prop- erty within the State the court had jurisdiction by the attachment, but bad none over his person ; and that any determination of his liability, except so far as was necessary for the disposition of the property, was invalid.^ In Kilbourn v. Woodworth, 5 Johns. (IST. Y.) 37, an action of debt was brought in New York upon a personal judgment recovered in Massachusetts. The defendant in that judgment was not served with process ; and the suit was commenced by the attachment of a bedstead belonging to the defendant, accompanied with a summons to appear, served on his wife after she had left her place in Massachusetts. The court held that the attachment bound only the property attached as a proceeding in rem, and that it could not bind the defendant, observing, that to bind a defendant personally, when he was never personally summoned or had notice of the proceeding, would be contrary to the first principles of justice, repeating the language in that respect of Chief Justice De Grey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns. (N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al, 14 How. 334. To the same purport decisions ai'e found in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be valid and binding. But if the court has no jurisdiction over the person of tlie defendant by reason of his non-residence, and, consequently, no authority to pass upon his personal rights and obligations ; if the whole proceeding, without service upon him or his appearance, is coram non JHcKce and void ; if to hold a defendant bound by such a judgment is contrary to the first principles of justice, — it is difficult to see how the judgment can legitimately have any force within the State. The lan- guage used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its validity within 1 Jcc. Freeman v. Alderson, 119 U. S. 185 ; Mc Vicar o. Beedy, 31 Me. 314 ; Eliot V. McCormick, 144 Mass. 10 ; Arndt i'. Arndt, 15 Ohio, 33 ; Joues v. Spencer, 15 Wis. 583. See Melhop v. Doane, 31 la. 397. — Ed. SECT. III.] PENNOYER V. NEFF. 391 the State where rendered ; and that, therefore, it could be called in question only when its enforcement was elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered, as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa, 396; Hakes V. Shupe, 27 id. 465 ; Mitchell's Administrator v. Gray, 18 Ind. 123. Be that as it ma}', the courts of tlie United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals of a different sovereignty, exer- cising a distinct and independent jurisdiction, and are bound to give to the judgments of the State courts only the same faith and credit which the courts of another State are bound to give to them. Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments ma}' be directly questioned, and their enforcement in the State resisted, on the ground that pro- ceedings in a court of justice to determine the personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law. Whatever difficulty ma}' be experienced in giving to those terms a definition which will embrace every permis- sible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution — that is, by the law of its creation — to pass upon the subject-matter of the suit; and if that involves merely a determination of the personal liability of the defend- ant, he must be brought within its jurisdiction by service of process within the State, or his voluntary appearance. Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to have been assented to in advance, as hereinafter mentioned, the substituted ser- vice of process by publication, allowed by the law of Oregon and by similar laws in other States, where actions are brought against non- residents, is effectual only where, in connection with process against the person for commencing the action, property in the State is brought under the control of the court, and subjected to its disposition by pro- cess adapted to that purpose, or where the judgment is sought as a means of reaching such property or afTecting some interest therein ; in otlier words, where the action is in the nature of a proceeding in rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, 392 PENNOYER V. NEFF. [CHAP. III. for any other purpose than to subject the property of a non-resident to valid chiims against him in the State, "due process of law would re- quire appearance or personal service before the defendant could be personally bound by any judgment rendered." It is true that, in a strict sense, a proceeding in rem is one taken directly against propert}', and has for its object the disposition of the propert}^, without reference to the title of individual claimants ; but, in a larger and more general sense, the terms are applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some interest therein. Such are cases commenced b}^ attachment against the propert}' of debtors, or insti- tuted to partition real estate, foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially pro- ceedings in rem in the broader sense which we have mentioned. It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be taken upon such notice, personal or constructive, as the State creating the tribunal ma}' provide. They are considered as rather a continuation of the original litigation than the commencement of a new action. Nations ei al. v. Johnson et al., 24 How. 195. It follows from the views expressed that the personal judgment re- covered in the State court of Oregon against the plaintiff herein, then a non-resident of the State, was without any validity, and did not au- thorize a sale of the property in controversy. To prevent an}' misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by anything we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-resident, which would be binding within the State, though made without service of process or personal notice to the non-resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its in- habitants involves authority to prescribe the conditions on which pro- ceedings affecting them may be commenced and carried on within its territory. The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its own citizens shall be created, and the causes for which it may be dissolved. One of the parties guilty of acts for which, by the law of the State, a disso- lution may be granted, may have removed to a State where no dissolu- tion is permitted. The complaining party would, therefore, fail if a divorce were sought in the State of the defendant ; and if application could not be made to the tribunals of the com[)lainant's domicile in such case, and proceedings be there instituted without personal service of process or personal notice to the offending {)arty, the injured citizen would be without redress. Bish. Marr. and Div., sect. 156. Neither do we mean to assert that a State may not require a uon- SECT. III.] PENNOYER V. NEFF. 393 resident entering into a partnership or association witliin its limits, or making contracts enforceable there, to appoint an agent or representa- tive in the State to receive service of process and notice in legal pro- ceedings instituted with respect to such partnership, association, or contracts, or to designate a place where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate such place that service may be made upon a public officer designated for tliat purpose, or in some other prescribed way, and that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, "It is not contrary to natural justice that a man who has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that particular mode of notification has been followed, even though he may not have actual notice of them." See also The Lafayette Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.), 201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall require other than per- sonal service upon their officers or members. Parties becoming mem- bers of such corporations or institutions would hold their interest subject to the conditions prescribed by law. Copin u. Adanison, Law Rep. 9 Ex. 345. In the present case there is no feature of this kind, and, conse- quently, no consideration of what would be the effect of such legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process upon him, or his appearance therein. J^udgment affirmed. Hunt, J., dissenting. I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to be important, I take leave to record my views upon it. • . . It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs from that where the property is seized at the end of the action, in this : In the first case, the prop- erty is supposed to be so near to its owner, that, if seizure is made of it, he will be aware of the fact, and have his opportunity to defend, and jurisdiction of the person is thus obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and it is not certain that he will by that means re- ceive notice. Adopted as a means of communicating it, and although a very good means, it is not the only one, nor necessarily better than a publication of the pendency of the suit, made with an honest intention 394 wooDnuFF v. taylor. [chap. hi. to reach the debtor. Who shall assume to say to the legislature, that if it authorizes a particular mode of giving notice to a debtor, its action may be sustained, but if it adopts any or all others, its action is uncon- stitutional and void? The rule is universal, that modes, means, ques- tions of expediency or necessity, are exclusively within the judgment of the legislature, and that the judiciary cannot review them. This lias been so held in relation to a bank of the United States, to the legal-tender act, and to cases arising under other provisions of the Constitution. In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say : — " The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has been attached. . . . There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The particular means to be used are always within the control of the legislature, so that the end be not beyond the scope of legislative power." If the legislature shall think that publication and deposit in the post- offlce are likely to give the notice, there seems to be notliing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus controlled. That a State can subject land within its limits belonging to non- resident owners to debts due to its own citizens as it can legislate upon all other local matters ; that it can prescribe the mode and process by which it is to be reached, — seems to me very plain. I am not willing to declare that a sovereign State cannot subject the land within its limits to the paj'ment of del)ts due to its citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at the commencement of the suit or at its termination. This is a matter of detail ; and I am of opinion that if reasonable notice be given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied. WOODRUFF V. TAYLOR. Supreme Court of Vermont. 1847. [Reported 20 Vermont, 65.] Trespass for taking certain personal property. The defendant pleaded the general issue, and also pleaded two pleas in bar; which were, in substance, that he commenced a suit against one Phelps^ Smith in the Court of King's Bench in the District of Montreal, in Lower Canada, and caused his process to be served by arresting the SECT. III.] WOODRUFF V. TAYLOR. 395 il body of Smith; that in October, 1842, he recovered judgment against Smith, in the suit for £26 li)s. dd., debt, and i.'56 46-. 2t/., costs; that in June, 1843, he took out a writ of Jieri facias, upon the judgment, against the goods of Smith, and placed the same in the hands of the sheriff's bailiff for service; that on the 13lh of June, 1843, the goods described in the plaintiff's declaration being in the possession of Smith at Stanbridge in Lower .Canada, the defendant turned them out to the bai44ff, in th«^ presence of one Iloyle, Recovs, and the bailiff levied on the same as the property of Smith; that, after giving public notice of the time and place of sale, at the doors of two churches, on Sunday, June 18, and b}' posting up notices of the sale at the doors of the churches, the bailiff, on the 26th of June, sold the prop- erty, |u t hepresenc e of the said Becors and others, to the highest bidder -for £32 Is. M. ; that at the October Term of the Court of King's Bench the sheriff I'etnr ned the j g^_^/£^ into court, together with the money received thereon, excepting £8 2s. \d. for the bailiff's costs; that then one Johnson appeared in court and claimed to be a creditor of Smith and demanded a ratable division, with the other, creditors of Smith, of the money paid into court, that thereupon the court ordered the money in court to be distributed as follows, — to the crier and tipstaff £5 Is. 6c/. ,^Tayloi', the plai^jtiff in that suit and defendant here, £11 5s. bd., and to Johnson £7 lis. Id., — being the whole of the proceeds of the sale, that had been paid into ^ court; and that the said judgment still remains in full force. And the defendant averred that during the time of all these proceedings, and until the time of pleading, there was a custom and law of the V said province of Lower Canada, that the proceeds of the sale of \ goods so levied upon should be distributed, in manner aforesaid, ) among creditors appearing in court and claiming distribution, andr^ farther, that by the custom and law of said province all persons hav- ing claim in any way or manner to the property so levied upon and sold on execution, are permitted to enter their appearance in court, when the proceeds of the sale are returned, "and if any person hay- ing such claim, neglect to enter his said appearance and make and prosecute his said claim, judgment of distribution is to be made by the court of the money so paid in, in manner and form aforesaid, and the said judgment for debt, or damages, and costs and the final distribution, as aforesaid, is conclusive, ^oth as to the title of said goods and the amount of said damages and costs, and that the same is a bar, against all persons, to any and all actions founded upon any title, interest, claim, or possession in or to such goods." To this plea the plaintiff replied, alleging that the property in the goods was in himself, and not in Phelps Smith, and averring that, during' all the period of said proceedings, he was a citizen and resident of the United States, and not a resident or citizen of Canada, nor sub- ject to the laws of that province, and that he had no notice of such proceedings, or any of them. To this replication the defendant de- }^'^^ ■{ 396 ~ WOODRUFF V. TAYLOR. [CHAP. III. murred. The county court adjudged the replication insufficient, and rendered judgment for the defendant. Exceptions by plaintiff.^ Hall, J. A second argument having been directed in this case, it has perhaps assumed an importance in the eyes of counsel, which its intrinsic difficulties may not seem to warrant; but which may, nevertheless, justify a more extended opinion than would otherwise have been deemed necessary. The question raised by the pleadings is, what is to be the effect of the proceedings in the King's Bench in Canada upon one not per- sonally amenable to its tribunal, — when those proceedings are used here, in another and foreign jurisdiction? It is insisted, in behalf of the defendant, that the record pleaded, in connection with the custom and law of Canada set forth in the plea, is to be considered as conclusive evidence, that the matter now in controversy between the plaintiff and defendant has been adjudicated by a competent tribunal, and that therefore the plea is a good bar to the action. This renders it necessary to inquire into the nature of those pro- ceedings, in reference to their sufficiency to constitute a record of /estoppel. Judgments, in regard to their conclusive effects as estoppels, are of two classes; — judgments m pe7-sonaw. and judgments in rem. The judgment pleaded in this case cannot be supported as a judg- ment in personam, because the court rendering it had no jurisdiction of the person of the plaintiff, he being a citizen of another govern- ment and having no notice of the suit. As a proceeding against his person, the judgment was coram riion judice, a mere nullity. This is too plain to need argument, and is, indeed, conceded by the counsel for the defendant, who insist that it is an estoppel as a proceeding in rem, — that although not binding on the person, it is binding on the property in controversy and concludes its title. A judgment in rem I understand to be an adjudication, pronounced upon the status, of some particular subject-matter, by a tribunal having competent authority for that purpose. It differs from a judgment i?i jyersonam, in this, that the latter judgment is, in form as well as substance, between the parties claiming the right; and that it is so inter partes appears by the record itself. It is binding only upon the parties appearing to be such by the record and those claiming by them. A judgment in rem, is founded on a proceeding instituted, not against the person, as such, but against or upon the thing or subject-matter itself, whose state, or condition, is to be determined. It is a pro- ceeding to determine the state, or condition, of the thing itself; and the judgment is a solemn declaration upon the status of the thing, and it ipso facto renders it what it declares it to be. The probate of a will I conceive to be a familiar instance of a proceeding in rem in this State. The proceeding is, in form and 1 Arguments of counsel are omitted. — Ed. SECT. III.] WOODRUFF V. TAYLOR. 397 substance, upon the will itself. No process is issued against any one; but all persons interested in determining the state, or condi- tion, of the instrument are constructively notified, by a newspaper publication, to appear and contest the probate; and the judgment is, not that this or that person shall pay a sum of money, or do any particular act, but that the instrument is, or is not, the will of the testator. It determines the status of the subject-matter of the pro- ceeding. The judgment is upon the thing itself; and when the proper steps required by law are taken, the judgment is conclusive, and makes the instrument, as to all the world (at least so far as the property of the testator within this State is concerned), just what the judgment declares it to be. This is one instance of a proceeding upon a written instrument, to determine its state, or condition; and that determination, in its consequences, involves and incidentally determines the rights of individuals to property affected by it. But proceedings in rem may be and often are upon perso^aliiiattels, directly, decl aring jlje rjght tg ^_them. In such cases the proceeding is for the supposed violation by the property, so to speak, of some public or municipal law, or regulation, by which it is alleged the titla of the former owner has become divested. T he property being q^^iy.pf^n proceeding is then instituted against it, upon an allegation stating the cause for which it has become forfeited; upon which ^^ public notice is given, in some prescribed form, to all persons to appear and contest the allegation. It is by no means certain, that all persons having an interest in the property have actual notice of the proceeding; but if the thing itself, upon which the proceeding is had, be within the jurisdiction of the court, all persons interested are held to have constructive notice; and the sentence, or decree, of the court, declaring the state, or c^ ^ition, o f the prope rty, is held_ tQ__ be conclu sive up on all the ^wgildw A sale of the property, u nder such, '*~"55i]tence2j)ass'e8^he right absolutely; an3 TartFer, Tn the case of judgments of courts of admiralty, they are also held to be conclusive evidence of the facts stated in the decree to have been found by the court, as the basis of the decree. iL4.?.^-Bfi^Mps the judgments of municipal courts, acting in rem, within the sphere of their jurisdic- ^Iiq Pa wo"lf> hfly pi the jjime eff ect These proceedings that have been mentioned are purely in rem. But, besides these, tfrere is another class of cases, which may per- haps be considered, to some extent, proceedings in rem, though in form they are proceedings i7iter partes. An attachment of property in this State, where the court has jurisdiction of the property, but not of the person of the defendant, and a sale of it (or a levy upon it, if it be real estate), on execution, is in the nature of a proceed- ing in rem. The judgment, if the defendant have no notice, would be treated as a nullity out of our jurisdiction, so far as the person of the defendant was concerned; though it would be held binding, as between the parties, so far as regarded the property, as a pro- 398 WOODRUFF V. TAYLOR. [CHAP. III. ceeding in rem. The defendant would not, I apprehend, be allowed to recover back his property in another jurisdiction. The status of the property, as between the plaintiff and defendant, would be held to have been determined by the proceeding. But the proceeding would not in any way affect the status of the property as to any other persons than the parties to the record and those claiming by them. Our proceeding of foreign attachment partakes, perhaps still more, of the nature of a proceeding in rem; but its operation as such is also of a limited character. The suit is inter partes, and, as a pro- ceeding m rem, it must be confined to such parties. A process is issued in favor of a plaintiff, declaring against his debtor residing in another government, and alleging, also, that another person here, named in the process and styled a trustee, has goods in his hands belonging to the plaintiff's debtor, or is indebted to him, and pray- ing that the goods or debt found here may be declared forfeited to the plaintiff, or, in other words, that the property here may be applied in payment of the plaintiff's demand. I conceive the court here has jurisdiction of the property in the hands of the trustee, or the debt due from him, — it being found in our jurisdiction, — and that the court may proceed upon it in rem. After publication, by which the debtor is constructively notified of the proceeding against his property, the court adjudicates upon the property and declares that it shall be delivered, or paid, to the plaintiff, to be applied upon his debt. I think such adjudication changes the status of the prop- erty, or debt, and deprives the principal debtor of all title to it; that such adjudication should be held binding and conclusive upon all the parties to the proceeding; that the foreign creditor of the trustee, having placed his property, or his credit, within this juris- diction, should be bound by its forfeiture, declared by our courts; and that he should be barred, in any other jurisdiction, from prose- cuting his claim against the trustee. But the operation of this pro- ceeding in rem must be limited to the parties to it, and cannot in any manner affect the right or interest of any other person, having an independent and adverse claim to the goods, or debt, which was the subject-matter of the suit. The court does not pretend to notify such adverse claimant, either constructively, or otherwise; nor does the proceeding profess to determine the rights of any other persons than those who are parties of record to it; and it can, consequently, affect the rights of no other persons. The distinction between proceedings purely in rem and those of a limited character, which have been mentioned, I think is strongly and plainly marked. iThe object and purpose of a procecdin p ; purel . v, jrt ff ^f n ifl tn ftHfiftrtflin the right of every possible claimant; and it is instituted on an allegation, that the title of the former owner, who- I ever he may be, has become divested; and notice of the proceeding /|*^^(A ^\ is given to the ^sliolfijjvpxld^o ai:)peaL and make c laim t o^^ij:. From \)^ SECT. III.] WOODRUFF V. TAYLOR. 399 l-'W ^ the nature of the case the notice is constructive, onl}', as to the greater part of the world; but it is sucusIS Uie huv preSllilies 'svill hp most Ij lvely to reach the persons interested, and such as doc s, in poi nt ^^^a aj of fact, generally reach them. In the case of a seizure for thu viola- tion of our revenue laws, the substance of the libel, which states the ground on which the forfeiture is claimed, with the order of the court thereon, specifying the time and place of trial, is to be published in • a newspaper, and posted up a certain number of days; and proclama- tion is also made in court for all persons interested to appear and contest the forfeiture. And in every court and in all countries, whose judgments are respected, notice of some kind is given. It is, ^ indeed, as I apprehend, just as essential to the validity of a judg- me nt tVt ^j^gzzi^-ihat constructive notice, a j, least, should appear.^ liave been given, as that__actU3d notice should__appear upeir-ttie record of a judgment in personam,. A proceeding professing to cleiermine the rigM of property wBere no notice, actual or construc- tive, is given, whatever else it might be called, would not be entitled to be dignified with the name of a judicial proceeding. It would be a mere arbitrary edict, not to be regarded anywhere as the judgment of a court. Bradstreet v. Neptune Ins. Co., 3 Sumn. 607. The limited proceedings in rem^ before mentioned, are not based on any allegation that the right of property is to be determined between any other persons thanjjie parties to the suit; no notice is sought to be given to any other persons; and the judgment being only as to the status of the property as between the parties of record, it is, as to all others persons, a mere nullity. If we apply these principles to the record pleaded in bar in this case, I think it will be impossible to maintain that, as to the plain- tiff Woodruff, it was a proceeding in rem. There was no allegation-^ that the status of the property, levied upon as the property of Phelps Smith, or the avails of it, when paid into court, was to be adjudi- cated as to him, and there was no notice, actual or constructive, to him to appear and make any claim to it. The judgment was ren dered in a suit inter partes., in which Taylor was plaintiff and Phelps Smith defendant; and though it bound the property as between them, it could affect the rights of no other person. It is precisely the case of a levy of an execution, in this State, upon personal property, as that of the judgment debtor, of which property some third person claims to be the owner. If such third person were to bring trespass against the judgment creditor for making the levy, I do not perceive why such creditor, with the same propriety as the defendant in this case, might not plead his levy and sale in bar as a proceeding in rem. The record in this case, indeed, shows that the levy was made in the presence of a Becors., which a levy in this State would not; but I apprehend the high standing or official character of the witnesses to a trespass would not purge its illegality, or bar a right of recovery. 400 WOODRUFF V. TAYLOR. [CHAP. III. But the record of the judgment in the King's Bench wholly fails to show that the right of the plaintiff in this suit to the property was attempted to be adjudicated; and there is no averment in the plea that it was adjudicated. The plea states, in substance, that, by the law of Canada, it would have been adjudicated if the plaintiff had appeared in the court and made claim to the property. And by the facts set forth in the plea we are given clearly to understand that it was not adjudicated, because the plaintiff did not so make his claim. It would therefore be impossible to maintain this plea, as furnishing evidence that the matter in controversy is res adjudicata, even if the plaintiff had had notice of the proceeding. If the plea could, under such circumstances, be sustained, even in the courts of Canada, it would not be because the matter had been adjudicated, but because the plaintiff, having neglected to have his claim adju- dicated at the time and in the manner pointed out by the laws of that province, was thereby barred of any other remedy. The plea does not aver that the property of the plaintiff, being found in the possession of Phelps Smith, in Canada, might for that reason, or for any other reason, be legally levied upon and sold as the property of Smith. It in effect admits that the original levy upon the plain- tiff's property was wrongful, but proceeds upon the ground that, by reason of the subsequent proceedings, the wrong cannot now be re- dressed. The original right of action of the plaintiff is conceded, but it is insisted that, by something arising ex post facto, his remedy is gone. It is not a bar to the right that is relied upon, but a bar to the redress. This ground of defence would therefore seem to rest upon a local law of the province of Canada, which affects the . plaintiff's remedy only, but which, by the well-settled doctrine of the common law, can be of no avail when a remedy is sought in another jurisdiction. But it is unnecessary to consider farther what might have been the effect of the defendant's plea, if the plaintiff, at the time, had been a resident of Canada; because it seems quite clear that it can have no effect whatever upon the cause of action of one who was, during the whole proceeding, a resident citizen of another govern- ment, not subject to the law of the province, and who had no notice of the proceeding. Story's Confl. of Laws, 487. The result is, that the judgment of the county court is reversed, the replication is held sufficient, and the case is remanded to the county court for the trial of the issue of fact.^ 1 Ace. Putnam v. McDoiigall, 47 Vt. 478. — Ed. SECT. III.] SUTHERLAND V. SECOND NAT'L BANK OF PEORIA. 401 SUTHERLAND v. SECOND NATIONAL BANK OF PEORIA. Court of Appeals, Kentucky. 1880. [Reported 78 Kentucky, 250.] CoFER, J. January 2, 1879, the appellant brought this suit in the Louisville Chancery Court against 8. C. Bartlett & Co ., non-residents of the State, and sued out an attachment against their property. The order of attachment was executed on that day on the Ohio and Missis- sippi Railway Company by delivering a copy thereof to its agent in the city of Louisvville, and by summoning the company as a garnishee, but without giving to the company a notice specifying the property attached. January 4 an alias attachment was issued and placed in the hands of the marshal, who, on the 8th, levied it on one car-load of oats in the possession of the Ohio and Mississippi Railway Company. The mar- shal took the oats into his possession, and it was subsequently sold under order of the court. Subsequently the appellee filed its petition, claim- ing that it had a lien on the oats. The pleadings and evidence disclose the following facts : — December 24, 1878, S. C. Bartlett & Co. delivered a car-load of oats to the Peoria, Pekin, and Jacksonville Railroad Company, at Peoria, Illinois, consigned to tlie appellant at Louisville, and took from the Railroad Company' a through bill of lading. They then drew upon the appellant against the shipment, and he declined to honor the draft. Being informed of that fact by telegraph, Bartlett & Co. caused the oats to be stopped in transitu on the second day of January, and on that day surrendered to the railroad compan}' the bill of lading, and took another, consigning the oats to '' S. C. Bartlett & Co., notify V^erhoff &. Strater, Louisville, Ky." The}' then drew on VerhofF & Strater, and attaching the bill of lading to the draft, on the third of January sold the draft to the appellee, who had no notice of the attachment of the appellant at Louisville. The appellee transmitted the draft to Louisville, but VerhofF & Strater refused t6 honor it, assigning as a reason that the oats had been attached, and the}' did not wish to become involved in the controversy. Upon these facts the court below adjudged in favor of the appellee, but allowed the marshal's costs for selling: the oats to be deducted from the proceeds, and refused to render judgment against the appellant on a counter-claim for damages for the illegal seizure of the oats. From that judgment both parties appeal. Counsel for the appellant contend that, at the time the second bill of lading was issued, the oats had passed out of the possession of the Peoria, Pekin and Jacksonville Railroad Compan}' into the possession of the Ohio and Mississippi Company, and therefore the new bill of lad- ing was invalid and ineffectual to invest the bank with a valid lien on the oats. » 402 SUTHERLAND V. SECOND NAT'L BANK OF PEORIA. [CHAP, III. As authority in support of this position, counsel cites that class of cases in which it has been held that a bill of lading signed by the mas- ter of a vessel before receiving the possession of the goods does not bind the owners. Those cases are not analogous to this. The oats had been received by the railroad company to be forwarded to Louisville, and was in the custody of the Ohio and Mississippi Company when the new bill was signed. The possession of the latter company was held under and by virtue of the contract of affreightment made with the Peoria, Pekin and Jacksonville Company, and the consignors had the same right to cliange the destination of the oats while in transitu that they would have had if the company' receiving the oats from them had had a continuous line Ito Louisville. There is no question here between the consignor or con- /signee and the carrier, and no reason is perceived why the new bill of /lading is not valid when called in question between a bona fide holder / and one claiming a lien on account of an attachment against the goods , / of the consignor. The bill of lading authorized the holder to demand the oats from the carrier, and, being a recognized symbol, its delivery to the bank was a symbolic delivery of the oats, and constituted a valid pledge. But it is contended that the service of the first order of attachment on the Ohio and Mississippi Railway Company created a lien on the oats then in its possession, and as that service was prior in time to the pledging of the oats by the delivery of the bill of lading to the bank, the appellant has the eldest and sui)erior lien. At the time the first order of attachment was served, S. C. Bartlett & Co. were non-residents of the State, and the oats was in the State of Illinois. No personal service could be had upon the defendants, nor could the goods be seized under the order of attachment. The con- signors still had the right to stop the oats in transitu, or to alter its destination ; and, in our opinion, the service of the attachment on the railway company while the oats was beyond the hmits of this State created no lien. True, the Ohio and Mississippi Railway Company was within the jurisdiction of the court, but the property sought to be reached was without its jurisdiction and the laws of the State, and the process of the courts here could not reacii it nor compel the carrier to bring it hither ; and as the court would have had no power to subject the prop- erty unless brought within its jurisdiction, its process could not create a lien upon it until it came within the county where the order of attach- ment was in the hands of the officer. Counsel cite the case of Childs v. Digby (24 Penn. St. 23), in sup- port of a contrary conclusion, but tliat case was overruled in Pennsyl- vania Railroad Company v. Rennock (51 Penn. St. 244). / The alias order of attachment, issued on the fourth of January, was in the officer's hands when the oatSv arrived in Louisville on the Gth, and was levied on the 8th, and created a valid lien, subject, however, to the prior lien of the bank. ^ SECT. III.] MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. 403 It results from this conclusion that the seizure of the oats under the attachment was wrongful, and as the proceeds were not sufficient to pay the debt for which the bank had a lien, the court erred in allowing the marshal's fee to be retained out of the price. He made the seizure and sale at appellant's instance, and must look to him for his costs. The bank had no right to set up a counter-claim in this case for the damages resulting from the seizure of the oats ; but as the judgment dismissing the counter-claim absolutel}' will be a bar to a suit to recover such damages, the judgment must be reversed on the cross-appeal, and the cause is remanded, with directions to cause the whole proceeds of the sale to be paid over to the bank, and to dismiss the counter-claim without prejudice.* MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. Court of Appeals of New York. 1891. [Reported 127 New York, 452.] Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made July 9, 1889, which affirmed a judgment in favor of plaintiffs, entered upon the decision of the court on trial at Special Term. This was an action by the plaintiffs, claiming to be the equitable owners of a policy of fire insurance, to restrain the insurer from pay- ing the amount of a loss to the insured or to his alleged assignee. On the 21st of April, 1886, the Norwich Union Fire Insurance Society, a corporation organized under the laws of Great Britain, with agencies in New York, Iowa, and other States, issued the policy in question to one Bartlett on his stock of goods at Muscatine, Iowa. The policy was countersigned by the agent of the company at that place. Three days later Bartlett, who resided at Muscatine, sent the policy by mail to the plaintiffs, who resided in the city of New York, as collateral security to a loan of §2,000 concurrently made to him by them. The policy, as written, was payable to Bartlett only, and it was never assigned to the plaintiffs. July 3, 1886, the prop- erty insured was destroyed by fire, and on the sixteenth o f August following Bartlett made an absolute assignment of the policy tcTone Kellv of INIuscatine aforesaid. This action was commenced against the insurance company and Bartlett by the due service of process in this State upon the former, 1 Ace. We3tern R. R. v. Thornton, 60 Ga. 300 ; Montrose Pickle Co. v. Dodson, 76 la. 172, 40 N. W. 705 ; Wheat v. P. C. & F. D. R. R., 4 Kan. 370 ; Clark v. Brewer, 6 Gray, 320 ; Bates v. Ry., 60 Wis. 296, 19 N. W. 72. And see Noble v. Thompson Oil Co., 79 Pa. 369. — Ed. 404 MAHK V. NORWICH UNION FIRE INSURANCE SOCIETY. [CHAP. III. August 12, 1886, and on the latter about one month later. The com- pany answered, alleging, among other defences, a defect of partiep defendant, in that said Kelly, although a necessary party to the action, had not been joined. March 12, 1887, Kelly commenced an action at law in a court of the State of Iowa to recover from the insurance company the sum of $2,000, the amount of the policy, with interest from July 3, 1886. March 15, 1887, on motion of the com- pany, an order was made by the Supreme Court of this State in this action requiring said Kelly to be made a defendant therein, and that he be brought into court by a supplemental summons. A supple- mental summons and complaint were issued accordingly, and the same were served on Kelly in the State of Iowa pursuant to an order of publication based upon an affidavit alleging that "the defendant S- G. Kelly claims to have property in the State of New York, to wit, an interest in the insurance policy " in question. No service was made upon Kelly within this State, and he did not appear in the action. The insurance company, by its answer to the supplemental complaint, pleaded the pendency of the action in the Iowa court; that Kelly was a necessary party, and that the Supreme Court had by its order directed that he be brought in as a party defendant, and demanded judgment that the complaint be dismissed "unless said S. G. Kelly be brought in so as to be bound by any judgment herein." These facts appeared upon the trial of this action, where Kelly's default was noted, and were in substance found by the trial judge, who also found that Kelly had no interest in the policy "superior to that of the plaintiffs; . . . and that the alleged assignment ... by the defendant Bartlett to said S. G. Kelly, of the date August 16, 1886, . . . was void, and in no wise affected the prior interest obtained by the plaintiffs in said policy on or about the 24th day of April, 1886." Judgment was directed restraining the insurance company from paying any money under said policy to Bartlett or Kelly, and although there was neither allegation nor evidence of any proof of loss as required by the terms of the policy, the defendant company was ordered "to pay to the plaintiff's such moneys as shall be found to be payable under and by virtue of " said policy of insurance. Vann, J. Upon the argument of this appeal the learned counsel for the plaintiff, with great fairness, admitted that the Supreme Court never acquired jurisdiction over Kelly, the alleged assignee of the insurance policy that is the subject of this action. The main ques- tion left for decision is whether Kelly was a necessary party, as the defendant company alleged in its answers and urged upon the trial. It is not claimed that he should have been joined as a plaintiff, but his presence as a defendant is insisted upon as essential to "the complete determination or settlement " of the questions involved. The Code of Civil Procedure provides that "the court may determine SECT. III.] MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. 405 the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in." Code Civ. Pro. § 452. While the statute does not in terms prohibit the court from determining the controversy, unless all the necessary parties are brought in, that is impliedly com- manded and is the established practice in all equitable actions^ Peyser v. Wendt, 87 N. Y. 322; Sherman v. Parish, 53 id. 483^ Webster v. Bond, 9 Hun, 437; Shaver v. Brainard, 29 Barb. 25; Sturtevant v. Caldwell, 4 Bosw. 628; Van Epps v. Van Deusen, 4 Paige, 64. It is not enough for the court to direct that the necessary parties be brought in, but it should refuse to proceed to a determination of the controversy, so as to affect their rights until they are in fact brought in. Peyser v. Wendt, supra; Sherman y. Parish, supra; Powell V. Finch, 5 Duer, 666. The plaintiffs did not appeal from the order of the court requiring Kelly to be brought in and as long as it remained in force it was an adjudication, establishing as the practice, if not the law, of the case that Kelly was a necessary party. Riggs v. Pursell, 74 N. Y. 370. Moreover, the object of this action was to establish the equitable title of the plaintiffs to the poli c_v and to prevent the company from "paying the proceeds to any one except themselves. The proceeds, however, were also claimed by Kelly, who not only held the legal title to the policy, but bad actually commenced an action upon it against the company in another State. Clearly, the company should not be required to pay the entire amount of the policy both to the plaintiffs and to Kelly, or, without fault on its part, to be placed in a position where it would run any reasonable risk of being compelled to make a double payment. But, how is such a result to be pre- vented when an action at law, brought by the legal owner to compel the company to pay the amount of the policy to him, is pending in one State, and an action in equity bythe^ equitable owner to prevent__ such paymentTTi pending in another State, unless all interested per- sons are parties Jallie. latter? Could the Court of Equity safely pro> ceed "to" judgment against the company, unless the legal owner was before it as a party? If it should enjoin the company from making payment to any one except the equitable owner, it could not prevent • the legal owner from prosecuting his action to collection in the other jurisdiction. It could not enjoin a person over whom it had nojj jurisdiction, nor make any decree affecting his rights. The general rule in equity requires that all persons interested in the subject of the action should be made parties, in order to prevent a multiplicity of suits and secure a final determination of their rights. Osterhoudt v. Supervisors, 98 N. Y. 239 ; Derham v. Lee, 87 id. 599. There is an essential difference between the practice at law and in 406 MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. [CHAP. III. equity in determining who are proper and necessary parties. Story, in his work on Equity Pleadings (§ 72), says that two general prin- ciples control courts of equity in this respect: 1. That the rights of no man shall be finally decided unless he himself is present, or at least has had a full opportunity to appear and vindicate his rights;^ 2. That when a decision is made upon any particular subject- matter, the rights of all persons whose interests are immediately con- nected with that decision and affected by it, shall be provided for aa. far as they reasonably may be. The learned author adds: "It is the constant aim of courts of equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject- matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also, that future litigation may be prevented." As Lord Hardwicke once said, all persons ought to be made parties who are necessary to make the determination complete and to quiet the question. Poore V. Clark, 2 Atk. 515. Not only all persons whose rights may be affected by the judgment should be brought into court, but all whose presence is essential to the protection of any party to the action. Gray v. Schenck, 4 N. Y. 460; Russell v. Clark, 7 Cranch, 69, 98; Picquet v. Swan, 5 Mason, 561 ; Fell v. Brown, 2 Brown's Ch. 218. The burden is on the plaintiff to secure the presence of all such persons, and it is his misfortune if he is unable to do so. When there are conflicting claimants to the same obligation, each ' insisting upon it as exclusively his own, all should be made parties before the question of title is determined by a court of equity in favor of either against the one from whom the obligation is due. Otherwise payment or performance may be exacted as many times as* ''there are separate claimants. It follows that the title to a chose in action, such as the policy in question, cannot be settled unless all^ those who claim any interest therein, whether legal or equitable, are ^joined as parties, plaintiff or defendant. As it is conceded that r Kelly, although nominally, is not really a party to the action, he has not had his day in court, and the decree in favor of the plaintiff being - void as to him on that account, is powerless to affect his rights or to afford protection to the defendant company in obeying its command. . The absence of jurisdiction over a party is the a bsence of power to render judgment against that party . While the court assumed to pronounce judgment against Kelly and to restrain him from receiv- ing the money due upon the policy and from suing for its recovery, its action in that regard was coram non jvd'ice and void as to him. It could not exercise judicial power over one who was not subject to its jurisdiction, nor compel him to obey a decree that was rendered without due process of law. While its command to the company not to pay Kelly could be enforced by punishment for disobedience, its command to Kelly not to sue the company could not be enforced by punishment or otherwise, because it was made without uulhority. / SECT. III.] MAHR V. NORWICH UNION FIRE INSURANCE SOCIETY. 407 Hence Kelly could compel the company to do what the judgment pro- hibited it from doing. Aside from the question of power to proceed without jurisdiction over Kelly, such a judgment is unreasonable and hence inequitable. A court of equity should not restrain a party from doing an act, when it has no power to protect that party from being compelled by another court of competent jurisdiction to do the act thus prohibited. A forcible illustration of this appears in a case recently reported, which lacks no element of complete analogy, as it was the judgment of the court of last resort in Iowa in the action brought by Kelly against the defendant company and set forth in its answer in this action. Kelly v. Norwich Union Fire Ins. Co., 47 N. W. Rep. 986, 79 Iowa R. 425. ^^^ /j7 While the judgment in that case is not before us as evi^ice, the reported decision therein is just as valuable to illustrate what might reasonably be expected to take place as if it were officially known to us as a record of what had taken place. That learned court, in affirming a recovery by Kelly upon the policy in question for its whole amount, said: "The record of the New York court was rightly rejected for the reason that, as against Kelly, the party claiming in this case to hold the policy and all rights under it, the decree and proceediitg are void for the reason that he was not served with process subjecting him to the jurisdiction of the New York court. Kelly was served with process in this State and did not appear in the case. The New York court failed to acquire jurisdic- tion of his person by service of processln tlii« State. The judg- ment, therefore, as to him is void." We regard the case cited as a practical demonstration that Kelly is a necessary party to this action and that a court of equity should not have proceeded to judgment against the company without first acquiring jurisdiction over him. If this were an action at law brought by the plaintiffs to recover upon the policy, a different ques- tion would be presented, involving a conflict between the courts of New York and Iowa. As it is an action in equity, however, it is not necessary for us to now consider that subject. Having in view our form of government, the comity due from the courts of one State to those of another and the necessity for freedom of commercial transactions between citizens of different States, such questions should not be hastily entertained, but should be avoided, when the rights of parties can be satisfactorily determined upon other grounds. Story on Conflict of Laws, § 9. We think that further argument is not required to show that Kelly was a necessary party to this action and that the trial court erred in rendering the judgment appealed from without first acquiring juris- diction over him. The judgment should, therefore, be reversed, and a new trial granted, with costs to abide event. • All concur. Judgment reversed. 408 RENIEE V. HURLBUT. fcHAP. III. RENIER V. HURLBUT. Supreme Court of Wisconsin. 1891. [Reported 81 Wis. 24.] Cassoday, J. It appears from the record that September 26, 1888, the glaintiff recovered judgment upon a policy of insurance in the Circuit Court for Brown County against the Dwelling-House Insurance Company, a corporation created and organized under the laws of Massachusetts, and having its principal place of business at Boston, by reason of loss by fire of a dwelling-house, barns, and property therein, for $3,416.76 ; that the said Boston company appealed from said judg- ment to this court, and upon such appeal the defendants, Hurlbut and Boaler, executed an undertaking to the plaintiff, wherein and whereby the}' agreed and undertook, pursuant to the statute, that they would l)a\' all costs which might be awarded against said Boston company oa said appeal, not exceeding $250, and also undertook that, in case said ^ judgment should be affirmed, the}' would pay the amount thereof; that said judgment was affirmed on said appeal, April 25, 1889 (74 Wis. 89, 42 N. W. Rep. 208) ; that the remittitur thereon was not filed in the trial court until November 18, 1889 ; that August 1, 1890, this action was commenced, upon said undertaking, against said Hurlbut and Boaler ; that the defendants herein answered, and admitted all the allegations of the complaint, and, in effect, alleged that June 28, 1889, the Saint Paul Fire & Marine Insurance Compan}', created and organ- ized under the laws of Minnesota, commenced an action in the Superior Court for Cook County, in the State of Illinois, against this plaintiflT, on a claim for $2,256, and in said action served garnishee process upon the said Boston company's agent at Chicago ; that' the process in said last-named action against this plaintiff was made returnable November 4, 1889, and was served only by the publication of notice for three successive weeks, commencing October 22, 1889, and ending Novem- ber 5, 1889, and mailing copies thereof, etc., to the plaintiff in Wis- consin, where she resided during all the times mentioned ; that upon the trial of said action the court found, in effect, the facts stated ; and also that the said Boston company had not paid the plaintiff anj'thing on said judgment, except $1,200, paid thereon July 1, 1889 ; that this plaintiff had not been personally served with summons or other process in the proceedings in the Superior Court of Cook Count}', and had not appeared in said proceedings ; that the judgment so recovered in said Brown County was exempt from seizure on attachment or exe- 'cution, under the laws of Wisconsin, during all the time mentioned, but was not exempt under the laws of Illinois ; and, as a conclusion of law, that the defendants were entitled to judgment against the plain- tiff, abating this action. From the judgment entered thereon accord- ingly the plaintiff brings this appeal. SECT. III.] RENIER V. IIURLBUT. 409 During all the times mentioned in the foregoing statement,the plain- tiff, Mrs. Kenier, was domiciled in and a resident of this State. The St. Paul company mentioned, claiming to be a creditor of hers for a large amount, commenced an action against her, not in any of the courts of Wisconsin, but in the Superior Court for Cook County, 111., and garnisiied the Boston compan}', as a foreign corporation, b}' serv- ing garnishee process upon its agent located in Chicago. Mrs. Renier (lid not appear in that action, nor in such garnishee proceedings, and no process or notice of any kind was ever served upon her therein otherwise than by publication, as mentioned. It is claimed that such publication was insufficient, but for the purpose of this appeal, it is assumed that the statutes of Illinois were in all respects complied with. Upon the facts stated the law is well settled by the Supreme Court of the United States to the effect that the Chicago court obtained no jurisdiction to render any personal judgment against Mrs. Renier. St. Clair v. Cox, 106 U. S. 350 ; Pennoyer v. Neff, 95 U. S. 714; Thompson v. Whitman, 18 Wall. 457; Public Works V. Columbia College, 17 Wall. 521. To the same effect are the deci- sions of this court. Witt v. Meyer, 69 Wis. 595, 35 N. W. Rep. 25 ; Smith V. Grady, 68 Wis. 215, 3l' N. W. Rep. 477. This being so, it is very obvious that the most that could be accomplished in the Chicago court was to reach property, assets, or credits belonging to Mrs. Renier, and within the jurisdiction of that court. This is appar- ent from the authorities cited. If there was, therefore, a want of jurisdiction in that court as to such property, assets, or credits, then the proceedings therein were null and void, and could not operate to abate or defeat the suit at bar. The question recurs whether, at the time of such garnishment, Mrs. Renier was the owner of any propert}'., assets, or credits within such jurisdiction of the Chicago court. There is no pretence^that^at the time the garnishee papers were served upon the Chicago agent of the Boston compan^-^he had in his possession or under his control any tangible property belonging to Mrs. Renier. The extent of the claim is, that at that time the Boston company wa,s indebted to Mrs. Renier upon the judgment recovered in the Circuit Court for Brown County, mentioned in the foregoing statement, and \ ^-«-c hence that such indebtedness was attached or reached by^the service of ; / JO. 't/ ,S the garnishee papers upon the Boston company's agent in Chicago. If \ 'i, such contention can be maintained, then it is obvious that the St. Paul company might have attached such indebtedness by such garnishee proceedings in any State or city in the Union where the Boston com- pany happened to have an office and an agent. This would necessarily be upon the theory that such indebtedness to Mrs. Renier was ambula- tory, following each of the several agents of the Boston company, and, for the purposes of garnishment, having a situs with and in the office of each and all of such agents, wherever they happened to be located. If such is the law, it ia certainly important that all should know it. As indicated, none of the parties to the proceedings in the Chicflgo court 410 EENIER V. HURLBUT. [CHAP. III. were residents of Illinois. Proceedings bj' garnishment are in their nature very much like the oKl trustee process. In such a case in Massachusetts, at an early day, the court refused to take jurisdiction, for the reason that all the parties were non-residents. Tingley v. liateman, 10 Mass. 346. It was there said, in behalf of the court, that " the summoning of a trustee is like a process in rem. A chose in action is thereb}' arrested, and made to answer the debt of the principal. The person entitled by the contract or duty of the supposed trustee is thus summoned by the arrest of this species of effects. These are, however, to be considered, for this purpose, as local, and as remaining at the residence of the debtor or person intrusted for the principal ; and his rights, in this respect, are not to be considered as following the person of the debtor to any place where he may be transiently found, to be there taken at the will of a third person, within a jurisdiction where neither the original creditor nor debtor resides." To the same effect are Sawyer u Thompson, 24 N. H. 510; Bowen v. Pope, 125 111. 28, 17 N. E. Rep. 64. It has also been repeatedl}' held in Massachusetts that a trustee re siding in another State, though temporarily therein when service is made upon him, is not liable to the trustee process, and especially is this so where the principal defendant is also a non-resident. Ray V. Underwood, 3 Pick. 302 ; Hart v. Anthony, 15 Pick. 445 ; Nj'e V. Liscombe, 21 Pick. 263. To the same effect are Lawrence v. Smith, 45 N. H. 533 ; Green v. Bank, 25 Conn. 452 ; Lovejoy v. Albee. 33 Me. 414. The only exception to this rule seems to be where tangible prop- erty belonging to the principal defendant his been actually' seized within the State, or the contract or promise is to be performed witjiin the State. Id. ; Sawyer u. Thompson, supra; Young y. Ross, 31 N. H. 201 ; Lawrence v. Smith, supra; Giiillander v. Howell, 35 N. Y. 657; Lovejoj' V. Albee, supra. Some of the authorities cited and the views thus expressed were considered and sustained by Mr. Justice Orton in Commercial Nat. Bank v. Chicago, M. & St. P. Ry. Co., 45 Wis. 1 72. The courts of Massachusetts have gone to the extent of holding that a resident of that State, having contracted to deliver goods at a place in another State, could not be charged in foreign attachment as the trustee of the person to whom the goods were thus contracted. Clark V. Brewer, 6 Gray, 320. In Danforth v. Penny, 3 Mete. (Mass.) 564, it was held that a foreign corporation, having no specific articles of property in its possession within that State belonging to the principal defendant to whom it was indebted, could not be charged by trustee process, notwithstanding many of its members and officers resided there, and its books and records were kept there. To the same effect is Gold V. Railroad Co., 1 Gray, 424, where it was held that a foreign railroad • corporation could not be charged by the trustee process, although in possession of a railroad in Massachusetts under leases from the pro- prietors thereof; and also Towle v. Wilder, 57 Vt. 622; Railroad Co. V. Dooley, 78 Ala. 624 ; Railroad Co. v. Chumbey (Ala.), 9 South. Rep. 286 ; Railroad Co. v. Thornton, 60 Ga. 800 ; Bates v. Railroad Co., SECT. III.] EENIER V. HUKLBUT. 411 60 Wis. 296, 19 N. W. Rep. 72 ; Sutherland v. Bank, 78 Ky. 250. In Smith v. Life Insurance Co., 14 Allen, 336, it was held that the courts of Massachusetts would not entertain jurisdiction of a bill in equit}', brought by a citizen of Alabama against such foreign insurance corporation, to restore him to his riglits under a life policy, notwith- standing such foreign corporation transacted business therein, and had a resident agent therein, upon wliom all lawful process against the company might be served. The theory upon which foreign attachments) and foreign garnishments are sustained is that the principal defendant/ is beyond the reach of process, but that his property is within the reacl/i of such process, and may, therefore, be seized thereon. Railroad Co. V. Pennock, 51 Pa. St. 244. As indicated, the proceedings in the/ Chicago court were not based upon any cause of action originating iij the State of Illinois, nor to enforce any contract or engagement enterec into with reference to any subject-matter within that State, but merelil for the purpose of reaching property belonging to Mrs. Renier, having no tangible existence in that State. The authorities cited, as well a^ others which might be cited, pretty clearl}' show that the Chicago court^ obtained no jurisdiction over that property. Banking Co. v. Carr, 76 Ala. 388 ; Brauser v. Insurance Co., 21 Wis. 506. Nor was it thel. purpose of such proceedings to reach property belonging to the Bostonll compan}'. Its indebtedness to Mrs. Renier was in no sense its prop-{ erty, but rather an indication of the absence of its property. In speak- ing of the situs of choses in action for the purposes of taxation, Mr. Justice Field observed that " to call debts property of the debtors is simply to misuse terms. All the property there can be in the nature^ of things in debts of corporations belongs to the creditors, to whom they are payable, and follows their domicile, wherever that may be. Their debts can have no locality separate from the parties to whom they are due." State Tax on Foreign-Held Bonds, 15 Wall. 320. This principle has received recent sanction in this court. State v. Gaylord, 73 Wis. 325, 41 N. W. Rep. 521. It is obvious from what has been said that, if the indebtedness of the Boston company to Mrs. Renier has any situs outside of Wisconsin for the purposes of garnishment, it was at the home office of that com- pany in Massachusetts ; certainly not with the respective agents of that company, wherever located in the several States. But, as observed, , that indebtedness was in the form of a judgment recovered by Mrs. } Renier in a court of her domicile in Wisconsin. The statute of this State required the Boston company to pay that judgment to _Mrs. .. Renier within the time therein specified. Section 1974, Rev. St.* Such payment, or its equivalent, was absolutely essential to the con- tinuance of business in the State. Id. Such being the rules of law, 1 Section 1974 requires insurance companies to pay final judgments against them in Wisconsin within sixty days after the rendition thereof, or cense issuing policies in the State until the judgment is paid, and makes violations of the statute punishable by forfeiture. 412 LOUISVILLE AND NASHVILLE RAILROAD V. NASH. [CHAP. III. and the facts being as stated, we must hold that the sitns of the in- debtedness in question for the purposes of garnishment at the time of the commencement of the proceedings in tlie Chicago court was only in Wisconsin, where Mrs. Renier resided. This view is sustained by numerous cases cited by counsel for the plaintiff, among which are Wallace v. McConnell, 13 Pet. 136 ; Railroad Co. v. Gomila, 132 tJ. S. 485 ; Bank v. Rollin, 99 Mass. 313 ; Trowbridge v. Means, 5 Ark. 135; Shinn v. Zimmerman, 23 N. J. Law, 150; Bank v. Snow, 9 R. I. 11; Wood v. Lake, 13 Wis. 84. It follows that the proceedings in the Chicago court did not operate as a bar or abate- ment of this action. The judgment of the Circuit Court is reversed, and the cause remanded, with direction to enter judgment in favor of the plaintiff and against the defendants for the proper amount remain- ing due and unpaid on the former judgment, with interest and costs. ^ LOUISVILLE AND NASHVILLE RAILROAD v. NASH. Supreme Court of Alabama. 1898. [Reported 118 Alabama, 477. J Brfckell, C. .J.'^ The appellee, a resident of this State, and an employe of appellant, brought this action against appellant, the Louisville & Nashville Railroad Company, a corporation organized under the laws of the State of Kentucky, and doing business in that State, and also in Alabama and Tennessee, to recover the amount of wages earned and due him for work and labor done here for appel- lant. In defence of the action, appellant set up the payment by it, previously to the commencement of this suit, of a judgment rendered against it in a justice's court in the State of Tennessee in an attach- ment suit, founded on a debt due in Tennessee, wherein appellee was defendant and appellant was summoned to answer as garnishee. Appellee was a resident of Alabama at the time of the commence- ment, and during the pendency, of said attachment suit, was not personally served with notice thereof, had no actual notice, and did not voluntarily appear, but service was had by publication, in accordance with the laws of Tennessee. The questions presented by this appeal are, therefore — First, whether the courts of one State have, or can acquire, jurisdiction to attach and condemn a debt due to a non-resident, and payable in the State of his residence, by ser- vice of process on his debtor as garnishee, in the absence of personal service within the State of suit on the creditor or his voluntary 1 Ace. Nat. Bank v. Furtick (Del.), 42 Atl. 479 ; Swedish- American Bank v. nieecker, 72 Minn. 883, 75 N. W. 740 ; Douglass v. Phenix Ins. Co., 138 N. Y. 209, 33 N. E. 938 ; Ranney v. Morrow, 3 I'ug.s. (N. B.) 270. — Ed. * The opinion only is given : it sufficiently states the case. — Ed. SECT. III.] LOUISVILLE AND NASHVILLE RAILROAD V. NASH. 413 appearance; and, second, whether, if such courts are without juris- diction for this purpose, the payment by the garnishee of a judgment rendered against hiin as garnishee, under such circumstances, will constitute any defence to a subsequent suit by his creditor to recover the debt. The case presented is ruled, with respect to both questions, by the oases of Railroad Co. v. Dooley, 78 Ala. 524, and Railroad Co. V. Chumley, 92 Ala. 317. lu the former case^it was neld iha t.a debt ilue by a foreign corporation to .in em)^l( fYf '" ^''" >>^t\ Barron, 83 Illinois, 365; Car- son V. Railway Co., 88 Tennessee, 646; Couley v. Chilcote, 25 Ohio St. 320; Albrecht v. Treitschke, 17 Nebraska, 205: O'Connor v. AValter, 37 Nebraska, 267; Chicago, Burlington, &c. Railroad v SECT. III.] EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. 423 Moore, 31 Nebraska, 629; Moore v. Chicago, Rock Island, &c. Rail- road, 43 Iowa, 385; Broadstreet v. Clark, D. & C. M. & St. Paul Railroad, Garnishee, 65 Iowa, 670; Stevens v. Brown, 5 West Vir- ginia, 450. See also Bank of United States v. Donnally, 8 Pet. 361; Wilcox v. Hunt, 13 Pet. 378; Townsend v. Jemison, 9 How. 407; Walworth v. Harris, 129 U. S. 365; Penfield v. Chesapeake, Ohio, &c. Railroad, 134 U. S. 351. As to the extent to which lex fori governs, see Conflict of Laws, 571 et seq. There are cases for and cases against the proposition that it is thei duty of a garnishee to notify Ihe defendant, his creditor, of thej pendency of the proceedings, and also to make the defence of exemp- tion, or he will be precluded from claiming the proceedings iu defence of an action against himself. We need not comment on the cases or reconcile them, as such notice was given and the defence was made. The plaintiff in error did all it could and submitted only to the demands of the law. / In Broadstreet v. Clark, 65 Iowa, 670, the Supreme Court of the State decided that exemption laws pertained to the remedy and were not a defence in that State. This ruling is repeated in Willard ?;. Sturm, 98 Iowa, 555, and applied to the proceedings in garnishment now under review. It follows from these views that the Iowa court had jurisdictioii, and that the Kansas courts did not give to the proceedings in Lowa the faith and credit they had there, and were hence entitled tq_in Kansas. The judgment is reversed and the case remanded for further pro- ceedings not inconsistent with this opinion.^ \v /f-^ ^^.l^ EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. •^ Supreme Court of the Cape of Good Hope. 1887. [Reported 5 Juta, 86.] This was a motion to attach certain goods belonging to the German West African Company to found jurisdiction. The company consisted of Germans, and was established at Berlin, and a trading expedition had been fitted out by them under the direc- tion of Baron von Steineker, and the plaintiff, who was also a German, had been engaged upon the expedition. The goods had been sent to Cape Town, where a vessel was to be chartered to carry them to Wal- wich Bay. From there the expedition was to proceed to Ovanipoland — independent territory — where a station was to be erected, and cer- 1 Aix. Cross V. Brown, 19 R. I. 220, 33 Atl. 147; M. & 0. R. R. v. Barnhill, 91 Tenn. 395, 19 S. W. 21 ; and see Wyeth H. &. M. Co. v. Lang, 127 Mo. 242, 29 S. W. 1010. — Ed. 424 EINWOLD V. THE GERMAN WEST AFRICAN COMPANY. [cHAP, III. tain of the expedition were then to proceed to the Zambesi. The plain- tiff had been engaged principally as guide, on account of his knowledge of the interior. He was to receive a certain salary, to commence from the time the expedition arrived at Walwich Bay ; £5 were to be paid him for expenses to Cape Town, and Steineker had also received £100 for the expenses of the members of the expedition at Cape Town. At the latter place Steineker dismissed the plaintiff from the company's service, without making these payments, and he, alleging he was about to bring an action against the compan}' for wrongful dismissal, now made the present application. Neither the plaintiff nor Steineker was domiciled here.^ De Villiers, C. J. This matter was brought before me in the course of last week in the form of an application to restrain the respondent company from removing the 160 cases which are now at the docks, on the ground that it is the intention of the applicant to bring an action for damages for breach of contract. I at once refused to make any order on such an application, because the fact that goods belonging to the respondent are in this Colony gives the applicant no right to arrest these goods. The form of the application has now been altered, and> the arrest of the goods is sought on the grounds that the applicant wishes to obtain jurisdiction by means of attachment, and that the at- tachment is really for the purpose of founding jurisdiction in this court. The question now to be determined is whether this court ought, at the instance of a foreigner not resident in this Colony, to attach property belonging to another non-resident foreigner, for the purpose of found- ing jurisdiction in an action intended to be instituted here for the pur- pose of recovering damages for the breach of a contract entered into ia a foreign countr}-. The question has been somewhat complicated by the further question whether the contract, although entered into in Ger- many, is not one which must be performed in this Colon}- ; but it is clear, from the applicant's own affidavit, that he was engaged to per- form certain services in Ovampoland, and other native territories in the interior of Africa which are admitted to be beyond the jurisdiction of this court. The expedition started from Hamburg, and the fact that the starting-point in Africa is Walwich Bay, which is within the Colonv, does not justify the court in the holding that the contract is to be performed within the jurisdiction. The same remark applies to the circumstance, that a portion of the applicant's travelling expenses was to he paid upon the arrival of the expedition in Cape Town. Tlie ex- /pedition was to use certain ports of this Colony, as ports of lading, for the purpose of reaching its ultimate destination, which was the interior of Africa, where the whole of its business was to be carried on. The alleged breach of contract consists, not in refusing to pay the small sum payable on arrival in Cape Town, but in dismissing the applicant altogether, and preventing him from joining the expedition into the in- terior. The 30th section of the Charter of Justice enacts that the Su- 1 Arguments of couusel are omitted. — Ed. SECT. III.] EINWOLB V. THE GERMAN WEST AFRICAN COMPANY. 425 prerae Court " shall have cognizance of all pleas, and jurisdiction in all causes, whether civil, criminal, or mixed, arising within the said Colonv, with jurisdiction over our subjects, and all other persons whomsoever, residing and being within tlie said Colony, in as full and ample a man- ner and to all intents and purposes, as the Supreme Court now existing within the said Colony now hath or can lawfully exercise the same." It has never been understood in this court that this section excludes the jurisdiction acquired over persons, not domiciled in this Colony, by means of an attachment of their person or property ad fundandam, (or to use Voet's expression, which more correctlj' expresses the mod- ern practice, ad finnaiidam) jurisdictionern. But I am not aware of ai single case in this court, in which such an attachment has been issued, for the purpose of establishing a jurisdiction, for which no other legal! ground existed. In the case of Hornblow xk Fotheringham (1 Menzies, 365), Menzies, J., expressed grave doubt whether the court should use its process of arrest, at the instance of a peregrinus, in order to create a jurisdiction which, without such arrest, it would not possess. In Heinaraan u. Jenkins (2 Searle, 10), Bell, J., discharged a writ of arrest which had been granted against an American ship, calling at the port of Table Ba}', in respect of a contract entered into at New York, to be fulfilled in Melbourne. It is true that the arrest in that case had been made' under the 8th Rule of court, and that the learned judge at first decided to discharge the arrest upon grounds, which are not supported b}' the terras of the Rule, or by the invariable practice of the court, but upon the simple question of jurisdiction his final decision certainly did not support the present applicant's contention. In Wilhelm v. F'rancia (Buchanan's Rep., 1876, p. 216), where the plaintiff" and defendant re- sided out of the jurisdiction of the court, and the contract between them had been entered into be3'ond, and was not to be performed in the Colony, this court refused to order the attachment of property for the purpose of founding jurisdiction. Two cases have been cited which at first sight might appear to support the applicant's contention, but when closely examined they wuU be found not to have an}' real application. In Dunell v. Van der Plank (3 Menz. 112), the headnote states that arrest of a ship to found jurisdiction was "granted at the instance of an English creditor on an English contract ; " but, from the case itself, it would appear that the i)laintiffs on the record were not English cred- itors, but persons domiciled in the Colony. The defendant's counsel indeed argued that the real plaintiffs were English creditors, but the court does not appear to have adopted this view. It is true that Men- zies, J., held that the attachment ought to be granted, even if applied for by the plaintiff's as attorneys for the English creditors ; but this was not the true ground of the decision, and his dictum is not quite consistent with the view expressed by him in the previous case of Hornblow v. Fotheringham. In Poultney v. Van Santen (Buch. Rep., 1874, p. 76), a rule was made absolute attaching the proceeds of the sale of an abandoned ship, pending an action by a passenger for damages arising 426 EINWOLD V. THE GEItMAN WEST AFRICAN COMPANY. [CHAP. III. from the non-completion of the voj-age from Buenos A^-res to New South Wales, the passage havhig been taken in Buenos Aj-res. Tliere, however, no objection was taken to tlie jurisdiction of this court, but, on the contraiy, the defendant had submitted to the jurisdiction hy tendering a certain sum as damages, with the costs incurred in this court. By applying for an order to attach property to found jurisdiction, the applicant in tlie present case virtually admits that without such a;j attaclimcnt the court would not possess sufficient jurisdiction. What, then, are tlie grounds upon which the jurisdiction of this court can be exercised, in respect of any contract over any defendant without his consent, express or implied ? The grounds are threefold ; viz. by virtue of the defendant's domicile being here, by virtue of the contract either having been entered into here or having to be performed here, and by virtue of the subject-matter in an action in rem being situated ia this Colony. If the defendant is domiciled here, the process of at- tachment is wholly unnecessary ; but, in the absence of such domicile^ the invariable practice in this court has been to attach the person or the property of the defendants, for the purpose of founding jurisdiction, even where either of the two latter requisites is present. In the pres- ent case, every one of the three requisites is wanting. Ought the court then to supply the defect, by issuing its process for the attachment of property belonging to the respondent, which happens to be in the Col- ony in its transit to the interior ? Such a process was wholly unknown to the Roman law, which, however, allowed a defendant to be sued in the courts of the country where the contract was entered into, or agreed to be performed. The canon law, according to Groenewegen (ad Cod. 3, 13, 2), did not allow a person to be sued in the country of the con- tract unless found there, and this rule, he adds, " is consistent with the customs of ourselves and other nations." And in another passage (ad Cod. 3, 18) he says: ''Our ancestors have deemed it unjust an:l con- trary to all reasons to send their sickle into the harvest of another juris- diction, under the pretext of their own country being the place where a wrong was committed, or the place where a contract was entered into, or intended to be performed." He adds : " I have no doubt whatever that this custom of ours has given rise to the modern practice of arrest- ing debtors, than which nothing is more common." The practice of arresting debtors or attaching their property in order to found jurisdic- tion was well established in Holland, in the time of Voet ; but it is by no means clear to me, from the Dutch cases I have consulted, that it was ever actually exercised where the contract had been entered into and was to be performed elsewhere than in Holland. In actions in rem it was of course a common practice to attach property situate in Hol- land for the purpose of confirming jurisdiction. In regard to this Colony having regard to the terms of the 30th section of the Charter of Justice, and to the practice of modern nations, I am of opinion thAt jurisdiction ought not to be assumed by this court, in cases where not SECT. Ill,] IIAKHTS V. BALK. 427 one of the requisite grounds which I have enumerated is present. In England the process of attachment to found jurisdiction is unknown, but the jurisdiction assumed by the courts is wider than in iiny other country. I doubt, however, whether even in England jurisdiction would be exercised in a case like the present. In Cookney v. Anderson (31 Beav. 452), a bill was tiled in England to administer the trusts of a Scotch creditor's deed, under which a mining concern in Scotland was to be carried on b}- a trustee. All the jjarties except the plaintiff were domiciled in Scotland, but an order had been obtained to serve the bill there. The defendants a})peared and demurred to the jurisdiction. The demurrer was allowed by Sir John Romilly, Master of the Rolls, and his decision was affirmed by Lord Westbury, Lord Chancellor. " I think," said the Master of the Rolls, " the principles which govern the jurisdiction of the court over parties to contracts is analogous to those of the civil law, which, as far as I am aware, have been adopted by all modern nations. They are described by all writers to consist of three circumstances, any one of which will give jurisdiction to the tribunals of the countr}' to take cognizance of the matter. The first is, where the domicile of the defendant is within the jurisdiction of the court. The second is where the sul)ject-matter is situated within the jurisdiction of the court. And the third is where the contract in question was entered into within the jurisdiction of the court." He then points out the in- convenience arising from the difficulty of ascertaining the Scotch law in an English court, and of enforcing the mandates of the court against a person domiciled in Scotland, and continues thus, " It would be, as I apprehend, an unprecedented event in the records of this court, if two foreigners should enter into a contract relating to foreign affairs to be performed in their own country, that this court would allow one of them to sue the other with reference to that contract in the English tribu- nals. . . . The /orum domicilii, the forum rei sifce, and forum loci contractus are all wanting, and I can find no case or authority which would maintain such an exercise of the jurisdiction of this court." But, quite independently of the English practice, I am satisfied, for the reasons already given, that the present is not a case in which the court should issue its process for tlie attachment of a foreigner's prop- erty for the puri)ose of confirming or establishing jurisdiction over him. The application must therefore be refused with costs. ^ HARRIS A?. BALK. ^^ 'i^^ SuPRKME Court of the United States. 1905. ^"^t* [AV/)0)7ec? 19877. 5. 215.] \ The facts are as follows : The plaintiff in erior, Harris, was a resident of North Carolina at the time of the commencement of this action in 189(1, and prior to that time was i iicl ebted_ toJjie_defenda£tMn_e n^^ Bajkj also a resident of North Carolina, in the sura of Si 80, for money borrowed from Balk by Harris during the year 1896, which Harris verbally prom- 1 Ace. Blaine v. Colonial Marine Assurance Co., 1 Jiita, 402 ; Willielm v. Francis, 6 Buclianan, 216. Ami see to the same effect Iiniieiial Oltoman Bank v. Richardson (Marseilles, 1893), 21 Clunet, 112.— Ed. 428 HARRIS V. BALK. [CHAP. III. ised to repay, but there was no written evidence of the obligation. During the year above mentioned one Jacob Epstein, a resident of Baltimore, in the State of Mai viand, asserted that Balk was indebted to him in the sum of over $300. In August, 1896, Harris visited Baltimoi'e for the purpose of purchasing merchandise, and while he was in that city temporarily on August 6, 18dG, EpaLcia caused to be issued out of a proper court in Baltimore a foreign or non-resident writ of attachment against Balk, attaching the debt due Balk from Harris, which writ the sheriff at Baltimore laid in the liands of Harris, with a summons to appear in the court at a day named. With that at- tachment, a writ of summons and a short declaration against Balk (as provided by tiie Maryland statute) were also delivered to the sheriff and by him set up at the court house door, as required by the law of Mar}'- land. Before the return day of the attachment writ Harris left Baltimore and returned to his home in North Carolina. He did not contest tiie garnishee process, which was issued to garnish the debt which Han is owed Balk. After his return ^Harris made an affidavit on August 11, 1896, that he owed Balk $180, and stated that the amount had been attached by Epstein of Baltimore, and by his counsel in the Maryland proceeding Harris consented tiierein to an order of condemnation against him as such garnishee for $180, the amount of his debt to Balk. Judg- ment was thereafter entered against the garnishee and in favor of the plaintiff, Epstein, for $180. After the entry of the'garnishee judgment, condemning the $180 in the hands of the garnishee, Harris paid the amount of the judgment to one Warren, an attorney of Epstein, residing in Xorth Carolina. On August 11, 1896, Balk commenced an action against Harris before a justice of the peace in North Carolina, to recover the $180 which he averred Harris owed him. The plaintiff in error, b}' |way of answer to the suit, pleaded in bar the recovery of the Maryland nudgment and his payment thereof, and contended tliat it was conclusive \ against the defendant in error in this action, because that judgment was a valid judgment in Maryland, and was therefore entitled to full faith and credit in the courts of North Carolina. This contention was not allowed l\v the trial court, and judgment was accordingly entered asainst Harris for the amount of his indebtedness to Balk, and that judgment was affirmed by the Supreme Court of North Carolina. The ground of such judgment was that the Maryland court obtained no juris- diction to attach or garnish the debt due from Harris to Balk, because Harris was but temporarily in the State, and the situs of the debt was in North Carolina. Pkckiiam, J. The State court of North Carolina has refused to give any effect in this action to the IMaryland judgment ; and the Federal question is, whether it did not thereby refuse the full faith and credit to such judgment which is recjuired by the Federal Constitution. If tlie Maryhind court had jurisdiction to award it, the judgment is v:did and entitled to the same full faith and credit in North Cai'olina that it has in Maryland as a valid domestic judgment. BECT. III.] HARRIS V. BALK. 429 The defendant in error contends that the Maryland court obtained no jurisdiction to award the judgment of condemnation because the garnishee, although at the time in the State of Maryland, and personally served with process therein, was a non-resident of that State, onlj* cas- uall}' or temporarily within its boundaries; that the situs of the debt due from Harris, the garnishee, to the defendant in error herein was in North Carolina, and did not accompany Harris to Maryland; that, con- sequently, Harris, though within the State of Maryland, had not pos- session of any propert}' of Balk, and the Maryland State court therefore obtained no jurisdiction over an}- property of Balk in the attachment proceedings, and the consent of Harris to the entr\- of the judgment was immaterial. The plaintiff in error, on the contrary-, insists that, though the garnishee were but temporarily* in Maryland, 3'et the laws of that State provide for an attachment of this nature, if the debtor, the garnishee, is found in the State and the court obtains jurisdiction over him by the service of process therein ; that the judgment, condemning the debt from Harris to Balk, was a valid judgment, provided Balk could himself have sued Harris for the debt in Maryland. This, it is asserted, he could have done, and the judgment was therefore entitled to full faith and credit in the courts of North Carolina. The cases holding that the State court obtains no jurisdiction over the garnishee if he be but temporarily within the State, proceed upon the theor}' that the situs of the debt is at the domicil either of the creditor or of the debtor, and that it does not follow the debtor in his casual or temporary journey into another State, and the garnishee has no possession of anj' property or credit of the principal debtor in the foreign State. We regard the contention of the plaintiff in error as the correct one. The authorities in the various State courts upon this question are not at all in harmony. They have been collected b}' counsel, and will be found in their respective briefs, and it is not necessary to here enlarge upon them. Attachment is the creature of the local law ; that is, unless there is a law of the State providing for and permitting the attachment it can- not be levied there. If there be a law of the State providing for the attachment of the debt, then if the garnishee be found in that State, \ and process be personally served upon him therein, we think the court! thereb}' acquires jurisdiction over him, and can garnish the debt due from! him to the debtor of the plaintiff and condemn it, provided the garnisheel could himself be sued bv his creditor in that State. We do not see how the question of jurisdiction velnon can properly be made to depend upon the so-called original situs of the debt, or upon the character of the stay of the garnishee, whether temporary or permanent, in the State where the attachment is issued. Power over the person of the garnishee confers jurisdiction on the courts of the State where the writ issues. Blackstone v. Miller, 188 U. S. 189, 206. If, while temporarily there, his creditor might sue him there and recover the debt; then he is liable / f I 430 HARRIS V. BALK. [CHAP. III. to process of garnishment, no matter where the situs of the debt was criginallj'. We do not see the materiahty of the expression " situs of the debt," when used in connection with attachment proceedings. If by situs is meant the place of the creation of the debt, that fact is im- material. If it be meant that the obligation to pay the debt can only be enforced at the situs tlma fixed, we think it plainly untrue. The ob- ligation of the debtor to pay his debt clings to and accompanies him wherever he goes. He is as much bound to pay his debt in a foreign State when therein sued upon his obligalion by his creditor, as he was in the State where the debt was contracted. We speak of ordinar}' debts, such as the one in this case. It would be no defence to such suit for the debtor to plead that he was only in the foreign State casu- all}' or temporaril}'. His obligation to pa}- would be tlie same whotlier be was there in that way or with an intention to remain. It is nothing but the obligation to pay which is garnished or attached. This obliga- tion can be enforced by the courts of the foreign State after personal ser- vice of process therein, just as well as by the courts of the domicil of the debtor. If the debtor leave the foreign State without appearing, a judgment by default may be entered, upon which execution may issue, or the judgment may be sued upon in any other State where the debtor might be found. In such case the situs is unimportant. It is not a question of possession in the foreign State, for possession cannot be taken of a debt or of the obligation to pa}' it, as tangible property might be taken possession of Notice to the debtor (garnishee) of the commencement of the suit, and notice not to pay to his creditor, is all that can be given, whether the garnishee be a mere casual and tempo- rary comer, or a resident of the State where the attachment is laid. His obligation to pay to his creditor is thereby arrested and a lien created upon the debt itself Gaboon v. Morgan, 38 Vt. 234, 236 ; National Fire Ins. Co. v. Ctiambers, 53 N. J. Eq. 468, 483. We can see no reason why the attachment should not be thus laid, provided the creditor of the garnishee could himself sue in that State and its laws permitted the attachment. There can be no doubt that Balk, as a citizen of the State of North Carolina, had the right to sue Harris in Maryland to recover the debt which Harris owed him. Being a citizen of North Carolina, he was entitled to all the privileges and immunities of citizens of the several States, one of which is the right to institute actions in the courts of an- other State. The law of Maryland provides for the attachment of credits in a case like this. See sections 8 and 10 of Article 9 of the Cocle of Public General Laws of Maryland, which provide that, upon the proper facts being shown (as stated in the article), the attachment may be sued out against lands, tenements, goods, and credits of the debtor. Section 10 particularly provides thjit " Any kind of property or credits belong- ing to the defendant, in the plaintiff's own hands, or in the hands of any one else, may be attached ; and credits may be attached which shall not then be due." Sections 11, 12, and 13 of the above-mentioned SECT. III.] HARRIS V. BALK. 431 article provide the gcnc>ral practice for levying the attachment and the proceedings subsequent thereto. Where money or credits are attached the inchoate lien attaches to the fund or credits when the attachment is laid in the hands of the garnishee, and the judgment condemning the amount in his hands becomes a personal judgment against him. Buschman v. Hanna, 72 Md. 1, 5, 6. Section 34 of the same Maryland Code provides also that this judgment of condemnation against the garnishee, or payment by him of such judgment, is plcadal)le in bar to an action brought against him b}* the defendant in the attach- ment suit for or concerning the property or credits so condemned. It thus appears that Balk could have sued Harris in Maryland to re- cover his debt, notwithstanding the temporary character of Harris' sta}- there; it also appears that the municipal law of Maryland permits the debtor of the principal debtor to be garnislied, and therefore if the couit of the State where the garnishee is found obtains jurisdiction over him, through the service of process upon him within the Stale, then the judgment entered was a valid judgment. See Minor on Conflict of Laws, section 125, where the various theories regarding the sulject are stated and many of the authorities cited. He there cites many cases to prove the coi-rectness of the theory of the validity of the judgment where the municipal law [lermits the debtor to be garnished, although his being within the State is but temporar\-. See pp. 289, 290. This is the doc- trine which is also adopted in Morgan v. Neville, 74 Pa. St. 52, by the Supreme Court of Pennsylvania, per Agnew, J., in delivering the opin- ion of that court. The same princi[)le is iield in Wycth Haidware &c. Co. V. Lang, 127 Mo. 242, 247; in Lancashire Insurance Co. v. Corbetts, 165 111. 592 ; and in Harvey v. Great Norlhern Ry. Co., 50 Minn. 405, 406, 407; and to the same effect is Embree v. Hanna, 5 Johns. (N. Y.) 101 ; also Savin v. Bond, 57 Md. 228, where the court held that the at- tachment was properly served upon a party in the District of Columbia while he was temporarily there ; that as his debt to the appellant was payable wherever he was found, and process had been served U[)on him in the District of Columbia, the Supreme Court of the District had unquestioned jurisdiction to render judgment, and the same ha\ing been paid, there was no error in granting the prayer of the appellee that such judgment was conclusive. Tlie case in 138 N. Y. 209, Douglass v. In- surance Co., is not contrary to this doctrine. The question there was not as to the temporary character of the presence of the garnisliee in the State of Massachusetts, but, as the garnishee was a foreign corpora- tion, it was held that it was not within the State of Massachusetts so as to be liable to attachment by the service upon an agent of the company' within that State. The general principle laid down in Embree v. Hanna, 5 Johns. (N. Y.) 101 , was recognized as correct. There are, as we have said, authorities to the contrary, and the^* cannot be reconciled. It seems to us, however, that the principle decided in Chicago, R. I. &c. Ry. Co. V. Sturm, 174 U. S. 710, recognizes the jurisdiction, although in that case it appears that the presence of the garnishee was not merely 432 HARRIS V. BALK. [CHAP. III. a temporary one in the State where the process was served. In that case it was said : " ' All debts are pa3able everywhere, unless there be some special limitation or provision in respect to the payment ; the rule being that debts as such have no locus or situs., but accompany the creditor everywhere, and authorize a demand upon the debtor everywhere.' 2 Parsons on Contracts, 8th ed., 702 (9th ed., 739). The debt involved in the pending case had no ' special limitation or provision in respect to payment.' It was payable generally, and could have been sued on in Iowa, and therefore was attachable in Iowa. This is the principle and effect of the best considered cases, — the inevitable effect from the na- ture of transitory actions and the purpose of foreign attachment laws if we would enforce that purpose." The case recognizes the right of the creditor to sue in the State where the debtor may be found, even if but temporarily there, and upon that right is built the further right of the creditor to attach the debt owing by the garnishee to his creditor. The importance of the fact of the right of the original creditor to sue his debtor in the foreign State, as affecting the right of the creditor of that creditor to sue the debtor or garnishee, lies in the nature of the attachment proceeding. The plaintiff, in such proceeding in the foreign State, is able to sue out the attachment and attach the debt due from the garnishee to hia (the garnishee's) creditor, because of the fact that the plaintiff is really in such proceeding a representative of the creditor of the garnishee, and therefore if such creditor himself had the right to commence suit to recover the debt in the foreign State his representative has the same right, as representing him, and may garnish or attach the debt, provided the municipal law of the State where the attachment was sued out permits it. It seems to us, therefore, that the judgment against Harris in Mary- land, condemning the $180 wliich he owed to Balk, was a valid judg- ment, because the court had jurisdiction over the garnishee by personal service of process within the State of Maryland. It ought to be and it is the object of courts to prevent the payment of any debt twice over. Thus if Harris, owing a debt to Ballv, paid it under a valid judgment against him, to Epstein, he certainly ought not to be compelled to pay it a second time, but should have the riglit to plead his payment under the Maryland judgment. It is objected, how- ever, that the payment by Harris to Epstein was not under legal com- pulsion. Harris in truth owed the debt to Balk, which was attached b}' Epstein. He had, therefore, as we have seen, no defence to set up against the attachment of tlie debt. Jurisdiction over him personally had been obtained by the Maryland court. As he was absolutely with- out defence, there was no reason why he should not consent to a judg- ment impounding the debt, which judgment the plaintiff was legally entitled to, and which he could not prevent. There was no merely voluntary payment within the meaning of that phrase as applicable here. But most rights may be lost by negligence, and if the garnishee were guilty of negligence in the attachment proceeding, to the damage of SECT. III.] HARRIS V. BALK. 433 Bulk, he ought not to be permitted to set up tlie judgment as a defence. Thus it is recognized as the duty of the gainishee to give notice tw his own creditor, if he would protect himself, so that the creditor niuy hu\e the opportunit3- to defend himself against the claim of the person suing out the attachment. This duty is athrmed in the case above cited of ^Morgan v. Neville, 74 Pa. St. 52, and is sijokeu of in Railroad Co. c. Sturm, supra, although it is not therein actually decided to be neces- sary, because in that case notice was given and defence made. While the want of notification V)}- the garnishee to his own creditor maj' have no effect upon tlie validit}' of the judgment against the garnishee (the proper publication being made by the jjlaintiff), we think it has and ought to have an effect upon the right of the garnishee to avail liimstlf of the prior judgment and his payment thereunder. This notification b}' the garnishee is for the purpose of making sure that his creditor shall have an opportunity to defend the claim made against him in the attachment suit. Fair dealing requires this at the hands of the gar- nishee. In this case, while neither the defendant nor the garnishee appeared, the court, while condemning the credits attached, could not, by the terms of the Maryland statute, issue the writ of execution unless the plaintiff gave bond or sufficient security before the court awarding the execution, to make restitution of the mone}" paid if the defendant should, at any time within a year and a day, appear in the action and show that tiie plaintiff's claim, or some part thereof, was not due to the plaintiflT. The defendant in error^jJolkj^Jiad^nQtiegjif^i^iittacUiii^ certainly within a few days after the issuing thereof and the entry of judgment thereon, because he sued the plaintiff in error to recover his debt within a few days after his (Harris') return to Nortli Carolina, in M'hich suit the judgment in Marjdand was set up by Harris as a plea in bar to Balk's claim. Balk, therefore, had an opportunity for a Near and a day after the entrj- of the judgment to litigate the question of his lia- bility in the Maryland court and to show that he did not owe the debt, or some part of it, as was claimed by E[)stein. lie, however, touk no ]M"oceedings to that end, so far as the record shows, and the reason may be supposed to be that he could not successfully defend the claim, be- cause he admitted in this case that he did, at the time of the attachment proceeding, owe Epstein some $344. Generally, though, the failure on the part of the garnishee to give proper notice to his creditor of the levying of the attachment would be such a neglect of duty on the part of the garnishee which he owed to his creditor as would prevent his availing himself of the judgment in the attachment suit as a bar to the suit of his creditor a6 ; Green v. Green, [1893] P. 89. Ace. Humphrey v. Humphrey, 33 Scot. L. R. 99. — Ed. SECT. IV,] ARMYTAGE V. ARMYTAGE. 439 ARMYTAGE v. ARMYTAGE. High Court of Justice, Probatk Division. 1898. [Reported [1898] Probate, 178.] GoRKLL Barnes, J.^ This is a suit for judicial separation b^i.Mr^. Armytage against her husband on the ground of his alleged^ jo'ue^ty towards lier. By his answer^ the respondent has denied the alleged mielt}', and by an act on petition, he has further pleaded^ that the court has no jurisdiction to entertain the suit. I have, therefore, to determine a question of fact, whether there has been cruelty bv the respondent to the petitioner, and a question of law, whether the court lias jurisdiction in the circumstances to entertain the suit. The second question raises a point of considerable importance in private inter- national law. The parties were married at TooraJj, near Melbourne, Australia, on April 11, 1888, and there are two children of the marriage, whose custody the petitioner seeks to obtain. The respondent is by birtli_an /,- Australian, and his domicile is in the coloin* of Victoria. He was edu- cated at Cambridge, and has been called to the English Bar. The petitioner is an Englishwoman, born in Englgjid, of parents residing at Blackheath, near London. The respondent and the petitioner be- came acquainted on board ship on the passage from this country to Melbourne, and their marriage was celebrated shortl}' afterwards. They cohabited in Australia and in England, and afterwards in Italy, and the occurrences which give rise to this suit took place at Florence in April and May, 1897. . . . The further facts necessaiy to refer to are these : The petitioner came to this country with her children on or about May 25, 1897, and - she and the children have since resided under her parents' roof and at Bexhill. The respondent's solicitor on May 31, 1897, wrote on behalf of the respondent to the petitioner and her father reque.'^ting the peti- tioner to return with the children to her husband, but she declined to_ comply with this request. At the end of Jiinfi*-J.897^, the_respondent ^ came to, and has since resided in*, England but I understand he has not^aken _up ,a pexnianent resideace here, and has only come to and is remaining jn. England for the purpose of enforcing, and.so long as may" _be_.neceasary_ to determine, suclL_rights as he maj' have against the petitioner with regard to the children. In the month of November, 1897, he settled the sum of £100 on each of his children, and made them wards of Court in Chancery. He thereupon applied to North, J., for an order for the custody of the children, which was met b}' a cross- application on the part of the petitioner. In the meantime these pro- ceedings were commenced, and the respondent was served with the citation and petition in this country. North, J., ordered the application 1 Part of the opiniou is omitted. — Ed. 44:0 ARMYTAGE V. ARMYTAGE. [CHAP. III. before him to stand over until after the determination of this suit. The question to be decided, therefore, is whether or not this court can entertain a suit for judicial separation by the petitioner against the respondent in the circumstances above stated. . . . The court does not now pronounce a decree of dissolution where the parties are not domiciled in this countrj', except in favor of a wife de- serted by her husband, or whose husband has so conducted himself towards her that she is justified in living apart from him, and who, up to the time when she was deserted or began so to be, was domiciled with her husband in this country, in which case, without necessarily resorting to the American doctrine that in such circumstances a wife may acquire a domicile of her own in the country of the matrimonial home, it is considered that, in order to meet the injustice which might be done by compelling a wife to follow her husband from country to countr3-, he cannot be allowed to assert for the purposes of the suit that he has ceased to be domiciled in this country. The jurisdiction to dissolve marriages was conferred upon this court by the Matrimonial Causes Act, 1857, and although that act does not expressly make domicile a test of jurisdiction, that test is applied by the court to the exercise of jurisdiction in cases of dissolution of marriage. It is de- rived from the principles of private international law, an adherence to which is necessary', as Lord Penzance said in Wilson v. Wilson, L. R. 2 P. & M. 435, at p. 442, in order to "preclude the scandal which arises when a man and woman are held to be man and wife in one country and strangers in another." These principles are expounded by many jurists in this and other countries. They are based on the principle that a person's status ought to depend on the law of his domi- cile, though there may be limitations and exceptions to this principle : see Dicey's Conflict of Laws, 1896, cap. 18, p. 474, et seq. (conf. Savigny, s. 362, Guthrie's translation, 2d ed. p. 148). The jurisdiction in suits other than suits for dissolution of marriage is conferred on the court by the 6th section of the act aforesaid. By other sections judicial separation is substituted for the old divorce a mensa et thoro, and a new ground for separation, namely, desertion without cause for two years and upwards, is added. Sect. 22 provides as follows : " In all suits and proceedings other than proceedings to dissolve any marriage, the said court shall proceed, and act, and give relief on prin- ciples and rules which, in the opinion of the said court, shall be as nearly as may be conformable to the principles and rules on which the Ecclesiasti- cal Courts have heretofore acted and given relief, but subject to the pro- visions herein contained, and to the rules and orders under this act." There are no special provisions of the act or rules or orders which directly affect the present question. The present suit is for judicial separation on the ground of cruelty. Before the act it would have been a suit for divorce a mensa et thoro on the same ground, and the^ inquiry is as to the principles and rules on which the Ecclesiastical Courts would have acted in the circumstances. The petitioner main- SECT. IV.] ARMYTAGE V. AEMYTAGE. 441 t^ins that^the test of domicile is not applicable as in a suit for dissolu- tion of marriage, and that the Ecclesiastical Courts would have g\\3n her reliefjwheTe she and her husband are both residing iu England in the circumstances proved, whereas the respondent maintains that jio relief would have been given because the parties are not domiciled in England, and no act of cruelty lias been proved within the jurisdictionr . . . Most of the writers on private international law and the conflict of lawS; treat at length^the question of the laws and principles upon which the dissolubility or indissolubility of marriage depends, but there is little to be found in the works of such writers on the question of jurisdiction to decree the separation or divorce a mensa et thoro of married persons who are residing but not domiciled in the country of the forum. The reasons are not far to seek. Dissolution of marriage has been permitted in some States and not in others, and has been allowed in some States on grounds^different from those on which it could be obtained in others. There has been want of unanimity as to the forum which ought to take cognizance of the question of divorce, and as to the laws to be applied and the recognition to be accorded in one State to a decree of dissolu- tion of marriage pronounced in another. Persons domiciled in a coun- try where divorce has not been permitted, or only permitted on certain grounds, have, in order to obtain divorces, temporarily resided or assumed domicile in another country where divorce has been permitted or more easih' obtained than in the former countr}'. Hence numerous difficult and varied questions have arisen and been discussed in re- ported cases and by different jurists upon the question of dissolution of marriage. But in practice suits for judicial separation or divorce a mensa et thoro and restitution of conjugal rights do not appear to have given rise to similar difficulties, and, therefore, cases and discussions as to jurisdiction in these suits are not often met with. Such suits generally occur before the tribunals of the country in which the parties are in fact domiciled, and a case like that before me was not so likely to occur in former days as at the present time, when large numbers of people are to be found residing for more or less lengthy periods away from the place of their domicile.^ . . . I conclude from the writers to whom I have referred that most of them are disposed to consider that the courts of the country in which the parties are living, though not domiciled, ought to have the right in a matrimonial suit to afford protection to an injured party from the cruelty of the other party. Lord Hannen may possibly have had such a case in his mind when, in giving judgment in Firebrace v. Firebrace, (1878) 4 P. D. 63, he said, " The domicile of the wife is that of the husband, and her remedy for matrimonial wi-ongs must be usually sought in the place of tha,t 1 The learned judge here cited and examined 4 Phil. Int. L. 382 ; Burpe, Colon. Laws, 668 ; Bishop, Mar. & Div. s. 158 ; Guthrie's Bar's Priv. Internat. Law, 381 ; Westlake, Priv. Internat. Law. a. 47 ; Fraser, Husb. & Wife, 1294 ; Wharton, Confl. Laws, s. 210. — Ed. 442 ARMYTAGE V. ARMYIAGE. [CHAP. III. domicile ; " but added : " It is not, however, inconsistent with this prin- ciple that a wife should'be allowed in some cases to obtain relief against her husband in the tribunal of the country- in which she is resid^t, though not domiciled." 4 P. D. at p. 67. That was a suit for resti- tution of coujugal rights where the respondent, the husband, who was domiciled in Australia, had left England before the institution of tlic suit, and it was held that the court had not jurisdiction over him aftei- he left this countr}-, and that the suit could not be maintained. Had he remained in England it would seem from the cases of Newton v. Newton, (1885) 11 P. D. 11, and Thornton z;. Thornton, (1886) 11 P. D. 176, that the suit could have been maintained. In the recent case of Christian v. Christian, (1897) 78 L. T. 86, the President said that a suit for judicial separation ma}' be founded upon matrimonial residence only as distinguished b}' our law from domicile. Having considered sufficiently for the purposes of the case the opin- ions of the jurists above mentioned, it is necessary that I should revert to the 22d section of the Act of 1857, which requires the court in such a suit as the present to act conformably to the principles and rules on which the Ecclesiastical Courts had tlieretofore acted and given relief. There are several works which deal more particularly with the juris- diction and mode of proceeding in the Ecclesiastical Courts — e.g.. Burn's Ecclesiastical Law, ed. 1842, Rogers's Ecclesiastical Law, ed. 1849, Shelford's Law of Marriage and Divorce, ed. 1841, and older works, such as Godolphin's Abridgment; but I cannot trace in them any statement upon the precise point in question, and the principles to govern it must be deduced from the general principles and practice of the courts. These are stated in general terras so far as concerns the matter under consideration by James, L. J., in his judgment above re- ferred to, see Nibo3'ct v. Niboyet, 4 P. D. 1 at p. 3, where the jurisdiction of the Court Christian is considered, and it is pointed out that the Church and its jurisdiction had nothing to do with the original nationality or acquired domicile of the parties, that residence as distinct from casual presence on a visit or in itinere was an important element, but that residence had no connection with or little analog}' to the question of a person's domicile. In my opinion, if the parties had a matrimonial home, but were not domiciled within the jurisdiction of an Ecclesiastical Court, that court would have interfered, if the parties were within the jurisdiction at the commencement of the suit, to protect the injured party against the other party in respect of tlie adultery or cruelty of the latter, and I can find no authority for the suggestion made by the respondent's counsel that such interference would be limited to cases where the offence com- plained of was committed witliin the jurisdiction. In Warrender v. Warrender, (1835) 2 CI. & F. 488, at p. 562, Lord Lyndhurst said: "The law, either in this country or in Scotland, makes no distinction in respect of the place of the commission of the offence." Although the Ecclesiastical Courts could not extinguish the mutual obligations of SECT. III.] ARMYTAGE V. ARMYTAGE. 443 husband and wife, the}', acting pro salute animce, suspended these obli* gations in order to protect and relieve the injured party. It could make no difference, where the parties were residing within the jurisdiction, that the necessity for protection and relief arose in consequence of adultery committed by the wrong-doer while temporarily outside the jurisdiction, or of cruelty committed while the parties were temporarily outside the jurisdiction, and the apprehension of further acts of cruelt}' remained. If the parties were within the jurisdiction, and the necessi- ties of the case demanded that one of them should be protected against a matrimonial wrong done by the other of which the courts would take cognizance, I cannot doubt that the courts would have interfered. The case of Manning v. Manning, (1871) L. R. 2 P. & M. 223, which was relied upon by the respondent's counsel, is no authority against this view, because in that case the respondent was not within the jurisdic- tion of the court, and the petitioner was held not to be a bona fide resident in England. If the respondent's contention be correct no decree of judicial separation could be made, even in cases like Niboyet V. Niboyet, 4 P. D. 1, where the parties, though not domiciled, were resident for years in this country. Then, does the present case fall within the principles and rules upon which the courts have acted ? I think it does. The wife, an p]nglish- woman, whose domicile of origin was English, and wlio has reside^ at times in England with her husband, is forced, by the crueltv committed in Italy by her husband, a domiciled Australian, to seek the protection of her parents in England. Though legally domiciled in Australia, as a matter of faet she has been forced to separate herself from her hus- band and establish herself in a home of her own in this countjy. She and her husband are both within the jurisdiction. She has been re- quired to return with her children to her husband, and is afraid to do so owing to her apprehension of a repetition of the acts of cruelty which / have been committed against her while the}' were living together abroad. *■ It is against the repetition of apprehended acts of cruelty that the court grants its protectjpn, and, unless the court interferes, to prevent the husband from forcing himself upon his her in a position in which she may be subjected cruelty. The status of married persons within the country is recog- nized. Performance of the duties arising from the marriage tie should be required, and protection afforded against an abuse of the position resulting from that tie where necessary. Police protection is an in- adequate remedy. It may be objected that a decree of judicial separation affects the status of the parties, and that a change of status ought on principle only to be effected by the courts of the domicile. But the relief is to be given on principles and rules which, in the opinion of the court, shall lie as nearly as may be conformable to the principles and rules on wliich the Ecclesiastical Courts gave relief. According to those prin- ciples and rules cruelty and adultery, were grounds^ for a sentence Qf ng together abroad. *■ uelty that the court / 1 3, there is nothing // is wife and placing // to further acts of *A 444 ARMYTAGE V. AKMYTAGE. [CHAP. III. divor ce a mensa et thorp which did not dissolve the marriage, but nierel}' suspended either for a time or without limitation of time some of the obligations of the parties. The sentence commonly separated the parties until they should be reconciled to each other. The relation of marriage still subsisted, and the wife remained a feme covert. A woman divorced b\' the court a mensa et thoro and living separate and apart from her husband could not be sued as a feme sole (see Lewis v. Lee, 1824, 3 B. & C. 291). The effect of the sentence was to leave the legal status of the parties unchanged. Although a sentence of judi- cial separation is to have the effect of a divorce a mensa et thoro under the old law (s. 16 of the Act of 1857), and also the further effect of placing the wife in the position of a feme sole, with respect to property which she may acquire, or which may come to or devolve upon her, from the date of the sentence and whilst the separation continues, and also for the purposes of contract and wrongs and injuries and suing and being sued during that period (ss. 25 and 26 of the Act of 1857) ; yet as the relief to be given now is to be given according to the prin- ciples and rules in force in the Ecclesiastical Courts, I am of opinion that the effect of the said ss. 25 and 26, if they affect a wife's status within the meaning of the term as applied to the principles under con- sideration, which is doubtful, is not to deprive the court of the power to grant relief in cases where it would have been granted by the Eccle- siastical Courts. It may be further objected that, as domicile is considered a test of jurisdiction in cases of dissolution of marriage, in order that the decree may be recognized in countries other than that of the domicile, for the same reason a similar test should be applied in cases of judicial separa- tion. But the reasons which apply in the one case are not applicable to the other ; and even if the principle should be established that the courts of the country of the domicile of the parties are the only courts which can pronounce a decree of judicial separation which ought to be recognized in other countries, in my opinion, no valid reason can be urged against the courts of a country, in which a husband and wife are actually living, pronouncing a decree which will protect the one against the other so long as they remain within the jurisdiction. In the present case^the wife's domicile is legally in Australia, but, as a matter of fact, she has justifiably separated herself from her husband and made her home in England, and it is in England that she now re- quires protection. He has come here and subjected himself to the jurisdiction of the courts of this country. Could anything be more unreasonable than for this court to hold that it has no power to suspend the wife's obligation to live with her husband while in this country, and leave her to proceed in the courts in Australia to protect herself against her husband in England? It may, I think, be safely laid down that the Ecclesiastical Courts would formerl}', and this court will now, inter- fere to protect a wife against the cruelty of her husband, both being within the jurisdiction, when the necessities of the case require such SECT. IV.] DITSON V. DITSON. 445 intervention. I therefore lu)ld that this court has jurisdiction to enter- tain this -suit, and I pronounce a decree of judicial separation in favor of the petitioner with costs. Having held that the court has jurisdic- tion to entertain the suit, I think it follows that the court has jurisdiction under the powers expressly conferred upon it by the 3oth section of the said Act of 1857, and the 4th section of the Matrimonial Causes Act, 1859, to make provision for the custody of the children of the marriage ; and, as I have heard the case, it is probably more convenient that I should dispose of this matter rather than leave it for further contest in the chancery proceedings. I will hear any application relating to the children in chambers. DITSON V. DITSON. Supreme Court of Rhode Island. 1856 [Reported 4 Rhode Island, 87.] Ames, C. J.^ It is a well-settled principle of general law upon thia subject, that the tribunals of a country have no jurisdiction over a cause of divorce, wherever the offence may have occurred, if neither of the parties has an actual bona fide domicile within its territory ; and this holds, whether one or both the parties be temporarily resid- ing within reach of the process of the court, or whether the defend- ant appears or not, and submits to the suit. This necessarily results from the right of every nation or State to determine the status of its own domiciled citizens or subjects, without interference by foreign tribunals in a matter with which they have no concern. Bishop on Marriage and Divorce, § 721, p. 721, 2d ed. and cases cited. We entirely agree with the judgment given by the Supreme Court of Massachusetts on this point, in the well-considered case of Hanover V. Turner, 14 Mass. 227, 231, in which both this rule, and the reason for it are stated with that precision and largeness of view, which indicate that the court fully comprehended the question before them as a question of general law; a kind of praise which cannot, with any justice, be bestowed upon many American cases upon this important and interesting subject. . . . The question raised by the case at bar, and for the decision of which in the affirmative this court is said by the Supreme Court of Massachusetts in Lyon v. Lyon, 2 Gray, 367, to have pronounced a decree in favor of Mrs. Lyon void upon general principles of law, is, whether the bona fide domicilation of the petitioning party in this State is sufficient to give this court jurisdiction to grant a divorce a vinculo^ although the other party to the marriage to be dissolved has never been subject to our jurisdiction, never been personally sers'ed 1 Part of the opinion only is given. — Ed, 446 DITSON V. DITSON. [CHAP. III. with notice of the petition within the State, or appeared and answered to the petition, upon constructive notice, or upon being served with personal notice of it, out of the State? In other words, the question is, wliether, as a matter of general law, a valid decree of divorce d vinculo can be passed in favor of a domiciled citizen of the State,! upon mere constructive notice to the foreign or non-resident party to the marriage, against whom, or to dissolve whose marital rightJ over or upon the petitioner, the aid of the court is invoked? ... ' It is undoubtedly true, as a common-law principle, applicable to the judgments of its courts, that they bind only parties to them, or persons in such relation to the parties and to the subject of the judg- ment, as to be deemed privies to it. The rule of this system of jurisprudence, which brings privies within the operation of the notice served upon the principals to a judgment and binds them by its effects, is founded upon quite as clear a policy, and is sanctioned by quite as complete justice, us that which renders the judgment obliga- tory upon those whom they represent. It is founded upon the great policy lit sit Jifiis litum, and upon the necessity, to carry out this policy, that the future and contingent representatives of the parties in relation to the subject of the judgment should be bound by it. Again, there is no system of jurisprudence, which, founded as the jurisdiction of the court is upon the personal service of the subpoena, is more special in its requisition that all parties interested should be served in the suit, in order to be bound by the decree, than that administered by the English chancery; yet even in this court, from the same policy, and upon the same necessity, the first tenant in tail, or the first person entitled to the inheritance, if there be no tenant in tail living, or even the tenant for life, as the only repre- sentative to be found of the whole inheritance, by his appearance to the suit binds to the decree in it all those subsequently and con- tingently interested in the estate; the court, in administering this rule of representation of parties, taking care only that the repre- sentative be one whose interest in the subject of the suit is such as to insure his giving a fair trial to the question in contestation, the decision of which is to affect those who remotely or contingently take after him. Again, there is the large class of proceedings in rem, or quasi in rem, known especially to courts administering public or general law, and borrowed from thence into every system of jurispru- dence in which, the jurisdiction being founded upon the possession of the thing, the decree binds all interested in it, whether within or without the jurisdiction of the nation setting up the court, and whether personally or constructively notified of the institution or cur- rency of the proceeding. This, too, is founded upon a necessity or high expediency, since, without it, a prize or instance court, for example, could not, so scattered or concealed are the parties inter- ested, perform any of the functions for which, by the general or public law, it is set up. Proceedings of this nature must, we think, SECT. IV.] DITSON V. DITSON. 447 be familiar to the courts of Massachusetts; and probably uot a day passes in which things within their jurisdiction are not, by direct attachment or garnishee process, seized, attached, condemned, and sold under their judgments, without other than constructive notice to the non-resident owners of them, in order that these courts may do justice to their own citizens, or even to alien friends, properly applying to them for relief. Here, too, necessity requires the courts to dispense with personal notice, in order to give effect to their judicial orders; since otherwise, the State might be full of the prop- erty of non-residents and aliens, applicable to all purposes except the commanding ones of justice. Without doubt, in these and other like cases, the general law in dispensing with personal notice from necessity, requires some fair approximation to it, b}- representation, substitution, or at least such publicity, as under the circumstances, is proper and possible, or the proceeding will be regarded as a fraud upon the rights of the absent and unprotected, — a robber}' under the forms of law, and so a fraud upon law itself. It is, however, a very narrow] view of the general law, it is to form a very low estimate of the wisdom which directs its administration, to suppose, that when it can do justice to those within its jurisdiction and entitled to its aid only by dispensing with personal notice to those out of it, and substituting instead what is possible for notice to them, it is powerless to do this, and so, powerless to help its own citizens or strangers within its gates, however strong may be their claims or their necessities. Such a sacrifice of substance to shadows, of the purposes to the forms of justice, might mark the ordinances of a petty municipality, but could hardly be supposed to/ characterize the system of general law. Now, marriage, in the sense in which it is dealt with b}' a decree of divorce, is not a contract, but one of the domestic relations. In strict- ness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than " fatherhood " or " sonship " is a contract. It is no more a contract than serfdom, slaver}', or apprenticeship are con- tracts, the latter of which it resembles in this, that it is formed by con- tract. To this relation. there are two parties, as to the others, two or more, interested without doubt in the existence of the relation, and so interested in its dissolution. These parties are placed by the relation in a certain relative state or condition, under the law, as are parents and children, masters and servants ; and as ever}' nation and State has an exclusive sovereignty and jurisdiction within its own territory, so it has exclusively the right to determine the domestic and social condition of the person domiciled within that territory. It may, except so far as checked by constitution or treaty, create by law new rights in, or im- pose new duties upon, the parties to these relations, or lessen both rights and duties, or abrogate them, and so the legal obligation of the 448 DITSON V. DITSON. [CHAP. III. relation which involves them, altogether. This it may do, with the exception above stated, as in some relations, by law, when it wills; declaring that the legal relation, of master and slave, for instance, shall cease to exist within its jurisdiction, or for what causes or breaches of duty in the relation, this, or the legal relation of husband and wife, or of parent and child, may be restricted in their rights and duties or alto- gether dissolved tlirough the judicial intervention of its courts. The right to govern and control persons and things within the State, sup- poses the right, in a just and proper manner, to fix or alter the status of the one, and to regulate and control the disposition of the other ; nor is this sovereign power over persons and things lawfully domiciled and placed within the jurisdiction of the State diminished by the fact that there are other parties interested through some relation, in the status of these persons, or by some claim or right, in those things, who is out of the jurisdiction, and cannot be reached by its process. No one doubts this, as a matter of general law, with regard to the other do- mestic relations, and what special reason is there to doubt it, as to the relation of husband and wife ? The slave who flees from Virginia to Canada, — no treaty obliging his restoration — or who is brought by his master thence to a free State of the Union — no constitutional pro- vision enforcing his return — finds his status before the law in the new jurisdiction he has entered changed at once ; and no one dreams that this result of a new domicile and the new laws of it, is less legally certain and proper as a matter of general law, because the master is out of the new jurisdiction of his slave, and is not, or cannot be cited to appear and attend to some formal ceremony of emancipation. It is true that slavery is a partial and peculiar institution, not generally recognized by the policy of civilized nations ; whereas marriage, in some form, is coextensive with the race, and, as a relation, is nowhere so restrictive and so binding in its obligations as amongst the most truly civilized portions of it. Yet each nation and state has its peculiar law and pol- icy as to the mode of forming, and the mode and causes for judicially dissolving this last relation, according to its right ; and all that other States or nations, under the general law which pervades all Christen- dom can properly demand is, that in the exercise of its clear right in this last respect as to its own citizens and subjects, it should pay all, and no more attention, than is practicable to the competing rights and interests of their citizens and subjects. It should give the non-residents and foreigners, parties to such a relation of general legal sanctity as to persons of the like description interested in property within its territory, the rights to which are also everywhere recognized, at least such notice by publicity before it proceeds to judicial action, as can, under such circumstances, be given consistently with any judicial action at all efl^i- cient for the purposes of justice. To say that the general law inexora- bly demands personal notice in order to such action, or, still worse, demands that all parties interested in a relation or in property subject to a jurisdiction should be physically within that jurisdiction, is to lay SECT. IV.] DITSON V. DITSON. 449 down a rule of law incapable of execution, or to make the execution of laws dependent not upon the claims of justice, but upon the cliance locality, or, what is worse, upon the will of those most interested to defeat it. It is evident, upon examining the statutes of the different States of the Union, that legislation vesting jurisdiction for divorce in their courts has followed no principle of general law in this respect whatsoever; some statutes making the jurisdiction, or supposing it to depend upon the place of the contract, some upon tlie place of the delictum, and some, as in this State, and as the}- should do, upon the domicile of the wronged and petitioning part}'. The courts of each State exercise, as they must, jurisdiction upon the principles laid down for them by stat- ute ; and have very little occasion, unless called upon to review the decree of some neighboring State, to attend to or consider any general principles pertaining to the subject. Engaged in this latter task, they are very apt to confound the statute principles of jurisdiction, to which they are accustomed, with the principles of general law relating to it; notwithstanding the latter so obviously grow out of the right of ever}' State to regulate, in some cases by law, and in others by proper judi- cial action, according to the nature of tlie subject, the social condition or status, as it is called, of all persons subject to its jurisdiction. A singular instance of forgetfulness of this principle of " State sover- eignty " is afforded b}' the case of Hull v. Hull, 2 Strobhart's Equity Appeals, 174 ; in which the right of the State of Connecticut to dissolve through its courts under the law of that State, a marriage there formed between two of its own citizens, upon the petition of a wife whose hus- band had deserted her and her children and settled in South Carolina, constructive notice onl}' having been given to the absent and abscond- ing husband, was put upon the ground that dissolution of the contract of marriage upon such notice was part of the law of the place of the contract and so part of the contract itself. The courts of that State, it seems, whilst forgetting the State rights of their northern sister, stren- uously insist upon the rights of their own ; holding, according to the exploded notion of Lolley's Case, or rather of McArthv i\ McArth}-, that a South Carolina marriage cannot be dissolved out of the State of South Carolina, although any other may. In Irby v. Wilson, 1 Dev. & Bat. Eq. R. 568, 576, under similar circumstances, except that in this case the wife was the deserting, and the husband the petitioning party, the Supreme Court of North Carolina held that a Tennessee divorce was void, upon the ground hinted at in L3'on v. Lyon, sup., to wit, that such a proceeding being between parties, and the wife having been constructivel}' notified only, although such notice was all that was possi- ble, the courts of Tennessee could not alter by way of redress the status of one of its own citizens become burdensome to him by the alleged cause- less and continued desertion of his wife. Upon the same principle, and for the same reason, of course, North Carolina could not relieve from the relation its citizen, the wife, although her husband might have com- 29 450 DITSON V. DITSON. [CHAP. III. pelled her to flee from him to the only home open to her in that State, by the grossest violation of tlie duties whixL^h their relation to each other imposed; and thus, both these conterminous sovereignties would be powerless for justice, over and upon the call of its respective domiciled inhabitant. In Pennsylvania, the jurisdiction is made to depend upon jurisdiction over the offender at the time of the offence (Dorsey v. Dor- sey, 7 Watts, 349), as if the lex loci delicti were to govern ; in Louis- iana, upon like jurisdiction, unless the marriage were contracted within the State, when, we suppose, the deUctum would be regarded as a breach of contract, if such by the law of Louisiana in which the contract was entered into. Edward v. Green, 9 La. Ann. R. 317. Thus, we per- ceive, that by some com-ts marriage is t reated as,a.,apm£5 ^f continui ng exec utoiy .cm itract_between the parties, the obligations of which, land the causes and even modes of dissolving which, are fixed by /the law of the place of contract. I So sacredly local is it, in the view of some, that it cannot be dissolved but by the courts of the country in which it was formed. Otliers, perceiving, that though a contract, it is one universally recognized, aclcnowledged the right of foreign tri- bunals to act upon it, provided that in doing so, thev govern themselves not by the only law which the}-, it may be by statute, can administer, but ascertain whether it has been broken, and so ought to be dissolved, by the law of the place of the contract. Some treat breaches of the contract of every degree as quasi crimes, to be punished only in the place in which they were committed, provided the parties be then there domiciled ; and others, again, qualify this by an exception in favor of the tribunals of the place of contract ; since there the delicta can be treated as breaches of the contract, if such be the law of the place of contract. If marriage be a contract, or the breach of it a tort, it may 'well be asked, why are they not at least personal in their nature, and transitorj' in their legal character ? passing with the wronged person wherever he or she passes, for redress by an}- tribunal of the civilized 'world, which can obtain jurisdiction of the person of the covenant breaker or trespasser ? It is evident that from such confusion of decisions and reasons, no general principle worth considering can, by an}' process, be eliminated. Raising ourselves above this mist of misapplied learning and ingenuity, and looking at the matter simply as it is, it is obvious that marriage, as a domestic relation, emerged from the contract which created it, is known and recognized as such throughout the civilized world ; that it gives rights and imposes duties and restrictions upon the parties to it, affecting their social and moral condition, of the measure of which every civilized State, and certainly every State in this Union, is the sole ' judge so far as its own citizens or subjects are concerned, and should be so deemed by other civilized, and especially sister, States ; that a State cannot be deprived, directly or indirectly, of its sovereign power to regulate the status of its own domiciled subjects and citizens, by the fact that the subjects and citizens of other States, as related to them, SECT. IV.] DITSON V. DITSON. 45 J are interested in that status, and in such a matter has a right, under the general law, judicially to deal with and modify or dissolve this rela- tion, binding both parties to it by the decree, by virtue of its inherent power over its own citizens and subjects, and to enable it to answer their obligatory demands for justice ; and finall}-, that in the exercise of this judicial power, and in order to the validit}' of a decree of divorce, whether a me7isa et thoro or a vi)iculo matrimonii, tlie general law does not deprive a State of its proper jurisdiction over the condition of its own citizens, because non-i'esidents, foreigners, or domiciled inhabi- tants of other States have not or will not become, and cannot be made to become, personally subject to the jurisdiction of its courts ; but upon the most familiar principles, and as illustrated by the most familiar anal- ogies of general law, its courts may and can act conclusively in such a matter upon the rights and interests of such persons, giving to them such notice, actual or constructive, as the nature of the case admits of, and the practice of courts in similar cases sanctions ; the purpose of such notice being to banish the idea of secrecy and fraud in the proceed- ing by inviting publicity to it, as well as to give to persons out of the jurisdiction of the court every chance possible, under the circumstances, of appearing to the proceeding, and defending, if they will, their own\ rights and interests involved in it. These views are supported by the practice of the States of Connecti- cut and Tennessee called in question, as we have seen by the courts of South and North Carolina, as probably by the practice of man}' other States, and certainly by the long continued practice of our own. They are sanctioned by the well-considered decision of Harding v. Alden, 9 Greenl. R. 140, and by that learned jurisconsult, the late Chancellor Kent, in his note on that case, 2 Kent's Com., 110, n. b, 4th ed. They are otherwise best sustained by authority. Tolen v. Tolen, 2 Blackf. 407. Guembell v. Guembell, Wright, 286. Cooper v. Cooper, 7 Ohio, 238. Mansfield v. Mclntyre, 10 ib. 27. Harrison v. Harrison, 19 Ala- bama, 499. Hare v. Hare, 10 Texas, 355. See also the whole subject discussed in Bishop on Marriage and Divorce, passm, and especially in ch. 34 of that valuable work. It may be added, that the distressing consequences which otherwise might arise from the conflict of laws and decisions upon this interesting and important subject has been wisely provided against hy a clause of the Constitution of the United States, and can find a remedy under it in the Supreme Court of the United States, as the court of last resort, in cases demanding its application. By art. 4, sect. 1, of the Consti- tution of the United States, '' Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State." As this has been construed by the highest authority to give in every other State the same effect to a judgment or decree of a State court that it has in that in which it is rendered or passed, no serious injury can be done to the proper subjects of our judicial admin- istration by the errors and mistakes of other courts with regard to our 452 DITSON V. DITSON. [ciIAP. III. jurisdiction. From the nature of the topics constantly agitated before it, no court in the world is better qualified to deal with questions of general law, and especially with one involving, as that before us does, the rights of a State of the Union ; and under the trained qualifications of the members of the court, as well as the constitutional power of the court itself, those properly subject to our judgments and decrees in this respect, as in all others, are quite safe, having honestly obtained them, in acting by virtue of them. ^ . . . We reserved this case, the first on the circuit which presented the question before discussed for consideration, it being admitted that the husband of the petitioner had never resided with her in this State, or even as the proof showed, been within its borders, and was now abroad in parts unknown, and was not, of course, personally served, because under such circumstances he could not be personally served with the ordi- nary citation issued by us to a resident defendant to such a petition. Under the authorized rule of this court, in regard to constructive notice to an absent defendant to a petition for divorce, upon affidavit of the facts, six weeks' notice of the pendency of this petition was given, by publishing the same for the space of six weeks next before the sitting of the court at this term ; and it is evident that the husband of this lady knows, as from his conduct it is apparent that he cares, nothing about this proceeding. Whatever was the former domicile of the petitioner, we are satisfied that she is, and has, for upwards of the last three years, been a domiciled citizen of Rhode Island, — her only home, in the house of her father; and that, as such citizen, and upon such notice, we have power and jurisdiction over her case, and to change her condition from that of a married to that of a single woman, granting to her the relief, which, under like circumstances, the law and policy of Rhode Island accords to all its citizens. Let a decree be entered divorcing :\rary Ann Ditson from George L. Ditson, and annulling the bond of matrimony now subsisting between them ; and that the name of the said Mary Ann Ditson be changed to, and she be hereafter known and called by the name of Mary Ann Simmons, according to the prayer of her petition. ^ 1 Here follows a discussion of the question of domicile, for which see s. c. supra, p. 2«^ ^ Ed. 2 Ace. Cheever v. "Wilson, 9 Wall. 108 ; Hanberry v. Hanberr}-, 29 Ala. 719 ; Chap- man v. Chapman, 129 111. 386 ; Harden v. Alden, 9 Me. 140 ; Shreck v. Shreck, 32 Tex. 578 ; Hubbell u.'Hnbb^ 3 Wis. 662 ; Stevens v. Fisk (Can.), 8 L. N. 42. See Rhyms v. Rhyms, 7 Bush. 316 ; Harteau i;. Harteau, 14 Pick. 81 ; Frary v. Frary, 10 N. H. 61. In Massachusetts, the court at the domicile of either spouse is competent, at the l^lection of the libellant. Sewall v. Sewall, 122 Mass. 156; Watkins v. Watkins, 135 Mass. 83. In Pennsylvania the court of the libellee's domicile alone is competent, unless the libellee has changed his domicile since cause for divorce given. Colviti c. Reed, 55 Pa. 375; Reel v. Elder, 62 Pa. 308. In several States, the court of th(> liliel- Aant's domicile alone is competent : Irby v. Wilson, 1 Dev. & B. Eq. 568 ; White v. /white, 18 R. L 292, 27 Atl. 506 ; Dutcher v. Dutcher, 39 Wis. 651. — Ed SECT. IV.] STATE V. AUMINGTON. 453 STATE V. ARMINGTON. Supreme Court of Minnesota. 1878. [^Reported 25 Minnesota, 29.] The defendant was tried in a district court for tlie crime of polygamy. Me offered in evidence a certified copy of a decree of divorce between himself and his former wife, granted by a Probate Court in Utah. This was excluded by the court on the ground that both parties were at that time resident in Minnesota ; the defendant excepted. The defendant was convicted and sentenced to the state prison for two years, and appealed.^ Cornell, J. The remaining question for consideration relates to the decision of the court excluding what purports to be an authenticated copy of a decree of divorce of the " probate court in and for Box Elder county, in the territory of Utah," entered in that court at a special term, on December 18, 1876, in an action between John L. Armington, plaintiff, v. Martha F. Armington, defendant, dissolving the marriage contract between them. Among the objections made to this evidence, was the one that, at the time tlie decree purports to have been rendered both parties thereto were residents of this State, and had been for sev- eral years prior. When this evidence was offered, it incontestable' appeared, from the testimony already given, that both the defendant and his said wife, Mrs. Martha F. Armington, had been resident citi- zens of this State, and domiciled therein, for over nine years prior to the date of the decree, and that they were both actually living in this State at the time of its entry. It did not appear, nor was any offer made to show the fact, that either had ever been domiciled, even tem- porarily, within the territory of Utah; and as to Mrs. Armington, it is quite clear that she never, at any time during the progress of the proceed- ings in said court, was outside the limits of this State, or within the territorial limits of Utah. As to Mr. Armington, the most that can be claimed from the evidence is that he temporarily left his residence in Northfield, in this State, sometime in the summer of 1876, and returned in August or September of that year. Where he was, during this period, does not affirmatively appear ; but it does affirmatively appear tluit he has resided and practised medicine in North field ever since November in that 3'ear. Upon this evidence, the court was warranted in assuming that neither of the parties ever acquired a bona fide 6.om\c\\Q or residence in Utah, and that both were, during the conduct of these divorce proceedings, domiciled residents of this State, and subject to its laws. Upon this state of facts, the probate court of Utah, whatever ma}- have been the extent of its jurisdiction over the subject of divorce under the local laws of that territory as respects its citizens, had no 1 This short statement of the facts necessary for the question of jurisdiction is sub- stituted for the statement of the Reporter. Tart of the opinion only is given. — Ed. 454 PEOPLE V. BAKER. [CHAP. III. jurisdiction to adjudicate upon the marriage relation existing between these parties. To each State belongs the exclusive right and power of determining upon the status of its resident and domiciled citizens and subjects, in respect to the question of marriage and divorce, and no other State, nor its judicial tribunals, can acquire any lawful jurisdic- tion to interfere in such matters between any such subjects, when neither of them has become bona fide domiciled within its limits ; and any judgment rendered by any such tribunal, under such circumstances, is an absolute nullity*. Ditson v. Ditson, 4 R. I. 93; Coole}- Const. Lim. 400, and notes; Kerr v. Kerr, 41 N. Y. 272; Hoffman v. Hoff- man, 46 N. Y. 30 ; Hanover v. Turner, 14 Mass. 227. It does not appear upon the face of the judgment or decree, or in an}' of its recitals, that either of the parties were ever residents of said territory of Utah, or domiciled therein. This is a jurisdictional matter, which should appear, to entitle the judgment to any respect whatever ; for though it be conceded that the probate court that rendered the judgment was in the legal sense a court of record, " its jurisdiction," if any, under the local laws of the territory, "over the subject of divorce, was a special authority not recognized by the common law, and its proceedings in relation to it stand upon the same footing with those of courts of limited and inferior jurisdiction," unaided by any legal presumptions in their favor. Com. v. Blood, 97 Mass. 538. The evidence was properly excluded.-^ PEOPLE V. BAKER. Court of Appeals, New York. 1879. [Reported 76 New York, 78.] FoLGER, J. As we look at this case, it presents this question : Can a court, in another State, adjudge to be dissolved and at an end, tlie_ matrimonial relation of a citizen of this §tate, domiciled and actually abiding here throughout the pendency of the judicial proceedings ther^, 1 Ace. Harrison u. Harrison, 20 Ala. 629 ; Dunham v. Dunham, 162 111. 589, 44 N. E. 841 ; Hood v. S.. ^6 Intl. g63 : Litowich v. Litowieh, 19 Kan. 451 ; Thelau v. Thelau, 75 Minn. 433, 78 N. W. 108 ; Smith v. Smith, 19 Neb. 706, 28 IST. W. 296 ; Firth V. Filth, 50 N.' J. Eq. 137, 24 Atl. 916 ; Van Fossen v. S., 37 Oh. S. 317. This being a juri.sdictional question, a finding by the court that the libellant is domiciled will not give it jurisdiction, nor will a recital of domicile in the judgment render it valid, P. t--. Duwell, 25 Mich. 247. This doctrine is ajtplied, even if the non-resi- dents were still subjects of the country which granted the divorce. St. Sure v. Liuds- felt, 82 Wis. 346,52 N. W. 308. A l^iiiKi fulc temporary residence, without domicile, in a State is not enough to gvj& its courts jurisdictiaji. Winship r. Winship, 16 N. J. Eq. 107. / / A court of the State where the parties are domiciled has jurisdiction, though the cause of divorce arose elsewhere : Jones v. Jones, 67 Miss. 195, 6 So. 712 ; and though /, the motive for accjuiring the domicile was to take advantage of the loose laws_of divorce : Colburn v. Colburn, 70 Mich, 647, 38 N. W. 607. — Ed. SECT. IV.] PEOPLE V. BAKER. 455 without a voluntar)- appearance by him therein, and with no actual notice to him thereof, and without personal service of process on him jn that State. We assume, in putting this proposition, that the defendant in error was in tlie situation therein stated. We think that it may properly be thus assumed. It is true, that the first which is disclosed of the de- fendant in error, b}' the error-book, shows him in another State, in tlie act of marriage with Sallie West, the other party in the judicial pro- ceedings there held. It does not appear where his domicile then was, nor where it had been. After tlie marriage, however, the persons then married resided at Rocliester, in this State, at a time prior to the commencement of those judicial proceedings; and he continued to reside in that city until in 1875, and after the final judgment therein was rendered. We look in vain in the error-book for an}* exception, proposition, or suggestion, which presents or indicates, that the case was tried at the sessions, upon the theory or contention that the defend- ant in error was domiciled in Ohio, or temporarily abiding there, at any time during the pendency of the judicial proceedings in that State. We come back then to the question we liave above stated. We are read}' to sa}-, that as the law of this State has been declared by its courts, that question must be answered in the negative. The principle declared in the opinions has been uniform. Such is the utterance in Borden v. Fitch, 15 J. R. 121 ; Bradshaw v. Heath, 13 Wend. 407; Vischer v. Vischer, 12 Barb. 640 ; Kerr v. Kerr, 41 N. Y. 272 ; Hoff- man V. Hoffman, 46 id. 30. Nor does it avail against them to say that the facts of those cases do not quadrate exactly with those of the case before us. The utterances which we speak of were not inconsid- erate expressions, nor dicta merely. They were considerate steps in the reasoning, leading to the solemn conclusion of the court. And as touching the question in its general relations, we may cite Kilburn v. Woodworth, 5 J. R. 37 ; Shumway v. Stillman, 4 Cow. 292 ; S. C. 6 Wend. 447 ; and Ferguson v. Crawford, 70 N. Y. 253, where the whole subject is elaborately considered. We know of no case in our courts which has questioned the principle declared in these authorities. Kinnier v. Kinnier, 45 N. Y. 535, — sometimes claimed to be a de- parture, — does not. It is recognized there, that to make valid in this State a judgment of divorce, rendered b}' a court of another State, that court must have " the parties within its jurisdiction," must " have jurisdiction of the subject-matter and of the parties," who " must be within the jurisdiction of the court." Hunt v. Hunt, 72 N. Y. 217, does not. That case was close. It went upon the ground, built up with elaboration, that both parties to the judgment were domiciled in Louisiana when the judicial proceedings were there begun and con- tinued and the judgment was rendered, and were subject to its laws, inckidiug those for the substituted service of process. We meant to keep the reach of our judgment within the bounds fixed by the facts in that case. 456 PEOPLE V. BAKER. [CHAP III. We must and will abide by the law of this State, as thus declared, unless the adjudications in which it has been set forth have been authoritatively overruled in that regard. As this is- a question of Fed- eral cognizance, we ought to inquire whether the national judiciary has declared anything inconsistent therewith. Cheever v. Wilson, 9 Wall. 108, is cited. Clearl}- that case is not applicable. There both tlie parties to the judgment made a voluntary appearance, and the divorce court had jurisdiction of their persons, as it had of the subject-matter. " It had jurisdiction of the parties, and the subject-matter," says the opinion in the case cited. It had jurisdiction of the plaintiff in the divorce proceedings, by her voluntary appearance in court, as a peti- tioner, and showing a bona fide residence in that State, in the wa}' fixed therefor by its statute law. It had jurisdiction of the person of the defendant by his voluntarj* appearance in the court, and putting in a sworn answer to the petition. The dictum in the case of Pcnrio yer y. Npff. 95 U. S. 714, even had it the force of a judgment, does not go to the extent needed to overrule these decisions in our State. It is there held, that to .wai'rant a judgment in personam^ there must-~be personal service of pjlftcess, or assent in advance to a service othe]> wise. It is also said that a State ma}' authorize judicial proceedings to determine the status of one of its own citizens towards a non-resi- dent, which will be binding within the State, though had without per- sonal service of process or appearance. It is not said, much less is it authoritatively decided, that a judgment thus got may do more than establish the status of the parties to it, within the State in which the judgment is rendered. The case just cited is the latest annunciation known to us of the Supreme Court of the United States. It does not overrule the declarations of our own courts. It rather sustains them. We must and do concede that a State ma}' adjudge the status of its citizen towards a non-resident ; and ma}' authorize to that end such judicial proceedings as it sees fit ; and tliat other States must acquiesce, so long as the operation of the judgment is kept within its own con- fines. But that judgment cannot push its effect over the borders of another State, to the subversion of its laws and the defeat of its polic}' ; nor seek across its bounds the person of one of its citizens, and fix upon him a status, against his will and without his consent, and in hostilit}- to the laws of the sovereignt}' of his allegiance. It is said, that a judicial proceeding to touch the matrimonial rela- tion of a citizen of a State, whether the other party to that relation is or is not also a citizen, is a proceeding in rem, or, as it is more gin- gerly put, quad in rem. But it was never heard that the courts of one State can affect in another State the rem there, not sul)jected to their process, and over the person of the owner of which no jurisdiction has been got. Now, if the matrimonial relation of the one party is the 7-es in one State, is not the matrimonial relation of the other part}' a res in another State? Take the case of a trust, the subject of which is lands in several States, the trustees all living in one State. Doubtless the SECT. IV.] PEOPLE V. BAKER. 457 courts of a State in which the trustees did not live and never went, but in which were some of the trust lauds, could proceed in rem amT render a judgment without personal service of process, which would detei'iniue there the invalidity of the trust and affect the possession and title of the lands within the jurisdiction of those courts; but it would not be contended that the judgment would operate upon the trustees or tlie trust lands in other States, so as to affect the title or the possession in those States. It could operate on!}- on the rem upon which the process of those courts could lay hold. And why is not the matrimonial relation of a citizen of New York, as it exists in that State, if it is a res, as much exempt from the effect of such a judgment as lands in that State, and the trust under which the}' may be held? Is not any other relation of mankind as much a res for the touch and adjudication of courts as that of husband and wife? Take the relation of a minor orphan to its guardian, or to those entitled by law to be its guardians. That is a status, in kind as the matrimonial relation. The courts of one State ma}' act and appoint a guardian for such a child, if it is wnthin their territorial jurisdiction and remains there ; but the appointment is not operative per se in another State into which the child goes. Woodworth v. Spring, 4 Allen, 321, It is, of course, to be granted, as before said, as a general proposition, to which it is not now needful to suggest limitations, that each State may declare and adjudge the status of its own citizens. And hence ^if one party to a proceeding is domiciled in a State, the status of that part}', as affected by the matrimonial relation, may be adjudged upon and confirmed or changed, in accordance with the laws of that State. But has not the State in which the other party named in the proceedings is domiciled, also the equal right to determine his status, as thus affected, and to declare by law what may change it, and what shall not change it? If one State may have its policy and enforce it, on the subject of mar- riage and divorce, another may. And which shall have its policy pre- vail within its own borders, or shall yield to that of another, is not to be determined by the facility of the judicial proceedings of either, or the greater speed in appealing to them. That there is great diversity in policy is very notable. It does not, however, seem to tend to a state of harmonious and reliable uniformity, to set up the rule that the State in which the courts first act shall extend its laws and policy beyond its borders, and bind or loose the citizens of other sovereignties. It will prove awkward, and worse than that, afflictive and demoralizing, for a man to be a husband in name and under disabilities or ties in one jurisdiction, and single and marriageable in another. Yet it is only in degree that it is harder than the results of other conflicts in laws. It is more sharply presented to us, because tenderer, more sacred, more lasting relations, of greater consequence, are involved ; and because the occasions calling attention to the conflict have, of late years, become so frequent. Whatever we may hold in the United States, it will not change results in foreign countries. And in seek- 458 PEOPLE V. BAKER. [CHAP. IIL ing for a rule which shall be of itself, from its own reason, eon-eet, we ought to find or form one, if may be, that is generall}- applicaljle. However submissively we must concede to every sovereignt}' the riglit to maintain such degree of strictness in the domestic relations as it sees fit, within its own territory', there is no principle of comity whicli demands that another sovereignty shall permit the status of its citizens to be affected thereb}', when contrary to its own public policy, or its standard of public morals. We are not, therefore, satisfied with the doctrine that rests the validity of such judicial proceedings upon the right and sovereign power of a State to determine the status of its own citizens, and be- cause it may not otherwise eflfectually establish it, asserts the power to adjudge upon important rights, without hearing the party to be affected, and without giving him the notice which is required by the principles of natural justice, he being all the while beyond its jurisdiction. Besides, a just consideration of what is a proceeding in rem, and of the effect of a judgment therein, shows that the latter does not reach so far as is contended for it. It is a proceeding ^V^ remmeii&hv- The judgment therein is not usuall}' a ground of action in persoruon in another jurisdiction, for, as a proceeding i/i jjersoriam, or as giving foundation for one, the court gets no jurisdiction. Pauling v. Bird's Exrs., 13 J. R., 192. How then, upon such basis, can the judgment be brought here and made the foundation of an action against one personally ; and if not a means of offence in personam, how a means of defence to the person, when sought to be held for personal acts, in violation of the laws of his allegiance? The consequences of such want of harmoii}' in polit}- and proceed- ing, we have adverted to. The extent of them ought to bring in some legislative remedy. It is not for the courts to disregard general and essential principles, so as to give palliation. Indeed, it is better, by an adherence to the policy and law of our own jurisdiction, to make the clash the more and the earlier known and felt, so that the sooner may there be an authoritative determination of tlie conflict. It is urged upon us that our State cannot with good grace hold invalid this judgment of a court of Ohio, when our own Code pro- vided, at the time of the rendition of it, for the giving of judgment of divorce against a non-resident, by like substituted service. It is true that, until the new Code of Procedure, such had been the case. 2 R. L. 197, § 1 ; 1 id. 489, § 9 ; 2 R. S. 144, § 38 ; id. 185 ; id. 187, § 134 ; Laws of 1862, chap. 246, § 1 ; Old Code, § 135 ; but see New Code, § 438, sub. 4. This is but to say that, on the principle of the comity of States, we should give eflfect to this judgment. But this principle is not applied, when the laws and judicial acts of another State are contrary to our own public polic}', or to abstract justice or pure morals. The policy of this State always has been, that there may of right be but one sufficient cause for a divorce a vinculo ; and that policy has been upheld, with strenuous efllbrt, against persistent struggles of indi- SECT. IV.} PEOPLE V. BAKER. 459 vidnals to vitiate and change it. And though it is lightly, we must think, sometimes said that it is but a technicality, that there must be personal notice and chance to be* heard, to make a valid judgment affecting personal rights and conditions, we cannot but estimate the princi^)le as of too fundamental and of too grave importance, not to be shielded by tlie judiciar}', as often as it is in peril. We are aware tliat there are decisions of the courts of sister States to tlie contrary' of the authorities in this State. They are ably ex- pressed ; they are honestly conceived. They are, however, on onp side of a judicial controversy, tlie dividing line whereof is well marked, and is not lately drawn. It would not be profitable to review and discuss them. Tlie}' are prevalent witliin tlie jurisdictions in which the}' have been uttered, and we cannot expect to change them there. The}' are in opposition to the judgments of our own courts, which we must respect, and with wliicli our reason accords. It remains for the Supreme Court of the United States, as the final arbiter, to determine how far a judgment rendered in such a case, upon such substituted service of process shall be operative without the territorial jurisdiction of the tribunal giving it. There is an exception still to be noticed. The court, in charging the jur}-, stated to them that, if the divorce had been obtained under the laws of tliis State, though the defendant in ei'ror would not have been guilt}' of the crime of bigamy, yet he would have been guilty of a misdemeanor, and that that was a pertinent consideration for them. We do not understand that this was meant for an instruction that they could convict him of the misdemeanor, if they did not find that he was guilty of the liigher offence. The cljarge is to be taken in connection with the reception in evidence of the Ohio record, on the question of bis intent. As bearing merely upon his guilty or innocent purpose, it was not inappropriate for the juiy to consider that though a man, from whom his wife has been divorced a vinculo, in this State may not, by marrying again, incur the penalties for bigamy, he does violate the de- cree which forbids to him, another marriage so long as she lives. We are of opinion that the judgment of the General Term should be reversed, and that of the Sessions be affirmed. All concur, except Church, Ch. J., dissenting. Judgment accordingly.^ 1 Ace. Atherton y. Atherton, 155 N". Y. 129, 49 N. E. 933; and see Harris v. Harris, 115 N. C. 587, 20 S. E. 187 ; Doerr v. Forsythe, 50 Oh. S. 726, 35 X. E. 105.5. In Dunham v. Dunham, 162 111. 589, 44 K E. 841, Carter, J., sai.l of the prinripal case : " The consequence was that the wife was, and on removing to New York would- continue to be, a single woman, who might lawfully marry ; while the husband was a married man, having for his wife one who might at the same time become or be the lawful wife of another man. We cannot regard as sound a doctrine leading to such results. We are unable to see the force of the reasoning which is used to support judicial conclusions that one of the married pair may, in one jurisdiction, by virtue of its laws, and in honest compliance with them, obtain a valid decree of divorce, which, as to the one obtaining it, is valid and binding in every State in the Union, leaving 460 TURNER V. THOMPSON. [CHAP. IIL TURNER V. THOMPSON. High Court of Justice, Probate Division. 1888. [Eeported 13 Probate Division, 37.] Sir James Hannen, President. The facts of this case are as fol- lows : The petitioner, Georgiana Turner, was a British subject, dom- iciled in England, and, on November 7, 1872, she married, in England, the respondent, who is a citizen of the United States, domiciled there. He was in the United States marine service, and he was from time~to time engaged professionally away from his wife; but they met and ^" cohabited together at various places in the United States and elsewhere. K fin 1879y she instituted proceedings in the United States for a decree dissolving the marriage on the ground of her husband's incompetency ; I ithe form of decree in the United States being a dissolution of mar- r^riage, and not, as in this country, a declaration that the marriage was , law, in the United States ; therefore the United States courts had juris- diction in the matter, and upon this ground I think the petition must be dismissed. ')iA>/fe f irv i^, tirj» ^^1^ ' CUMMINGTON v. BELCHERTOWN. Supreme Judicial Court of Massachusetts. 1889. [Reported 149 Massachusetts, 223.] Devens, J. Mrs. Angle L. Richards, the expenses of whose support as an insane pauper are here in controvers3*, had, as Angic L. Root, a legal settlement in the defendant town at the time of her marriage. -o She acquired one in the plaintiff town by her marriage, on June 10 4:02 CUMMINGTON V. BELCHERTOWN. [CHAP. in. 1873, with Charles A. Richards, who was there settled. Milford v. Worcester, 7 Mass. 48. It is the contention of the plaintiff, that, the marriage of the pauper having been legal!}' annulled as having been procured by fraud, her settlement in Cummington thus gained is de- stroyed, and that in Belchertown is revived, it having been suspended only during the de facto existence of the marriage. It was held in Dalton v. Bernardston, 9 Mass. 201, that a woman ac- quiring a settlement by her marriage under the St. of 1793, c. 34 (Pub. Sts. c. 83, § 1, cl. 1), did not lose her settlement by a divorce, except for a cause which would show the marriage to have been void. In the latter case, there would have been no such marriage as the statute in- tended as the means of acquiring a settlement. Assuming that the law would be the same where a marriage not originall}' void, but voidable on the ground of fraud, or for any other reason, was declared void, we consider the question whether the plaintiff has shown any sufficient evi- dence of a decree annulling the marriage by which the defendant or others collaterally affected by the marriage or the dissolution of it would be bound. If the pauper herself would not be bound b}' such a decree, it is quite clear that the defendant would not be, whether the marriage was absolutely void or voidable only. Not being a party to the decree, and unable, therefore, to take any steps to reverse it, the defendant is not precluded from showing in a collateral proceeding that the decree was erroneous, or that it has no effect sucli as the plaintiff claims for it. The plaintiff contends that a decree valid as against the pauper, by I which her marriage with Ri(;hards has been annulled, has been rendered by the Supreme Court of New York, having jurisdiction both of the subject-matter and of the parties. It appeared that Richards and his wife lived together in this State for about a year and three months, when, in October, 1874, Mrs. Richards was adjudged insane, and legally committed to the lunatic hospital in, Northampton, where she remained, with the exception of short inter- vals of time during which she was in the custody of her parents, until September 20, 1877, when she was again and finally committed to the hospital, and has remained, and now remains, hopelessly insane. Rich- ards never cohabited with her after her first committal to the hospital ; and at some time thereafter, but at what time does not appear, removed to the State of New York, without, however, any purpose of there ob- taining a divorce, and without then having it in mind. On November 14, 1881, Richards, having only a short time before been informed for the first time that his wife had been insane before their marriage, com- menced a proceeding in New York to have the marriage annulled, on the ground that he was induced to enter into it by fraud, and, after a notice to Mrs. Richards by a summons served upon her while an inmate of the Northampton Hospital, a decree annulling the marriage on the ground that the consent of Richards to the marriage was obtained by fraud was rendered on March 30, 1882. A ''transcript of the doings and record of, and testimony in, the Supreme Court, County of Fulton, SECT. IV.] CUMMINGTON V. BELCHERTOWN. 463 State of New York," was used at the trial in the Superior Court, and the decree there rendered was relied on b}' the plaintiff as estal)lish- ing the fact of a legal dissolution of the marriage, b}- which the rigl)ts of the plaintiff and of the defendant would be affected in this Commonweallh. While by the Constitution of the United States, Art. 4, § 1, full faith and credit are to be given to the judgments of other States, the juris- diction of the courts rendering them is open to inquiry, both as regards the subject-matter of the controversy and the parties thereto. Tlie re- citals of the record are not conclusive evidence, and a party, or one affected collaterally by the judgment, may show that the court had no jurisdiction over the party such as it assumed to exercise. Mrs. Rich- ards was, when the proceedings were commenced and concluded, an utterly insane woman. This not only appears by the finding of the Superior Court, but by all the proceedings of the New York court. It is averred in the petition addressed to it, and the allegations of tiie petition are found by the referee to whom the inquiries of fiict were referred, and by that court, to have been true. It appears also by the return of the summons, and most clearly by the evidence taken before the referee. At no time did she, or any one on her behalf, appear be- fore the referee or the court. Yet no guardian, next friend, or otlier ^ person was appointed to represent lier, and a decree annulling her mar- riage was rendered against a person whom the record and evidence showed to be insane, and whose rights were wholly unprotected. She had no actual residence in New York at any time. Her husband had abandoned her here on account of her insanity some time before he went to New York, had made no provision for her support, and she had always resided in this State, which was her domicile of origin. That a decree of divorce rendered under similar circumstances of residence and condition of the wife in another State would not be re- cognized in the State of New York, or allowed in any way, directly or indirectly, there to affect any rights, whether of person or property, of the party against whom it had been made, appears clearly from its decisions. People v. Baker, 76 N. Y. 78 ; Jones v, Jones, 108 N. Y. 415. We shall not have occasion to consider what would be the effect that should be given here to a decree of divorce, under the circum- stances above stated, if such had been rendered by the New York court. Such a decree necessarily implies the original existence of a lawful marriage. A decree annulling a marriage upon the ground that it was contracted under such circumstances that the party petitioning has a right to have it so annulled, stands upon quite different grounds. The validity of a marriage depends upon the question whether it was V^ valid where it was contracted. To this rule there are but two excep- tions : marriages which are deemed contrary to the law of nature as generally recognized in Christian countries, and those marriages which the Legislature of the Commonwealth has declared shall not be valid be- cause contrary to the policy of our own laws. Commonwealth v. Lane, i 464 CUMMINGTON V. BELCHERTOWN. [CHAP. III. 113 Mass. 458. Even when parties had gone from this Commonwealth into another State with intent of evading our own laws, and had there married, it was held reluctantly, in the absence of a statute declar- ing marriage solemnized there with such intent to be void here, that their validity' must be recognized. Medway v. Needham, 16 Mass. 157; Putnam v. Putnam, 8 Pick. 433. Without discussing the failure to appoint a guardian, the service in the case at bar on Mrs. Richards can have given the New York court no jurisdiction over her personally. To hold that her domicile might be changed to any other State by the act of her husband in removing thereto after he had abandoned her here and ceased to support her, and thus that she could be deprived of the protection in her marital rights, whether of person or property, which this State could extend to her, would be to use the legal fiction of the unity created by the marriage to her serious injury, and to work great injustice. If the decree of the New York court is to have any validit}' here, it must be on grounds of comit}'. Blackinton v. Blackinton, 141 IMass. 432, 436. There can be no ground of comity' which requires that we should recognize the decree of a New York court annulling a Massa- chusetts marriage between Massachusetts citizens, unless it had juris- diction of both the parties ; nor even if it did have such jurisdiction should it be recognized here, unless it was based upon grounds which are here held to be sufficient. Suppose two citizens of Massachusetts are married here, each of the age of eighteen 3'ears, have children, and then move to New York, where the husband obtains a decree of nullity on the ground that persons under the age of twenty-one years cannot lawfully marry. The children are not therefore rendered illegitimate in Massachusetts, so that they cannot here inherit their father's lands. Marriages between blacks and whites are still prohibited in some of the States, but a decree in such a State annulling a marriage of this char- acter valid where contracted could not here be regarded. Illustrations of this sort, growing out of the different laws as to marriage in the sev- eral States, could readily be multiplied. The right of a State to declare the present or future status, so far as its own limits are concerned pof persons there lawfully domiciled, cannot be extended so as to enal2isjt to determine absolutely, what such status was at a previous time, and while they were subject to the laws of another State. The decrees of its courts in the latter respect must be subject to revision in the State where rights were then existing, or had been acquired. Blackinton v. Black- inton, 141 Mass. 432. The cause alleged and found by the New York court was not sufficient to annul a marriage contracted in Massachusetts between its citizens according to the laws of this Commonwealth. Assuming that a mar- riage may here be declared void on account of fraud, and assuming that fraud is a cause which will enable the party defrauded to maintain a libel for the dissolution of the marriage which has thereby been pro- cured, although the word " fraud," which is found in the Gen. Sts. c. 107, SECT. IV.] CUMMINGTON V. BELCHERTOWN. 465 §§ 4, 5, is omitted in the Pub. Sts. c. 145, § 11, no fraud was shown siichli as would enable a part}' here to avoid a marriage. Mrs. Richards was sane at the time of her marriage, and entirely competent to make the marriage contract ; she had been insane at a previous period, but had recovered from such attacks, and the fact of such previous insanity was concealed from her husband by Mrs. Richards herself and her family, in the hope that marriage would prove beneficial to her health. She lived with her husband about a year and three months before symptoms (jf insanity again developed themselves. The possibility or probability that she might again become insane, growing out of the fact that she li:ul previously been so, did not constitute such a fraud as entitled her husband to have the marriage dissolved. There was no fraud of such a character as to affect the basis or the essential character of the contract. Donovan v. Donovan, 9 Allen, 140; Foss V. Foss, 12 Allen, 26. " It is not to be supposed that ever}- error or mistake into which a person may fall concerning the character or qualities of a wife or husband, although occasioned by disingenuous or even false statements or practices, will afford sufficient reason for annulling an executed contract of marriage. . . . Therefore no mis- conception as to the character, fortune, health, or temper, however brought about, will support an allegation of fraud on which a disso- lution of the marriage contract, when once executed, can be obtained in a court of justice." Bigelow, C. J., in Reynolds v. Reynolds, 3 Allen, G05. Upon the ground, then, that the decree of the New York court attempts to annul a marriage contracted in Massachusetts (between Massachusetts citizensj)and thus affect the legal status of the woman who has remained domicired in Massachusetts, and has never been within the jurisdiction of the ^ew York court, and deprive her of the rights acquired by her marriage, and especially because it declares the -"^ marriage void for a reason on account of which, by the Massachusetts law, it cannot be avoided, we are of opinion that it should not l)e en- forced here, and that no principle of interstate comity requires that we should give it effect. For these reasons, a majority of the court are of opinion that the settlement acquired by Mrs. Richards by her marriage continues, and that judgment should be entered for the defendant. Judgment for the defendant} K 1 See Linke v. Van Aevde, 10 Times L. Rep. 426 ; Roth v. Roth, 104 111. 3 Blamenthal v. Tannenholz, 31 N.J. Eq. 194; Johnson y. Cooke, [1898] 2 Ir. 130 — Ed. 30 466 HADDOCK V. HADDOCK. [CHAP. III. -• &\ HADDOCK V. HADDOCK. Supreme Court of the United States. 1906. [Reported 201 U. S. 562.] White, J. The plaintiff in error will be called the husband and the defendant in error the wife. The wife, a resident of the State of New York, sued the husband in that State in 1899, and there obtained personal service upon him. The complaint charged that the parties had been married in New York in 1868, where they both resided and where the wife continued to reside, and it was averred that the husband, immediately following the mar- riage, abandoned the wife, and thereafter failed to support her, and that he was the owner of property. A decree of separation from be d and board and for alimony was pjrayed. The answer admitted the mar- riage, but averred that its celebration was procured by the fraud of the ■wife, and that immediately after the mnrriiicrp tlip pni-tips hac] sppnmtfid byjiLuLual conasiit. It was also alleged that during the long period be- tween the celebration and the bringing of this action the wife had in no manner asserted her rights and was Ijarred by her laclies from^oing so. Besides, the answer alleged that the husband had, in 1881, obtained ia a court of the State of Connecticut a divorce which__was conclusive. At the trial before a referee the judgment roll in the suit for divorce in Connecticut was offered b}' the husband and was objected to, first, because the Connecticut court had not obtained jurisdiction over the person of the defendant wife, as the notice of the pendency of the peti- tion was by publication and she had not appeared in the action ; and, second, because the ground upon which the divorce was granted, viz., desertion by the wife, was false. The referee sustained the objections and an exception was noted. The judgment roll in question was then marked for identification and forms a part of the record before us. Having thus excluded the proceedings in the Connecticut court, the referee found that the parties were married in New York in 1868, that the wife was a resident of the State of New York, that after the mar- riage, the parties never lived together, and shortly tliereafter that the husband without justifiable cause abandoned the wife, and has since neglected to provide for her. The legal conclusion was that the wife was entitled to a separation from bed and board and alimony in the sura of $780 a year from the date of the judgment. The action of the ref- eree was sustained by the Supreme Court of the State of New York, and a judgment for separation and alimony was entered in favor of the wife. This judgment was affirmed by the Court of Appeals. As by the law of the State of New York, after the affirmance by the Court of Appeals, the record was remitted to the Supreme Court, this writ of error to that court was prosecuted. SECT. IV.] HADDOCK V. HADDOCK. 467 The Federal questio n is, T)jrl ttiP f>mi.i!t._LmlQM;L-\--irJAig thp rin ni^t .if.i^ l ion v -7 of the United States by refusing to give to the decree oLxlivorca ren- <^ ' dered in the State of Connecticut tha faith and credit^ to which it-jaa^/^ entitled^ As the averments concerning the alleged fraud in contracting the marriage and the subsequent laches of the wife are solely matters of Stale cognizance, we may not allow them to even indirectly influence our judgment upon the Federal question to which we are confined, and we, therefore, put these subjects entirely' out of view. Moreover, as, for the purpose of the Federal issue, we are concerned not witli the mere form of proceeding by which the Federal right, if any, was denied, but alone have power to decide wliether such right was denied, we do not inquire whether the New York court should preferably have admit- ted the record of the Connecticut divorce suit, and, after so admitting it, determine what effect it would give to it instead of excluding the record and thus refusing to give effect to the judgment. In order to decide whether the refusal of the court to admit in evidence the Con- necticut decree denied to that decree the efficac}' to which it was enti- tled under the full faith and credit clause, we must first examine the judgment roll of the Connecticut cause in order to fix the precise cir- cumstances under which the decree in that cause was rendered. Without going into detail, it suffices to say that on the face of the Connecticut record it appeared that the husband, alleging that he had acquired a domicil in Connecticut, sued the wife in that State as a per- son whose residence was unknown, but whose last known place of resi- dence was in the State of New York, at a place stated, and charged desertion by the wife and fraud on her part in procuring the marriage ; and, further, it is shown that no service was made upon the wife except b}' publiculion and by mailing a copy of the petition to her at her last known place of residence in the State of New York. Witli the object of confining our attention to the real question arising from this condition of tlie Connecticut record, we state at the outset certain legal propositions irrevocably concluded b}' previous decisions of this court, and which are required to be borne in mind in analyzing the ultimate issue to be decided. First. The requirement of the Constitution is not that some, but that 'full faith and credit shall be given by States to the judicial decrees of other States. That is to say, where a dfinrpft ]-ftn (^prpf1 in nnc^. S tntP jg embraced by the full faith and cre dit clause that cons titutiona l provisjon commands th at the o ther States s hall give to the decree the fo rce and effect to which it was entitled i n the State where rendered . Harding v. Harding, 198 \]. S. 317. Second. \Vhere_a personal judgment h as been rendered in the court s of a State_agaiij.st a non-rLsideDt merely upon constructive service and , t herefo re, without acquiring jurisdiction over t he person of the defend- ant, such judgment ma}' not be enforce d in another State in virtue of the full faith and credit clause . Indeed, a personal judgment so 468 HADDOCK V. HADDOCK. [CHAP. III. rendered iSpby operation of the due process clause of the Fourteenth AmcndmGut,void as against the non-resident, even in the State where rendered, and, therefore, such non-resident in virtue of rights granted by tho Constitution of the United States may successfully resist everLOii the State where rendered, the enforcement of such a judgment, fen - noycr v. Neff, 95 U. S. 71 4,' The facts in that case were these : Nelf, who was a resident of a State other than Oregon, owned a tract of land in Oregon. Mitchell, a resident of Oregon, brought a suit in a court of that State upon a money demand against Neff. The Oregon statutes required, in the case of personal action against a non-resident, a publi- cation of notice, calling upon the defendant to appear and defend, and" also required the mailing to such defendant at his last known place of residence of a copy of the summons and complaint. Upon afiidavit of the absence of Neff, and that he resided in the State of California, the exact place being unknown, the publication required by the statute "was ordered and made, and judgment by default was entered against Neff. Upon this judgment execution was issued and real estate of Neff •was sold and was ultimately acquired by Pennoyer. Neff sued in the Circuit Court of the United States for the District of Oregon to recover the property, and the question presented was the validit}' in Oregon of the judgment there rendered against Neff. After tlie most elaborate consideration it was expressly decided that the judgment rendered in Oregon under the circumstances, stated was void for want of jurisdic- tion and was repugnant to the due process clause of the Constitution of the United States. The ruling was based on the proposition that a court of one State could not acquire jurisdiction to render a personal judgment against a non-resident who did not appear by the mere publi- cation of a summons, and that the want of power to acquire such juris- diction by publication could not be aided by the fact that under the statutes of the State in which the suit against the non-resident was brought the sending of a copy of the summons and complaint to the post office address in another State of the defendant was required and complied with. The court said (p. 727) : "Process from the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory- and respond to proceedings against them. Publication of process or notice ■within tlie State where the tribunal sits cannot create any greater obli- gation upon the non-resident to appear. Process sent to him out of tlie State, and process published within it, are equallj' unavailing in pro- ceedings to establish his personal liabilit}'." And the doctrine thus stated but expressed a general principle ex- pounded in jirevious decisions. P)ischoff v. Wethered, 9 Wall. .S12. lu that case, speaking of a mone}' judgment recovered in tiie C<^ i i/ couple took up their domicil at the home of the husband in Kentuck}-, ^^ \Jia^ where they continued to reside and where children were born to them. ^ JUT ^ The wife left the matrimonial domicil and went to New York. The /v^'T^ ^ \ husband sued her in Kentucky for a divorce. Before the Kentuck}- suit kTv^ J merged into a decree the wife, having a residence in New York sufficient, \ ^'^^^^ under ordinar}' circumstances, to constitute a domicil in that State, sued '"^ c il *** I the husband in the courts of New York for a limited divorce. Thus the ^^^ ,^jo^ ^ two suits, one by the husband against the wife and the other b}' the wife -(>> ^ ^ against the husband, were pending in the respective States at the same *^ *"^ time. The husband obtained a decree in the Kentucky suit before the suit of the wife had been determined, and pleaded such decree in the suit brought b}' the wife in New York. The New York court, however, re- fused to recognize the Kentucky- deci*ee and the case came here, and this court decided that the courts of New York were bound to give effect to the Kentucky decree by virtue of the full faith and credit clause. Under these conditions it is clear that the case could not have been disposed of on the mere ground of the individual domicil of the parties, since upon tnat Hypothesis, even if the efficacy of the individual domicil had been admitted, no solution would have been therebv afforded of the problem which would have arisen for decision, that problem being which of the two courts wherein the conflicting proceedings were pending had had the paramount right to enter a binding decree. Having disposed 480 HADDOCK V. HADDOCK. [CHAP. III. iPf the c ase upon the principle of matrimonial domicil+jt cannot in reasoQ be conceived that the court intended to express an opinion upon tlie soundness of the theor}' of individual and separate domicil which, iso- latedly considered, was inadequate to dispose of, and was, therefore, irrelevant to, the question for decision. . . .^ Without questioning the power of the State of Connecticut to enforce within its own borders the deci'ee of divorce wliich is here in issue, and without intimating a doubt as to the power of the State of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, sucli effi- cacy as it ma}' be entitled to in view of the public policy' of that State^^ we hold that the decree'df the court of Connecticut rendered under the circumstances stated was not entitled to obligatory enforcement in the State of New York by virtue of the full faith and credit clause. " TT ^therefore follows that the court below did not violate the full faith and credit clause of the Constitution in refusing to admit the Connecticut decree in evidence; and its judgment is, therefore, Affirmed. Holmes, J., with whom concurred Harlan, Brewer, and Brown, J J., dissenting.^ I do not suppose that civilization will come to an end whichever way this case is decided. But as the reasoning which prevails in the mind of the majority does not convince me, and as I think that the decision not only reverses a previous well-considered decision of this court but is likely to cause considerable disaster to innocent persons and to bas- tardize children hitherto supposed to be the offspring of lawful marriage, I think it proper to express nn* views. Generally stated, the issue is whether, when a husband sues in the court of his domicil for divorce from an absent wife on the ground of her desertion, the jurisdiction of the court, if there is no personal service, depends upon the merits of the case. If the wife did desert her husband in fact, or if she was served with process, I understand it not to be disputed that a decree of divorce in the case supposed would be conclusive, and so I understand it to be admitted that if the court of another State on a retrial of the merits finds them to have been decided rightly its duty will be to declare the decree a bar to its inquirj'. The first form of the question is whether it has a right to inquire into the merits at all. But I think that it will appear directly that the issue is narrower even than that. In Atherton v. Athertp.n, 1J,1. U-^ SiJL2'^j ^ divorce was granted on the ground of desertion, to a husband in Kentucky against a wife who had established herself in New York. She did not appear in the suit and the only notice to her was by mail. Before the decree was made 1 The learned jiulge here examined numerous decisions of State courts, and con- cluded that they did nut establish the proposition that such a decree as the one here examined was entitled to full faith and credit. — Ed. 2 Another dissenting opinion of Brow.v, J., is omitted. — Ed. SECT. IV.] HADDOCK V. HADDOCK. 481 she sued in New York for a divorce from bed and board, but pending the latter proceedings the Kentucky suit was brouglit to its end. The husband appeareil in New York and set up the Kentucky decree. Tlie New York court found that the wife left her husband because of his cruel and abusive t;-eatnient, without fault on her part, held that the Kentucky decree was no bar, and granted the wife her divorce from bed and board. The New York decree, after being affirmed by the Court of Appeals, was. reversed by this court on the ground that it did not give to the Kentucky decree the faith and credit which it had by law in Kentuck}-. Of course, i fjhe wife left her husband because of his cruelty and without faj.iU on heiLRartj asjound b y theNew York court, shew'as not g uiltj of desertion. _Yet this court held that the question of her desertion was not open but was conclusive!}' settled by the Kentucky decree. There is no difference, so far as I can see, betw^een Atherton r. Ath- erton and the present, case, except that in Atherton v. Atheiton the forum of the first decree was that of the matrimonial domicil, whereas in this the court was that_ of a domicil afterwards acquired . After that decision an}' general objection to the effect of the Connecticut decree on the ground of the wife's absence from the State comes too late. So does any general objection on the ground that to give it effect invites a race of diligence. I therefore pass such arguments without discussion, although they seem to rae easy to answer. Moreover, Atherton v. Atherton decides tljnt _tlie jnrisd iciimL-Of^t he mat rimonial domicil, at least, to grant a divorcef oi' the wife's d^'sertion wi thout personal ser- •vdjpeT-xIoeTTiot^ctepemTjJiJon the f act of her desertion, but continues even if her husband's cruelty li a^s driven li^er out o f the State and she has ac- 'quirfidLa-SepLaratfi.-dQmicil elsewli£r e_ uponthe principles whicn we all agree are recognized__ lxy th i s court. I can see no gTound for giving a less effect to the decree when the husband changes his domicil after the separation has taken place. The question whether such a decree should have a less effect is the only question open, and the issue is narrowed to that. No one denies that the hus band may su £ far-divorce inJiia new domicil, . or, as I have said, that if he gets a decree when he reall}' has been deserted, it will be binding everywhere. Hawkins v. Ragsdale, 80 K}'. 353, cited 181 U. S. 162; Cheely v. Clayton, 110 U. S. 701, 705. It is unnecessary to add more cases. The only reason which I have heard suggested for holding the decree not binding as to the fact that he was deserted, is that if lie is deserted his power over the matrimonial domicil remains so that the domicil of the wife accompanies him wherever he goes, whereas if he is the deserter he has no such power. Of course this is a pure fiction, and fiction alwa3's is a poor ground for changing substantial riglits. It seems to me also an inadequate fiction, since by the same principle, if he deserts her in the matrimonial domicil, he is equalh' powerless to keep her domicil there, if she moves into another State. The truth is that jurisdiction no more depends upon both parties having their domicil 31 482 HADDOCK V. HADDOCK. [CHAP. III. within the State, than it does upon the presence of the defendant there, as is shown not only by Atherton v. Atherton, bnt by the rights of the wife in the matrimonial domicil when the husband deserts. There is no question that a husband may establish a new domicil for himself, even if he has deseited his wife. Yet in these days of equality 1 do not suppose that it would be doubted that the jurisdiction of the court of the matrimonial domicil to grant a divorce for the desertion remained for her, as it would for him in the converse case. See Cheever V. Wilson, 9 Wall. 108. Indeed, in Ditson v. Ditson, 4 R. I. 87, which, after a quotation of Judge Cooley's praise of it, is stated and relied upon as one of the pillars for the decision of Atherton v. Atherton, a wife was granted a divorce, without personal service, in the State of a domicil acquired by her after separation, on the sole ground that in the opinion of the court its decree would be binding everywhere. If that is the law it disposes of the case of a husband under similar circumstances, that is to say of the present case, a fortiori; for I suppose that the notion that a wife can have a separate domicil from her husband is a modern idea. At least Ditson v. Ditson confirms the assumption that jurisdiction is not dependent on the wife's actually residing in the same State as her husband, which has been established by this court. Ather- ton V. Atherton, 181 U. S. 155 ; Maynard v. Hill, 125 U. S. 190 ; Cheever V. Wilson, 9 Wall. 108. When that assumption is out of the way, I repeat that I cannot see any ground for distinguishing between the ex- tent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired. I also repeat and emphasize that if the finding of a second court, contrary to the decree, that the husband was the deserter, destroys the jurisdiction in the later acquired domicil because the domicil of the wife does not follow his, the same fact ought to destroy the jurisdiction in the matrimonial domicil if in consequence of the husband's conduct the wife has left the State. But Athei'ton v. Atherton decides that it does not. It is important to bear in mind that the present decision purports to respect and not to overrule Atherton v. Atherton. For that reason, among others, I spend no time in justifying that case. And yet it ap- pears to me that tlie whole argument which prevails with the majority of the court is simply an argument that Atherton v. Atherton is wrong. I have tried in vain to discover anything tending to show a distinction between that case and this. It is true that in Atherton v. Atherton, Mr. Justice Gray confined tlie decision to the case before the court. Evidenth-, I should say, from internal evidence, in deference to scruples which he did not share. But a court by announcing that its decision is confined to the facts before it does not decide in advance that logic will not drive it fur- ther when new facts arise. Kew facts have arisen. I state what logic seems to me to require if that case is to stand, and I think it reasonable to ask for an articulate indication of how it is to be distinguished. I have heard it suggested that the difference is one of degree. I am the last man in the world to quarrel with a distinction simply because it SECT. IV.] HADDOCK V. HADDOCK. 483 is one. of degree. Most distinctions, in m}' opinion, are of that sort, and are none the worse for it. But the line whicli is drawn must be justified by the fact that it is a little nearer than the nearest opposing case to one pole of an admitted antithesis. Wiien a crime is made burglar}' by the fact tliat it was committed thirty seconds after one hour after sun- set, ascertained according to mean time in the place of the act, to take an example from Massachusetts (R. L. c. 219, § 10), the act is a little neai'er to midnight than if it had been committed one minute earlier, and no one denies that there is a difference between night and day; The fixing of a j)oint when day ends is made inevitable by the admis- sion of that difference. But I can find no b.nsis fu r giving fi grpiitrr iur isdiction to_the courts of the husband's domj fi l when the married^ pair hap|)cn ^ tf? I'-'^Y'? 'T'^'^^^'^^ there for a month, even if with intent to make it a permanent aho dn, t.hnn if they ha d_nQtJ.ived_there at ajj. I ma}- add, as a consideration distinct from those which I have urged, that I am unable to reconcile with the requirements of the Constitution, Art. 4, § 1, the notion of a judgment being valid and binding in the State where it is rendered, and yet depending for recognition to the same extent in other States of the Union upon the comity of those States. No doubt some color for such a notion ma}- be found in State decisions. State courts do not always have the Constitution of the United States vividly present to their minds. I am responsible for lan- guage treating what seems to me the fallac}* as open, in Blackinton v. Blackinton, 141 Mass. 432, 436. But there is no exception in the words of the Constitution. " If the judgment is conclusive in the State where jt was pronounced it is equally conclusive everywhere." Christmas v. Russell, 5 Wall. 290, 302 ; Marshall, C. J., in Hampton v. McConnel, 3 Wheat. 234; Mills y. Duryee, 7 Cranch, 481, 485; Story, Const. § 1313. See also Hancock National Bank v. Farnum, 176 U. S. 640, 644, 645. I find no qualification of the rule in Wisconsin v. Pelican Ins. Co., 127 U. S. 265. That merely decided, with regard to a case not within the words of the* Constitution, that a State judgment could not be sued upon when the facts which it established were not a cause of action outside the State. It did not decide or even reraotelv suggest that the judgment would not be conclusive as to the facts if in any way those facts came in question. It is decided as well as admitted that a decree like that rendered in Connecticut in favor of a deserting husband is binding in the State where it is rendered. Maj'nard v. Hill, 125 U. S. 190. I think it enough to read that case in order to be convinced that at that time the court had no thought of the divorce being confined in its effects to the Territory where it was granted, and enough to read Ather- ton V. Atherton to see that its whole drift and tendency now are reversed and its necessary consequences denied. 484 WEATHEKLEY V. WEATHERLEY. [CHAP. III. WEATHERLEY v. WEATHERLEY. High Court of the Transvaal Province. 1879. [Reported Transv. Prov. Rep. 66.] This was an action for divorce a vinculo matrimonii., brought by the husband, Colonel Weatherlej', on the ground of his wife's adulter}', alleged to have been committed in Pretoria with one Gunn.^ KoTZE, J. The parties were married in England in January, 1857, the plainlitf being at that time a lieutenant in a cavalry regiment. After the marriage. Colonel Weatherley and his wife proceeded to India. They subsequently returned to England, and left again in 1875 for South Africa, arriving in the Transvaal in January, 1876. Their domicile of origin is English, but the adulter}', if any, was committed within this territory. During the hearing of the case, owing to the facts disclosed in evidence, I directed counsel, after the evidence had been taken, to arguer the legal question whether or not the court had jurisdiction to entertain this suit for divorce, supposing the parties not to have acquired a new civil domicile of choice in this country. It was accordingly maintained, on behalf of the plaintiff, that there ought to have been a dilatory plea, or exception, to the jurisdiction of the court filed by the defendant, and that this not having been done, the court cannot, according to the Roman Dutch law which prevails in this counti'v, of its own mere motion, raise the question of jurisdiction. Two authorities were cited in behalf of this position, viz., Merula, Man van Proced. (civ. pract.), lib. iv. . tit. 40, ch. 1, n. 1, and Van der Linden, p. 414 (Henry's translation). But on examination it will be found that these writers, especially Merula, merely lay down that if the defendant wishes to take objection to the jurisdiction of the court, he must do so by way of preliminary exception before he pleads over, otherwise he submits himself to the jurisdiction of the court ; and not that, if he neglects to file a declinatory exception, the court is bound to hear the case. A similar rule is known to the English common law, by which a dilatory plea, e.g., to the jurisdiction, was not available after a plea in bar. So, it was further argued, on the authority of Van Leeuwen (Rom. Dutch Law, lil). v., chap. 8, § 4), that, by not having pleaded to the jurisdiction, the defendant must be taken to have tacitly consented that the court should have jurisdiction, and the court was consequently precluded from raising the point at the trial. Here, then, the question at once arises, whether the mere consent of parties can give tlie coint jurisdiction? The passage in Van Leeuwen must be taken to refer to matters of a purely private and doubtful nature only ; and it is nr)t now necessary to inquire how far, in matters of this kind, the (hx^trine " that consent of parties gives jurisdiction {prorogatio)" propounded l)y the Roman jurists, when treating of the provisions of 1 The statement of facts and arguments of counsel are omitted. — Ed. SECT. IV.] WEATHERLEY V. WEATHERLEY. 485 the Lex Julia Judiciorwn^ and followed by the commentators of a later date, has effect at the present day. Van der Linden, in his sup- plement to Voet {ad Fandectas^ lib. ii., tit. 1, § 14), says: "Cum diversorum tribunalium institutio ad statum publicum pertineat ; nee pactionibus privatorum hominum Juri publico derogari possit." Now, althouirh the law of domestic relations is treated of as a portion of the Jas jiriratum, the institution of a tribunal to decide on questions re- garding status, arising out of the domestic relations, and the exercise of jiu-isdiction in such cases, is a matter which pertains ad statum imhli- cum, — to the public welfare of the whole community (cf. Huber, Jus Ilodiernum^ iv., 14, § 29). Marriage is not a mere ordinary private con- tract between the parties : it is a contract creating a status, and gives rise to important consequences directl}' affecting society at large. It lies, indeed, at the root of civilized society. If, then, in a matter of divorce, the bare consent of the parties can be held sufficient to give jurisdiction, there is no protection, no safeguard, against the parties acting in fraudem legis ; but this it is the policy, as well as the dut}', of every court of justice to discourage and prevent. Huber, in his Jus Hodiernum, 1. c. § 21-24, has very justly observed that such a doctrine would lead to endless confusion. I am clearly- of opinion, therefore, that the mere consent of the parties in a question involving their matri- monial status, including divorce a vincido^ cannot give the court juris- diction and make its decree legal, where, in the absence of such con- sent, the exercise of jurisdiction and the subsequent decree would-be illegal. Nor is there anything to prevent the court, of its own mere motion, raising the question of jurisdiction. Were this not so, the court would be bound b}' the neglect or omission of the pleader who failed to file a proper declinatory exception. Moreover, it may sometimes hap- pen, as in this very case, that, only after the evidence has been part heard, the facts disclosed suggest the question whether or not, under the circumstances, the court has jurisdiction (cf. Van Leeuwen, R. D. Law, 5, 4, § 2, n. 6). A sentence of divorce pronounced by a competent court having jurisdiction of the subject-matter in one country, is, of course, binding on the courts of all civilized countries. But one of the most difficult and embarrassing questions of private international law is the question, when, and under what circumstances, will the tribunal of a given coun- try, declaring a valid marriage dissolved, have jurisdiction to do so, in order to cause its judgment to be respected and recognized by the courts of every other country ? It is admitted that the courts of any countr}- where the parties have their bona fide civil domicile, have jurisdiction to dissolve a valid marriage contracted elsewhere. Stor^', Bishop, Burge, the law in Scotland, and the recent cases of Shaw v. Gould, L. R. 3 H. L. 83, and Wilson v. Wilson, L. R. fi P. & D. 441, all agree in this.^ . . . 1 The learned judge, upon an examination of the facts, decided that Colonel Weath- erley was domiciled in England. He then examined the law of England. — En. 486 WEATHERLEY V. WEATHERLEY. [CHAP. III. In Scotland, however, there exists no doubt or difficulty on the sub- ject. By the law of that country, which (as I shall show hereafter) is more analogous to the Roman Dutch Law, it has been laid down, by a uniform series of decisions, that the Scotch courts have jurisdiction, on proof of a just cause of divorce, to dissolve a marriage contracted in England, or any other foreign country, and they will sustain process of divorce to that effect, provided merely that such a domicile has been acquired in Scotland by the defendant as would be sufficient to found ordinary civil jurisdiction, viz., a simple residence of forty days (Er- skine, Inst. Bk. I., tit. 2, § 2U, in notis). A forty days' residence in Scotland excludes all consideration of a foreign domicile. A citation served on the defendant at his dwelling place, after a residence of forty days, is good and legal ; but if the citation be served personally on the defender, no residence of forty days is necessary. It is to be pointed out here that domicile of Jurisdictio?i merely means a residence _af forty days, whether animo manendi or not is immaterial ; and the distinction between it and civil domicile, i.e., permanent residence, animo manendi, must not be lost sight of in discussing the question of jurisdiction. The doctrine in Scotland is based on the right of the Scotch court to redress any personal wrong, including therefore the delictum of adul- tery, committed by a defendant within the territory of Scotland ; whereas the English doctrine, which refuses to recognize the power of foreign tribunals to decree a dissolution of marriage between Eng- lish subjects who have no civil domicile (stricto sensu) in the foreign countr}', is founded upon the principle that divorce is a question of status, and can only be decreed l)y the courts of the place of domicile, for no nation is bound to recognize the judgment of a foreign tribunal in dissolving a marriage subsisting between its own domiciled subjects temporaril}- absent abroad. By so doing, the foreign tribunal inter- feres with the jurisdiction legis domesticce, and this no independent nation like England can be expected to tolerate. A difference of opinion and principle on this subject leads to the most serious consequences. If I were to hold that this court has juris- diction, and were to decree a divorce, the courts in P^ngland maj' ignore my decree altogether. Suppose, now, that Colonel Weatherlej^ and, in like manner, Mrs, Weatherley, were to enter into a second marriage, and tiiat in each case issue is born of the second marriage, this second marriage would be valid, and the issue legitimate in the Transvaal, in Scotland, and perhaps in other countries, whereas by Elnglish law the second marriage would be invalid, tlio issue thereof bastard, and Colonel and ]\trs. "VVcatiierley would be guilty of bigam}', and punishable as felons. In the absence of any uniform rule, the court must lay down a principle and give a decision, and is, moreover, bound to state the reasons upon wliicli it professes to act. Wlicn judges and lawyers of recognized eminence and reputation have, with great learning and abilitj', expressed different views on the subject, it behoves one, in the SECT. IV.] WEATHERLEY V. WEATIIERLEY. 487 lansrnasre of a learned commentator, to tread both reverently and cau- liousl}', and I therefore approach the question with some diffidence. Huber, in his' JPrcelectiones, xohii., de co7iJiictu legum, § 2, has laid it down as an axiom that all persons who are actually within the terri- tory of a given State, whether permanently or only for a temporary purpose, are subject to its laws and the jurisdiction of its courts. No doubt a mere temporary subject, suOditus temporanius, as Voet {de Statutis, n. 5) terms it, is not liable to certain portions of the laws, which are alone applicable to domiciled subjects. Thus domiciled subjects (stricto sensu) are liable to the discharge of public duties, the payment of taxes, and also exercise certain municipal rights and privileges from wliich he who is merely a temporar}- resident or visitor is excluded ; and this, it seems to me, is the meaning of Van der Keessel, in Thesis 30, so much pressed upon me by counsel for the defendant. But a temporary subject is amenable to the court, not merely' in the case of crime, but also for every delict or wrongful act committed by him within its jurisdiction. Bynkershoek, de foro legatorum^ cap. 3, to which, at the conclusion of the argument, my attention was drawn, also adopts this view. He says, that a mere temporary or casual visitor to Holland does not establish a forum in that country for all purposes, quia advena est, non suddittis / that is to say, not a domiciled subject, although he would come under the jurisdiction of the courts of H(jlland delicti causa. A temporary resident, therefore, would be liable for defamation, ordinary trespass, seduction, and the like, committed In' him in the foreign territory. In these instances the court of the place where tlie wrong is committed has power to give redress to the injured partv ; why, then, should the court not have jurisdiction also to redress a matrimonial wrong, viz., adultery? Tiiose who answer this question in the negative maintain that divorce is a matter of statu s, and must be referred to the lex d omicilii of the part i(^s. Thus, Lord Westbury, in Shaw v. Gould (L. R. 3 H. L. 83), observes: '■'• Questimis of persona l status depend on the law of the actual domicile. It is said by a foreign jTirist oi autliority (RodenV)urg), and liis woi'ks are cited with approba- tion by many recent writers ^ *• Unicum hoc ipsa ret natura ac necessitas invexit ut cum de statu et conditione hominum quceritur, solum mode judici, et quidem domicilii, universum in ilia jus sit attriI)utum.'yThis position, that wiiversur/i Jus, — that is, jurisdiction which is complete,- and ought to be everywhere recognized, does in all matters touching the personal status or condition of persons belong to the judge of that country where the persons are domiciled, — has been generally recog- nized." But it may be said, in answer to this, that it has not been generally recognized that jurisdiction belongs exclusively in all matters of status to the judge of the actual domicile alone /'or all pu)'poses. Scotch judges and lawyers have adopted a different view, and John Voet distinctly controverts the doctrine of Rodenburg. In his com- mentary, ad Paiidectas, lib. 1, de Statutis, ISTo. 8, after quoting the above passage from Rodenburg, he says : / " Sed quae ilia fuerit rei natura quae necessitas satis urgens nee dum licuit animadvertere." 48 > itud, as welFas ofalllo which our attention has been called where that rule has been applied, were actions in tort, and not actions upon a contract. Our courts have never refused to entertain jurisdiction of a cause of action arising upon contract. In the case of Davidsburgli v. The Knickerbocker Life Ins. Co. (90 N. Y. 526), it was held that as the City Court of Brooklyn was a local couit, of limited juris- diction, unless the defendants came within the classes over which the statute had con- ferred jurisdiction upon this court, the parties could not confer jurisdiction by consent. This case is in no respect an authority for the rule contended for by the appellants. Whether, therefore, this contract was made in California or New York — upon which question much in favor of the view that it was a New York contract might be said — we do not think it is necessary to determine ; as it appears that the action was one upon contract, the court committed no error in entertaining jurisdiction of the cause." — Ed. 2 Only so much of the case as involves this question is given. — Ed. CHAP. IV.] ROBERTS V. KNIGHTS. 513 question whether the courts of a country ought to take jurisdiction of litigation between aliens, temporarily residing within its limits, is pri- marily one of international law. Vattel, b. 2, c. 8, § 103, says that b}' the law of nations disputes that may arise between strangers, or between a stranger and a citizen, ouglit to be terminated by the judge of the place, and also b^- the laws of the place. In 2 Kent's Com. (6th ed.) 64, this authority is cited, and the law is stated to be that if strangers are involved in disputes with our citizens, or with each other, they are amenable to the ordinary tribunals of the countr}'. No distinction is made between transient and perma- nent residents. In 1650 our colonial legislature passed an act, reciting that " whereas oftentimes it comes to pass that strangers coming amongst us have sud den occasions to tr^' actions of several natures in our courts of justice/ the right is therefore given to them. 3 Col. Rec. 202. See also Anc. Chart. 91. In 1672 another act was passed, confirming and regulating the right. 4 Col. Rec. part 2, 532.. See also Anc. Chart. 192. These acts make no exception of cases of transient residence, and they established our municipal law at a very earl}' date. In Barrell v. Benjamin, 15 Mass. 354, it was objected that the de- fendant, whose domicile was in Demerara, being transiently here, was not liable to be sued in our courts by the plaintiff, whose domicile was in Connecticut, and who was also transiently here. Tlie precise ques- tion which arises in the present case was not before the court, but the reasoning of Parker, C. J., goes to sustain the marginal note of the case, which is as follows : " It seems tliat one foreigner may sue another who is transiently within the limits of this State, upon a contract made be- tween them in a foreign country." In .Judd V. Lawrence, 1 Cush. 531, it was held that an alien resident within the Commonwealtli is entitled to the benefit of the insolvent laws,__ Since St. 1852, c. 29, aliens have been able to take, hold, and transmit real estate. It seems, therefore, to be the policy of modern times to enlarge rather than diminish the rights and privileges of aliens. The courts of the United States have not jurisdiction where both par- ties are aliens, because this is not one of the enumerated cases in which jurisdiction is given to them. Barrell v. Benjamin, ubi supra ; Turner V. Bank of North America, 4 Dall. 11 ; Hodgson v. Bowerbank, 5 Cranch, 303. The argument ah inconvenientii_y!i\\\ch. is urged on behalf of the de- fendant, has much force. It is extremely inconvenient to one who is temporarily in a foreign country to be sued by a fellow-countryman iii_ its courts. But it is met b}' an argument of equal force on the other side. If the plaintiff had no such remed\', he would often be subjected to great hardships. On the whole, it is consonant to natural right and justice that the courts of every civilized country should be open to liear the causes of all parties who may be resident for the time being within its limits. 33 514 BUKDICK V. FREEMAN. [CHAP. IV. The defendant relies upon a clause in the Merchants' Shipping Act (17 & 18 Vict. c. 104), which provides that, in a contract lilve that of the plaintiff, no seaman shall sue for wages in any court abroad, except in cases of discharge or of danger to life. But this act cannot affect the question of jurisdiction, which, on the motion to dismiss, is the only question to be considered.^ BURDICK V. FREEMAN. Court of Appeals, New York. 1890. [Reported 120 New York, 420.] FoLLETT, C. J. This action, begun February 19, 1895, is for o.r\rc\- innl f'onversa^.ion.'^ . . , After the court had concluded its charge, the defendant asked that the jury be instructed *^that the plaintiff cannot maintain this action in the courts of this State, and that this court has no jurisdiction of this case." This request was refused, and the defend- ant excepted. This action was for the recovery of damages for a per- {] sonal injur}'. Code Civil Proc, § 3343, subd. 9. The courts of this State ma}', in their discretion, entertain jurisdiction of such an action, between citizens of another State actuall}' domiciled therein when the- action was begun and tried, though the injury' was committed in the^ State of their residence and domicile. Gardner v. Thomas, 14 Johhs. 134 ; Johnson v. Dalton, 1 Cow. 543 ; Dewitt v. Buchanan, 54 Barb. 31 ; Mclvor v. McCabe, 26 How. 257 ; Newman v. Goddard, 3 Hun, 70 ; Mostyn v. Fabrigas, 2 Smith, Lead. Cas. (9th ed.), 916 ; Story, Conf. Laws, § 542; Whart. Conf. Laws, §§ 705, 707, 743; 4 Phillim. Int. Law, 701. The judgments in Molony v. Dows, 8 Abb. Pr. 316, and Latourette v. Clark, 30 How. Pr. 242, in so far as they hold otherwise, must be regarded as overruled. The defendant had not left the State of his residence, nor had he removed his property' therefrom, when this action was begun, and we find no sufficient reason for prosecuting it in* the courts of this State. But this action had been pending for a year,- and the question as to whether the court should entertain jurisdiction. had not been raised b}* answer, by special motion, or during the trial; and we think that, while the Supreme Court might, in the exercise of it§ discretion, have refused to entertain the action, or dismissed it on its, own motion, yet the defendant, not being entitled to a dismissal as a matter of right, ought not to be permitted to lie by until the close of the trial, when its probable result could be inferred; and then successfully invoke the exercise of the discretion of the court in his favor. The judgment should be affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting. 1 Ace. Cofrode u. Gartner, 79 Mich. 332, 44 N. W. 623. — Ed. ^ Part of the opinion is omitted. — Ed. A CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY. 515 LITTLE V. CHICAGO, ST. PAUL, MINNEAPOLIS, AND OMAHA RAILWAY. Supreme Court of Minnesota. 1896. [Reported 65 Minnesota, 48.] Mitchell, J. This action was brought to recover damages for injuries to real estate situated in Wisconsin, caused by the negligence of the defendant. The question presented is, can the courts of this State take cognizance of actions to recover damages to real estate lying without the State : in other words, is such an action local or transitory- in its nature ? The history' of the progress of the English common law respecting the locality of actions will aid in determining how this question ought to be decided on principle. Originally, all actions were local. This arose out of the constitution of the old jurj', who were but witnesses to prove or disprove the allegations of the parties, and hence ever}' case had to be tried b}' a juiy of the vicinage, who were presumed to have personal knowledge of the parties as well as of the facts. But, as circumstances and conditions changed, the courts modified the rule in fact, although not in form. For that purpose they invented a fiction by which a party was permitted to allege, under a videlicet, that the place where the contract was made or the transaction occurred was in any county in England. The courts took upon themselves to determine when this fictitious averment should and when it should not be traversable. They would hold it not traversable for the purpose of defeating an action it was invented to sustain, but always traver- sable for the purpose of contesting a jurisdiction not intended to be protected by the fiction. Those actions in which it was held not traversable came to be known as transitory', and those in which it "was held traversable as local, actions. Actions for personal torts, wherever committed, and upon contracts (including those respecting lands), wherever executed, were deemed transitory, and might be brought wherever the defendant could be found. As respects actions for injuries to real propertj', we cannot discover that it was definitely settled in England to which class they belonged prior to the American Revolution. As late as 1774, in the leading case of Mostyn v. Fabrigas, 1 Cowp. 161, 2 Smith, Lead. Cas. (9th ed.) 916, Lord Mansfield, who did more than anj' other jurist to brush away those mere technicalities which had so long obstructed the course of justice, referred to two cases in which he had held that actions would lie in England for injuries to real estate situated abroad. In that same case he said (at page 179, (Smith) page 936) : " Can it be doubted that actions may be maintained here, not only upon con- tracts which follow the persons, but for injuries done by subject to subject, especially for injuries where the whole that is prayed is a 516 LITTLE V. CHICAGO, ETC. RAILWAY. [CHAP. IV. reparation in damages or satisfaction to be made by process against the person or his effects within the jurisdiction of the court ?" While all that is there said as to actions for injuries to real property is obiter, yet it clearly indicates the views of that great jurist on the subject.] And we cannot discover that it was fully settled in England that' actions for injuries to lands were local until the decision of Doulson v. Matthews, 4 Term R, 503, in 1792, — sixteen years after the declara- tion of American independence. The courts of England seem to have finally settled down upon the rule that an action is transitory whetg" the transaction on which it is founded might have taken place aim- where; but is local when the transaction is necessarily local, — that is, could only have happened in a particular place. As an injury to land can only be committed where the land lies, it followed that, according to this test, actions for such injuries were held to be local. As the distinction between local and transitory venues was abolished by the Judicature Act of 1873 (see 36 & 37 Vict. c. 66, Rules of Procedure, 28), we infer that actions for injuries to lands lying abroad may now be maintained in England. It is somewhat surprising that the American courts have generally given more weight to the English decisions on the subject rendered after the Revolution than to those rendered before, and hence have almost universally held that actions for injuries to lands are local. la the leading case of Livingston v. Jefferson, 1 Brock. 203, Fed. Cas. No. 8,411, which has done more than any other to mould the law on the subject in this country, Chief Justice Marshall argued against the rule, showing that it was merely technical, founded on no sound principle, and often defeated justice ; but concluded that it was so thoroughly established bj' authority that he was not at liberty to disregard it. But so unsatisfactory and unreasonable is the rule that since that time it has, in a number of States, been changed b}' statute, and in others the courts have frequenth- evaded it b}- metaphysical distinctions in order to prevent a miscarriage of justice. Chief Justice Marshall's own State of Virginia changed the rule b}- statute as early as 1819. Some courts have made a subtle distinction between faults of omis- sion and of commission. Thus in Titus v. Inhabitants of Frankfort, 15 Me. 89, which was an action against a town for damages sustained b}' reason of defects in a highwav, it was held that, while highways must be local, the neglect of the defendant to do its duty, being a mere non- feasance, was transitory. It has also been held that where trespass upon land is followed by the asportation of timber severed from the land, if the plaintiff waives the original trespass, and sues simply for the conversion of the property so carried away, the action would bec^ome transitory. American U. Tel. Co. v. Middleton, 80 N. Y. 408 ; Wliid- den V. Seelye, 40 Me. 247. Again, it has been sometimes held that an action for injuries to real estate is transitory where the gravamen of the action is negligence, — as for negligently setting fire to the plain- tiff's premises. Home Ins. Co. v. Pennsylvania R. Co., 11 Iluu, 182; CHAP. IV.] LITTLE V. CHICAGO, ETC. RAILWAY. 517 Barney v. Burstenbinder, 7 Lans. 210. In Ohio. the rule has l)een repudiated, at least as to causes of action arising within the State, as being wholly unsuited to their condition, because under their judicial system it would result in many cases in a total denial of justice. Genin v. Grier, 10 Ohio, 209. Almost every court or judge who has ever discussed the question has criticised or condemned the rule as technical, wrong on principle, and often resulting in a total denial of justice, and yet has considered himself bound to adhere to it under the doctrine of stare decisis. An action for damages for injuries to real property is on principle just asj;rai] ^tory in its nnt.nre as one on contract or for n, tort cominitttid oTrTlieiJerson or personal property. The reparation is purely per- sonal, and^Tof damages^ Such an action is purely personal, and in no sense real. Every argument founded on practical considerations against entertaining jurisdiction of actions for injuries to lands lying in another State could be urged as to actions on contracts executed, or for personal torts committed, out of the State, at least where the subject-matter of the transaction is not within the State. Take, for example, personal actions on contracts respecting lands which are con- ceded to be transitor}'. An investigation of title of boundaries, etc., ma^' be desirable, and often would be essential to the determination of the case, yet such considerations have never been held to render the actions local. Another serious objection to the rule is that under it a party may have a clear, legal right without a remed}' where the wrong- doer cannot be found, and has no property within the State where the land is situated. As suggested by plaintiff's counsel, if the rule be adhered to, all that the one who commits an injury to land, whether negligently or wilfully, has to do in order to escape liability, is to depart from the State where the tort was committed, and refrain from returning. In such case the owner of the land is absolutely remediless. We recognize the respect due to judicial precedents, and the au- thority of the doctrine of stare decisis ; but, inasmuch as this rule is in no sense a rule of property, and as it is purely technical, wrong in principle, and in practice often results in a total denial of justice, and has been so generally criticised by Eminent jurists, we do not feel bound to adhere to it, notwithstanding the great array of judicial decisions in its favor. If the courts of England, generations ago, were at liberty to invent a fiction in order to change the ancient rule that all actions were local, and then fix their own limitations to the 1 application of the fiction, we cannot see why the courts of the present / day should deem themselves slavishly bound by those limitations. It is suggested that the statutes of this State, in conformity to the old rule, make actions for injuries to real property local. G. S. 1894, §§ 5182, 5183. This is true, and, strangely enough, in 1885 the Legislature went so far as to provide that, if the county desi^^^ ^ LE ROY V. BEARD. Supreme Court of the United States. 1849. [Reported 8 HowarcVs Reports, 451.] "Woodbury, J.^ This was an action of assumpsit for money had and received; and also counting specialh', that, on the 17th of November, 1836, the original defendant, Le Ro}', in consideration of $1,800 then paid to him b}' the original plaintiff, Beard, caused to be made to the latter, at Milwaukie, Wisconsin, a conve3ance, signed by ,lie_^£ay--aTrd — • his^ wife, Charlotte. This conveyance was of a certain lot of land situated in Milwaukie, and contained covenants that the}' were seized ' in fee of the lot, and had good right to convey the same. Whereas it was averred, that, in truth, they were not so seized, nor authorized to convey the premises, and that thereby Le R03' became liable to repay the $1,800. Under several instructions given by the Circuit Court for the South- ern District of New York, where the suit was instituted, the jury found a verdict for the original plaintiff, on which judgment was rendered in his favor, and which the defendant now seeks to reverse by writ of error. Among those instructions, which were excepted to by the ^ Arguments of counsel Rre omitted. — Ed. 2 Ace. Taft V. Ward, 106 Mass. 518 ; Henry Briggs Sons & Co. v. Niven (Antwerp, 22 July, 1893), 21 Clunet, 1080. See Carnegie v. Morrison, 2 Met. 381. So of the question whether an assignee of a choxe in action niaj* sue in his own name. Roosa v. Crist, 17 111. 450 ; Foss v. Nutting, 14 Gray, 484; Lodge v. Phelps, 2 Cai. Cas. 321 ; see Levyy. Levy, 78 Pa. 507. Whether an assignee for creditors may sue in his own name. Glenn v. Marbury, 145 U. S. 499 ; Osborn v. First Nat. Bank, 175 Pa. 494, 34 Htl. 858. So of suit by a married woman in her own name. Stoneman v. Erw Ry., 52 N. Y. 429. — Ed. ^ ^ Part of the opinion only is given. — Ed. 34 530 HAMILTON V. SCHOENBERGER. [CHAP. V. defendant, and are at this time to be considered, was, first, that " the action of assumpsit is properlj- brouglit in this court, upon the promises of the defendant contained in the deed, if any promises are made therein which are binding or obhgatory on the defendant." The conveyance in this case was made in the State of Wisconsin, . and a scrawl or ink seal was affixed to it, rather than a seal of wax or wafer. By the law of that State, it is provided, that '* any instrument, . to which the person making the same shall affix any device, bj' way of seal, shall be adjudged and held to be of the same force and obligation as if it were actually sealed." But in the State of New York it has been repeatedly held (as in Warren v. Lynch, 5 Johns. 239) that, by its laws, such device, without a wafer or wax, are not to be deemed a seal, and that the proper form of action must be such as is practised on an unsealed instrument in the State where the suit is instituted, and the latter must therefore be \ assumpsit. 12 Johns. 198; 2 Hill, 228, 544; 3 Hill, 493; 1 Denio, 376 ; 5 Johns. 329 ; Andrews et al. v. Herriott, 4 Cowen, 508, overrul- ing Meridith v. Hinsdale, 2 Caines, 362; 4 Kent, 451 ; 8 Peters, 362; Story's Conflict of Laws, 47. A like doctrine prevails in some other States. 3 Gill & Johns. 234 ; Douglas et al. v. Oldham, 6 N. H. 150. It becomes our duty, then, to consider the instruction given here, in an action brought in the Circuit Court of New York, as correct in rela- tion to the form of the remed}'. It was obliged to be in assumpsit in ■ the State of New York, and one of the counts was special on the prom- ise contained in the covenant. We hold this, too, without impairing at all the principle, that, in deciding on the obligation of the instrument as a contract, and not the remedy on it elsewhere, the law of Wiscon- sin, as the lex loci contractus^ must govern. Robiuson v. Campbell, 3 W'heat. 212.i /. HAMILTON V. SCHOENBERGER. J^ \»r > Supreme Court of Iowa. 1877. [Reported 47 Iowa, 385.] w "- » j^ \ I The petitioner alleges that a judgment had been entered against him jJ^ ^ *p^ in the Benton District Court on a "judgment note," upon confession of •^ Va ^ judgment by an attorney of the court, not authorized to appear for him i\* except by the power contained in the note ; and asks that the judgment be declared void and cancelled. The defendants demurred to this peti- tion. The demurrer was overruled, and judgment was rendered can- >^ r" 1 Ace. Thrasher v. Everhart, 3 G. & J. 234 ; P.rondhcad v. Noyes, 9 Mo..55^; Andrews v. Herriott, 4 Cow. 508. See Williams v. Haines, 27 la. 251 . — Ed. CHAP, v.] MINERAL POINT RAILROAD CO. V. BARRON. 531 colling the judgment in favor of defendants against plaintiff. The defendants appeal.^ Day, C. J. So far as we are advised it has never been the under- standing of the profession nor of the business community in this State that warrants of attorney to confess judgment had any place in our law.^ A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of this State. Parties cannot by contract-.made in another State engraft upon our procedure here, remedies which our laws do not^ contemplate nor authorize. We are fully satisfied that the demurrer to the petition was properly overruled. Affirmed. V /^ /J MINI ^i,r^ < ft'^ -<^^;i-'^^-Xy<^ MINERAL POINT RAILROAD C f '«»» - Supreme Court of Illinqjs. ''XyLA.,'C'^JLC>L'0\ [Reported 83 Illi^i365.] Craig, J.^ Under the laws of Wisconsin, had the proceedings been instituted in that State, the wages of the defendant in the original ac- tion were exempt from garnishment, and it is urged by appellant, that, as the parties resided in that State and the debt was there incurred, the exemption laws of Wisconsin must control, although the proceedings for the collection of the debt were commenced in this State. It is true, the validity of a contract is to be determined by the law of the place where it is made, but the law of the remedy is no part of the contract, as is well said by Parsons on Contracts, vol. 2, page 588 : "But on the trial, and ia respect to all questions as to the forms or mctliods, or conduct of process or remedy, theJaw^of the place of tha forum is applied." • In Sherman v. Gassett, 4 Oilman, 521, after referring to a number of cases in illustration of the rule, it is said : " The cases above referred to, although not precisely analogous, yet settle the principle that the lex loci only governs in ascertaining whether the contract is validj and wTiat tbe words of the contract mean. When the question is settled that the contract of the parties is legal, and what is the true interpreta- tion of the language employed by the parties in framing it, the lex loci ceases, and the lex fori steps in and determines the time, the mode, and the extent of the remed}'." Statutes of limitations fixing the time within which an action may be brought, laws providing for a set-off in certain actions, and statutes providing that certain articles of personal property, wearing apparel, 1 The statement of facts has been abridged, and part of the opinion omitted. — Ed, 2 Part of the opinion only is given. — Ed. C'&l.^-CSL- r \ 532 GIBBS V. HOWARD. [CHA.P. V. farming implements, and the tools of a mechanic shall be exempt from levy and sale upon execution, have always, so far as our observation goes, been regarded by courts 'as regulations affecting the remedy which might be enacted by each State, as the judgment of the legislature might think for the best interests of the people thereof. Bronson v. Kinzie, 1 Howard, 311. The statute of Wisconsin, under which appellant was not liable to be garnisheed, was a law affecting raerelj' the remedy where an action should be brought in the courts of that State. That law, however, can- not be invoked where the remedy is sought to be enforced in the courts of this State. The remedy must be governed by the laws of the State where the action is instituted.^ . c^ ri^ action is instituted.^ ^vvAA>6^ ^ yij^^-^^ ^^^ Aa.^^^\> WVvV ^oK ^ "^'^ ^^ ^ AMQ VD GIBBS y. HOWARD. Court of Judicature, New Hasipshire. 1820. This was an action of assumpsit upon a note of han^l dated Septem- ber 29, 1817, for $57,tiiade by Howard, and payable t(!» Alnion Burgess, or order, in the month of April, 1818 ; and on the 3lst of October, 1817, indorsed by Burgess to Patience Cone, then sole, now the wife of Gibbs, the plaintiff. The defendant pleaded the general issue, and gave notice of a set-off consisting of three notes of hand, made by Almon Burgess, and pay- able to three several persons, and by them indorsed to the defendant, November 1, 1817. The cause was submitted to the decision of the court upon the fol- lowing facts. The note described in the declaration was made bv Howard, and at the time when made, the original jiarties to it were both inhabitants of the State of Vermont. The same note was for a valuable consideration indorsed to Patience Cone, then an inhabitant of Vermont, before it became due, and before the defendant had any inter- 1 Ace. Chic, R. I. & P. Ry. v. Sturm, 174 U. S. 170 ; Boykin v. Edwards, 21 Ala, 261 ; Broadstreet v. Clark,"65 la. 670; B. & M. R. R. v. Thompson, 31 Kan. 180, 1 Pac. 622 ; Morgan v. Neville, 74 Pa. 52. But see Mo. P. Ry. v. Sharitt, 43 Kan. 385, 23 Pac. 430 ; Drake v. L. S. & M. S. Ry., 69 Mich. 168, 179, 37 N. W. 70. In the last case, Morse, J., said : " It must be held, I think, not only as a matter of sim- ple justice, but as sound law, which means justice, that where the creditor, debtor, and garnishee, at the time of the creation of both debts, are all residents and doing business in Indiana, and both debts are created, and intended to be payable, in that State, the exemption of wages is such an incident and condition of the debt from the employer that it will follow the debt, if the debt follows the person of the garnishee into Mi(;hi- gan, and attach itself to every process of collection in this State, unless jurisdiction is obtained over the person of the principal debtor; that it becomes a vested right in rem, which follows the debt into any jurisdiction where the debt may be considered as going. — Ed. CHAP, v.] TOWXSEND V. JEMISON. , 533 est in the notes mentioned in the set-off. Gibbs is an inhabitant of Massachusetts. There is a statute of Vermon t, passed on the 31st October, 1798, by which it is enacted, *' that in all actions on indo rsed "^ notes ^it shall be lawful for the defendant to plead an offset of all de- /*/( mands proper to be plead in offset which the defendant may have • against the original payee, before notice of such an indorsement V^cvV'*^* against the indorsee, and may also plead or give in evidence on the trial of any such action, any matter or thing which would equitably dis- charge the defendant in an action brought in the name of the original /, payee." And it was agreed, that if the court should be of opinion that the defendant could not avail himself of the set-off filed in the case, judg- ment should be rendered for the plaintiffs for the amount of the note described in the declaration. By the Court. It is very clear that the notes, which the defendant holds against Burgess, are not a legal set-off in this action by the laws of this State ; and it is equally clear, that we can take no notice of the statute of Vermont. The /ere loci must settle the nature, validity, an d interpretation of contractsb, but it extends no furt her. The law s of the State in which contracts are attempted to be enforced, must settle wkat is the proper course of judicial proceedings to enforce them. The stat- ute of Vermont relates merely- to the remed}', by which a contract may be enforced. There must, therefore, according to the agreement of the parties, be . Judgment for the 2^lns et vwdicm actionis instltuendce and not ad valorem C07itractus. Williams v. CIIAP. v.] TOWNSEND V. JEMISON. 535 Jones, 13 East, 439 ; Nash v. Tii[)[)er, 1 Caines, 402 ; Rnggles v. Keeler, 3 Johns. 263; PeursuU v. Dwight, 2 Mass. 84; Decouche r. Savetier, 3 Johns. Ch. 190, 218; McCkmy v. Silliraan, 3 Peters, 276 ; Hawkins v. Barne}', 5 Peters, 407 ; Bank of the United States V. Donnall}', 8 Peters, 361 ; McEhuoyle v. Cohen, 13 Peters, 312. There is nothing in Shelb}- v. Guy, H Wlieaton, 361, in conflict with what this court decided in the four last-mentioned cases. Its action upon the point has been uniform and decisive. In cases before and since decided in England, it will be found there has been no fluc- tuation in the rule in the courts there. The rale is, that the statute of limitations of the country in which the suit is brought maybe .pleadiy.1 to bar a recover}' upon a contract made out of its political jurisdiction, and that the limitation of tiie l:!X loci contractus cannot be. 2 Bing- ham, New Cases, 202, 211 ; Don v. Lii)pman, 5 Clark & Fin. 1, 16, 17. It has become, as we have already said, a fixed rule of the Jus gentium privatum, unalterable, in our opinion, either in England or in the States of the United States, except b^- legislative enactment. We will not enter at large into the learning and philosophy' of the question. We remember the caution given by Lord Stair in tlie sup- plement to his Institutes (p. 852), about citing as authorities the woi'ks and publications of foreign jurists. It is appropriate to the occasion, having been written to correct a mistake of Lord Tenterden, to whom no praise could be given which would not be deserved b}' his equally' distinguished conteraporar}', Judge Stor}'. Lord Stair says: ''There is in Abbott's Law of Shipi)ing (otli edition, p. 365) a singular mis- take ; and, considering the justly eminent character of the learned author for extensive, sound, and practical knowledge of the English law, one which ought to operate as a lesson on this side of the Tweed, as well as on the other, to be a little cautious in citing the works and pub- lications of foreign jurists, since, to comprehend their bearings, such a knowledge of the foreign law as is scarcely attainable is absolutely requisite. It is magnificent to arra}' authorities, but somewhat humili- ating to be detected in errors concerning them ; — yet how can errors be avoided in such a case, when every day's experience warns us of the prodigious study necessary to the attainment of proficiency in our own law ? Mj' object in adverting to the mistake in the work referred to is, not to depreciate the author, for whom I entertain unfeigned respect, but to show that, since even so justlj' distinguished a lawyer fails when he travels beyond the limits of his own code, the attempt must be infi- nitely hazardous with others." We will now venture to suggest the causes which misled the learned judge in Lero}* v. Crowninshield into a conclusion, that, if the question before him had been entirel}' new, his inclination would strongly lead hnn to declare, that where all remedies are barred or discharged by the lex loci contractus, an d have oper ated upon the case, then the bar may be pleaded in a foreign tribunal, to rep el any suit brought to enforce the debt. ~ ~ ' ' i^n^ 536 TOWNSEND V. JEMISON. [CHAP. V. We remark, first, that onl}' a few of the civilians who have written upon the point differ from tlie rule, that statutes of limitation relate to the remedy and not to the contract. If there is any case, eitlier in oui'ownorthe English courts, in which the point is more discussed than it is in Leroy v. Crowninshield we are not acquainted with it. In every case but one, either in England or in the United States, in which the point has since been made, that case has been mentioned, and it has carried some of our own judges to a result which Judge Story himself did not venture to support. We do not find him pressing his argument in Lero}' v. Crowninshield in the Conflict of Laws, in which it might have been appropriately done, if his doubts, for so he calls them, had not been removed. Twenty years had then passed between them. In all that time, when so much had been added to his learning, reall}' great before, that by common consent he was estimated in jurisprudence ^:>ar sunimis^ we find him, in the Conflict of Laws, stating the law upon the point in opposition to his former doubts, not in deference to authority alone, but from declared conviction. The point had been examined b}' him in Leroy v. Crowninshield without any consideration of other admitted maxims of international jurisprudence, having a direct bearing upon the subject. Among others, that the obligation of every law is confined to the State in which it is established, that it can only attach upon those who are its subjects, and upon others who are within the territorial jurisdiction of the State ; that debtors can only be sued in the courts of the jurisdic- tion where they are ; that all courts must judge in respect to remedies from their own laws, except when conventionally, or from the decisions of courts, a comity has been established between States to enforce in the courts of each a particular law or principle. When there is no l)Ositive rule, affirming, denying, or restraining the operation of foreign laws, courts establish a comity for such as are not repugnant to the polic}' or in conflict with the laws of the State from which \hey derive their organization. We are not aware, except as it has been brought to our notice by two cases cited in the argument of this cause, that it has ever been done, either to give or to take away remedies from suitors, when there is a law of the State where the suit is brought which regulates remedies. But for the foundation of comitv, the man- ner of its exercise, and the extent to which courts can allowably carry it, we refer to the case of the Bank of Augusta v. Earle, 13 Peters, 519, 589 ; Conflict of Laws, Comity. From what has just been said, it must be seen, when it is claimed that statutes of limitation operate to extinguish a contract, and for that reason the statute of the State in which the contract was made may be pleaded in a foreign court, that it is a point not standing alone, disconnected from other received maxims of int(M*national jurisprudence. And it may well be asked, before it is determined otherwiso, whether contracts by force of the difl'erent statutes of limilations in States are CHAP, v.] TOWNSEND V. JEMISON. 537 not exceptions from the general rule of the lex loci contractus. There are such exceptions for dissolving and discharging contracts out of tlie jurisdiction in which they were made. The limitations of remedies, and the forms and modes of suit, make such an exception. Confl. of Laws, 271, and 524 to 527. We may then infer that the doubts expressed in Leroy v. Crowninshield would have been withheld if the point had been considered in the connection we have mentioned. We have found, too, that several of the civilians who wrote upon the question did so without having kept in mind the difference between the positive and negative prescription of the civil law. In doing so, some of them — not regarding the latter in its more extended signifi- cation as including all those bars or exceptions of law or of fact wliich may be opposed to the prosecution of a claim, as well out of the juris- diction in which a contract was made as in it — wore led to the conclu- sion, that the prescription was a part of the contract, and not the denial of a remed}' for its enforcement. It may be as well here to state the difference between the two prescriptions in the civil law. Positive, or the Roman usucaptio, is the acquisition of property*, real or personal, immovable or movable, by the continued possession of tlie acquirer for such a time as is described by the law to be sufficient. Erskine's Inst. 556. '•'• Adjectio domiaii per coiitinuationem, 2^osses sionis temporis legi dejiniti.'" Dig. 3. Negative prescription is the loss or forfeiture of a right by the pro- prietor's neglecting to exercise or prosecute it daring the whole period which the law hath declared to be sufficient to infer the loss of it. It includes the former, and applies also to all those demands which are the subject of personal actions. Erskine's Inst. 560, and 3 Burge, 26. Most of the civilians, however, did not lose sight of the differences between these prescriptions, and if their reasons for doing so had been taken as a guide, instead of some expressions used by them, in respect to what may be presumed as to the extinction or pa3'ment of a claim, while the plea in bar is pending, we do not think that an}' doubt would have been expressed concerning the correctness of their other conclu- sion, that statutes of limitation in suits upon contracts only relate to the remed}'. But that was not done, and, from some expressions of Pothier and Lord Kames, it was said, " If the statute of limitations does create, joropWo vigore, a presumption of the extinction or payment of the debt, which all nations ought to regard, it is not easy to see why the presumption of such payment, thus arising from the lex loci con- tractus, should not be as conclusive in every other place as in the place of the contract." And that was said in Leroy v. Crowninshield, in op- position to the declaration of both of those writers, that in any other place than that of the contract such a presumption could not be made to defeat a law providing for proceedings upon suits. Here, turning aside for an instant from our main purpose, we find the beginning or source of those constructions of the English statutes of limitation which almost made them useless for the accomplishment of their end. 538 TOWNSEND V. JEMISON. [CHAP. V. Within a few years, the abuses of such constructions have been much corrected, and we are now, in the Englisli and American courts, nearer to the legislative intent of such enactments. But neither Pothier nor Lord Kames meant to be understood, that the theory of statutes of limitation purported to afford positive pre- sumptions of payment and extinction of contracts, according to the laws of the place where they are made, The extract which was made from Pothier shows his meaning is, that, when the statute of limitations has been pleaded by a defendant, the presumption is in his favor that he has extinguished and discharged his contract, until the plaintiff overcomes it bj' proof that he is within one of those exceptions of the statute which takes it out of the time after which he cannot bring a suit to enforce judicially the obligation of the defendant. The extract from Lord Kames only shows what may be done in Scotland when a process has been brought for payment of an English debt, after the English prescription has taken place. The English statute cannot be pleaded in Scotland in such a case, but, according to the law of that forum, it may be pleaded that the debt is presumed to have been paid. And it makes an issue, in which the plaintiff in the suit may show that such a presumption does not apply to his demand ; and that without any regard to the prescription of time in the English statute of limita- tion. It is upon this presumption of payment that the conclusion in Leroy v. Crowninshield was reached, and as it is now universally ad- mitted that it is not a correct theory for the administration of statutes of limitation, we may say it was in fact because that theory was assumed in that case that doubts in it were expressed, contrary to the judgment which was given, in submission to what was admitted to be the law of the case. What we have said may serve a good purpose. It is pertinent to the point raised by the pleading in the case before us, and in our judgment there is no error in the District Court's having sustained the demurrer. Before concluding, we will remark that nothing has been said in this case at all in conflict with what was said by this court in Shelby v. Guy, 11 Wheaton, 361. The distinctions made by us here between statutes giving a right to property from possession for a certain time, and such as only take away remedies for the recovery of property after a certain time has passed, confirm it. In Shelby v. Guy this court declared that, as by the laws of Virginia five years' bona fide posses- sion of a slave constitutes a good title upon which the possessor may recover in detinue, such a title may be set up by the vendee of such possessor in the courts of Tennessee as a defence to a suit brouglit by a third party in those courts. The same had been previously ruled in this court in Brent v. Chapman, 6 Cranch, 358; and it is the rule in all cases where it Is declared by statute that all rights to debts due more than a prescribed term of years shall be deemed extinguished, and that all titles to real and personal property not pressed within the prescribed time shall give ownership to an adverse possessor. Such a law, though CHAP, v.] TOWNSEND V. JEMISON. 539 one of limitation, goes directl}'' to the extinguishment of the debt, claim, or right, and is not a bar to the remedy. Lincoln v. Battelle, 6 Wend. 475 ; Confl. of Laws, 582. In Lincoln v. Battelle, 6 "Wend. 475, the same doctrine was held. It is stated in the Conflict of Laws, 582, to be a settled point. The courts of Louisiana act upon it. We could cite other instances in wbicli it has been announced in American courts of the last resort. In the cases of De la Vega v. Vianna, 1 Barn. & Adol. 284, and the British Linen Compan}' v. Drummoud, 10 Barn. & Cres. 903, it is said that, if a French bill of exchange is sued in P^ngland, it must be sued on according to the laws of England, and there the English statute of limitations would form a bar to the demand if the bill had been due for more than six years. In the case of Don v. Lippman, 5 Clark & Fin. 1, it was admitted by the very learned counsel who argued that case for the defendants in error, that, though the law for expounding a contract was the law of the place in which it was made, the remedy for enforcing it must be the law of the place in which it is sued. In that case will be found, in the argument of Lord Brougham before the House of Lords, his declaration of the same doctrine, sustained b}- very cogent reasoning, drawn from what is the actual intent of the parties to a contract when it is made, and from the inconveniences of pursuing a different course. In Beckford and others v. Wade, 17 Vese}', 87, Sir William Grant, acknowledging the rule, makes the distinction between statutes merely barring the legal remedy and such as prohibit a suit from being brought after a specified time. It was a case arising under the possessory law of Jamaica, which converts a possession for seven years under a deed, will, or other conveyance, into a positive absolute title, against all the world, — without exceptions in favor of an}- one or any right, however a party may have been situated during that time, or what- ever his previous right of property may have been. There is a statute of the same kind in Rhode Island. 2 R. I. Laws, 363, 364, ed. 1822. In Tennessee there is an act in some respects similar to the possessory law of Jamaica; it gives an indefeasible title in fee simple to lands of which a person has had possession for seven years, excepting only from its operation infants, feme coverts, 7}on compotes menu's, persons im- prisoned or beyond the limits of the United States and the territories thereof, and the heirs of the excepted, provided they bring actions within three years after they have a right to sue. Act of November 16, 1817, ch. 28, §§ 1, 2. So in North Carolina there is a provision in the act of 1715, ch. 17, § 2, with the same exceptions as in the act of Tennessee, the latter being probably copied substantially from the former. Thirty years' possession in Louisiana prescribes land, though possessed without title and mala. fide. We have mentioned those acts in our own States only for the pur- pose of showing the difference between statutes giving title from posses- sion, and such as only limit the bringing of suits. It not tinfrequently happens in legislatiou that such sections are found in statutes for the 540 THE HARRISBURG. [cHAP. V. limitation of actions. It is, in fact, because they have been overlooked that the distinction between them has not been recognized as much as it ought to have been, in the discussion of the point whether a certain time assigned by a statute, within which an action must be brought, is a part of the contract, or solel}' the remedy. The rule in such a case is, that the obligations of the contract upon the parties to it, except in well-known cases, are to be expounded by the lex loci contractus. Suits brought to enforce contracts, either in the State where they were made or in the courts of other States, are subject to the remedies of the forum in which the suit is, including that of statutes of limitation. Judgment affirmed^ THE HARRIS BURG. Supreme Court of the United States. 1886. [Reported 119 United States, 199.] hisi s a suit in rem b egun in the District Court of the United Stately for the Eastern District of Pennsylvania, on the 25th of February, 1882, against the steamer " Harrisburg," by the widow and child of Silas E. Rickards, deceased, to recover damages for his death caused by the negligence of the steamer in a collision with tlie schooner " Marietta Tilton," on the 16th of May, 1877, about one hundred yards from the Cross Rip Light Ship, in a sound of the sea embraced between the coast of Massachusetts and the Islands of Martha's Vineyard and Nantucket, parts of the State of Massachusetts. The steamer was en- gaged at the time of the collision in the coasting trade, and belonged to the port of Philadelphia, where she was duly enrolled according to the laws of the United States. The deceased was first officer of the schooner, and a resident of Delaware, where his widow and child also resided when the suit was begun. The jtatutes of Penns^dvania in force at the time of the collision ^ provided that, " whenever death shall be occasioned by unlawful vio- lence or negligence, and no suit for damages be brought by the party ( injured, during his or her life," "the husband, widow, children, ov / parents of the deceased, and no other relative," "may maintain an action for and recover damagesffor the death thus occasioned.'^ ♦' The action shall be brought within one year after the death, and not there- ^ after." Brightly's Purdon's Dig. 11th ed., 1267, §§ 3, 4, 6 ; Act of April 15, 1851, § 18 ; Act of April 6, 1855, §§ 1, 2. 1 Ace. Don V. Lipptnan, 5 CI. & Fin. 1 ; Alliance Bank v. Carey, 5 C. P. D. 429 ; Bank of U. S. v. Donnally, 8 Pet. 361 ; Burgett v. Williford, 66 Ark. 187, 19 S. W. 750 ; Atwater v. Townaend, 4 Conn. 47 ; Collins v. Manville, 170 111. 614, 48 N. E. 914 ; Labatt v. Smith, 88 Ky. 699 ; Pearsall v. Dwight, 2 Mass. 84 ; Perltins r. Guy, 65 Miss, 163 ; Carson v. Hunter, 46 Mo. 467 j Warren v. Lynch, 6 Johns. 239 ; Watson V. Brewster, 1 13arr, 881. — Ed. ^ A I CHAP, v.] THE HAERISBURG. 541 B}' a statute of Massachusetts relating to railroad corporations, it was provided that " if, by reason of the negligence or carelessness of a corporation, or of the unfitness or gross negligence of its servants or. agents while engaged in its business, the life of any person, being in. the exercise of due diligence, ... is lost, the corporation shall be pun- ished b}' a fine not exceeding five thousand nor less than .fixe hun- dred dollars, to be recovered by indictment and paid to the executor, or administrator for the use of the widow and children." ...''• Indict- ments against corporations for loss of life shall be prosecuted within one year from the injury causin, . . .. ^J" y^ 548 KOADLEY \,'-\^ y^LT^S^ NORTjHERN TRANSPORTATION CO. [( CHAP. r v.. (I the loss was nc/t caused %iKis ^^i negligence, on the ground that such acceptance would authorize him to infer assent, and amount to evidence of the contract between the parties. The defendant contends that the case is to be tried b^' the law of this Commcjn wealth. It is a general rule that personal contracts must have the same inter- pretation and binding force in all countries which the}' have in the J, lace where made. The contract is presumed to have been entered into with reference to the law of that place. If formalities and solemni- ties are there required to give validitv to it, the requirement must be shown to have been observed. But the law of the place where the action is brought, b}- the same general rule, regulates the remedy and all the incidents of the remedy upon it. The law_ of the former place deteriniaes tlie right ; the law of the latter controls the admission o fT ^evideiice. aud-prescribes the mooes ofTproo f-b}- wfait;h the terms of the contracLMeJMld^J\3?jyil-i^^ as the form of the actioji by which it is enforced ; Thus in a suit in Connecticut against the in- dorser on a note made and indorsed in New York, it was held that parol evidence of a special agreement different from that implied by law would be received in defence, although by the law of the latter State no agreement different from that which the law implies from a blank indorsement could be proved by parol. Downer v. Chesebrough, 36 Conn. 39. And upon the same principle it has been held that a^ contract valid by the laws of the place where it is made, although not in writing, will not be enforced in the courts of a countr}- where the statute of frauds prevails unless it is put in writing as required. Leroux V. Brown, 12 C. B. 801. So assumpsit was held to lie in New York on an undertaking in Wisconsin contained in a writing having a scrawl and no seal affixed to the defendant's name, although in the latter [I State it had in pleadings and in evidence the effect of a seal. Le Roy V. Beard, 8 How. 451. The statute of limitations for the same reasons affects only the remedj, and has no extra-territorial force. It is not always indeed eas\' to determine whether the rule of law sought to be applied touches the validity of the contract or only the remedy upon it. In the opinion of the court, the rule of law laid down in Illinois and here relied on by the plaintiff affects the remedy only, and ought not to control the courts of this^Commonwealth. The nature and validity of the special contract set up is the same in both States. It is only a difference in the mode of proof. A presumption of fact in one State is held legally sufficient to prove assent to the special con- tract relied on to support the defence. In the other State it is held not to be sufficient. It is as if proof of the contract depended upon the testiinon}' of a witness competent in one place and incompetent in the other. The instructions given at the trial upon this point did not conform to the view of the law above stated, in which, upon more full consideration, we all concur. Exceptions sustained.^ 1 Ace. .Tolinson v. C. & N. W. Ry., 91 la. 248, 59 N. W. 66. Contra, Tenconi v. Terzaghi (Turia Casa. 7 July, 1887), 15 Clunet, 426. Lord Brougham in Baiu v. i ^Z::^ Ca^ <^ CHAP, v.] PECK V. MAYO. o49 PECK V. MAYO. Supreme Court, Vermont. 1842. [Reported 14 Vermont, 33] X Redfield, J.^ This action is upon a promissory note, made in Mon- ( treal, where the legal rate of interest is six per cent, payable at the M. & \ F.'s bank, in the city of Albany, where the legal rate of interest is 1 sevep per cent, and indorsed by the defendants in this State, where y the legal rate of interest is six per cent. This action being against the "^ defendants, as iudorsers, tiie only question is, what rate of interest are they liable for? T^he note was payable at a day certai_n, but no interest stipulated in the contract. The interest cla imed is fo r damages in \ not paying the money when due. \ The first question naturally arising in this case is, what rate of inter- est, by way of damages, are the signers liable for? There are fewer decisions to be found in the books, bearing directl}' upon this subject, than one would naturally have expected. It is an elementary principle, upon this subject, that all the incidents pertaining to the validity and' construction, and especially to the discharge, performance, or satisfaction of contracts, and the rule of damages for a failure to perform such con- tract, will be governed by the lex loci contractus. This term, as is' well remarked by Mr. Justice Stor>', in his Conflict of Laws, 248, may have a double meaning or aspect ; and that it ma}- indifferently indicate the place where the contract is actually made, or that where it is vir- tually made, according to the intent of the parties, that is, the place of performance. The general rule now is, I apprehend, that the latter is the governing law of the contract. Hence the elementary principle undoubtedly is that the rate of intejiest, whether stipulated in the con- tract or given by way of damages for the non-performance, is the^i- terest of the place of payment. "We will next examine whether an}- positive rule of law has been established contravening this principle, 2 Kent Com. 4G0, 461. Chan- cellor Kent expressly declares that this elementary principle is now the " received doctrine at Westminster Hall," and cites Thompson v. Whitehaven, &c. Ry., 3 H. L. C. 1, 19, said : "The law of evidence is the lex fori which governs the courts. Whether a witness is competent or not ; whether a certain matter requires to be proved by writing or not ; whether certain evidence proves a cer- tain fact or not : This is to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it." So if a stamp is required for admitting any document in evidence, even a foreign document must be stamped before it will be admitted ; while a document valid but in- admissible, under this rule, where made, may be admitted in another State not requir- ing a stamp. Bristow v. Sequeville, 5 Ex. 275 ; Fant v. Miller, 17 Grat. 47 ; Murdock V. Roebuck, 1 Juta (Cape Colony), 1 ; Dearsley v. Rennels (Ghent, 7 Dec. 1876), 6 Clunet, 509. — Ed. 1 Part of the opinion only is given. —En. 550 PECK V. MAYO. [chap. V. Powles, 2 Simons' R. 194 (2 Cond. Ch. R. 378). This case does not necessarily decide this point, but tlie opinion of the Vice Chancellor expressly recognizes the rule, that, although the rate of interest stipu- lated is above the English interest, still the contract will not be usurious, unless it appear to be a contract made in England and there to be performed. The case of Harvey v. Archbold, 1 Ryan & Moody, 184 (21 Eng. C. L. 729), recognizes more expressly the same doctrine. The case of Depau v. Humphreys, 8 Martin, 1, expressly decides, that a contract made in one country, to be performed in another, where the rate of interest is higher than at the place of entering into the contract, it may stipulate the higher rate of interest. Mr. Justice Story recog- nizes the elementary rule, above alluded to, as the settled law. Con- flict of Laws, 243, 246. Similar language is adopted by Mr. Justice Thompson, Boyce v. Edwards, 4 Peters' R. Ill, and by Mr. Chief Justice Taney, in Andrews v. Pond, 13 Peters, 65, and by Chancellor Walworth, in Hosford v. Nichols, 1 Paige, 220. Much the same is said by the court in the case of the Bank of the U. S. v. Daniel, 12 Peters, 32. In many of these cases the question alluded to was not directly before the court, but, by all these eminent jurists, it seems to have been considered as one of the long settled principles of the law of contract. The same rule of damages was, in the case of Ekins v. the East India Company, 1 P. Wins. 395, applied to the tortious conversion of a ship in Calcutta, the court making the company liable for the value of the ship, at the time of conversion, and the India rate of interest for the delaj' of the payment of the money. In this case the interest allowed was greater than the English interest. When the contract is entered into in one country, to be performed in another, having established a lower rate of interest than the former, and the contract stipulates interest generally, it has always been held that the rate of interest recoverable was that of the place of perform-/ ance only. It is expressly so decided in Robinson v. Bland, 2 Bur- row, 1077 ; Fanning v. Consequa, 17 Johns. 511 ; Schofield v. Day, 20 Johns. R. 102. From all which I consider the following rules, in regard to interest on contracts, made in one country to be executed in another, to be well settled : 1. If a contract be entered into in one place to be performed in another, and the rate of interest differ in the two countries, the par- ties may stipulate for the rate of interest of either country, and thus by their own express contract, determine with reference to the law of ^ which country that incident of the contract shall be decided. 2. If the contract, so entered into, stipulate for interest generall}', it shall be tTie [ rate of interest of the place of paj'ment, unless it appear the par- / ties intended to contract with reference to the law of the other place^ 3. If the contract be so entered into, for mone3^ payable at a place on aJ^ day certain, and no interest be stipulated, and payment be delayed, interest, by way of damages, shall be allowed according to the law of the place of payment, where the money may be supposed to have been CHAP.^V.] AYER V. TILDEN. 551 required b}' the creditor for use, and where he might be supposed to have borrowed money to suppl}' the deficiency thus occurring, and to have paid the rate of interest of that country. This is expressly recog- nized as the settled rule of law, in regard to the acceptor of a bill, who stands in the place of the maker of these notes. 3 Kent's Com. IIG.^ AYER V. TILDEN. Supreme Judicial Court of Massachusetts. 1860. [Reported 15 Gray, 178.] Action of contract upon this promissory note, made and indocsed by the defendants: "$670.81. New Lebanon, 20th June, 1857. Six^ months after date we promise to pay to the order of ourselves six hundred and sevent}' dollars and eightj'-one cents, value received, ^t Bank of America, N. Y. Tilden & Co." The parties stated the following case, upon which the Superior Court in Middlesex gave judgment for the defendants, and the plaintiffs appealed. '^ Hoar, J. The plaintiffs are entitled to recover, according to the agreement of parties, the principal of the note, with interest at such a rate as the law will allow. That rate will be six per cent from the maturit}' of the note. The interest is not a sum due by the contract, I for by the contract^ no interest was payable, and is not therefore I affected by the law of the place of contract. It is given as damages / for the breach of contract, and must follow the rule in force within tjie / jurisdiction where the judgment is recovered. Grimshaw v. Bender, 6 Mass. 157 ; Eaton v. Melius, 7 Gra}', 566 ; Barringer v. King, 5 Gray, 12. The contrary rule has been held to be applicable where there was an express or implied agreement to pay interest. Winthrop v. Carleton, 12 Mass. 4; Von Hemert v. Porter, 11 Met. 220; Lanusse V. Barker, 3 Wheat. 147. Perhaps it would be difficult to support the decision in Winthrop Vy. Carleton upon any sound principle ; because the court in that case held that interest could onh* be computed from the date of the writ, thus clearly showing that it was not considered as due by the contract, and yet adopted the rate of interest allowed at the place of the contract.^ But the error would seem to be in not treating mone}', paid at the implied request of another, as entitled to draw interest from the time of ixiyment. 1 Ace. Gibbs v. Fremont, 9 Ex. 25; Ex parte Heidelback, 2 Low. 526; Ballister v. Hamilton, 3 La. Ann. 401; Fanning i>. Consequa, 17 Johns. 511; Raymond v. Messier (French Cass. 9 June, 1880), 7 Chinet, 394.— Ed, 2 Only so much of the case as deals with the rate of interest is given — Ed. / 552 COMMERCIAL NATIONAL BANK V. DAVIDSON. [CHAP. V. An objection to adopting the rule of the rate of interest in the juris- diction where the action is brought as the measure of damages maj' be worth}' of notice, that this rule would allow the creditor to wait until he could find his debtor or his property within a jurisdiction where a much higher rate of interest was allowed than at the place of the con- tract. But a debtor could always avoid this danger by performing his contract ; and the same difficulty exists in relation to the actions of trover and replevin. If such a case should arise, it might with more reason be argued that the damages should not be allowed to exceed those which would have been recovered in the State where the contract was made and to be performed.^ COMMERCIAL NATIONAL BANK v. DAVIDSON. Supreme Court of Oregon. 1889. [Reported 18 Oregon, 57.] Thayer, C. J.^ . . , It is stipulated in the note to the effect that if it is not paid at maturity, the makers will pay ten per cent additional as costs of collection. ... It is ray opinion that a clause in a promissory note, in the form of the stipulation in question, is not valid, and should not be enforced. . . . Counsel for the respondent insists that the stipulation to pa}- the additional sum contained in the note in suit was valid and bindino- in the Territor}' where the note was executed, and that therefore it should be upheld in this State. As a general rule, the law of the place where contracts merel}' personal are made, governs as to their nature, obli- - gation, and construction. But I do not think that rule applies to an agreement, the obligation of which does not arise until a remed}' is sought upon the contract, to which it is onlj* auxiliar}'. In regard to . such agreements, the law of-tlia.place where thej- are attempted to be / 1 See Kopelke v. Kopelke, 112 Ind. 435. In Meyer v. Estes, 164 Mass. 457, 465, Field, C. J., said : "In determining the measure of damages the first question is whether the contract is to be governed by the law of Massachusetts or by the law of the kingdom of Saxony. We think that it is to be governed by the law of Massachusetts. Tlie contract was signed in Massachusetts and sent to the plaintiff at Leipzig, Saxony ; it did not become a contract until the plaintiff accepted it and notified the defendants of such acceptance, which he did by telegram sent to them at Boston. Lewis v. Browning, 130 Mass. 173 ; Pine v. Smith, 11 Gray, 38 ; Hill v. Chase, 143 Mass. 129. The contract relates to what is to be done by the defendants in the United States of America ; the defendants are described as 'of Boston, Mass., U. S. A.,' and the date of the contract is Boston. We think that it must be regarded as a contract to be performed in Massachusetts, and that the ■law of Massachusetts, which is also the law of the forum, must determine the damages to be recovered in the action." — En. * Only 80 much of the opinion as deals with the question of costs is given. — Ed. CHAP, v.] COMiMERCIAL NATIONAL BANK V. DAVIDSON. 553 enfoi:pccl, I should suppose, would prevail. This agreement was to pa}' the additional percentage as costs for collection of" the note, and if the courts where the note was executed would have enforced the asree- nient, it does not follow that the courts of another jurisdiction are bound to do so. 'rhe_fiirect of the agreement was to provide for,an increase of costs, which are only incidental to the judgment, and the allowance of which must necessarily depend upon the law of the forum. A stipulation in a note made in Utah Territory, providing that in an action on the note the plaintiff, in case of a recover}', should be entitled to double costs, might be considered valid under the laws of that Ter- ritory, and enforceable in its courts ; but that certainly would not ren- der it incumbent upon the courts of this State, in an action upon such note, to award double costs. ^ 1 Ace. Security Co. v. Eyer, 36 Neb. 507, 54 N. W. 838. — Ed. /CiAX' KJi^i/. /^^, / v>-^^'^ ,^*-t,-M.,-L^7 ^"^^^-"^ University of California Library Los Angeles This book is DUE on the last date stamped below. MAY 2 Imi LAW LIBRARY RECEIVED JUN 3 1997 315 lu unive: VRY V .^^ \ <5 \^^ .<^^ HiHAlU I ACUITY AA 000 592 817 1 1 :,iir mv. i iiiii 'r •m§m^ II :ii!iit!«ll! mma