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NIVERSAL 







A TREATISE 


ON 

PRIVATE INTERNATIONAL LAW 

WITH PRINCIPAL RRFERENGE TO ITS 
PRACTICE IN ENGLAND. 


BY 

The late John westlake, k.o., i.ld., 

WHKVVELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OP CAMBRIDGE 
HONORARY FELLOW OF TRINITY COLLEGE, CAMBRIDGE, HON. D.C L. OXFORD 
AND LL.D. EDINBURGH , FORMERLY MEMBER OP THE PERMANENT 
COURT OF ARBITRATION AT THE HAGUE, HONORARY PRESI- 
DENT OP THE INSTITUTE OP INTERNATIONAL LAW. 


SIXTH EDITION 


BV 

NORMAN RENTWICH, 

BARRISTER-AT-LAW, LEGAL SECRETARY TO THE GOVERNMENT 
OF PALESTINE , LATE WHEWKLL SCHOLAR IN THE 
UNIVERSITY OF CAMBRIDGE 


LONDON : 

SWEET & MAXWELL, LIMITED, 

3 CHANCERY LANE, W.C. 2. 


1922 



First Edition. 

By the Author ... 

1858 

Second Edition. 

,, ») 

1880 

Third Edition. 

n 

1890 

Fourth Edition. 

n >1 

1905 

Fifth Edition. 

„ „ assisted by A. F. Topham .. 

1912 



( iii ) 


PREFACE TO THE SIXTH EDITION. 

In the last edition of his Treatise on Private Inter- 
national Law, which was published in 1912, Professor 
Westlake was assisted by Mr. Topham, who, owing to 
pressure of other work, has been unable to take any 
part in preparing this present edition. Westlake before 
his death had expressed a wish that I should help to bring 
his treatise up to date when the occasion arose ; and 
although many circumstances have made it difficult to 
do the work with the full devotion which it called for, 
and, except for short periods, I have been far, during 
recent years, from a law library, yet a feeling of pietas 
towards my teacher has impelled me to do what I could 
in fulfilling his wish. 

The number of important decisions which have been 
given upon the subject by the English Courts during 
the last decade is remarkable ; and one cannot read the 
Law Reports of more recent years without being struck 
with the extent to which the Courts are called upon to 
consider foreign systems of law. As the Empire grows 
in population and diversity, and as commerce and in- 
dustry become more and more international, conflicts of 
law are bound to increase, and it becomes ever more 
desirable that England should take her part, as Professor 
Westlake constantly urged, in International Conferences 
for establishing common principles in dealing with these 
conflicts. 

I have not made any changes in the arrangement 
of the work nor added any fresh chapters, and for the 
most part I have preserved Westlake’s text and made 
^uch modifications only as the alterations in the Statute 
Law and the decisions of the Courts have required* 

• W.I.L. h 



IV 


PREFACE TO THE SIXTH EDITION. 


But a number of sections have had to be modified, and 
on four topics in particular the changes have been ^o 
substantial that the text has been completely re-written*. 

1. The British Nationality Acts of 1914 and 1918 have 
changed fundamentally the Rules about Nationality as 
set out in Westlake’s Chapter. 

2. The decision of the House of Lords in the case 
of Casdagll v. Casdagli, which is indeed in the sense 
in which Westlake advocated that the law should be 
interpreted, has called for a re-statement of the rules 
as to domicile in Oriental countries. 

3. The decision of the House of Lords in the case 
of The Continental Tyre Company v. Daimler Company, 
given during the War, has established a new doctrine in 
England concerning the character of trading companies. 

4.. The Bankruptcy Act of 1914 lias involved a re- 
slatenmnt of several of the rules of English Private 
International Law on that subject. 

Other matters in which the decisions given, or the 
rules issued, have called for modification are : service of 
the writ out of the jurisdiction, execution of foreign 
judgments, determination of the rate of exchange in 
an action involving foreign law, and exterritoriality of 
public vessels. 

I have not cut short the historical argument and the 
logical reasoning of Westlake set out in former editions, 
because his Treatise is not designed simply as a note- 
book of cases but, rather, as the Treatise of a Juris-consult; 
and it w^ld be wrong to change its character. At the 
same timelj I have in some instances shortened his 
statement #4 particular cases where the full facts appear 
^Qo longer to be essential to the argument, in order that 
the bulk of the book should not be excessively increased. 
In one or two sections I have changed his statement, 
not on accoxint of more recent decisions, but ^because 
his guarded language can now, by the passagd of time, 



PREFACE TO THE SIXTH EDITION. 


be made more definite. I would mention in particular 
the rule regarding the effect of the marriage contract 
on the immovable property of the spouses, on which 
the authoritative criticism of Professor Dicey justifies 
the more certain definition of what Westlake had left 
indefinite. 

Undoubtedly Westlake’s expression of the law, ever 
concise and exact, is not too easy reading, and requires 
careful thought to understand it; but the principles of 
this difficult branch of law cannot be mastered without 
effort, and I have not thought it desirable to change his 
wording, except where the matter has been dealt with by 
subsequent decisions. I am very conscious that, where 
it has fallen to me to state a nde afresh, I have not 
been able to reproduce adequately the exact and 
accurate method of my master. 

I owe a debt of gratitude to my father Mr. Herbert 
Bentwich, of the Inner Temple, who, in my absence in 
a remote Provincia, has helped to see the manuscript 
through the Press. 


NORMAN BENTWICH. 


Government House, 
Jerusalem, 

June, 1922 . 




( vii ) 


EXTRACT FROM 

PREFACE TO THE FOURTH EDITION. 

The spelling domicilr, intended to rhyme with erllc, 
and corresponding with the analogy in form between 
domicilium and exilium, has been retained. It woidd 
be remarkable if domicil, which, by its analogy to exil and 
sourcil, would seem to have a French origin, should 
ultimately prevail in England, while in France the rivalry 
of the two forms has been definitely decided in favour 
of domicile. 

The following modes of citation have been employed 

Clunet : Journal du Droit International Prive et dc la. 
Jurisp'udcnce Comparee, fonde ct public, par Edouard 
Clunet ; 

Laine : Introduction au Droit International Prive, 
contenant une etude historique et critique de la thhrie des 
statute, par Annand Laine, 2 tomes, Paris, 1888, to which 
book I am greatly indebted for historical matter ; 

R. de D. I. et de L. C. : lievue de Droit International 
et dc Legislation Comparee (Bruxelles ) ; 

Syst. § 361, Guthrie 322 : Savigny’s System des heutigen 
Romisehen rechts, § 361 ; Guthrie’s translation, 2nd ed., 
p. 322. 

J. WESTLAKE. 

CBEL8EA, 

24th Jultff 1905 . 




[ « ) 



CONTENTS. 


Addenda ^ 

... 

PAGE 

... xxxvii 

Introduction 

CHAPTER 1. 

1 

CHAPTER II. 

Domicilk and Nationality — Renvoi 

23 


CHAPTER HI. 



CAi’ACITY, AND FOREIGN GUARDIANSHIRH AND CURATORSHll'S 40 


CHAPTER IV. 

Marriage, Divorce, Legitimacy. 

Marriage ... 51 

Effect of Marriage on Property ... ... ... ... 69 

Divorce 83 

Legitimacy . 99 


CHAPTER V. 

Succession to Movables on Death 105 

The Grant of Probate or Administration ... ... 109 

Validity of Wills of Personal Estate 117 

What Personal Estate passes by the Grant of Probate or Adminis- 
tration^ or must be accounted for by the English Executor or 

Administrator 124 

Princijml and Ancillary Administrations^ and Questions arising 
in Administration prior to the Distribution of the Surplus ... 130 

Distribution of the Surplus in an A d ministration 146 

CHAPTER VI. 

Bankruptcy 156 

CHAPTER VII. 

Movables 183 


CHAPTER VIII.' 


Immovaeles 


... 207 



X 


CONTENTS. 


CHAPTER IX. 

GeNFJIAL NoTIONH on JUBISmCTfON 

CHAPTER X. 

JUUIHDKTION IN EnGIAND, AND EXTERRITORIALITY 
Noti* on Actions fur Trespass to Foreign Soil 
Exterritorialiiy 


Torth 


CHAPTER XL 

CHAPTER XII. 


CONTRACTK 

Formalities of Contracts 
Interpretation of Contracts 
Intrinsic Validity and Effects of Contracts 
Bills of Exclmnge and Promissory Notes 
Obligations quasi ex contractu . . 

(IIAPTER XIII. 

Transfer anij Extinction of Obligations 

Transfer of Obligations 

Extinction of Obligations 

CHAPTER XIV. 


Domicile ... 

Connection of Domicile unih Law: Anglo-Indian^ Anglo- 
Egyptian and such-like Domiciles 

Domicile of Origin and of Persons not siii juris 

Domicile of Choice 

Itules as to Change of Domicile 

Trade Domicile in Time of W’«r ... 

CHAPTER XV. 

British Nationality 

Natural-horn Subjects at Common Law 

Natural-born Subjects by Statute 

Nattiralization^ Denization, and Jtesumptian of British Nationality 

Declaration of Alienage and ExpatiHation 

Effect of Family Relations on Nationality 

Transfer of Nationality in cases of Cession 

Under a Personal Union and after its Dissolution 

Conflicts of Nationality and Statelessness .. ... • ... 


PAGE 

225 


237 

254 

256 


267 


280 

280 

283 

285 

300 

308 


310 

312 

313 


319 

319 

330 

334 

341 

352 


354 

355 
355 
358 

361 

362 
364 

364 

365 



CONTENTS. xi 

CHAPTER XVL 

PAOR 

OORPOBATIONS AND PUBLIC InSTITI^TIONS 367 

CHAPTER XVII. 

Foreign Judgments and Proceedings 379 

CHAPTER XVIII. 

Procedure 404 

Proof of Foreign Laws * ... 407 

T^arioua 412 

CHAPTER XIX. 

Conclusion 414 


INDEX 


417 




( xiii ) 


LIST OF CASES CITED. 


[The Numbers are those of the Pages.] 


Abbott v. Abbott, 406 
Abd-ul-Messih v. Farra, 323, 325, 326, 
328, 329 

Abdy, Lee t’., 44, 203 
Abouloff V. Oppenhoimer, 397 
Acklarn, Doe v., 364 
Actiengescllschaft, &c. Cudell & Co., 
Dunlop, &c. Co. v.y 377 
Adair, Anstruthcr u., 80 
Adam, Re, 361 

V. Biitish and Foreign Steamship 

Co., 272 

Adams v. Clutterbuck, 208, 215 

, Forbes r., 208 

Adamson, Copin v , 383 
Adv.-Gen , Tliomsou v., 140 
.tineas Macdonald’s Case, 355 
Aganoor’s Trusts, He, 108 
Agnese, Re, 127 
Agnes Otto The, 270 
Agnew V. Usher, 248 
Aguilar, Geyer v., 399 
Aikman v. Aikman, 344, 360 
Aitchison V. Dixon, 346 
Aktiebolaget, Ac., Re, 252 

, Westrnan v., 239, 376 

Aktiesselskabet “ Hercules ” ly. Grand 
Trunk Pacific Railway Co , 377 
Albany Street Police Station Superin- 
tendent, R. V., 357 
Albion Insurance Co v Mills, 295 
Alcock V. Smith, 204, 302 
Aldrich V. British Griffin Iron Co., 413 
Alexander, Re, 123 

, Att.-Gcn. V., 372 

V. Vaughan, 166 

Alexander & Co. r. Valentine & Sons, 
260 

Alexandria Water Co. v. Musgrave, 373 
Alison’s Trusts, Re, 66 
Alivon V. Furnival, 169, 381, 397 
Allan, Manitoba Corporation v., 248 

, Phillips V., 316 

Allardice r. Onslow, 345 
Allardice and Onslow v. Cannoq, 36 
Allcock Coch V., 412 
Alien V. Anderson, 163, 210 

V. Cannon, 166 

V. Kemble, 305 , 308, 406 


Allen’s Will, 330 

Alliance Bank of Simla v. Carey, 283, 
314 

Alston, Trinidad Shipping Co. v , 289 
Alvares, Dillon v , 400, 401 
Alves r. Hodgson, 281, 282 
Amalia, The, 275 

American Leather Co., Ricaiid v., 200 
American Thread Co. v. Joyce, 372 
Ainsterdamsch Trustees, Diider v., 217, 
251 

Anderson, Re, 169 

, Allen , 163, 210 

, Atkinson v., 103 

V Gaunter, 128, 129 

, Dodsworth v., 166 

, Grant r., 241, 242 

V. Laneuville, 344 

, Laneuville e., 36, 114, 117 

, Lenders r., 250, 262 

, The Queen v., 204 

Andr(f‘ Chale, Ex parte, Re Artola Her- 
manos, 167 
Andros, Re, 155 
Angell, Pellecat v., 292 
Anghinelli v. Anghmelli, 91 
Anglesea, Phipps v., 216 
Anglesey, Case of Ixird, 219 
Anglo-Australian Bank, Embencos v., 
204 , 302 

Anglo-Austrian Bank, Re, 295 
Anglo-Italian Bank, Moor v., 219 
Angus 1 ’. Angus, 217 
Annette and Dora, The, 243, 257, 268 
Anonymous, 63, 146, 299 
Anstruther v. Adair, 80 

V. Chalmer, 148, 150 

Antwerp, Ac. Line, Ml & Co v., 248 
Apolhnaris Co.’s Trade Marks, Re, 413 
Apthorne, London Bank of Mexico, Ac. 
t?., 373 

Aramburu, d’, Viesca v.. Ill • , 
Archbold, Harvey v., 299 
Archer v. Preston, 219 
Argent v. Argent, 98 
Arglasse n. Muschamp, 217, 219 
Arkwright, Doe v., 364 
Armitage v. Att.-Gen., 86, 87, 94 
Armstrong v. Armstrong, 402 



LIST OF CASES CITED. 


xiv 


Armytagc v. Armytaee, 88 , 90, 91 
Arnold v. Arnold, 140, 151 
Arnott, Casey v., 248 

V. Redfem, 296, 396 

Arthur v. Hughes, 128 
Artola Hermanoa, Re, Ex parte Andr4 
Chaie, 167 

Aseguradora Espafiola, Mutzenbecher 
v., 248 

Ashburton, Baring v., 162, 163 
.Ashbury v. Ellis, 383 
Astor, Re, 116 
Atkins V. Smith, 129 
Atkinson v. Anderson, 103 

V. Recruiting Officer, Bury St. 

Edmunds, 364 

Atlas Insurance Co., Haas v., 109 
Att.-Gen. v. Alexander,. 372 

, Armitage v., 86, 87, 94 

V. Beatson, 140 

V. Bouwens, 126, 138 

, Brinkley v., 69 

V. Campbell, 148, 144 

, Campbell v., 412 

V. Cockerell, 140 

V. Dimond, 137 

V. Drapers’ Co., 248 

, P'ashendcr v., 363 

V, Eelce, 144 

V. Fitzgerald, 329 

V. Forbes, 140 

V. Glendining, 127 

V. Higgins, 138 

V. Hope, 137 

V. Jewish Colonization Associa- 
tion, 139, 144 

V. Johnson, 138, 144 

V. Kent, 349 

V. Lcpine, 371 

V. London, City of, 371 

, Markwald v., 860 

V. Mill, 211 

V. Napier, 141 

, New York Breweries v., 109, 138 

, Partington v., 138 

V. Pottinger, 350 

V. Pratt, 137, 188 

, Roberts v.. Re Johnson, 36, 38 

V. Rowe, 349, 360 

, Scott V., 88 

, Shaw V., 94, 97 

1 ’. Sturge, 371 

, Sudeley (Lord) v., 138 

V. Wahlstatt, 348 

, Wallace v., 141 

, Winans v., 127, 139 , 336 , 339, 

341, 342, 344 

Att.-Gen. of Hong Kong v. Kwok-a- 
Sing, 269 

Att.-Gen. for Ireland, Swifte v., 66 
Att -Gen. of New South Wales, Platt 
V., 346 

Att.-Gen. for Ontario, Woodruff v., 139 
Attrill, Huntington v., 382 
Anbery, Edinburgh (Provost of) v., 371 
Audley, Chetham v., 134 
Auerbach, Crozier & Co. v., 249 
August, The, 296 


Auriol V. Thomas, 308 
Australasian Investment Co., Ex parte, 
202 

Austria, Emperor of, v. Day and 
Kossuth , 206 
Ayers, Willans v., 308 
Ayton, Nouvelle Banque de I’Union v., 
408 


Bacon v. Bacon, 366 
Badart, Re, 143, 144 
Badcock v. Cumberland Gap Co., 378 
Baddeley, Willis & Co. v., 240 
Badischc Anilin, &c. v. Basel Chemical 
Works, 260, 2^8 

, Chemische Fabrik, &c. r., 260, 

262 

V. Henry Johnson & Co., 298 

Baillie v. Baillie, 133 
i Bain Whitehaven & Furness Junc- 
[ tion Railway Co., 406 

Baker, Re, 46 

, Johnstone v., 210 

Balcarres, &c. Co., Wilson & Co. v., 263 
Bald, Re, Bald v. Bald, 79 
Baldwin, Lewis v., 371 
Balfour v Cooper, 215 

V. Scott, 147, 148 

Ballantine v. Golding, 316 
Baltica, The, 362 
Baltimore, Penn v., 217, 219 
Banco de Portugal, Ex parte, 179 

V. Waddell, 179 

Bank of Africa v. Cohen, 212, 218, 294 
Bank of Australasia t\ Harding, 392, 397 

V. Nias, 392 , 396 , 397 

Bank of England, City of Berne v,, 260 

, De la Chaumette v., 312 

, Stewart t\, 264 

Bank of Montreal v. Bethune, 376 
Bank of Scotland, Logan v,, 238 , 262, 
377 

Bankes, Re, Reynolds v. Ellis, 44, 78 
Barber, Cockerell v., 134, 161 

V. Lamb, 397 

Barbuit’s Case, 266 
Barclay, Taylor v., 291 

, Thompson v., 291 

Barford v. Barford, 410 
Baring v. Ashburton, 162, 163 

, De Tastet v., 308 

V. Inland Revenue Commissioners, 

204 

Barlow’s Will, Re, 47 
Barnard, Re, Barnard v. White, 79 
I Barne, Re, 166 
I Barnes v, Vincent, 121, 122 
I Barnett’s Trusts, Re, 148 
! Baroda, Gaekwar of, Statham v., 268, 
260 

Baron Ijiebig’s Cocoa, Ac. Works, Re, 
264 

Barrett, Voinet v., 388 
Barretto v. Young, 123 
Barrington (Lord), Hood v., 211 
Barron, Gill v., 317 
Barros, de, Sottomayor v., 41, 42, o7, 
60, 62 



LIST OF CASES CITED. 


XV 


Barrow, City Bank v., 200 

t\ Myers, 249 

Barry, Brilie v., 153 

V. Van den Hurk, 299 

Barselmann, Haarlbleicher v., 304 
Bartels, Grimwood v., 212 

Bartholomay Brewing Co v. Wyatt, 373 

Bartley v. Hodges, 316 

Basel Chemical Works, Badische 

Amlin, Ac. v., 260, 298 
Bateman v. Service, 373, 376 

V. Bateman, 91, 92 

Bater v. Bater, 88, 97 , 392 , 396 
Batho, Phillips v., 90, 272 , 390 
Batthyany v. Walford, 221, 270 
Bayley v. Edwards, 221, 400 
Bazett V. Meyer, 291 

, Simeon v., 291 

Bearcrofb, Compton v. , 59, 60 
Beatson, Att.-Gen. v., 140 
Beattie, Johnstone v., 44, 45, 332 

V. Johnstone, 46 

Beauchesne, de, Hodgson v., 347, 361, 
362 

Beaufoy, Campbell v., 148 
Beaumont, lie, 332 

V. Olivera, 212 

Beavan v. Hastings, 129 
Beaver v. Master in Equity, 138 
Beazley, Conway v., 97 
Becker, Viveash v., 266 
Bcckford v. Kemble, 220 

V. Wade, 216 

Becqiiet v. MacCarthy, 385 

Bcdale, Boyes v., 155 

Begrez, Fisher v., 265 

Behrens, Castrique v., 396 

Belfast Shipowners’ Co., Re, 177 

Belgenland, The, 274 

Behsano, Lindo v., 410 

Bell A Co. V. Antwerp, Ac., Line, 248 

Bell V. Goerz A Co., 372 

V. Kennedy, 320, 340 

r. Martin, 221 

, Tyler v., 128, 129 

Bellamont, Connor v., 299 
Bellamy, Bodily v., 299 
Bempde v. Johnstone, 148, 333 
Bennett, Field v., 240 

, Holland v., 249 

Bent V. Young, 220 
Bentley v. Northouse, 312 

, Scott V., 46 

Berchtoldt, Chatfield v., 209 
Berdan v. Greenwood, 412 
Bergerem v. Marsh, 170 
Bernal v. Bernal, 161, 162 
Bernales, de, Coeio v., 44 

, National Bank of St. Charles v., 

373 

V. New York Herald, 240, 242, 

260 

Berne, City of, v. Bank of England, 
260 

Bernes, Stanley v., 119, 847 
Bertram v. Dnhamel, 800 
Be«it, Taylor v., 266 
Bethell, Re, 69 

Bethune, Bank of Montreal ii., 876 


Bevan, Scott r., 300 
Beyer Peacock A Co., Ex parte. Re 
Clark, 166 

Bianchi, Re, 116, 343 
Bjddell Bros. v. Horat A Co., 249 
Biggs V. Lawrence, 292 
Bingham, Omraaney r., 148 

, Pardo r., 136, 313 

Bingley, Waite i»., 212 
Binney, Mutrie r., 400 
Birch am, Currie v., 126 
Bird V. Sedgwick, 166 
Bird V, Thompson, 291 
Birt V. Boutinez, 98 
Birt whistle v. Yard ill, 222 , 223 
Bishop, Gresham Life Assurance Co., 
r., 373 

Black, Re, 111 

Block Point Syndicate v. Eastern Con- 
cessions, 217 

Blackburn Bobbin Co. v. Williams A 
Sons, 291 

Blackwootl r. The Queen, 138 
Blain, Ex parte, Re Sawers, 164 
Blake v. Smith, 396 
Blakeman, Hovey v., 134 
Blakes, Ex parte, 174 
Blanc, Tralford v., 106 , 396 
Bland r. IjoW, 313, 406 

, Robinson v., 288, 293 

Blessington, The Lady, 243 
Bligh, Obicini v., 385 
Blithman, Re, 169, 170 
Bloxam i’. Favre, 120 
Bockwoldt, Peruvian Guano Co. v., 
400, 402 

Bodc’s (Baron de) Case, 408, 409 
Bodily V. Bellamy, 299 
Boger V. Boger, 90, 264 
Boi88i6re A Co. v. Brockner A Co., 389, 
392 

Bold Buccleugh, The, 401 

Bolivia Exploration Syndicate, Re, 206 

Bolton, Re, 116 

Bonacina, Re, 294 , 318 

Bonaker, New v., 371 

Bond V. Bond, 89 

V. Graham, 128 

Bonelli, Re, 410 
Bonhote v. Bonhote, 409 
Bonnefoi, Re, Surrey v. Perrin, 181, 
132, 151 

Bonnell v. Preston, 240 
Bonneval, de, v. de Bonneval, 36, 118, 
362 

Booth V. Leycester, 398 
Borax Consolidated, Income, Ac., 
Trust, Ltd. V., 289 
Bos, Princess of Keuss v., 168 
Bouard, Vanquelin v., 109, 127, 383,, 
395 

Boucher v. Lawson, 291 • , 

Bouchet V. Tulledge, 382 
Boulanger, Talleyrand v., 406 
Bourgoise, Re, 46 , 357 
Bourke v. Ricketts, 146 
Boutinez, Birt v,, 98 
Bouwens, Att.-Gen. v., 126, 188 
Bowamftn v. Reeve, 146 



XVI 


LIST OF CASES CITED. 


Bowes, Re, 38 
Bowles V. Orr, 396 
Boyes v. Bedale, 155 
Boyse, He, Crofton v. Crofkon, 133, 412 
Bozzelli’s Settlement, Re^ 56, 67, 68 
Braddell. Steele v , 60 
Bradford v. Young, 151 
Bradlaiigh v De Bin, 308 
Bradshaw, Hiehardson v., 179 
Braga, The, Tlie Kepeater v., 278 
r Braidwwjd, Cowan v., 385 
Brailey v. Khodesia, Ltd., 410 
Brampton, King v., 67 
Brandon, Ex parte, 167 
Brandon’s Case, Re Marseilles Rail- 
way, 303 

Branley v. South-Eastern Railway Co., 
297 

Brazilian Telegraph Co , Chatenay v., 
290, 298 

Bremer v. Freeman, 36, 121, 334, 411 
Brennan, Roberts v , 92 
Brentano, von, Re, 114 
Brett illot r, Sandos, 406 
Brickwood v. Miller, 180 
Bridport, Nelson i’., 221, 409, 411 
Briesernan, Re, 110 
Briggs 1’. Briggs, 97 
Brightwell, Wallis n., 215 
Brigella, Th(‘, 297 
Brinkley v. Att -Oen., 69 
Bristol Steam Navigation Co., Speller 
V., 253 

Bristow V. St*(jueville, 281, 282, 410 
British Amerienn Continental Bank, 
Re, A<i(la. 

British Controlled Oilfields, Tdd. r. 
Stagg, 218, 250 

British Oriffin Co. i*. Aldrich, 413 
British and Foreign Steamship Co., 
Adam v., 272 

British Indemnity Co , Oesterreich- 
iselie Export i’., 251 
British Jjinen Co. v. Drummond, 313 
British South Africa Co., Companhia 
de Mozambique r., 218, 255 

i‘. De Beers Consolidated Mines, 

212, 217, 290, 294 
British Waggon Co r. Gray, 250 
Broad mayne. The, 267 
Broc'kner & Co., Boissiere & Co. r. , 
389, 392 

Brodhelt, Raymond r., 146 
Brodie i’. Barry, 153 
Brogden, Crozet r., 413 
Brook t>. Brook, 42, 43, 67, 68, 60 
Brcxikes r. Harrison, 199 
Brooking, Peillon t’., 44, 203 
Brown, Re, 47, 48 
— - r. Brown, 409 
— — V. C-ollins, 48 
— Collins Co. 376 

, Douglas r., 407 

r Gracey, 407 

- — V. Gregson, 164 

, Leroux r., 281, 404 

i\ Maurice, 146 

, Potter V., 316 


Brown r. Smith, 349 

, S^qiiard, Re, 36, 121 

Browne v. Phillips, 111 
Broxburn Oil Co., Biirland v., 262 
Bruce, Re, 140 , 364 

_ V Bruce, 147, 344 

, MacColl r., 122 

Brunei v. Brunei, 335 
Brunswick, Duke of, v. Hanover, King 
of, 258, 262 
Bruyere, Pepin v., 214 
Buccleugh r. Hoare, 210 
Buchanan v. Rucker, 384 

, Smith r., 316 

Bull, Sydney Municipal Council r., 221 

Bull(x*k V. Caird, 405 

Bunhiiry r Bunbury, 219 

Burbidge, Re, 44 

Burchard r. Macfarlane, 412 

Burgess, Kent v , 55 

Burke, Re, 170 

Biirland r Broxburn Oil Co , Burland’s 
Trade Mark, Re, 252 

r R.. 139 

Burn V C^ile. HI 
- r Farrar, 67 

Burnand v. Rodix’onachi, 297 
Burns, MacTver v , 242 

, New V , 412 

Tbiriows r. Jamineau, 304, 398 
Jbirslem, Lopez v., 407 
Burton r h’isher, 342 
Bury St. Edmunds Recruiting Officer, 
Atkinson v., tk)4 
Busche, von dem, Re, 116 
Biiseck, von. Re, 121 
Bute, Stuart v , 45 
Buth'r V. Freeman, 55 
Butterfield, Crquhart v , 331, 351 

C.^DRiJi r. Grant, 371 
(’ail V. Papayanni, 275 
(?aino r. Palace Steamship Co., 395 
Cainl, Bulkx’k r., 405 
Calcutta Jute Mills Co. v. Nicholson, 
373 

Caldwell r. Vanvlissengen, 272 
Caledonian Railway, Palmer v., 378 
Callandar v Dittrich, 398 
Callander, Wynne r., 293 
Callaway, Re, 116 

Callender, Sykes & Co. v. Colonial Sec. 

of Lagos, 172, 318 
Calvin’s Case, 366 , 365 
Cambefort, Russell v., 241 
Cammell e. Sewell, 195, 196, 198-200 
Campbell, Re, 252, 

r. Akt.-Gen., 412 

, Att. -Gen. v., 143, 144 

V. Beaufoy, 148 

r. Campbell, 161 

V. Dent, 294 

, Duncan v., 284 

V. Frencli, 73 

t’. Graham, 151 

, Meiklan r., 132 

V. Sandford, 151 

V. Stein, 313 



LIST OF CASES CITED. 


xvii 


Camphausen, Padley r., 239 
(Janadian Pacific Railway Co, v. 

Parent, 269 
Canham, Gold r., 394 
Cannaii, Duncan r., 44, 81 
Cannon, Allen v., 166 
Cannon, Onslow & Allardice v., 36 
Canterbury (Mayor of) t\ Wyburn, 211 
Cap Blanco, The, 401 
Capdevielle, Re, 141 
Capel, Re, 81 

Capital Fire Insurance Assn., Re, 168 
Carbery, Freke v., 211 
Carey, Alliance Bank of Simla v., 283, 
314 

Carlebach’a Case, 357 
Carl Johan, The, 273 
Carnegie, Hope v., 133, 219 
Carr r Francis Times & Co,, 270 

, The Queen v., 204 

Carrick v. Hancock, 389 
Carron Iron Co. r Maclaren, 133, 377 
Carter, San Paulo Railway Co. v., 373 
Carteret v. Petty, 218, 219, 221 

, Toller V., 220 

Cartwright, Stirling-Maxwell v., 130 

, Williams r , 252 

Caruth, Irwin r , 113 
Casdagli r. Casdagli, 321, 325, 328, 
32^), 336, 341, 34G 
Casey v. Arnott, 248 
Cash r. Kennion, 300 

, Manger v., 39tj 

Cass V. Cass, 87 
Castriquc v Behrens, 396 

Imrie, 195-197, 199, 396 

Cather\\ood, James t’., 282 
Catteriiia Chiazzaro, The, 4(X) 

Gaunter, Anderson i’., 128, 129 
Cavan v. Stewart, 384, 387, ;189 
Cayzer, Irwin & Co., John Russell & 
Co. V , 238, 252 
Cazalet, Newman v., 297 
Central Leather Co., Oetjer v., 2(X) 
Central Sugar Factories of Brazil, Re, 
176 

Cosena Sulphur Co. Nicholson, 373 
Challenge and Due D’Aumale, The, 389 
Chalmer, Anstruthcr r., 148, 150 
Chalmers v. Wingfield, ^342 

, Guthrie & Co., Thiery v., 46 

Chamberlain v. Napier, 81 
Chamberlain’s Settlement, Re, 361 
Chambres, Norris v., 218 
Champant v. Ranelagh, 299 
Obampernowne, Murray v., 209 
Chancellor, The, 278 
Channel Coaling Co. v. Ross, 250 
Chapman, Ex parte, Re Pilling, 413 

V Chapman and Buist, 89 

V. Cottrell, 304 , 307 

Charkieh, The, 257 
Chartered Mercantile Bank of India v. 
Netherlands, Ac., Navigation 
Co,, 276 , 295 

Minna Craig 8.S. Co, v., 176 

Cbatard's Settlement, Re, 48 


Chatenay i’. Brazilian Submarine Tele- 
graph Co., 290, 298 
Chatfield i*. Berchtoldt, 209 
Chaumette, Do la, r. Bank of Eng- 
land, 312 

Chavarri, Ix>|>ez v , 252 
Cheang Thye Phin i\ Tan Ah 66 
Cheetham, Tsherwood v., 117 
Cheimsche Fabrik r. Badischo Fabnk, 
250, 252 

, Saccharin Corporation Co. i’., 377 , 

Chetham i*. Aiidloy, 134 
Chetti v. Chetti, 41. 43, 58, 61. 62 
Chevalier de Mello Mattos, Ex parte, 
ISO 

Chichester r*. Donegal, 92 
Christian r. Christian, 91 
Christiana, The, 277 
Chnstiaiisborg, The, 400 
Christie, De Penny r.. 260 
(’hiirch Missionary Society, Coutts A 
Ck). e., 122 
Cigala, Re, 144 
('ity Bank r Barrow, 200 
(’ity of Berne r. Bank of England, 260 
City of Glasgow Bank, Re, 379 
(’ity of Mecca, The, 380 
Clare County Council r. Wilson, 248 
Claretic, Mayer r., 240 
Clark, Re, M’KiH’knie v. Clark, 126, 161 

Re, ex parte Beyer A Co., Ltd., 

165 

Re, ex parte Clark, 164 

, Ktalak v , 373 

Clark A Co., liysaght, Titd. v,, 242 
Clarke, Re 117, 161 
de Seiie r., 73 

Halford v , 217, 294 

V Ormonde, 218 

(Mason, O'Neil v,, 241 

Clegg r. Tj<*vy, 282, 410 

(Jlcrkenwell CommiHsionerts .of Taxes, 

K. e., 373 

Cliff’s MVusts, Re, 152 
Clinton, Re, (Minton e Clinton, 219 
Clocte, Re, ex varle Cloetc, 266 
Clugas r. Pcnaluria, 292 
Clutierhiick, Adams xk, 208, 216 
Clydebank Engineering, Ac Co., 
Yzquierdo v , 201 

Clydesdale Bank, Ltd. v. Schroeder A 
Co., 199 , 389 
(kx’h V. Alloock A Co., 412 
Cockerell, Alt -Gen. v., 140 

V. Barber, 134, 151 

r. Dickens, 174—176 

Cocquerel, Re, 111 

Cohen, Bank of Africa v , 212, 218, 294 

V, Rothfield, 401 

V. South-Eastern Railway Co, 297 

Coldmgharn Parish Council v. Smith, 
104 j 

Cole, Burn r.. Ill 
Coleman, Reynolds v., 248 
Collier, Ex parte Ellis and, 164 

V. Rivaz, 36, 121, 334 

Collins, Brown r., 48 

V. North British, Ac., Co., 261 

Collins Co. V. Brown, 376 



xviii 


LIST OF CASES CITED. 


Collins Co. V. Beeves, 376 
Colliss V. Hector, 81 
Colls V. Robins, 254 
Colombian Government v. Rothschild, 
260 

Colonial Bank, Williams v., 201 
Colonial Gk)ld Reef Co. v. Free State 
Co., 373 

Colonial Mutual Life Assurance Society, 
Re. 375 

Colquhoun v. Heddon, 378 
Colston, Quarrier v., 293 
Comber v. Leyland, 249 
Commercial Bank of India, Re, 168 
Commercial Bank of South Australia, 
Re, 168, 308 

Commissioners of Inland Revenue, see 
Inland Revenue Commissioners 
Commissioners of Stamps v. Hope, 138 
Commissioners of Stamps of Queens- 
land, Harding v., 141 
Commissioners of Stamps and Taxes, 
R. V., 139 

Compagnie Franco-Beige, &c., South 
African Republic v., 260 
Compagnie G4n4rale d’Eaux Minerales, 
Re, 240, 254 

Compagnie G4n4rale Transatlantique 
V. Low & Co., 377 
Companhia de Mo 9 ambique v. British 
South Africa Co., 218, 255 
Companhia Naviera Sota y Aznar, 
Ralh Bros u., 289 , 291, 299 
Cornpania Anonima Aurora, de Hart 
V., 296 

Comptoir d’Escompte de Paris, Haggin 
t;., 377 

, Mason and Barry v., 377 

Compton V. Bearcroft, 69, 60 
Concha v. Concha, 217 

V. Murieta, 411 

, de Mora v., 411 

Connelly v. Connelly, 98 . 

Connolly Bros., Re, Wood v. Connolly 
Bros., 402 

Connor v, Bellamont, 299 
Constitution, The, 267 
Consuelo, Duchess of Manchester, Re, 
139 

Continental Tyre Co. v. Daimler, 369 
Convery v. Lanarkshire Tramways Co., 
272 

Conway v. Beazley, 97 

, Stapleton v., 299 

Conway’s (Countess de) Case, 362 
Good V. Good, 217 
Coode, Re, 116 
Cook V, Dey, 239 

V, Gregson, 136 

, Studd t^, 216, 284 

Cooke V. Charles Vogeler Co., 164 
CooVe’s Trusts, Re, 42 
CSombs V. Quiney, 281 
Cooper, Balfour v., 216 

V. Cooper, 42, 408 

V. Waldegrave, 299, 804 

Cooper-King v. Cooper-King, 409 
Coote V. decks, 199 
Cope V. Doherty, 276 


Copin V. Adamson, 383 
Coppin V. Coppin, 216 
Corbridge v. Somerville, 886 , 341, 34^, 
346 

Cosio V. de Bern ales, 44 

Cosnahan, Re, 112, 117 

Co 884 Brissac, De, v. Rathbone, 388, 395 

Costa, da, Sylva v,, 48 

Costa Rica, Republic of, v. Erlanger, 260 

, Strousberg v., f^l, 263 

Cotes worth, Ford v,, 291 
Cottingham, Neal v., 169 
Cottington’s Case, 894 , 403 
Cotton V. R., 139 
Cottrell, Chapman v., 304, 307 
Coutts & Co. V. Church Missionary 
Society, 122 

, P416grin v., 46 

Cowan V. Braid wood, 386 

V. O’Connor, 298 

Cox V, Mitchell, 4(X) 

Craig, Re, 170 
Craigie v, Lewin, 360 
Craignish, Re, Craignish v. Hewitt, 82, 
331, 344, 346 

Cranstown v. Johnston, 217 
Crathic, The, 180 
Crawford, Woolsey v., 308 
Credit G4n4ral, Re, Liegeron’s Claim, 
Adda. 

Credit Lyonnais, Jacobs v., 289 
Crema v. Crema, 97 
Cresswell v. Parker, 262 
Crispin, Ex parte, 167 

V. Doglioni, 108 

, Sharpe v., 333, 339, 349 

Cristiani, Trubner v. Trubner and, 254 
Croft V. King, 252 
Crofton V. Crofton, 133, 412 
Croker v. Hertford, 119 
Crompton’s Judicial Factor v. Finch- 
Noyes, 832 

Crookenden v. Fuller, 36, 123, 346 
Crosland v. Wrigley, 284 
Croza, Poitier v., 266 
Crozet V. Brogden, 413 
Crozier & Co. v. Auerbach, 249 
Cruikshank v. Robarts, 401 
Cudell & Co., Dunlop v., 377 
Culling V. Culling, 68 
Cumberland Gap Park Co., Badcock 
y., 378 

Cumming, Soci4t4 des Hdtels, &c. v-r 
300 

Cunha, da, Re, 41 

Cunningham, Ex parte, 166, 348, 361 

V. Down, 291 

, Mather v., 326 

Curlier, De Nicols v., 72 — 74, 178, 213 
Curling v. Thornton, 119 

, Thornton v., 148 

Currie v. Bircham, 126 

V. McKnight, 194 

, Rothschild v., 806 

Curtis V. Hutton, 211 
Cust V. GoriM, 210 
Cutforth, Griffith v., Adda. 

Cuthbert, Royal Bank of Scotland v., 
160, 170 



LIST OF CASES CITED. 




Da Costa, Sylva i*., 48 
Dacre, Pitt r., 216 
•Da Cunha, Re, 41 

Daily Record, Watson & Sons v,, 250 
Daimler, Continental Tyre Co. v., 369 
Dalhousie v. McDouall, 101, 348 
Dallas, Hamilton i*., 334 , 351 
Dalryinple 1 ^ Dalryinplc, 67, 96, 410 
Daly, Be, 123 
Daniel r. Luker, 127 
Danubian Factories r. Commissioners 
of Inland Revenue, 205 
d’Arainburu, Viesca v.. Ill 
Darell, Moore v., 117 
Darling, Maekie r. , 47, 50 
Davidson, He, 169, 170 
Davidsson v. Hill, 272 
Davies, Williams r , 172 
Davis, Selkrig v., 170, 171, 174 
Dawkins v. Simonetti, 402 
Dawson, Be, 212 
V. Jay, 45 

Day, Emperor of Austria r., 206 
de Barros, Sottomayor v., 41, 42, 57, 
60, 62, 93 

de Beauchesne, Hodgson r., 347, 361, 
352 

do Beers Consolidated Mines, British 
South Africa Co. r., 212, 217, 
290, 294 

V. Howe, 372 

de Bernales, Cosio r., 44 

, National Bank of St. Charles v., 

373 

r. New York Herald, 240, 242, 250 

de Bode’s (Baron) Case, 408, 409 
de Bonneval r. dc Bonneval, 36, 118, 
352 

Decaix, McCarthy v., 96-98 
Deek Deek 89 
de Clermont, Guiard r., 389, 391 
de Conway’s (Countess) Case, 362 
de Co88<^ Brissac v, Rathbone, 388, 395 
de Fogassieras v. Duport, 214 
de Oasquet- James r. Mecklenberg, 92, 
93 

de Geer v. Stone, 356, 358 
de Greiichy v. Wills, 309 
de Hart v. Compaflia Anonima, Ac., 
Aurora, 297 

Deichler, Murphy v., 123 
de la Chaumette v. Bank of England, 
312 

de la Fcrt^, Lyne v., 118 
de Larragotti, Re, 46 
de la Rue, Re, 116 
de la Saussaye, Re, 116 
de la Vega v. Vianna, 405 
de Linden, Re, 46 
Delta, The, 401 

de Montaigu r. de Montuigu, 88 
de Mora v. Concha, 411 
Dempsey, Norden S.8. Co. v., 296 
de Nicols v. Curlier, 72-74, 173, 213 
de Noailles, Re, 148 
Dent, Campbell v., 294 
, R. i;., 410 

de Penny, Re,, de Penny v. Christie, 
260“ 252 

W.I.L. 


Deponthieu, Joliet r., 169 
Derfflinger, The, 326 
dc Rin, Bradlaiigh v., 804 
de Robeck, Hopkins v., 266 
de Roven, Dupleix v., 880 
de Saumarez, Re, 145 
Deschamps r. Miller, 219 
de Serre v. Clarke, y 3 
Despalie r. Tremblay, 66 
Dessilla v. Fels, 412 
d’Este’s Settlement Trusts, Re, Poiilter 
r. d’Este, 122, 123 
de Tastet r. Baring 308 
d’Etchegoyen r. d^Etchegoyen, 346 
Deutsche National Bank i’. Paul, 249, 
251 

de Valdor, Worms r., 49, 60 
de Vigny, Be, 117 

de Virte, Re, Vaiani v. Ruglioni, 164 
d’Evrciix, Macnamara v., 291 
Dewar i’. Maitland, 163 
1 ’. Span, 299 

de Wilton, Be, de Wilton v. Monto- 
fiore, 68 

de Wiitz v. Hendricks, 291 
Dey, Cook r., 239 
de Zichy-Ferraris v. Hertford, 119 
d’Hormisgec v. Grey, 413 
d’Huart v. Harkness, 122 
Dickens, Cockerell v,, 174-176 
Dicks V. Dicks, 91, 92 
Didisheim r. London and Westminster 
Bank, 46 

di Ferdinando v, Simon Sraits A Co., 
299 

Digby, van Grutten i*., 78 
Dillon V. Alvares, 400, 401 
Diinond, Att.-Geu. i’., 137 
di Savini v. Lousada, 45 
di Sora r. Phillipps, 283, 411 
Dittrich, Callandar v., 398 
Dixon, Aitchison v., 346 

, Hansen v., 290, 298 

Dobree, Ex parte, 179 

r. Napier, 270 

Dobson V. Festi & Co., 241 
Dodsworth v. Anderson, 166 
Doe V. Acklam, 364 

r. Arkwright, 364 

V. Mulcaster, 364 

Doetsch, Re, 135, 405 
Doglioni, Crispin v., 108 
Doherty, Cope v., 276 
Dolphin V. Robins, 97, 122, 833 
Don, Re, 224 

V. Lippmann, 313, 385, 395 

Donegal, Chichester v., 92 
Donegall, Houlditch v,, 395 
Donegani v. Donegani, 361 
Donovan, Page v., 119 
D’Orl^ans, Re, 41, 110, 352 
Dormer, Williams v., 92 , 334 
Dormoy, Re, 409 
Dost Aly Khan, Re, 111, 409 
Doucet V. Geoghegan, 344 , 346 
Dougherty, Harvey v., 262 
Douglas V. Brown, 407 
V. Douglas, 336, 339, 340 


c 



XX 


LIST OF CASES CITED. 


Dou^^las V. Porreal, 3B5, 387 

, Munroe v., 348 

Douglas's (Sir C.) Case, 148 
Douglas-Menzies r. Umphelby, 153 
Doulson 1 ?. Matthews, 255 
Doutre, Queen t?., 295 
Dowd ale, Richardson w., 129 
Dowdale’s Case, 129 
Down, Cunningham v., 291 
Drake, Saunders v., 151 
Drapers’ Co., Att.-Gen. i;., 248 
Drax, Re, Savile v. Drax, 216 
Dresser, Meyer v., 405 
Drevon v. Drevon, 347, 348 
Drew V. Drew, 4()9 
Drexel v. Drexel, 248, 842 , 847 
Dreyfus v. Peruvian Guano Co., 413 
Republic of Peru v., 261 

, Soci4t<^ O^ndrale de Paris v., 398 

, Twycross r., 268 

Driefontein Mines, Janson r., 362 
Droege v. Stuart, 296 
Drnee, Reinicrs v., 396 , 396 
Drummond, British Linen Co. r , 
313 

V. Drummond, 146, 210 

, President of U.S.A. u., 362 

Drummond’s Case, 862 
Dubout V. Macpherson, 263 
Due D'Aumale, The, 261 
Ducroz, Stokes r., 140, 209 
Duder v. Arnsterdanisch Trustees Kan- 
toor, 217, 251 
Dues V. Smith, 78 
Duhamel, Bertram e., 300 
Dui Biehler A Brooks, Ltd. r. Farmer, 

372 

Duke of Brunswick v. King of Han- 
over, 258, 262 

Dulaney v. Merry A Son, 170 
Dumergue, Valine v., 383 
Dumfries, The, 278 
Duncan v, Campbell, 284 

L\ Cannan, 44, 81 

V. Lawson, 211, 214 

, Lawson r., 146, 210 

Duncannon (Viscount of) v, Duke of 
Manchester, 189 
Dundas v. Dundas, 153 
Dundee, The, 278 
Dungannon r. Hackett, 299 
Dunlop, Innes r., 812 
Dunlop Rubber Co. r. Dunlop, 250 
Dunlop Tyre Co, i’. Cudell A Co., 377 
Dunsany, Wilson i’. , 135 
Dupleix, The, 240 

V. De Roven, 880 

Duport, de Fogassierns 214 
Durant, Isaacson i*., 365 
Dutch East India Co, v. Henriquea, 
878 

Dutch Rhenish Railway Co., Sudlow 
e., 371 

Dutch West India Co. v. Henriques, 

373 

Duval A Co. V. Gans, 248 

Duvernay, White v., 46 

Dynamite A.G. u. Rio Tinto Co., 407 


Eaoar, Naylor v., 400 
Eames v. Hacon, 132 
Earl, Re, 112 
Eason, Boss v., 251 
East India Co., Ekins v., 279 

, Freeman v., 198 

, Mayor of Lyons v., 371 

, Skinner v., 255 

Eastern Concessions, Ltd., Black Point 
Syndicate r., 217 

Eastern Extension, Ac., Telegraph Co., 
Commissioner of Taxes v., 378 
Easton, Grant v,, 379 
Eckford, Haldane v., 347 
Eclipse, The, 278 
Ede, Paget v., 220 
Edie, Pray v., 413 

Edinburgh. Provost of. v. Aubery, 371 
Edwards. Bayley v., 221, 400 

V. Ronald, 817 

Edwards-Moss, Mackenzie v., 79, 333 
Egan, Re, 149 
Egbert v. Short, 238 
Eglinton Chemical Co., Yorkshire Tan- 
nery c., 251 

Egyptian Hotels, Ltd., Mitchell v., 373 
Elder, The, 249 
Ekins V. East India Co., 279 
Elias, Re, 46 

Eliza Cornish, 'The, otherwise The 
Segredo, 191, 198, 196, 200 
Ellefsen, Imlay v., 400. 405. 

Elliott, Re, Elliott v. Johnson, 149 

V. Minto, 146, 210 

Ellis and Collier, Ex parte, Re Hall- 
man, 1.64 

, Ashbury 383 

V. lioyd, 299 

V. McHenry, 317, 318 

, Reynolds v., Re Bankes, 44, 78 

Elton, The, 261 

Emanuel v. Symon, 383, 385 , 387 
Embiricos Anglo-Australian Bank, 
204. 302 

Emery r. Hill, 371 

Emperor of Austria v. Day and Kos- 
suth, 206 

English, Seottish and Australian Bank, 
Re, 168 

Enohin v. Wylie, 114, 132 
Erichsen v. Last, 372 
Erlanger, Republic of Costa Rica v. 
260 

Erm ini a Foscolo, The, 401 
Ertel, Bieber A Co. v. Rio Tinto Co., 
292 

Este r. Smyth, 66 

Este’s, D’, Settlement Trusts, 122, 123 

Etchegoyen. D’, r. d’Etcliegoyen, 346 

Eumaeus. The, 326 

Eustace, Kildare v., 219 

Evans, Re, 165 

Evreux, d’, Macnamara e., 291 

Ewer, Walpole r., 297 

Ewin, Re, 137, 140 

Ewing r. Orr Ewing, 130 

Explorer, The, 272 

Express, The, 296 

Eyre, Phillips v,, 269 



LIST OF CASES CITED. 


zxi 


Fabrb, Hewitson r. , 239 
Fabrigas, Mostyn v., 236, 266, 269, 
• 271 

Factage Parisien, Re, 168 
Fairlie, Freeman v., 134 

, Logan 128, 140 

, Lowe 128 

Falkenstein, Hcilmann i*., 401, 402 
Famous Lasky, Ac., Ltd., Serre r., 
298 

Fandkote, Rajah of, Sirdar Gurdyal 
Singh v., 385 , 386 

Farmer, Dui Biehler and Brooks, Ltd., 
V., 372 

, Shilling r., 255 

Farnie, Harvey r., 69, 97, 98 
Farra, Abd-iil-Messih e., 323, 325, 326, 
328, 329 

Farrar, Burn, v , 67 
Fashender u. Att.-Gen , 363 
Favre, Bloxam v., 120 
Fawciis, He, 413 

Federal Bank of Australia, Re, 168 
Felce, Att.-Gen. r. , 144 
Fels, De.sHilla v , 412 
Fenner, Robinson v , 392, 396 
Fenton v. Livingstone, 222 

, Reynolds V., 3H5, 389 

Ferguson v Spencer, 317 
Fergusson, He, 161 

V. Fyffe, 299, 314 

, Gilbertson r , 372 

Fernandes’ E.xecutors, Ex parte, 109, 
i:i8 

Ferraiid, Wilson v , 400 
Festi & Co., Dobson 241 
Feyerick v. Hubbard, J183 
Field V. Bennett, 240 
Finch-Noyes, Crompton’s Judicial 
Factor v., 332 
Findlay, Shearman v., 254 
Finlay r Finlay, 406 
Firbank, A Co., Worcester City Bank- 
ing Co. V., 242 
Firebrace v. Firebrace, 91 
Fischer, Raulin , 382 
Fisher v. Begrez, 265 

, Burton v. , 342 

Fitch V Weber, 362 
Fitzgerald, Re, Surrnan r. Fitzgerald, 
79, 293 

, Att.-Gen. v., 329 

Fitzjames, Melan v., 406 
Fitzpatrick, Hervey v., 128, 129 
Flack’s Case, Re Central Sugar Fac- 
tories of Brazil, 176 
Fleming, Hams r., 252 
Fletcher, Lever r., 291 

, Planch^ V., 291 

Florence Land and Public Works Co., 
Norton v., 219, 221 
Flower, Tourton v., 109 
Fogo, Simpson v., 196, 199 
Folliott V. Ogden, 169, 414 

, Ogden V., 414 

Fontes, Machado v., 269, 272 
Forb 3 V. Adams, 208 
, Att.-Cen. V., 140 


Forbes e. Forbes, 341, 343, 346, 360 

, Jackson v., 140 

, Mackenzie i\, 209 

, Odwin V., 317 

V. Steven, 140, 209 

Ford V. Cotesworth, 191 

V. Shepard, 240 

Forgo, He, 34 
Fornjot, "Hie. 243 
Forre.st, Douglas r., 386, 387 
Forsbaoka, Ac., Oknra A Co. i’., 242, 
377 

Forsyth v. Forsyth, 79 

Foster t*. Globe Syndicate, Titd., 268 

V. Vasaall, 219 

Foubert u. Turst, 82 
Foxwell, King r. , 343 
Francis Times A Co.. Carr v., 270 
Fiancis v. Itucker, 308 
Franconia, Owners of, Harris v., 263 
Fra like and Rasche, He, 306 
Frank land v McGiisty, 397 
Fraser, P. A., He, 116 

, Sinclair v., 394, 396 

, Yeates r., 371 

I Freeman, HienuT r , 36, 121, 334, 411 

, Butler i\, 65 

r. Fast India Co., 198 

V Fairlie, 134 

, Nouvion r , 381 

Free State (k>. , Colonial Gold Reef Co. 
r.. 373 

Freke r. Carbery, 211 
l^’reinont, (lilibs r., 308 
French, Campbell 73 
Fiere r. Frere, 35, 121 
Frmidenberg, Porter v., 239, 362 
Frcybergei , Ex parte, 361 
Fuerst, Jeannot v., Ji81, 383 
Fuller, Crmikenden r , 36, 123 , 346 
Fulton, Saxby r., 293 
h^irness, Risdon Ironworks v., 376 , 392 
Furnival, Alivon v., 169, 381, 397 
Fyffe, FergusBoii r., 299, 314 


Gabrian r. Maxwell A Co., 389 
Gadban, Miisurus Bey r., 264 
Gaetano and Maria, The, 276, 296 
Gagara, Tlie, 257, 258, 261 
Galbraith v. Grimshaw’, 181 

V. Neville, 394 

, Wittod V., 251, 252 

Gaily, Re, 120 
Gambler v. Gambler, 47 
Gans, Duval A Co. v., 248 
Garbutt, Macartney v., 266 
Garcia del Rio, Jones v., 291 
Garcias, Ricardo i\, 398 
Gardiner v. Houghton, 316 
Garetty, Winchelsea v., 146 
Garnet, Pierson v., 161 
Garnett, McCormick v., 73, 408 

, Stewart v., 216 

Gamier, Re, 48 
Garrett, Law v., 401 
Garvan, Roach v., 403 


W.I.L. 



xxii 


LIST OF CASES CITED. 


Oaskell, Marchioness of Huntly v., 341 
Geddes v. Mowat, 171 
Geer, De, v. Stone, 355, 358 
Geiselbrecht, Kannreutlier 135 
Gemma, Tfic, 240 

Oenerul Accident Co,, New Fenix 
Cornpagnic, &c., de Madrid r., 
413 

General Co. for Promotion of Land 
Credit, Re, 168 

General Iron Screw Collier Co. t\ 
Schnrmaiins, 275 

General South American C’o., Re, 308 
General Steam Navigation Co. v 
Guillou, 376 , 388 , 389, 398 
Genesee Mutual Tn.surance Co. v. 

Westman, 376 
Gentili, Re, 211 
Oeoghegan, Doucet v., 344, 346 
Georges, Re, 218 
Oerson, Kaufman r., 293 
(Jeschwind e. Huntington, 341 
Geyer v. Aguilar, 399 
Ghikis n. Musiirus, 248 
Gibbons, Malony v., 389 
Gibbs V. Fremont, IV)8 
Gibbs (Ant<my) & Sons v. La Soci^tiS 
&e., dos MtHaux, 316 
Gibson & Co. V. Gibson (1913), 240, 
385 

Gibson V. Gibson (1921), 409 
Giffard, Hawksford v., 379 
Gilbertson r. Fergusson, 372 
Gill V. Barron, 317 
Gillespie, Re, Ex parte Bobartes, 
308 

Gillig V. Gillig, 86, 94 

Girolamo, The, 273, 277 

Gladstone e Mvisurus Boy, 263, 264 

V. Ottoman Bank, 263 

Glasgow and South Western Railway 
Co., Mackereth v., 377 
Glendining, Att.-Gen. v., 127 
Globe Syndicate, Foster v., 258 
Godard r. Gray, 396 
Goerz & Co. v. Boll, 372 
Gold V. Canham, 394 
Golding, Ballantine v., 316 
Goldsmid, Ex parte, 180 
Goidzihor’s Claim, Adda. 

Golubchick, The, 243 
Goodman, Re, 155 

V. Goodman, 102, 155 

Goold, Richards v., 210, 282 
Gordon’s Executors, Inland Revenue 
Commissioners v., 329 
Gordon’s Settlement, Re, 254 
Goring, Gust i>., 210 
Gould, Shaw v., 96 , 97, 101 

, Smith V., 407 

Goyt V. Zimrnermann, 349 
Governor, &c., of New Zealand, Slo- 
man v., 268 
Gracey, Browm v., 407 
Graham, Bond v., 128 

, Campbell v., 151 

1 ’. Massey, 218 

tt. Maxwell, 138, 402 


Graham, Milne v., 812 
Gramophone & Tvpe writer, Ltd. v. 
Stanley, 373 

Grand Trunk, &c.. Railway Co., 
Aktiesselskabet Hercules v., 377 
Grant v. Anderson, 241, 242 

, Cadell V., 371 

V, Easton, 379 

Grassi, Re, Stubberfield v. Grassi, 214 
Gray, British Wagon Co. v., 260 

, Godard r., 396 

Great Australian Gold Mining Co. v. 

Martin, 239 
Green v. Green, 94 
Greenbank, Hearle v., 164 
Greenwood, Berdan v.y 412 
Greenwood v. F. J. Srnidth & Co., 
Adda. 

Greer v. Poole, 296, 297 
Gregory, Jurado r., 380 
Gregson, Brown v., 154 

, Cook c., 135 

Grell V. Levy, 294 

Gresham Life Insurance Co. v. Bishop, 
373 

Greta, The, 296 
Greuchy, Be, Wills r., 309 
Grey, D’Hormisgec r , 413 

V. Manitoba, &c.. Railway, 219 

, Shelby r., 315 

Grey’s Ti-usts, Re, Grey r. Stamford, 
165 

Gnefswald, The, 398 
Grierson v. Grierson, 59 
Griffith r. Ciitforth, Adda. 

Grimshaw, Galbraith v., 181 
Gnmthorpe’s Settlement, Re, 334 
Grimwood v. Bartels, 212 
Groos (No. 2), Re (1916), 44, 148 

, Re (1904), 114, 119 

Grove, Re, 102 

Gruban, Kirch nor & Co. v., 401 
Grundt & Oetl, Re, 116 
Guaranty Trust Co. v. Hannay & Co., 
39 , 302 , 396 , 406 , 407 
Gu^pratte v. Young, 44, 76, 81, 280 
Giiiard t’. de Clermont, 389, 391 
Guibert, Lloyd v., 194, 276, 295, 296, 
407 

Guillebert, Ex parte, 299 

Ouillou, General Steam Navigation Co. 

u., 376, 388, 389, 398 
Gumm, Hooper v., 201 

, McLellan v., 201 

Oumpach, von, Hart v., 269 
Gurney, Harrison v., 218 

, Jones V,, 413 

Gutch, Williams v., 278 
Guthrie v. Walrond, 161 
Gutierrez, Ex parte, 167 
Guy Mannering, The, 270 
Gyles, McCheane v., 261, 263 

Haarlbleicher V, Barselmann, 304 
Haas V. Atlas Insurance Co.. 109 
Hackett, Dungannon v., 299 
Hocon, Eames v., 132 
Hagen, The, 251, 402 



LIST OF CASES CITED. 


xxiii 


Haggm V. Comptoir d’Escampte de 
Paris, 377 

Aaldane v. Eckford, 347 
Hale & Co., Hemeraann & Co, r., 241 
Halford V. Clarke. 217, 294 
Hall & Odber, 382 , 397 
Hall, White v., 217 
Hallen, Tassell v.. 248 , 251 - 
Halley, The, 202. 270, 278 
Hallman, Re, Ex parte Ellis and 
Collier, 164 
Hally burton. Re, 123 
Hamburgh American Steamship Co. r. 
North of Scotland Banking Co., 
278 

Hamilton v. Dallas, 334, 351 

, Thomas v., 249 

, United States v., 204 

, Walker u.. 308 

Hamlyn & Co. v. Taliaker Distillery, 
285 

Hancock, Carrick v., 389 
Hankey, Tatnall 123 
Hannay & Co., Guaianty Trust Co. 

V., 39, 302, 396, 406, 407 
Hanover, King of, Duke of Brunswick 
ir., 258, 262 

Hansen v. Dixon, 290, 298 
Hanson v. Walker, 135 
Happaz, Parapano r., 323 
Harding, Bank of Australasia r., 392, 
397 

V. Commissioners of Stamps for 

Queensland, 141 

Hare V. Nasmyth, 35, 117, 118 
Harford v. Morris, 56, 59, 67 
Harkness, D’Huart r., 122 
Hams, Re, 115 

r. Fleming, 252 

, Morocco Bound Syndicate v., 251 

Owners of Franconia, 263 

V. Qumo, 314 

V. ^aramanga, 297 

, Spratt V., 116 

V. Taylor, 388, 391 

Harrison, Brookes v., 199 

V. Gurney, 218 

V, Harrison, 210 

Harrop v. Harrop, 381 
Hart V. Von Gumpach, 269 
Hart, De, v. Coinpania Anonima de 
Seguros Aurora, 297 
Hartley, Tullodi v., 219, ^06 
Harvey v. Archbold, 299 

V. Dougherty, 252 

V. Farme, 69, 97, 98 

Hastings, Beavan v., 129 
Hawker, Soci4t4 dos Hdtels K^unir v., 
293, 294 

Hawkins, Tozier v., 260 
Hawksford, Oiffard v., 379 
Hawthorne, Re, 218 
Hay V. Northcote, 64 

, Sidaway v., 317 

Haynes, ^assey v., 251 
Hayward, Re, Hayward v. Hayward, 
• 169, 170 

Hearle v. Greenbank, 164 


Heath r. Samson, 349 

Hector, Colliss v., 81 

Heddon v, Colquhoun, 378 

Heilmann v. Falkenstein, 401, 402 

Heinemann & Co. t>. Hale A Co., 241 

Heilman, Re, 42, 43, 47 

Helm, Hyman r., 402 

Hemsbeyck v. livall Shipping Co., 249 

Henderson, Re, 381 

V. Henderson. 393-396 , 398 , 899 

Hendricks, Dc Wiitz v., 291 
Hendne, Oliphant r., 371 
Henley v. Soper, 397 
Henriques, Dutch East India Co. v., 
373 

, Dutch West India Co. v., 373 

Henty v. The Queen, 138 
Hepburn v. Skirving, 333 
Herbert Herbert, 57. 68 

, Jerninghani *v., 210 

Heriz v, Riora, 291 
Hernando, Re, Hernando t'. Sawtell, 
79, 82 

Hertford, Croker v., 119 
— , de Zicby Forraris v., 119 
Hervey v. Fitzpatrick, 128, 129 
Hessing e. Sutherland, 46 
Hewit, He, Lawson v. Duncan, 146, 
210 

Hewifson e. Fabrc, 239 

Hewitt, Craignish i)., 82, 331, 344, 846 

V Hewitt, 79 

Hicks t'. Martin, 290 

V. Powell, 221 

Higgins, Att.-Gen. v., 138 

, liueon V., 66 

Hilderley, Pecliell r., 121 
Hill, Re, no, 111 

, Davidshon v., 272 

, Emery v., 371 

Hillyard v. Smith, 260 
Hinchelill, Meyding v., 410 
Hirschfeld v. Smith, 306 
Hitchins V. Hitchins, 412 
H.M.S. Kinff Alfred, The. 278 
Hoare, Buccleugh v., 210 

, Pike V., 218 

Hodges, Bartley v , 316 
Hodgson, Alves v., 281, 282 

V. de Boauchesne, 347, 361, 362 

Hog, Lashley v., 74, 82 

V. Lashley, 148 

Holland V. Bennett, 249 

, Taylor v., 313 

Hollyford Copper Mining Co., Re, 379 
Holman v. Johnson, 292 
Holmes, Re, 222 

V. Holmes, 216 

Holthausen, Ex parte, 180 
Hong Kong and Shanghai Banking 
Corporation, Lhoneux Liraorf A 
Co. V., 377 

, Att.-Gen. for, v. Kwcdc-a-Sing, 

269 

Hood V. Lord Barrington, 211 
Hooper v. Giimm, 201 
Hope, Att.-Gen. v., 137 
V. Carnegie, 133, 219 



XXIV 


LIST OF. CASES CITED. 


Hope, Commissioners of Stamps v., 138 

V. Hope, 294, 406 

Hopkins v. de Bobeck, 266 

, Sproule V., 93 

Hordern, Pouey v., 79 
Horne v. Rouquette, 306 , 307 
Horngold v. Horngold, 347 
Horsrnan, Newland v., 397 
Horst & Co., Bidden Bros, v., 249 
Hoskins v. Matthews, 3.37 
Hough-ton, Gardiner v., .316 
Houlditch V. Doncgall, 395 
Houstoun, Re, 45, 47, 49 
Hovey v. Blakernan, 1.34 
Howden, Re, 116 

Howe, De Beers Consolidated Mines 
v., 372 

Hoyermann’s Agency, St. Gobam, &c. 
Go. V., 242 

Hoyles, Re, liow v. Jagg, 20^), 210, 211 
Huart, D’, v. Harkness, 122 
Hubbard, Feyerick v., 38.3 
Huber, Re, 123 

V. Steiner, 314 

Huet V. Le Mesuner, 41 
Hughes, Arthur v., 128 

, Pemberton v., 94, 392 

Hullet u. King of Spam, 260 
Hume, Whicker v,, 336 . 3.38 , 340 , 344, 
347 

Hummel v. Hummel, 122 
Humphreys, R. v., 104 
Hunter, Liverpool Marine Credit Co 
i;., 199, 405 

V. Nicholls, 214 

, Philips V , 178, 185, 394 

r. Potts, 177, 178 

V. Stewart, 3tl9 

Huntington v. Attnll, .382 

, Geschwind v., 301 

Huntly (Marchioness of) v. Gaskell, 341 

Hiithwaite u. Phayre, 109 

Hutton, Curtis v. , 211 

Hyde r. Hyde, 69 

Hyman v. Helm, 402 

Hypatia, Tlie, 352 

InniDOR, Santos v., 292 
Irnlay v. Ellefsen, 400, 405 
Imperial Bank, Republic of Liberia v., 
260 

Imperial Japanese Government v. P. 

& 0. Steamship Co., 261, 266 
Imrie, Castrique e., 195-197, 199 
Income and General Investment Trust 
Ltd. V. Borax Consolidated, 289 
Indigo Co. V. Ogilvy, 241 
Industrie, The, 296 
Inglis V. Robertson, 200 
— — V, ITsherwoorl, 197 
Inland Revenue Commissioners, Baring 
* V., 204 

, Danubian Sugar Factories v., 206 

, Gordon’s Executors v,, 329 

, Law’son r., 139 

V. Maple A Co, (Paris), Ltd., 205 

, Muller & Co.’s Margarine, Ltd. 

r., 205 

, Revelstoke (Lord) v., 204 


Inland Revenue Oommiesioners, Smelt* 
ing Company of Australian., 205 

, Velasquez v., 206 • 

— — , Wingate (James) A Co. v., 372 
Innes v. Dunlop, 312 

V. Mitchell, 132, 396 

, Sandilands v., 128, 130 

International Pulp and Paper Co., Re, 
168, 174 

Ireland, Att.-Gen. for, Swifte v., 55 
Irwin V. Caruth, 113 

, Whelan v., 413 

Isaacson v. Durant, 366 
Isherwood r. Cheetham, 117 


Jackson v. Forbes, 140 

V. Petrie, 217 

, Wynne v., 282 

Jacobs V. Cri^it I^yoiinais, 289 
Jaff(5 V. Keel, 363 
Jaffer v. Williams, .387 
Jaffrey, Lord Advocate v., .333 
Jagg, Row V., 209-211 
James v. Catlierwoixl, 282 

V. James, 344 

, Miller V., 117 

James Westall, The, 41.3 
Jainineau, Burrows , .304, 398 
Janson v. Driefontein Mines, 352 
.Janverin, Middleton v , 66, 57 
Jasep, The, 402 
Jassy, The, 257 
.Tauney v. Si'aley, 129 
Jay, Dawson t\, 45 
Jeannot r. Fnerst, 381, 383 
Jecks, Coote r., 19^) 

Jeffery v McTaggart, 171 
.Tcllard, Re, 254 
Jenney e. Mackintosh, 219, 251 
Jephson r. Riera, .364 
Jerninghain v. Herbert, 210 
Jeves V. Shad well, 141 
Jewish Colonization Society, Att -Gen 
u , 139, 144 

Johannesburg Municipal Council v. 
Steward, 401 

Johnson A Co., Badische Amlin, Ac., 
r., 298 

Johnson, Re, 30, 107, 108 , 326 , 336 

, Re, Roberts r. Att. Gen., 30 , 36, 

38 

, Att.-Gen. v., 138, 144 

, Elliott V., 149 

, Holman v., 292 

r. Taylor Bros., 249 

V. Telford, 153 

Johnston, Cranstown v., 217 
Johnstone v. Baker, 210 

r. Beattie, 44, 45, 332 

, Beattie r., 46 

, Bempde v., 148, 333 

Johore (Sultan of), Mighell v., 268, 260 
Joliet r. Deponthieu, 169 
Jonathan Goodhue, The, 203 
Jones V. Garcia del Rio, 29]r 

r. Gurney, 413 

V. Scottish Accident. Insurance 

Co., 368 



XXIV 


LIST OR CASES CITED. 


Hope, Commissioners of Stamps v., 138 

V. Hope, 294, 406 

Hopkins v. de Robeck, 266 

, Sproule V., 93 

Hordern, Pouey v., 79 
Horne v. liouquette, 306, 307 
Horngold v. Horngold, 347 
Horsrnan, Newland v., 397 
Horst & Co., Biddell Bros, v., 249 
Hoskins v. Matthews, 3.37 
Houghton, Gardiner v., 316 
Houfditch V. Doncgall, 395 
Houstoun, He, 45, 47, 49 
Hovey v. Blakeman, 1.34 
Howden, He, 116 

Howe, De Beers Consolidated Mines 
V.. 372 

Hoyermann’s Agency, St. Gobam, &c. 
Co. V., 242 

Hoyles, Re, liow v. Jagg, 20^1, 210, 211 
Huart, D’, v. Harkness, 122 
Hubbard, Feyerick v., 383 
Huber, Re, 123 

V. Steiner, 314 

Huet V. Le Meaurier, 41 
Hughes, Arthur v., 128 

, Pemberton v., 94, 392 

Hullet V. King of Spam, 260 
Hume, Whicker v., .3.36, 338, 340, 344, 
347 

Hummel v. Hurnmcl, 122 
Humphreys, R. v,, 104 
Hunter, Liverpool Marine Credit Co 
V., 199, 405 

V. Nicbolls, 214 

, Philips r , 178, 185, 394 

r. Potts, 177, 178 

V. Stewart, 3^)9 

Huntington v. Attrill, .382 

, Gesehwind v., 361 

Huntly (Marchioness of) r. Gaskell, .341 

Huthwaito i’. Phayre, 109 

Hutton, Curtis t\, 211 

Hyde v. Hyde, 69 

Hyman v. Helm, 402 

Hypatia, Tlie, 352 

Illidor, Santos v., 292 
Inilay r. Ellefsen, 400, 406 
Imperial Bank, Republic of Liberia v,, 
260 

Imperial Japanese Government v. P. 

& 0. Steamship Co., 261, 266 
Iinrie, Castrique v., 195-197, 

Income and General Investment Trust 
Ltd. V. Borax Consolidated, 289 
Indigo Co. V. Ogilvy, 241 
Industrie, The, 296" 

Inglis r. Robertson, 200 
— — 1 *. TTsherwocxl, 197 
Inland Revenue Commissioners. Barinc 
' r., 204 

, Danubian Sugar Factories v., 206 

, Gordon’s Executors v., 329 

, Lawson r., 139 

r. Maple & Co, (Paris), Ltd., 205 

, Muller & Co.’s Margarine, Ltd. 

V., 206 

, Revelstoke (Lord) v., 204 


Inland Revenue Commissioners, Smelt* 
ing Company of Australia r., 206 

, Velasquez v., 206 • 

__ — ^ Wingate (James) & Co. v., 372 
Innes v. Dunlop, 312 

V. Mitchell, 132, 396 

, Sandilands v., 128, 130 

International Pulp and Paper Co., Re, 
168, 174 

Ireland, Att.-Gen. for, Swifte v., 65 
Irwin V. Caruth, 113 

, Whelan v., 413 

Isaacson v, Durant, 366 
Isherwood n. Cheetharn, 117 


Jackson v. Forbes, 140 

V. Petrie, 217 

, Wynne v., 282 

Jacobs V. Credit Ijyorinais, 289 
Jaff(5 V. Keel, 363 
Jaffer v. Williams, .387 
Jaffrey, Lord Advocate v., .333 
Jagg, Row V., 209-211 
James v. Catherwoml, 282 

V. James, 344 

, Miller V., 117 

James West all, The, 413 
.Tuinineau, Burrows v., .304, 398 
Janson v. Driefontein Mines, .352 
.Tan Venn, Middleton , 66, 57 
Jasep, The, 402 
Jassy, The, 257 
Jauncy v. Si'alcy, 129 
Jay, Dawson 45 
Jeannot r. Fiicrst, 381, 383 
Jecks, Coote r., 19^) 

Jeffery v McTaggart, 171 
Jcllard, Re, 264 
Jeniiey c. Mackintosh, 219, 251 
Jephson ?*. Riora, .364 
Jcrninghain c. Herbert, 210 
Jeves V, Shad well, 141 
Jewish Colonization Society, Att -Gen 
V , 1.39, 144 

Johannesburg Municipal Council v. 
Steward, 401 

Johnson & Co., Badische Amlin, Ac., 
i\, 298 

Johnson, Re, 30, 107, 108 , 326 , 336 

, Re, Roberts r. Att. Gen., 30 , 36, 

38 

, Att.-Oen. V., 138, 144 

, Elliott V., 149 

, Holman v., 292 

V. Taylor Bros., 249 

V. Telford, 163 

Johnston, Cranstown v., 217 
Johnstone i\ Baker, 210 

r. Beattie, 44, 46, 332 

, Beattie r., 46 

, Bempde v., 148 , 333 

Johore (Sultan of), Mighell v., 258, 260 
Joliet r. Deponthieu, 169 
Jonathan Goodhue, The, 203 
Jones Garcia del Rio, 29]r 

r. Gurney, 413 

V. Scottish Accident. Insurance 

Co., 368 



LIST OF CASES CITED. 


XXV 


Jones’s Divorce Bill, 412 
Jonge Klassina, The, 352 
Joyce, American Thread Co. v., 372 
Joynt V. McCrum, 261, 252 
Jurado i’. Gregory, 380 

Kaleten, The, 243 
Kannreuther v. Geiselbrecht, 136 
Karnak, The, 296 
Kaufman v. Gerson, 293 
Kaye v. Sutherland, 248 
Keefe, Quin v., 316 
Keel, Jaffe r. , 363 
Kelly V. Sclwyn, 202 

, Swift V , 66 

Kemble, Allen r , 305, 308, 405 

, Beckford v., 220 

Kemp V. Necchi, 240 
Kennedy, Bell r., 320 , 340 
Kennion, Cash v., 300 
Kent, Att -Gen. r 349 

V. Burgess, 56 

Keyes v. Keyes and Gray, 85, 405 
Keyiner v. Reddy, 240 
Keyser, New York, &c. Co. r., 48 
Kildare v. Eustace, 219 
Kinahan r. Kinahan, 252 
King, The. See U. 

King r. Brampton, 67 

, Croft u., 252 

V. Foxwcll, 343 

, South African Breweries r , 290, 

295 

King & Co.’s Trade Mark, 254 
Kirchner & Co. r. Gruhan, 401 
Kirwan’s Trusts, Re, 122 
KliBbe, Be, 135 
Klingernann, Re, 409 
Knight, Re, 48 

, Waring i^, 179 

Kodak, Ltd. r Clark, 373 
Kolchmann t\ Men rice, 249 
Korvine’s Trusts, Re, 148, 199 
Kossuth, Emperor of Austria r , 206 
Krageroe, The, The Repeater r., 278 
Krainische, Naylor, Bcwgor & Co v., 
292 

Krupp, Re, 414 

, Vavasseur r., 263 

Kwok-a-Sing, Att. -Gen. of Hong Kong 
r., 269 

Kynnaird v. Leslie, 69 

La Aseouradora EspaSola, Mutzen- 
becher v., 248 
La Bourgogne, 377 

La Chaumette, De v. Bank of Eng- 
land, 312 

La Cloche, Spurrier r., 285 
La Compagnie G^n^rale d’Eaux Min^r- 
ales, Ac., Re, 240, 254 
Lacon v. Higgins, 66 

, Schrichand A Co. v., 404 

Lacroix, Re, 36, 120, 121 
Lady Blessington, The, 248 
Lagos, Colonial Secretary of, Callender, 
^ Sykes A Co. v., 172, 818 
L’Fitt V. Jlr’Batt, 1^2 
Laidlay v. Lord Advocate, 188 


Lamb, Barber t’., 397 
Lambe v. Manuel, 141 
Lanarkshire Tramways, Convery t\, 
272 

Lane, Re, Lane i’. Robin, 251 
Laneuville v. Anderson, 86, 114, 117 

, Anderson v., 344 

Lansdowne r. Lansdowne, 80, 215 
Larivi^re r. Morgan, 263 
Larpent r. Sindry, 118 
Larragotti, De, Re, 46 
La Saussaye, De, Re, 116 
Lashley v. Hog, 74, 82 

, Hog r., 148 

Lassalle, Re, 342, 343 
liUst, Enchsen v., 372 
Latter, Tomlin v., 122, 151 
Lauderdale Peerage, 102 , 348 
Laughlin, Wansborough Paper Co. v. , 
250 

Tjautour v. Tcesdale, 66, 63, 67 
Law V. Garrett, 401 
Lawes, Vadala r., 397 
Lawford v. Pryce, 124 
Tjawrence, Biggs i\, 292 
Lawson, Boucher r., 291 

1 r. Commissioners of Inland 

Revenue, 139 

1 V Duncan, 146, 210 

! , Duncan r., 211, 214 

V Vacuum Brake Co., 412 

Lawson’s Trusts, Re, 169, 170 
Leach v, Ijeach, 138 
Leal’s Settlement, He, 122 
Lebel r. Tucker, 303 
Le Chevalier v. Lynch, 174 
liC Ckiuturier, Key e., 205, 376, 414 
liCe V. Abdy, 44, 203 
Le Mesurier, Ex parte, 179 

, Huet V., 41 

V. Le Mesuner, 84-86, 89, 90 

Tjcriders v. Anderson, 260, 262 
Leon, The, 277 
Leon XTTI., The, 243 
Lepage, Ostell v., 399 
Lepine, Att. -Gen. v., 371 
Leroux v. Brown, 281, 404 
Lesley, Reg. v., 270 
Leslie, Kynnaird v., 69 
Le Sueur r. Le Sueur, 89, 333 
Lever v. Fletcher, 291 
Ivevy, Re, 111 

, Clegg V., 282, 410 

, Grell V., 294 

V. lievy and De Renance, 90 

— — V. Solomon, 101, 102 
Lewal’s Trusts, Re, 124, 162 
Lewin, Craigie v., 360 
Lewis (Otto), Ex parte, 48 
Lewis V. Baldwin, 371 

, McHenry v., 400, 401 

V. Owen, 316 

Leycester, Booth v., 398 
Leyland, Comber v., 249 
Lhoneux Limon A Co. v. Hong Kong 
and Shanghai Banking Corpora- 
tion, 377 

Liberia, Republic of v. Imperial Bank, 
260 



XXVI 


LIST OF CASES CITED* 


Liebenthal & Co., Montgomery & Co. 
V., 240, 250 

Liebig’s Cocoa Works, Re, 254 
Liebmann’s Case, 866 
Liegeron’s Claim, Re Credit G4n6ral, 
Adda. 

Lightowler v. Lightowler, 251 
Linden, de, Re, 46 
Linden, von, Re, 110 
Lindo V. Belisario, 410 
Lindsay, Tovey t?., 98 , 349 
Linke v. Van Aerde, 93 
Lippmann, Don v., 313 , 386 , 396 
Lister’s Judicial Factor v. Symons, 79 
Liverpool Cotton Association, Merri- 
field V., 397 

Liverpool Marine Credit Co. v. Hunter, 
199, 406 

Livietta, The, 204 
Livingstone, Fenton v., 222 
Lloyd V. Guibert, 194, 276, 296, 296, 
407 

V. Petitjean, 66 

Lloyd Generale Italiano, Re, 169 
Logan V. Bank of Scotland, 238 , 262, 
377 

V. Fairlie, 128, 140 

Lolley’s Case, 96-98 
London and Westminster Bank, Didis- 
heim v., 46 

London Bank of Mexico and South 
America v. Apthorpe, 373 
London Chartered Bank of Australia, 
Williams v., 201 

London, City of, Att.-Gen. v., 371 
Lopez V. Burslem, 407 

V. Chavarri, 262 

, Keg. V., 204 

Lord Advocate v. JafiPrey, 333 

, Laidlay v., 138 

Lord, Moorhouse v., 335, 336, 337-339, 
344, 346 

Lorillard, Re, Adda. 

Lousada, di Savini v., 46 
Loustalan v. Ix>ustalan, 72, 76, 117, 
348 

Lovelace, Re, 143 
Lovitt, King v., 139 
Low (Thomas) & Co. v. Compagnie 
G6n4rale Transatlantique, 377 
Low, Re, Bland v. Low, 313 
Lowe V. Fairlie, 128 

, Macgregor v., 291 

Lowenfeld, Scarpetta v., 392 
Loyd, Ellis v., 299 
Ludwig Matheson v., 406 
Luker, Daniel v., 127 
Luna, The, 201 
Lushington v. Sewell, 216 
Luther v. James Sagor & Co., 200, 261, 
294 

LjaK V. Lyall, 143, 144 

Lyall Shipping Co., Hemsbeyck v., 249 

Lynch, Le Chevalier v., 174 

V. Provisional Government of 

Paraguay, 108 

, R. r., 861, 362 

Lyne v. de la Fert6, 118 

Lyne’s Settlement Trusts, Re, 124, 209 


Lyons. Mayor of v. East India Co. , 371 
Lysaght, Ltd. v. Clark & Co., 242 

McAllister, Maghee v., 97 
Macartney, Re, 203, 294, 881, 396 

V. Garbutt, 266 

MacCarthy, Becquet v., 386 
McCarthy v. Decaix, 96-98 
McCheane v. Gyles, 261, 263 
McClure, Maxwell v., 346, 347 
MacColl V. Bruce, 122 
McCormick v. Garnett, 73, 408 
McCrum, Joynt v., 261, 252 
McCulloch, Re, 167 
Macdonald v. Macdonald, 149 
Macdonald’s Case, 366 
M‘ Donnell v. M‘ Donnell, 381 
McDouall, Dalhousie v., 101, 348 
McFarland, Stephens v., 41 
Macfarlane, Burchard v., 412 

V. Norris, 406 

Macfayden & Co., Re, 165, 179 
M’Feetridge v. Stewarts and Lloyds, 
41 

McGettigan v. North Eastern Railway 
Co., 249 

Macgregor v. Lowe, 291 
McGusty, Franklaud v., 397 
McHenry, Ellis v., 317, 318 

V. Lewis, 400, 401 

McIntosh V. Ogilvie, 178 
Maciver v. Burns, 242 
McKecknie v. Clark, 127, 161 
Mackenzie, Re (1886), 112 

, Re, Mackenzie v. Edwards and 

Moss (1911), 79, 333 
V. Forbes, 209 

Mackereth v. Glasgow and South Wes- 
tern Railway Co., 377 
Mackie v. Darling, 47, 50 
Mackintosh, Jenney v., 219, 261 
McKnight, Currie v., 194 
Maclaren, Carron Iron Co. v., 183, 377 

V. Stainton, 377 

M’Lellan v. Gumm, 201 
Macmaster, Pedder v., 316 
Macnamara v. d’Evreux, 291 
Macnichol, Re, 127 
Macpherson, Dubout v., 253 
MacRae, United States v., 261, 406 
Macrei^it, Re, Paxton v. Macreight, 

McTaggart, Jeffery v.. 171 
Machado v. Fontes, 269, 272 
Madrazo v. Willes, 279 
Madrid and Valencia Railway Co., Re, 
168 

Magdalena Steam Navigation Co. v. 
Martin, 264 

Magee’s Children, Re, 46 
Maghee v. McAllister, 97 
Main, Patience v., 342 
Maitland, Dewar v., 163 
Malcolm v, Martin, 146, 161 
Male V. Roberts, 40 
Mali Ivo, The, 400 « 

Mallao, Simonin v., 41, 58-61, 93 
Malony v. Gibbons, 389 
Maltass v, Maltass, 327, 34^ 



LIST OF CASES CITED. 


xxvii 


Manar, The, 401 

Manchester, Consuelo Duchess of, Re, 
* Duncannon v. Duke of Manches- 
ter, 139 

Manger v. Cash, 396 
Manitoba, &c. Corporation v, Allan, 
248 

Manitoba, &c. Railway, Grey v., 219 
Manners v. Pearson & Co., 300 
Mannheim, The, 401 
Manning v. Manning, 86 

, Newton v., 46 

Manuel, Lambe v., 141 
Maple & Co., Inland Revenue Com- 
missioners V., 205 
Maraver, Re, 116 
Markwald v. Att.-Gen., 360 
Marrett, Re, Chalmers v. Wingfield, 
342 

Marseilles Extension Railway and 
Land Co., Re, 303 
Marsh, Bergerem v., 170 
Marshall v. Marshall 262 

V. Murgatroyd, 204 

Martin, Re, Loustalan v. Loustalan, 
72,76, 117, 119, 348 
, Bell v., 221 

, Great Australian Gold Mining 

Go. V., 239 
, Hicks V., 290 

,< Magdalena Steam Navigation 

Co. V., 264 

, Malcolm v., 146, 161 

V. Martin, 221 

V. Nadel, 203 

V. Nicolls, 396 

Mary Moffat, Re, 110 
Mary Thomas, The, 290, 297 
Mason and Barry v. Comptoir d’Es- 
compte de Pans, 377 
Maspons v. Mildred, 298 
Massey, Graham v., 218 

V. Haynes, 261 

Masson, Stevenson v,, 347 
Master in Equity, Beaver v., 138 
Mather v. Cunningham, 826 
Matheson v. Ludwig, 405 
Matheson Brothers, Ltd., Re, 168 
Matthews, Doulson v., 264 

, Hoskins v., 337 

Mattos, Ex parte de Mello, 180 
Maudslay, Sons & Field, Re, 179, 
206 

Maule V. Murray, 397 

Maurice, Re, Brown v. Maurice, 146 

Maxwell^ Graham v., 183, 402 

V. McClure, 846, 347 

, Smith V., 67 

Maxwell 4 Co., Gabrian v., 389 
Mayer v. Claretie, 240 
Mayor of Lyons v. East India Co., 371 
Meaty ard. Re, 41, 110 
Mecklenburg, de Gasquet- James v., 
92, 93 

Meeus v. Thellusson, 383 
M4gret^Re, Tweedie v. Tweedie, 79 
Mfiiklan v. Campbell, 132 
Ii^an v. Fitzjames, 406 
Melbourn, Ex parte, 136, 180 


Mello Mattos, Chevalier de. Ex parte, 
180 

Melville, Preston v,, 131 
Mercantile Bank of Australia, Re, 168 
Mercantile Investment, &c. Co. v. 

River Plate Trust, &c. Co. 217 
Merrifield v. Liverpool Cotton Associa- 
tion, 397 

Merry & Son, Dulaney v., 170 
Messicano, The, 257 
Metcalfe, Re, 60 
Mette V. Mette, 41, 67, 68, 62 
Meurice, Kolchmann v., 249 
Meyding V. Hinchcliff, 410 
Meyer, Bazett v., 291 

V. Dresser, 406 

V. Ralli, 396 

Middleton v. Janverm, 66, 57 

, Wood V., 248 

Mighell V. Sultan of Johore, 268, 260 
Mildred, Maspons v., 298 
Milford, The, 202 , 203 
Mill, Att.-Gen. v., 211 
Miller, Re, 216, 284 

, Brick wood v., 180 

, Deschamps v., 219 

V. James, 117 

Mills, Albion Insurance Co. v., 296 

, Pattison v., 296 

Milne v. Graham, 312 
Milward & Co., Re, 413 , 

Minet V. Vulliaray, 371 
Minna Craig S.S. Co. v. Chartered 
Mercantile Bank, &c., 176 
Minto, Elliott V., 146, 210 
Mir Ammureddin, Re, 69, 87, 94, 104, 
328 

Missouri Steamship Co., Re, 289, 296 
Mitchell, Re, 48 

, Re, Ex parte Cunningham, 166, 

348, 361 

, Cox V., 400, 401 

V. Egyptian Hotels, Ltd., 373 

, Innes v., 132, 396 

M. Moxham, The, 264, 269 
Moffatt, Smith v., 171 
Moisson, Quelm v., 316 
Molleson, Phosphate Sewage Co. v., 
406 

Montaigu, de, v. de Montaigu, 88 
Montefiore, de Wilton v., 68 
Montgomery i\ Zarifi, 79, 82 
Montgomery & Co. v. Liebenthal, 240, 
260 

Moor V. Anglo-Italian Bank, 219 
Moore v, Darell, 117 
Moorhouse v. Lord, 336-339 , 344 , 346 
Mora, de v. Concha, 411 
Morgan, Re, 48 

, Larivi6re v., 263 

Morocco Bound Syndicate v. Harris, 
261 , ^ 
Morris, Harford v., 56, 69, 67 * 

Morrison, New Zealand Loan, Ac. Co. 
t?., 317, 318 

Moses, Re, Moses v, Valentine, 211 
Mostyn v. Fabrigas, 236^ 264, 269 
Mottichund, Ruckmaboye v., 313 
Moulis V, Owen, 293 , 304, 404 



LIST OF CASES CITED. 


XXVIII 


Mowat, Geddes v., 171 
Mowbray & Robinson v. Rosser, Adda. 
Mulcaster, Doe v., 364 
Muller & Co.’s Margarine v. Commis- 
sioners of Inland Revenue, 206 
Munro v. Munro, 101, 102 , 340 

V. Saunders, 102 

Munroe v. Douglas, 343 
Murgatroyd, Marshall v., 204 
Muneta, Concha v., 411 
Murphy v. Deichler, 123 
Murray, Re, 115 

V. Chain pernowne, 209 

, Maule V , 397 

, Nisbett V., 151 

Muschamp, Arglasse v., 217, 219 
Musgrave, Alexandria Water Co. v., 
373 

Musurus, Ghikis r., 248 
Musurus Bey Gadban, 264 

, Gladstone v., 263, 264 

Mutrie V. Binney, 400 
Mutzenbecher v. Da Aseguradora Espa- 
fiola, 248 

Myers, Barrow v., 249 


NadeTj, Martin t’., 203 
Naguib, R. V., 69 
Napier, Att.-Gen. v., 141 

, Chamberlain v., 81 

, Dobree r., 270 

V. Schneider, 308 

Nasmyth, Hare t;., 35, 117, 118 
National Bank of St. Charles v. de 
Bern ales, 373 
Nautik, The, 243 

Nawab Nazim of Bengal’s Infants, Re, 
103 

Naylor v. Eagar, 400 
Naylor, Bewgor & Co. v. Krainische, 
292 

Neal V. Cottingham, 169 
Necchi, Kemp i?., 240 
Neck V. Taylor, 413 
Nelson, Re, 318 

V. Bridport, 221, 409, 411 

Neptune the Second, The, 277 
Netherlands, &c. Navigation Co., 
Chartered Mercantile Bank of 
India V., 276, 295 
Neville, Galbraith v., 394 
New V. Bonaker, 371 

V. Burns, 412 

Newbattle, The, 260 
Newby v. Van Oppen and Colt’s, &c. 
Co., 375, 377 

New Fcnix Compagnie v. General Acci- 
dent Co., 413 
Newland v. Horsman, 397 
Newman v. Cazalet, 297 
Newt South Wales, Att.-Gen. of, Platt 
'll., 346 

Newton v. Manning, 46 

V. Newton, 91 

New York Breweries v. Att.-Gen., 109, 
138 

New York Herald, De Bernales v,, 240, 
242, 260 


New York Security and Trust Co. v 
Keyser, 48 

New Zealand Loan, &c. Co. v. Mo^^ 
rison, 317, 318 

New Zealand, Governor of, Sloman v., 
268 

Nias, Bank of Australasia v., 392, 396, 
397 

Niboyet v. Niboyet, 84, 89-92 
Nicholls, Re, Hunter v. Nicholls, 214 
Nicholson, Calcutta Jute Mills Co. v., 
373 

, Cesena Sulphur Co. v., 373 

Nickerson, Pope v., 296 
Nicolls, Martin v., 396 

, Smith V., 397 

Nina, The, 243 

Nisbett V. Murray, 151 

Noailles de. Re, 198 

Nobel Dynamite Co. v. Wyatt, 373 

Noell V. Robinson, 212 

Norden Steamship Co. v. Dempsey, 296 

Nordenfelt, Re, 166 

Norris v. Chambrcs, 218 

, Macfarlane v., 405 

North Ameiican Land and Timber Co., 
Watkins r., 238 

North British, &c., Co , Collins i’., 251 
North Carolina Estate Co., Re, 177 
Northcote, Hay r., 64 
North Eastern Railway Co. v. McGetti- 
gan, 249 

North of Scotland Banking Co., Ham- 
burgh American Steamship Co. 
c., 278 

North Western Bank v. Poynter, 200, 
203 

Northousp, Bentley v., 312 
Norton v. Florence T^and and Public 
Works Co., 219, 221 

, Re, Norton v. Norton, 238 

Nostra Signora de los Dolores, The, 270 
Nouvelle Banque dc I’llnion v. Ayton, 
408 

Nouvion V. Freeman, 381 
Novelli V. Rossi, 396 
Novello r. Toogood, 265 
Nugent V. Vetzera, 46 
Nunneley v. Nunneley, 79 


Obicini V. Bligh, 886 
O’Callaghan v. Thomond, 312 
O’Connor, Cowan v., 298 
Ochsenbein v. Papelier, 396 
Odber, Hall v., 382, 397 
Odwin V. Forbes, 317 
Ocsterreichische Export v. British In- 
demnity Co., 261 

Oetjer v. Central Leather Co., 200 
Oetl and Grundt, Re, 116 
Ogden V. Folliott, 414 

, Folliott V., 169, 414 

V. Ogden, 41, 43, 68, 60-62, 88, 

89, 93 

Ogilvie, Re, 164 

, McIntosh 1 ?., 178 

Ogilvy, Indigo Co. v., 241 
O’Hagan, Viditz v., 44, 78 



LIST OF CASES CITED. 


XXIX 


Okura & Co. v. Forsbacka, &c., 242, 
377 

iDldenbiirg, Prince P. G., Be, 119, 409 
Oliphant, Be, 114, 115 

V. Hendrie, 371 

Oliveira, Beaumont v., 212 

Olivier v. Townes, 190 

O’Loghlen, Ex parte ^ 167 

Ommaney v. Bingham, 148 

O’Neil V. Clason, 241 

Onslow and Allardice v. Cannon, 36 

Onslow, Allardice v., 346 

Ontario, Att.-Gen. for, Woodruff v., 139 

Oppenheimer, Abouloff v., 397 

Orcutt V. Orms, 126 

Oriental Inland Steam Co., Be, 174 

Orleans, d’. Be, 41, 110, 352 

Ormonde, Clarke v., 218 

Orms, Orcutt v., 126 

Orr, Bowles v.^ 396 

Orr Ewing, Ewing v., 130 

V. Orr Ewing, 130 

Oiy V. Winter, 313 
Ostcll V. Lepage, 399 
Otto Lewis, Ex parte, 48 
Ottoman Bank, Gladstone r., 263 
Overmann, Boiiquette v., 304, 306, 308, 
405 

Owen, Lewis v., 316 

, Mouha V., 293, 304, 404 

, Bex V,, 254 

Oxholm, Wolff V., 404, 414 


Padley 1 ’. Campliausen, 239 
Page V. Donovan, 119 
Paget, Ex parte, 413 
V. Ede, 220 

Palace Steamship Co., Caine v., 396 
Palmer v. Caledonian Bailway Co., 378 

V. Palmer, 92 

, Thompson v., 248 

Panhard Motor Co., Soci4t4 Panhard 
Levassor r., 376 
Papayanni, Cail v., 276 
Papelier, Ochsenbein v., 396 
Paragotis v. Pontrac, 272 
Paraguay, Provisional Government of. 
Lynch v., 108 
Parapano v. Happaz, 323 
Pardo V. Bingham, 136, 313 
Parent, Canadian Pacific Eailway v., 
269 

Parker, Cresswell v., 262 
Parkinson v. Potter, 266 
Parks, Seagrove v., 239 
Parlement Beige, The, 257 
Partington v. Att.-Gen., 138 
Pascal, Ex parte, 167 . 

Patience v. Main, 342 
Patria, The, 296 
Patrick v. Shedden, 381 

, Shedden v., 103 

Patten, Re, 349 
Pattison v. Mills, 296 
Paul v^Roy, 381 
— Deutsche Bank v., 249, 261 
Paxton Macreight, 848 
Payne v. Rex, 1^ 


Pearse, Re, Pearse tK Pearse, 138, 218 
Pearson, Re, Ex parte Pearson, 164 
Pearson & Co., Manners v., 300 
Peat, Re, 216 
Pechell V. Hilderley, 121 
Redder v. Macmaster, 316 
Peillon V. Brooking, 44, 203 
P^l^grin V. Coutts, 46 
Pellecat v. Angell, 292 
Pemberton v. Hughes, 94. 392 
Pena Copper Mines, Ltd. v. Rio Tinto, 
Ltd., 401 

Penaluna, Clugas v., 292 
Peninsular and Oriental Steam Naviga- 
tion Co. V. Shand, 286, 297 

, Japanese Government v., 261, 266 

Penn v. Baltimore, 217, 219 
Pepin IK Bruy^re, 214 
Pepper v. Pepper, 65 
Percy and Kelly Cobalt, &c. Mining 
Co.^ Re, 413 

Perez, Triana & Co., Western National 
Bank v., 241 
Perrin v. Perrin, 91, 92 

, Surrey v., 132 

Pertreis v, Tondear, 65 

Peru, Republic of v. Dreyfus, 261 

V, Weguelin, 260 

Peruvian Guano Co. v. Bockwoldt, 400, 
402 

, Dreyfus v., 413 

Peruvian Railways Co., Re, 168 
Peshawur, The, 401 
Peter v. Stirling, 145 
Petitjean, Lloyd v., 66 
Petrie, Jackson v., 217 
Petty, Re, 118 

, Carteret v., 218, 219, 221 

Phayre, Huthwaitc v., 109 
Philips V. Hunter, 178, 185, 394 
Phillipps, di Sora v., 283, 411 
Phillips V, Allan, 316 

V. Batho, 90, 272, 390 

, Browne v.. Ill 

V. Eyre, 269 

V. Phillips, Adda. 

Philpotts V. Reed, 317 
Phipps V. Anglesca, 215 
Phosphate Sewage Co. v. Molleson, 406 
Pickering v. Stephenson, 371 
Piercy, He, Whitwhara v. Piercy, 209 
Pierson v. Garnet, 161 
Pietroni, Transatlantic Co. v., 401 
Pike V. Hoare, 218 
•Pilkington, Scott v., 381 
Pilling, Re, 413 
Pipon V. Pipon, 131, 147 
Pitt V. Dacre, 216 
Planch6 v. Fletcher, 291 
Planters’ Bank, United States Bank v., 
257 

Platt V. Att.-Gen. of New floiith 
Wales, 346 

Plummer v. Woodburne, 398 
Poitier v. Croza, 266 
Pollard, Ex parte, 217 
Pollexfen v. Sibson, 241 
Polzeath, The, 369 
Pompe, Suse v., 308 



XXX 


LIST OF CASES CITED. 


Pontrac, Paragotis, v., 272 

Poole, Greer v., 2^, 297 

Pope V. Nickerson, 296 

Porter v. Freudenberg, 289, 362 

Porto Alexandre, The, 267 

Portugal, Queen of, Rothschild v., 260 

Potinger v. Wightman, 332 

Potter V. Brown, 316 

, Parkinson v., 266 

Pottinger, Att.-Gen. v., 360 
Potts, Hunter v., 177, 178 
Pouey V. Hordern, 79 
Poulter V. D’Este, 122 
Powell, Hicks v., 221 
Power V. Whitmore, 297 
Poyles, Thompson v., 291, 299 
Poynter, North Western Bank v., 200, 
203 

Pratt, Att.-Gen. v., 137, 138 

V. The North British Co., 261 

Pray v. Edie, 413 

President of U.S.A. v. Drummond, 362 
Preston, Archer v., 219 

, Bonnell v., 240 

V. Melville, 131 

Pretona-Pietersburg Railway Co , Re, 
413 

Price, Re, 122, 162 

V. Dewhurst, 109, 396 

Prins Hendrik, 270 
Prioleau v. United States, 260 

, United States v., 261 

Professional Life Assurance Co., 
Sheehy v,, 382 

Provisional Government of Paraguay, 
Lynch v., 108 

Provost of Edinburgh v. Aubery, 371 
Pryce, Re, 124 

Public Trustee, Stoeck v., 366 

Quarrier V. Colston, 293 
Queen, The. See R. 

Queen v. Doutre, 296 
Queen of Portugal, Rothschild v., 260 
Queensland, Commissioners of Stamps 
for, Harding v., 141 
Queensland Mercantile and Agency Co., 
Re, 202 

Queensland National Bank, Re, 168 
Quelin v. Moisson, 316 
Quin V. Keefe, 316 
Quine, Harris v., 314 
Quiney, Coombs v., 281 

R. V. Albany Street Police Station 
Superintendent, 867 

V. Anderson, 204 

, Blackwood v., 138 

, Borland v., 139 

V. Carr, 204 

— Clerkenwell Commissioners of 
Taxes, 373 

V. Commissioners of Stamps and 

Taxes, 189 

, Cotton 1 ?., 139 

V. Dent, 410 

, Henty v., 138 

— - V. Humphreys, 104 


R. V. Lesley, 270 

V. Lopez, 204 

V. Lovitt, 139 

V. Lynch, 361, 362 

V. Naguib, 69 

V. Owen, 264 

, Payne v., 138 

V. Rotherneld Greys (Inhabitants 

of), 332 

V, Sattler, 204 

V. Speyer, 368 

, Stem v.j 127 

V. Vine Street Police Station 

Superintendent, 366 

, Walsh V., 203 

, West Rand Gold Mining Co. v., 

261 

, Winans v., 139 

R.S.A., Re, 46 
Raffenel, Re, 342 
Ralli, Meyer v., 396 
Ralli Brothers v. Companhia Naviera, 
&c., 289, 291, 299 
Ranelagh, Charapant v., 299 
Rankin’s Estate, Re, 113 
Rathbone, De Co8s6 Brissac v., 388, 
395 

Rayment v. Rayment & Stuart, 89, 
254, 272, 390 
Raymond v. Brodbelt, 146 
Rea, Re, Rea v. Rea, 208 
Read, Re, 112 

, Strother v., 170, 171 

, Waymell v., 292 

Reddy, Keymer v., 240 
Redfera, Arnott v., 296, 396 
Reed, Philpotts v,, 317 
Reeve, Bowaman t?., 146 
Reeves, Collins Co. v., 376 
Regina. See R. 

Reid, Re, 119 

Reimers v. Druce, 395, 396 
Rein v. Stein, 248 
Reiner v. Salisbury, 222 
Repeater, The v. The Braga or Krag- 
eroe, 278 

Republic of Costa Rica v. Erlanger, 260 

, Strousberg v., 261, 263 

Republic of Liberia v. Imperial Bank, 
260 

Republic of Peru v. Dreyfus, 261 

V. Weguehn, 260 

Reuss (Princess of) v. Bos, 168 
Revelstoke (Lord) v. Inland Revenue 
Commissioners, 204 
Rex. See R. 

Rey V, Le Couturier, 206, 376, 414 
Reynolds v. Coleman, 248 

V. Ellis, Re Bankes, 44, 78 

V. Fenton, 386, 389 

Rhodesia Consolidated, Ltd., Brailey 
V., 410 

Ricardo v. Garcias, 398 
Ricaud v. American Metal Co., 200 
Richards v. Goold, 210, 282 
Richardson v. Bradshaw, 179 ^ 

V. Dowdale, 129 

Riohnitzer, von Hellefeld ti.,^2 
Ricketts, Bourke ti., 146 



LIST OF CASES CITED. 


xxxi 


Riera, Heriz v., 291 

, Jephson v., 364 

^ — V. Riera, 91 
Bin, de, Bradlaugh t\, 303 
Rio.Tinto Co., Ltd., Ertel Bieber & 
Co. V., 292 

V. D3mamite A. G., 407 

, Pena Copper Mines v., 401 

Risdon Iron Works v. Furness, 376, 392 
Rivaz, Collier v., 36, 121, 384 
River Plate Trust, &c. Co., Mercantile 
Investment, Ac., Co. v., 217 
Roach V. Garvan, 403 
Robartes, Ex parte ^ Re Gillespie, 308 
Robarts, Cruikshank o., 401 
Robeck, de, Hopkins v., 266 
Roberdeau v. Rous, 219, 221 
Roberts v. Att.-Gen., Re Johnson, 36 

V. Brennan, 92 

, Male v., 40 

Robertson, Ex parte, 174 

, Inglis V., 200 

Robey v. Sneefell Mining Co., 248 
Robin, Lane v,, 261 
Robins, Colls v., 264 

, Dolphin V., 97, 122, 333 

, Sadler v., 382 

Robinson, Re, 167 

V. Bland, 288, 293 

V. Fenner, 392 , 396 

, Noell V., 212 

Rodoconachi, Burnand t;., 297 
Roe V. Roe, 409 
Rogers, Ex parte 171 
Rogerson, Re, HO 
Ronald, Edwards v,, 317 
Rose V. Ross, 102 

, Whyte V., 109, 110, 126, 127 

Ross, Channel Coaling Co. v., 250 

V. Eason, 261 

, Rose V., 102 

, Solomons v., 169 

V, Woodford, 412 

Rosser, Mowbray & Robinson v,, Adda. 
Rossi, Novelli v., 396 
Rotherfield Greys (Inhabitants of), 
R. V., 332 

Rothfield, Cohen v., 401 
Rothschild, Colombian Government v., 
260 

V. Currie, 306 

V. Queen of Portugal, 260 

Rouquette, Home v., 306, 307, 

V. Overmann, ^4, 306, 308, 406 

Rous, Roberdeau v., 219, 221 
Rousillon V. Rousillon, 294, 386 
Roven, de, Dupleix v., 880 
Row V. Jagg, 209-2li 
Rowe, Att.-Gen. v., 349, 360 
Roy, Paul v., 381 

Royal Bank of Scotland v, Cuthbert or 
t). Stein’s Assignees, 160, 170 
Royal Exchange Assurance v. Sjofor- 
sakrings Aktiebolaget, 289 
Royal Wax Candle Co., Scott v., 376 
Rucker ,^uchanan v., 384 
— Francis v., 308 
Rucklige, Western Suburban, Ac. 
Building Society v,, 240 


Ruckmaboye v. Mottichund, 313 
Ruddimams Trusts, Re, 264 
Ruding V. Smith, 63, 67 
Rue, de la, Re, 116 
Ruglioni de Virte, Vaiani r., 154 
Rule, Re 117 

Rush V. Rush and Pimenta, 89, 254 
Russell (John) A Co. v. Cayzer, Irwin 
A Co., 238, 262 
Russell V. Cambefort, 241 

V. Smyth, 382 

Ryan v. Ryan, 98 


Saccharin Corporation Co. v. Chem- 
ische Fabrik Co., 377 
Sackville (Lord), West v., 412 
Sadler v. Robins, 882 
Sagor (James) A Co., Luther v., 200, 
261, 294 

St. Giorgio, Weatherby v., 132 
St. Gobain, Ac. v. Hoyermann’s, Ac., 
242 

St. John, Scholefield v., 122 
Sanders, Re, 113 
Saumarcz, de, Re, 146 
Salisbury, Reiner v., 222 
Salting, Stamp Duty Commissioners 
V., 138 

Samson, Heath v., 349 

San Paulo Railway Co. v. Carter, 373 

Sanders, Re, 113 

Sandford, Campbell v., 161 

Sandilands v. Innes, 128, 130 

Sandos, Brettilot v., 406 

Santo Teodoro v. Santo Teodoro, 89 

Santos V. Illidge, 292 

Sargazurieta, Re, 48 

Sattler Reg. v., 204 

Saumarez, He, 146 

Saunders v. Drake, 161 

, Munro v., 102 

Saussaye, de la. Re, 116 
Savile v. Drax, 216 
Savini, di, v. Lousada, 45 
Sawer v. Shute, 73 
Sawers, Be, Ex parte Blain, 164 
Sawtell, Hernando v., 79, 82 
Saxby v. Fulton, 293 
Saxonia, The, 278 
Scarajnanga, Harris v., 297 
Scarpetta v. Lowenfeld, 392 
Schibsby v. Westenholz, 384, 386-388 
Schiff, Be, 116 
Schneider, Napier v., 308 
Scholefield, Be, 122, 123, 163, 406 
Schricband A Co. v. Lacon, 404 
Schroeder A Co., Clydesdale Bank Ltd. 
V., 199, 389 

Schurmanns, General Iron Screw 
Collier Co. v., 276 

Schwab Westerman v., 117, 119 * « 
Scinde Railw^ Co., Ex parte, 174 
Scotia, S.S., Young v., 268 
Scotland, The, 274 
Scott, Be (No. 1), 144 

, Be (No. 2), 140 

V. Att.-Gen., 88 

, Balfour v., 147, 148 



xxxii 


LIST OF^ CASES CITED. 


Scott V. Bentley, 46 

V. Bevan, 300 

V. Pilkington, 381 

V. Royal Wax- Candlt? Co., 376 

V. Seymour, 271, 400 

Scottish Accident Insurance Co., Jones 
t)., 368 

Scottish Imperial Insurance Co., Wat- 
kins v., 368 

Scrimshire v. Scrimshire, 66, 67, 403 
Seagrove v. Parks, 239 
Sealey, Jauncy i;., 129 
Seaman, Re, 116 
Sedgwick, Bird v , 166 

u Yedras Mining Co., 240 

Segredo, The, 191, 193, 196, 200 
Selkrig v. Davis, 170, 171, 174 
Selot’s Trust, Re^ 49 
Selwyn, Kelly v., 202 
Semenza, Re, 413 

Seqiievillc, Bristow v., 281, 282, 410 
Serre, de, v. Clarke, 73 
Serre v. Famous Lasky Film, &c. Co., 
Titd., 298 

Service, Bateman v., 376 

Sewell, Cammell v., 195, 196, 198-200 

, Luahington v., 216 

Seymour, Scott v., 271, 400 
Shad well, Jeves v., 141 
Hhand, Peninsular & Oriental Steam 
Navigation Co. v., 286, 297 
Sharp V. Taylor, 291 
Sharpe v Crispin, 333, 334, 349 
Shaw V. Att.-Clcn., 94, 97 

V. Gould, 96, 97, 101 

V. Staiightou, 127 

Shearman v. Findlay, 263 
Shedden v. Patrick, 103 

, Patrick v., 381 

Shcehy i\ Piofessional Life Assurance 
Co., 382 

Shelby v. Grey, 315 
Shephard, Ford v., 240 
Shilling V Farmer, 255 
Short, Egbert 238 
Shrirnpton, Watts v., 73, 78, 82 
Shute, Saw'er v., 73 
Sibeth, Ex parte, Re Sibeth, 81 
Sibson, Pollexfen v., 241 
Sidaway v. Hay, 317 
Sill V. Worswick, 177-179, 184 
Simeon v. Bazett, 291 
Sirnonetti, Dawkins i’., 402 
Simonin v. Mallac, 41, 68-61, 93 
Simpson, Re, Coutts & Co. v. Church 
Missionary Society, 122 
— V. Fogo, 196, 199 
Sinclair v. Fraser, 394 , 396 

V. Sinclair, 403 

Sindry, Larpent v., 118 
Singer, Williams v., 144 
Sirdar Gurdyal Singh v. Rajah of 
Faridkote, 385 , 386 

Sjoforsakrings Aktiebolaget, Royal Ex- 
change Assurance v., 289 
Skinner v. East India Co., 266 

V. Skinner, 87 

Skirving, Hepburn v., 333 


Skottowe V. Young, 103 
Sloman v. Governor of New Zealand. 
268 / 
Smallpage’s Case, Re Marseilles Rail- 
way, 303 

Smelting Co. ik Commissioners of 
Inland Revenue, 205 
Smidth (F. J.) & Co., Greenwood v., 
Adda. 

Smith, Ex parte, 166 

, Re (1860), 349 

, Re (1864), 143 

, Re (1868), no 

, Re (1876), 263 

, Re (1916), 216 

, Alcock V , 204, 302 

, Atkins 1 ’., 129 

, Blake v., 396 

, Brown v., 349 

V. Buchanan, 316 

, Coldingham Parish Council v., 

104 

, Dues V., 73 

V. Gould, 407 

, Hilly ard r., 250 

, Hirscbfeld v., 306 

V. Maxwell, 57 

V. Moffatt, 171 

V. Nicolls, 397 

, Riiding r., 63, 67 

Smith, 212 

I V. Weguelin, 263 

Smits & Co., di Ferdinando r., 299 
Smyth, Re, Leach v Leach, 1*38 

, Este V., 66 

, Russell V., 382 

Snrofell Mining Co , Robey v., 248 
Society di Navigazione, &c , Thames, 
&c. Insurance Co. v., 372, 377 
Soci6t(^, &c des Hotels R^unis v. 
Curnming, 200 

V. Hawker, 293, 294 

Soci^t^, &c. des Metaux, Gibbs & Sons, 
c., 316 

Soci^t^, (fee. Panhard - Levassor, 
Panhard, &c. Motor Co. v., 376 
Socu^-tt^ Gdn^rale v. Dreyfus Bros., 398 
Solicitor to Treasury, Vaucher v , Re 
Grove, 102 

Solomon, Levy v., 101, 102 
Solomons v. Ross, 169 
Somerville, Corbridge v,, 336, 341, 344, 
346 

— - V. Somerville, 146, 148, 347 
Soper, Henley v., 397 
Sora, di, v. Phillipps, 283, 411 
Sottomaior, Re, 46 

Sottomayor v. De Barros, 41, 42, 67, 
60, 62, 93 
Soulie, Re, ^ 

South African Breweries v. King, 290, 
296 

South African Republic v. La Com- 
pagnie Franco-Beige, Ac., 260 
South Eastern Ry. Co., Branley v., 297 

, Cohen v., 297 • 

' South Eastern Ry. Co. of Portugal, Me, 
177 , 

Spain, King of, v. Hullett, ^ 



LIST OF CASES CITED. 


xxxiii 


Span, Dewar v,, 299 
Speller v. Bristol Steam Navigation 
• Qp., 263 
Spencer, Ferguson v., 317 
Speyer, R. v., 358 
Spiller V. Turner, 298 
Spratt V. Hams, 115 
Sproule V. Hopkins, 93 
Spurrier r. La Cloche, 285 
Spurway v. Spurway, 346 
Stagg, British Controlled Oilfields v., 
219, 250 

Stainton, Maclaren v., 377 
Stamford, Grey v., 155 
Stamp Duty Commissioners v. Salting, 
138 

Stanley v. Bernes, 119, 347 

, Gramophone and Typewriter, Ijtd. 

373 

Stansfield, Waterhouse u., 221 
Stapleton v. Conway, 299 
Stark, Re, 48 

Statham v. Statham and Gaekwar of 
Baroda, 258, 260 
Stathatos v. Stathatos, 88, 334 
Staughton, Shaw v., 127 
Steele v. Braddell, 61 
Steer, Re, 346 
Steigerwald, Re, 111 
Stem, Campbell v., 313 
, Rein v., 248 

Stein’s Assignees, or Cuthbert, Royal 
Bank of Scotland i;., 160, 170 
Steiner, Huber v., 314 
Stephens v. McFarland, 41 
Stephenson, Pickering v , 371 
Stern v. The Queen, 127 
Stettin, The, 295 
Steven, Forbes v., 140, 209 
Stevenson v. Masson, 347 
Steward, Johannesburg Municipal 
Council V., 401 

, Thurburn v., 136, 180 

Stewart, Re, 115 

V. Bank of England, 264 

— — , Cavan v., 384, 387, 389 

V. Garnett, 216 

, Hunter t*., 399 

Stewarts & Lloyds, M’Feetridge v., 41 
Stirling, Re, Stirling v. Stirling, 97 

, Peter v., 145 

Stirling-Maxwell v. Cartwright, 130 
Stoeck V. Public Trustee, 366 
Stokes, Re, Stokes v. Ducroz, 140, 209 
Stone, De Geer v., 355, 358 
Strathmore Peerage, 102 
Strother v. Read, 170, 171 
Strousberg v. Republic of Costa Rica, 
261,263 

Stuart V. Bute, 46 

, Droege v , 296 

Stubberfield Grassi, 214 
Studd V. Cooke, 216, 284 
Sturapel V. Stumpel and Zeppel, 264 
Sturge, Att.-Gen. v., 371 
Suarez#*. Suarez, 2M, 265 
S\|^eley (Lord) v. Att.-Gen., 138 
Sudlow 1 *. Dutch Rhenish Railway Co., 
371 


Sumner, Permain A Co. v, Webb & 
Co., 298 

Surman v. Fitzgerald, 79, 293 

Surrey v. Perrin, 132 

Suse V. Pompe, 308 

Sussex Peerage, The, 60, 63, 409, 410 

Sutherland, Hessing v., 46 

, Kaye v., 248 

Swift V. Kelly, 66 

Swifte V. Att.-Gen. for Ireland, 56 

Sydney Municipal Council r. Bull, 221 

Sylva da Costa, 48 

Symon, Emanuel v., 383 , 386 , 387 

Symons, Lister’s Judicial Factor v., 79 

Tagus, The, 203, 407 
Talisker Distillery, Harnlyn & Co. v., 
286 

Talleyrand v. Boulanger, 405 
Tamplin, Rc, 116 

Tan Ah Loy, Cheang Tbye Phm v., 66 

Tano V. Tano, 323 

Tarleton v Tarleton, 394 

Tassel v. Hallen, 248, 251 

Tastet, de, v. Baring, 308 

Tatnall v. Hankey, 123 

Taylor v. Barclay, 291 

V. Best, 265 

, Harris v., 388 , 391 

V. Holland, 313 

, Neck V., 413 

, Sharp V., 291 

, Vecht V., 361 

Taylor Bros., Johnson i’., 249 
Tcesdale, Lautour r., 66, 63, 67 
Telford, Johnson v., 153 
Tennent, Welch v,, 76 
Tervaete, The, Adda. 

Thames and Mersey Insurance Co. v. 
Societal di Navigazione, &c., 372, 
377 

Thanemore S.S. Co. v. Thompson, 261 
Thellusson, Meeus v., 383 
Thiery v. Chalmers, Guthrie & Co., 46 
Thomas, Aunol v., 308 

V. Hamilton, 249 

Thomond, O’Callaghan v., 312 
Thompson v. Barclay, 291 

, Bir^ V,, 291 

V. Palmer, 248 

V. Powles, 291, 299 

, Thanemore S.S. Co. v., 261 

Thomson r. Adv.-Gen., 140 

, Yates V., 163 

Thorne v. Watkins, 147 
Thornton v. Curling, 148 

, Curling v., 119 

V. Thornton, 91, 400 

Thurburn v. Steward, 136, 180 
Tindall, Ex parte, 412 
Toller V. Carteret, 220 
Tomlin v. Latter, 122, 152 
Tondear, Pertreis v., 66 
Toogood, Novello v., 265 
Tootal’s Trust>i, Re, 109, 123, 322, ^5, 
329 

Tourton v. Flower, 109 
Tovey v. Lindsay, 98, 849 
Townes, Olivier v., 1^ 



xxxiv 


LIST OF CASES CITED. 


Tozier v. Hawkins, 250 

Trafford v. Blanc, 108, 396 

Trail, Twyford v., 129 

Transatlantic Co. v. Pietroni, 401 

Tr4fond, He, 114, 123 

Tremblay, Despatie v., 56 

Trimbey v. Vignier, 303 

Trinidad Shipping Co. v. Alston, 289 

Trotter v. Trotter, 149, 163 

Trubner v. Trubner and Cristiani, 264 

Trufort, Re, 36, 107, 108, 396 

Tucker, Lebel v., 303 

Tulledge, Bouchet v., 382 

Tulloch V. Hartley, 219, 406 

Turnbull v. Walker, 386 

Turner, Re, 410 

, Spiller V., 298 

Turst, Foubert v., 82 

Tweedie v, Tweedie, Re M^gret, 79 

Two Sicilies, King of, v. Willcox, 406 

Twycross v. Dreyfus, 263 

Twyford v. Trail, 129 

Tyler v. Bell, 128, 129 

Tyrone v. Waterford, 161 


Udny V. Udny, 42, 102, 331, 340, 343 
Ullee, Re, 69, 103 
Umphelby, Douglas-Menziea v., 153 
Union Bank of Australia, Ex parte, 202 
Union Bank of Calcutta, Re, 169 
United States v. Hamilton, 204 

V. MacBae, 261, 406 

V. Prioleau, 261 

, Prioleau v., 260 

V. Wagner, 260 

(President of) v. Drummond, 362 

United States Bank v. Planters Bank, 
267 

Urquhart, Re, 166 

V. Butterfield, 331, 361 

Usher, Agnew v., 248 
Usherwood, Inglis v., 197 
Ussher v. Ussher, 66 

Vacuum Brake Co., Lawson v., 412 
Vadala v. Lawes, 397 
Vaiani v. Kuglioni de Virte, 164 
Valdor, de, Worms v., 49, 60 
Valentine, Moses v., 211 
Valentine & Sons, Alexander & Co. v., 
260 

Vallance, Re, 110, 123 
Valine V. Dumergue, 383 
van Aerde, Linke v., 93 
van den Hurk, Barry v., 299 
van Grutten v. Digby, 78 
Vannini, Re, 110, 123 
Van Oppen and Colt’s, Ac. Co., Newby 
ti.. 376, 377 

Vanquelin v. Bouard, 109, 127 , 888, 
. • 896 

Vanvlissengen, Caldwell v., 272 

Vanzeller, Re, 180 

Vardill, Birtwhistle v., 222, 223 

Vardopulo v. Vardopulo, 4()2 

Vassall, Foster v., 219 

Vaucher v. Solicitor to Treasury, 102 

Vaughan, Alexander v., 166 


Vavasseur v. Kruw, 263 
Vecht V. Taylor, fel 
Vega, de la, v. Vianna^^406 , 
Velasquez v. Inland Kevenue Com- 
missioners, 206 
Vernon, The, 277 
Vetzera, Nugent v., 45 
Vianna, de la Vega v., 406 
Viditz V. O’Hagan, 44, 78 
Viesca v. d'Aramburu, 111 
Vignier, Trimbey r.. 303 
Vigny, de. Re, 117 
Vincent, Barnes v., 121, 122 
Vine St. Police Station Supt., E. v., 
366 

Virte, de. Re, 164 

Vivar, The, 253 

Vivash V. Becker, 266 

Vizianagaram Co., Ltd., Ex parte, 166 

Vogeler (C. A.) Co., Cooke v., 164 

Voinet v. Barrett, 888 

Volturno, The, 300 

von Brentano, Re, 114 

von Buseck, Re, 114 

von dem Busche, Re, 116 

von Gumpach, Hart v., 269 

von Hellefeld v. Bichnitzer, 242 

von Linden, Re, 110 

Vulliamy, Minet v., 371 

Waddell, Banco de Portugal v., 179 
Wade, Beckford v., 216 
Wagner, United States v., 260 
Wahlstatt, Att.-Gen. v., 348 
Waite V. Bingley, 212 
Waldcgrave, Cooper v., 299 , 304 
Wal degrave Peerage, 67 
Walford, Batthyany v., 221, 270 
Walker, Re, 122 

V. Hamilton, 308 

, Hanson v., 136 

, Turnbull v., 386 

V. Witter, 379, 394 

Wallace v. Att.-Gen., 141 
Wallis V. Brightwell, 216 
Wallop, Re, 141, 143 
Walpole V. Ewer, 297 
Walrond, Guthrie v., 161 
Walsh V. The Queen, 203 
Wansbrough Paper Co. v. Laughlin, 260 
Waring v. Knight, 179 
Warrender v. Warrender, 62 , 69, 87 
Warter v. Warter, 88 
Waterford, Tyrone v. 151 
Waterhouse v. Stansneld, 221 
Watkins, Ex parte, 47 

V. North American Land and 

Timber Co. , 238 

V. Scottish Imperial Insurance 

Co., 368 

, Thorne v., 147 

Watson A Sons y. Daily Eecord, 250 
Watts V. Shrimpton, 78, 78, 82 
Waymell v. Bead, 292 
Weatherby v. St. Giorgio, 132 
Webb A Co., Sumner Permain A Co. 
V., 298 

Weber, Re, 366 
, Fitdb. V., 862 



LIST OF CASES CITED. 


XXXV 


Wedderburn v. Wedderburn, 402 
Weguelin, Republic of Peru r., 260 
— , Smith v., 263 
Welch V. Tennent, 76 
Wells V. Williams, 362 
West V. Lord Sackville, 412 
West Baud Gold Mining Co. v. R., 261 
Westenholz, Scbibsby v., 384 , 386-388 
Westerman v. Schwab, 117, 119 
Western National Bank of New York 
V. Perez Triana & Co., 241 
Western Suburban, 4c., Building 
Society v. Rucklige, 240 
Westlake v. Westlake, 65 
Westman v. Aktiebolaget, &c., 239, 376 

, Genesee Mutual Insurance Co. 

V., 376 

Wheclan v. Irwin, 413 
Whicker v. Hume, 336, 838, 340, 344, 
347 

White, Barnard v., 79 

V. Duvernay, 46 

V. Hall, 217 

Whitehaven, &c.. Railway Co., Bain 
V., 406 

Whitelegg, Re, 409 

Whitmore, Power v., 297 

Whitwham v. Piercy, 209 

Whyte V. Rose, 109, 110, 126, 127 

Wightman, Potinger v., 332 

Wild Ranger, The, 276 

Wilkinson^s Settlement, Re, 122 

Willans v. Ayres, 308 

Willcox, King of Two Sicilies v., 406 

Willes, Madrazo v., 279 

Williams v. , 111 

V. Cartwright, 252 

V. Colonial Bank, 201 

V. Davies, 172 

V. Dormer, 92, 334 

V. Gutch, 278 

, Jaffer v., 387 

V. London Chartered Bank of 

Australia, 201 

V. Singer, 144 

, Wells V., 362 

, Yokohama Bank, Ltd, v., 872 

Williams & Sons, Blackburn Bobbin 
Co. V., 291 

Williamson, Ex parte, 166 
Willis 4 Co. V. Baddeley, 240 
Willoughby, Re, 46 
Wills, De Greuchy v., 309 
Wilson, Ex parte, 179 
, Re, 101 

, Clare County Council v., 248 

V, Dunsany, 135 

V. Ferrand, 400 

V. Wilson, 86, 87, 346 

Wilson Sons 4 Co. v. Balcarres, 4c., 
Co., 263 


Wilson’s (Captain) Case, 179 
Wilson’s Trusts, 97 
Wilton, de, Re, de Wilton v. Monte- 
fiore, 68 

Winans v. Att.-Gen., 127, 139 , 336, 
339, 341, 342, 344 

V. King, 139 

Winchelsea v. Garetty, 146 
Wingate (James) 4 Co. v. Inland 
Revenue, 372 

Wingfield, Chalmers v., 342 
Winter, Re, 114, 116 

Ory V., 813 

V. Winter, 248 

Witted V. Galbraith, 261, 262 
Witter, Walker v., 379, 394 
Wolff V, Oxholm, 404, 414 
Wood V. Connolly Bros., Ltd., 402 

V. Middleton, 248 

Woodburne, Plummer i;., 398 

Woodford, Ross v., 412 

Woodruff V. Att.-Gen. for Ontario. 139 

Woolf, Re, 116 

Woolsey v. Crawford, 308 

Worcester City, 4c., Banking Co. v. 

Firbank, &c., Co., 242 
Worms V. de Valdor, 49, 60 
Worswick, Sill v., 177-179, 184 
Wray v. Wray, 4c., 254 
Wright, Re, 102 
Wrigley, Crosland v., 284 
Wutz, de, V, Hendricks, 291 
Wyatt, Bartholomay Brewing Co. v., 
373 

, Nobel Dynamite Co. v., 373 

Wyburn, Mayor of Canterbury v., 211 
Wylie, Enohin v., 114, 132 
Wynne v. Callander, 293 
V. Jackson, 282 

Yates v. Thomson, 163 
Yeates v. Fraser, 371 
Yedras Mining, Sedgwick v., 240 
Yelverton v. Yelverton, 92 
Yokohama Bank, Ltd. v. Williams, 372 
Yorkshire Tannery v. Eglinton 
Chemical Co., 261 
Young, Barretto v., 123 

, Bent V. 220 

, Bradford v., 161 

, Gu^pratte v., 44, 76, 81, 280 

, Skottowe V., 103 

V. S.S. Scotia, 268 

Yzquierdo v. Clydebank Engineering 
Co., 261 


Zarifi, Montgomery v., 79, 82 
Zichy Ferraris, de, v. Hertford, 119 
Zimmermann, Gout v., 349 
Zollverein, The, 276, 278 




ADDENDA. 


p. 65.— A marriage celebrated in a church hall, after publication of banns, 
by a priest of the Church of England between British subiects 
in a remote part of China where there was no Church of England 
was upheld on the ground that, owing to the impossibility of com- 
plying with the British Acts as to marriage, the parties, who 
enjoyed the rights of extra- territoriality, were entitled to resort to 
their common-law rights. 

Phillips V. Phillips, [1921] 38 T. L. K. 150-Duke, P 

30a, p. 73. — It is iwinted out by Dicey {Cotiflict of Laws (Brd ed.), p. 692) that 
the citation of the Marri^ Women’s Property (Scotland) Act, 1881, 
s. 1, in support of the view that the husband’s change of domicile 
during the marriage has no effect on the law regulating the matri- 
monial property is enoneous. In any case this citation is no 
longer in point, because the Scottish Statute of 1881 has been 
replaced by the Married Women’s Property (Scotland) Act, 1920, 
defining anew the rights of husband and wife in respect of movable 
property. The rules are applicable where the husband is domiciled 
in Scotland; and no exception is made for the case where the 
original matrimonial domicile was not in Scotland. By the Scottisli 
law, therefore, a change of domicile by a husband originally 
domiciled in England to Scotland during the marriage would affect 
the rights of the husband and wife in their movable property. Tlie 
provision in the later statute gives some support to the argument 
that the law of the husband’s domicile may affect the marriage 
property in any case where there is no express contract or implied 
contract in law regulating the property of the husband and wife 
according to the rules of the original matrimonial domicile. 

§ 106, p. 133. — So long as claims of creditors are outstanding, whether in the 
English or the foreign administration of the estate, there are no 
beneficial assets to be distributed in accordance with the law of 
the domicile. But if foreign creditors fail to appear in the English 
administration and to establish their debts, or if their claims are 
barred by reason of the Statute of Limitations, although they 
would not be so barred by the law of the country in wnich the 
deceased was domiciled, any surplus assets in the British 
administration will be distributed by the English Court to the 
beneficiaries in accordance with the law of the deceased’s domicile. 

Re Lorillard {Griffith v. Cutforth)^ W. N. 1922, p. 75— Eve, J. 

136. — Where a testator domiciled in America had left estate both in 
England and in America, and the claims of judgment creditors 
exhausted the estate in America, while no claims were made 
against the English estate by the American creditors, but sub- 
sequently an application was made by the American administrator 
for the delivery of the surplus assets of the testator’s estate in 
England, it was held that it was incumbent upon the executors 
who proved the testator’s will in England to apply the assets 
discharge of all the debts of the testator of which they had notice, 
whether in England or America. The American creditors, if they 
came in, would have to^how that the orders or certificates which 
had been made in America were sufficient to sup^rt a claim in 
England, and that their debts were not barred in England by the 
Statute of Limitations. 

Re Lorillard (u.s.). 



xxxviii 


ADDENDA. 


§ 113a, p. 189. — The case of Att.-Gen, v. Burns is now reported in [1922] 1 K. B. 
491. 

§ 125b, p. 164. — In the particular case of Brown v. Greg son it would have been 
contrary to equity to apply the doctrine of election, as well as 
contrary to the lex situs of the immovables. 

§ 130, p. 167. — Where petitioning creditors in England issued a bankruptcy notice 
against a debtor, and, subsequent to the service of the notice, the 
debtor presented his own petition for sequestration in Scotland 
which was granted on the same day, it was held that a receiving 
order was properly made in England, there being assets in England. 
Inasmuch as* it was by the debtor’s own act that he was prevented 
from complying with the English bankruptcy notice, he could not 
be allowed to avail himself of the Scottish proceedings for that 
purpose. In re a Debtor, [1922] W. N. 163. C. A., Sterndale, 
Warrington, Younger. The Court distinguished the case of In re 
Robinson because m that case there w'ere no assets in England, 
whereas in this there w'ere such asset-s. 

§ 186, p. 249.— Add, after reference to Thomas v. Hamilton, 17 Q. B. D. 692 
Aihtns V. Thompson, [1922] 2 I. K. 102. 

§ 190a, p. 267. — The immunity from arrest of a public ship no longer applies after 
it has ceased to be employed in the service of the Government ; and 
the process of the Court in respect of an action occurring while the 
vessel was in the public service may then be enforced against it. 

Where a vessel which belonged to the Belgian Government and 
was being employed for public purposes collided with another 
vessel, and after the collision was sold by the Government to a 
private owner, it was held that the owners of the ship with which 
it had collided could enforce a maritime lien on the vessel. 

The Tervaete, W. N. 1922, p. 106 — Duke, P. 

The ground on which jurisdiction over the public ships of foreign 
States was declined in British Courts was not that the acts of 
Sovereign Powers by their servants were incapable of conferring 
rights or creating obligations which might be put in suit, nor that 
the public property of States used for their public purposes could 
not, because of their public character, be subjected to claims by 
individuals which were capable of judicial cognisance. A foreign 
State, by its authorised agents, could impose a charge or lien upon 
one of its public ships, and the charge or hen might be enforced 
if it could be done without directly or indirectly iippleading the 
foreign State. 

The Tervaete (u.s.). 

§ 194, p. 264. — An official agent of the Soviet Government recognized for the 
purposes of a trade agreement between the British Government and 
the Kussian Soviet Republic was held not to be entitled to immunity 
from civil process accorded to the accredited representatives of 
foreign States. The Trade Agreement provided only for immunity 
of official agents thereunder from arrest and search. 

Fenton Textile Association v. Krassin, [1922] C. A.; 

38 T. L. R. 269. 

§ 211, p. 284, — The interpretation of words under a contract of sale made between 
two Englishmen concerning goods in America was determined 
according to English law ; and the Court refused to admit evidence 
of a customary meaning in America of the word “ shipped,” which 
^ was inconsistent with the term expressed in the English contract. 

Mowbray A Robinson v. Rosser, L. J. 1922, p. 102 — Sterndale, 
Warrington, Scrutton. 

§ 226, p. 299.— The case of La SooUti des H&tels, dc. v. Cummings is now 
reported in [1922] 1 K. B. 451. t 

Atkin, L.J., expressly reserved his opinion as to the dtftfe at 
which the rate of exchange should be calculated in a <?ase where a 



ADDENDA. 


xxxix 


foreign creditor to whom a debt is due in a foreign country in the 
currency of that country sues his debtor in the English Courts for 
the foreign debt. That question did not arise to be settled in the 
case cited because the Court found that the foreign creditor had 
been paid all that was due prior to the judgment. He apparently 
inclined (at p, 465) to the view that the debtor’s obligation is to 
pay in the foreign currency, and so continues until the debt is 
merged in the judgment, which should give him the English 
equivalent at that date of the foreign currency. 

§ ‘2‘26a , p. 300. — The fact that a winding-up order has been made against a com- 
pany after the breach of contract occurred, or after a statement of 
account admitting the debt was rendered by the company, and that 
a claim has been made in the winding-up proceedings, does not 
affect the date for conversion of the foreign into English money, 
which is the date of the breach of the contract or the date on 
which the application for a statement of account was sent. 

Re British- American Continental Bank^ Ltd, Goldziher's Claim: 
and CrHit Giniral, Liegerons Claim, [1922] W. N., p. 102 
— P. 0. Lawrence, J. 

§ 304, p. 373. — The circumstances in which a foreign company was held not to be 
resident in England for the purpose of payment of income tax 
were further considered in Greenwood v. F. J. Smidth (f Co., 
[1922 ] 91 L. J., p. 849 (H. L.) — Buckrnaster, Atkinson, Wrenbury, 
Carson; confirming C. A., Sterndale, Atkin, Younger, [1921] 
3 K. B. 584, and Bowlatt, [1920] 3 K. B. 276. 




PllIVATE INTEENATIOML LAW. 


CHAPTER I. 

INTKODVCTION. 

Private international law is that departinont of national law 
which arises from the fact that there are in the world diftereni 
territorial jurisdictions possessing different laws."^ 

In order to explain more fully the position which private inter- 
national law occupies in the field of law, that field must be 
looked at rather widely. The word law is applied both to tha 
laws of nature and to human laws, and if we w^ere discussing an 
ordinary division of national law, as mortgage or larceny, there 
would be no need to speak of any laws except human ones. But 
theories of natural law, or of a law of nature, have l>een so mixed 
up with international law that justice^can hardly be done to our 
j)resent subject without noticing every sense in which the word 
law is used. 

The laws of nature are invariable uniformities : if any devia- 
tion were proved, the conclusion would not be that the law had 
been broken, but that the supposed law did not exist. Human 
laws are continually broken, and courts of justice, and armies 
so far as their employment is properly defensive, are instituted 
to correct their breach. It is true that if we look at the rule 
prescribed by a human law rather than at its observance, the 
singleness of the rule, compared with the multiplicity of the 
instances which call for its application, reminds us of the 
uniformities of nature; and }>robably this was the similarity 
which caused the word law to be extended from human laws to 
natural. Then, the extension having been made, it has 8om%-* 
times been attempted to give it a philosophical justification by 

♦The ^stence within one territory of different juristic systems having different 
lawai^e.g., the Hindu, the Moslem, and the Anglo-Indian systems of personal 
law which are applied in British India — falls also within the scope of the subject. 

1 


W.I.L. 




2 


PRIVATE INTERNATIONAL LAW. 


the remark that human laws will certainly be mischievous, and 
probably will not long endure, if they are not framed with due 
regard to the natural laws that govern the facts about which 
they are concerned. Thus, a law about buildings will miss its 
aim if it disregards the natural laws of health, and one about 
spirituous liquors if it disregards the natural laws of human 
conduct. Now this may be expressed by saying that human 
laws ought to be conformable to natural ones ; and then it is easy, 
first to forget the difference between ought to be and are con- 
formable, and secondly to forget that even when human laws 
are conformable to natural ones, that no more implies a likeness 
between them in kind, than the conformity of a marksman’s aim 
to the laws which govern the flight of his bullet implies a like- 
ness in kind between the act of aiming and the flight of the 
bullet. The truth is that it would be difficult to frame any 
proposition in which the word law should stand, and which 
should be true both of the laws of nature and of human laws, 
unless such proposition were a mere statement, more or less 
disguised, of the fact that each are in some sense uniformities; 
and the homonymy of the laws of nature and human laws must 
therefore be regarded as little more than fortuitous. 

If this is so, human laws are not a division, correlative to the 
laws of nature, of a single field of law, but are a subject incapable 
of being brought under any wider general head. Indeed more 
will have to be said before it can be assumed that even all the 
human institutions which are called laws can be properly 
brought under one general head, for international law has been 
denied a claim to be law in the sense in which national law is 
such. 

The prominent feature of national law is that it is a body of 
rules, to be uniformly applied to the cases that fall within them, 
and of which the breach is redressed or punished by a force 
irresistible to the individual subject, and regularly applied 
through courts of justice. This redress or punishment, which is 
generally spoken of as the enforcement of the law, though that 
term might more properly imply its specific enforcement, makes 
the chief difference between law and usage. Law is often trace- 
able to usage, in the sense that what was once usage afterwards 
became law without express enactment. Examples of this may 
be found in the history of the law of many countries with regard 
to the distribution of the estates of deceased persons, %nd t^ 
effect of marriage on the property of the husband and.wife.^ m 



INTRODUCTION. 


3 


sucli cases the passage from usage to law is sometimes repre- 
sented as gradual. That, however, can never really have been 
so. The frequency of the usage may have gradually increased, 
and so also may the stringency of the general disapprobation 
with which its breach was visited. But either there was no 
administration of justice at the place and time in question, and 
then society was too barbarous for any thing answering to 
national law to exist in it, or else, when the administration of 
justice began to redress or punish the breach of the usage, a 
distinct step was taken, however little it may have been noticed 
at the moment, by which the boundary between usage and law 
was crossed. 

The breach of international law has not hitherto been 
redressed or punished by any force regular in its action and 
irresistible to individual states; but it is one of the principal 
purposes of the League of Nations and the International Court 
of Justice now established under it to secure something like the 
same respect for the international law as the national sovereign 
and national courts secure for the national law. The rules 
which are understood to compose that law are often so vague that 
the uniformity of their application cannot be conclusively tested, 
even for the purpose of argument, so difficult is it to ascertain 
the individual cases to which they should apply. The latter 
circumstance results from the former. No set of rules, national 
or international, will ever be reduced to a reasonable certainty 
unless they are regularly applied, or some authoritative judgment 
is passed on the question of their application. Hence it would 
be difficult to frame any verbal definition of law which should 
include both national and international law. The very notion 
of uniformity, on which a link, thin and insufficient for the 
purposes of a serious classication, may be established between 
national laws and those of nature, fails us here, unless for many 
of the uniformities of international law we accept the pious 
intentions of writers instead of the hard facts of statecraft and 
hereditary enmity. There is, however, another mode of defining 
than by verbal formulas. In zoology and botany a genus is 
defined by the circumstance that every species within it is on 
the whole more like one or two typical species than it is to aify 
species outside the genus. Now there are rules of international 
law, as those concerning diplofiiatic intercourse, which receive 

« ^mo* nt of observance equal to that which is received by 
tional laws. In the case of other rules, the risk that the 



4 


PRIVATE INTERNATIONAL LAW. 


mischief of a breach will recoil on the perpetrators is greater 
than in the case of most of the social usages which prevail 
between the subjects of a state. But again the extremes of 
vagueness and inobservance are presented^ by rules so important 
as those which are vaunted as })rotecting po])ulations from 
arbitrary conquest, and private ])roperty on land from capture 
and appropriation in war. The experience of the Great War has 
shown how feeble ds the sanction for the observance of rules 
passed with great solemnity at the Hague Conferences for regu- 
lating the conduct of w^ar. On the other hand, the combination 
of nearly all civilised States against the Powers which flouted 
the sanctity of treaties and conventions may help to inculcate an 
enhanced respect for the rules of the international society. The 
truth is that the j)recision and stringency of international law 
range from a point below that of ordinary social usages, to a 
point at which the redressing or punishing ])ower lacks only regu- 
larity of action, the strength of its irregular manifestations being 
sufficient for practical purposes. If then any one, taking 
national law described as in the last paragraph for the typical 
species of human law, should yet conclude that international law 
is on the whole more like to it than to the usages which we see 
prevailing outside law, there seems to be no sufficient ground for 
rejecting his conclusion as unphilovsophical or contrary to facts. 
Nor is it wonderful that the type definitions of the sciences of 
organic life should be found to give a better model than the 
verbal formulas of mec*hanics, for classifying the phenomena 
which are produced by the living force of humanity. In fine, 
national and international laws may be accepted as divisions of 
the field of human law, without disrespect to those who have 
contended that the latter division would better be called positive 
international morality. 

In the field thus mapped out, the place of private international 
law is in the division of national law. Private international law 
is administered by national courts, and generally to subjects, 
though, when states submit themselves to national courts, its 
doctrines are applied to them as well as those of any other depart- 
ment of national law. The actions in which it is administered 
aVe not a distinct class, like those in which criminal law is 
administered, but it finds its unity in a certain class of questions 
which may arise in any action, those namely in which it is sought 
in what nationi^l jurisdiction an action ought to be brd^gh^ on 
by what national law it ought to be decided. The word jurisdic-^ 



INTRODUCTION. 


5 


tion is popularly used in the general sense of competence, as when 
the common law and equity jurisdictions, which differed in 
respect of the matter, were formerly contrasted in England, or as 
when the jurisdiction of a county court, which is limited in 
respect of the value, is contrasted with that of the High Court. 
But in the present subject we have to do principally with juris- 
diction in the territorial sense, except for the question of different 
juristic systems in one territory. We are concerned, too, with 
jurisdictions not in so far as, like those of two county courts, they 
may be territorially distinguished within a country which enjoys 
in the last resort a unity of legal administration, but only with 
reference to territories which are separate for the purpose of law, 
as England and France, or England and Scotland. Such juris- 
dictions and their laws may be called national, in harmony with 
the use already made in this chapter of the term national law; 
and then the department which treats of the selection to be made 
in each action between various national jurisdictions and laws 
will not unreasonably be called international law, distinguished 
by the epithet private from the international law which prevails 
l)etween states, and which may be distinguished as public. 
Hence in this subject the force of the term private is independent 
of any classification of national law into public and private. 
Those classifications, of which several have been proposed, 
generally assign criminal law to the })ublic branch, but the 
question of the principles on which treaties for the extradition 
of criminals ought to be framed, being intimately concerned 
with the question in what national jurisdiction a criminal ought 
to Ixi tried, is not separable from private international law as 
here understood.* 

The principal grounds for selecting a particular national 
jurisdiction in which to bring an action are that the subject of 
the action, if a thing, is situate, if a contract, was made, or was 
to be performed, if a delict, was committed, within the territory : 
hence the forum situs ^ or rei si tee, contractus, delicti, the two 
latter of which are classed, together as the forum speciale 
ohligationis. Or that the jurisdiction is that in which all the 
claims relating to a certain thing or group of things ought to be 
adjudicated on together, the forum concursus; or that to wh^ph 
the defendant is personally subject, the forum reA. The last 

♦The opposite view, that all law ought first to be divided into public and private 
an^ each of these departments subdivided into national and international, is 
expressed by the form international private law.” 



6 


PRIVATE INTERNATIONAL LAW. 


mentioned forum, in the Roman and derived laws, has always 
supposed that between the judge and his justiciable, if I may use 
a foreign term to express a foreign conception, there was a more 
or less durable tie, the' precise nature of which, and the measure 
of its permanence, are connected with the questions of political 
nationality and domicile. Among the ancient principles of 
English law, on the other hand, there is found a competence 
based on the fact of the writ by which the action is commenced 
being served on the defendant within the territory. This seems 
to have been regarded as a case of the foruvi rei, the defendant’s 
mere presence within the territory being supposed to make him 
personally subject to the jurisdiction, irrespective of any special 
ground, such as that of the forum speciale ohligationis; but it 
was certainly a peculiar conception of the forma rei. 

Supposing that on some such ground as those above mentioned 
the action is entertained by the national jurisdiction in which it 
is brought, the principal grounds for selecting a particular law 
to be applied in deciding it are analogous to those for selecting a 
jurisdiction. Thus we have the lex sitnSy loci contractus ^ loci 
delicti commissi, and loci concursus) and wherever the forum rei 
is understood as being based on a more or less durable tie between 
the judge and his justiciable, we also have the conception of a 
personal law. The latter was anciently the lex domicihi, and to 
a great extent is so still, but the modern tendency is to substitute 
political nationality for domicile as the test of pervsonal law, so 
far as possible. Of course, as between two or more national juris- 
dictions comprised in one state, such as England, Scotland, and 
the province of Quebec, such a substitution is not possible, and 
there at least the lex domicihi must maintain its ground. 
Another law often invoked is the lex loci actus, that of the place 
where an instrument was executed, or where proceedings have 
been had under judicial or other public authority. And since 
validity is often claimed in one jurisdiction for judgments 
pronounced in another, by virtue both of the lex loci actus and, 
in matters of status, of the j>ersonal law, it follows that the ques- 
tion in what jurisdiction an action ought to be brought may be 
asked in two ways : first, in order to know what are the actions 
which a particular jurisdiction will entertain when they are 
brought in it, and secondly, in order to know when the judgment 
pronounced in an action will be allowed any force beyond the 
limits of the jurisdiction in which it was pronounced, lastly, 
the Court’s own law, the lex fori, is a competitor always on%e 



INTRODUCTION. 


7 


spot, and applicable when the claim of no other law is estab- 
lished, sometimes even applicable on positive grounds. 

Such are the questions of private international law, and the 
various forums and laws which they bring into competition. 
Now since private international law is administered by national 
•courts, it follows that each court must apply any solution of these 
questions which its own national law may be found to prescribe. 
And the national law is very likely to contain an answer to the 
question under what conditions an action is maintainable in its 
own courts, while it may probably be silent with regard to the 
law according to which any particular action is to be decided, 
or to the validity to be allowed to foreign judgments. What 
then is to be inferred from the silence of the national law on these 
topics?' The inference that the national law itself must always 
be applied, and that no validity is to be allowed to foreign judg- 
ments, would have led to practical results so shocking to all 
notions of justice that it has never been drawn: it has been 
regularly assumed that the national law tacitly adopts some 
maxims according to which foreign laws and foreign judgments 
are sometimes admitted to be of force. The law of England is, or 
was, pre-eminently in the case here considered. Its statute book, 
and the writings of those of its earlier sages whose names are 
revered as those of the law itself, are almost entirely blank on 
the head of foreign laws and judgments; but maxims have been 
adopted by the courts by means of which an extensive and 
tolerably consfstent jurisprudence has been built up. The value 
set in England on judicial precedent is such that this juris- 
prudence, so far as it is consistent, must now in its turn be con- 
sidered as a part of the national law, and therefom binding on 
the courts unless and until the legislature shall alter it. But 
with a view to its completion, whether by legislative aid or by the 
further action of the courts, the questions, whence the maxims 
adopted in England were derived, and what was the justification 
for adopting them, are not yet of merely historical or speculative 
importance. 

The maxims adopted in England on questions of private inter- 
national law were derived from those which prevailed on the 
continent. The earliest channel through which they filtered i^to 
the insular system was that of the ecclesiastical and admiralty 
courts, which professedly administered laws of more than insular 
exteni^n. Then, about the time of our Revolution, the 
increasing mercantile and political intercourse with the 



8 


PRIVATE INTERNATIONAL LAW. 


continent obliged our lawyers to renew their acquaintance with 
its legal literature, five centuries after Vacarius taught the 
Corpus Juris in England; and the views so imported bear traces 
of the fact that the Dutch was then the newest school, and 
perhaps also of the fact that Holland was the country with which 
we had the closcvst political connection. I do not know enough 
of the history of Scotch law to assert it, but probably the union 
with Scotland, coupled wuth the fact that it had been usual for 
Scotch advocates to complete their legal education in Holland, 
may have had some effect in the same direction. Now the 
leading features of the system which by the middle of the 
eighteenth century had been elaborated on the continent were 
these. 

Statutes which disposed about things were real, and such 
statutes, existing in the places where the things were situate, 
were to be applied, as the le.r situs^ even "“in other jurisdictions. 
So far as concerned movables, this was largely modified by the 
maxims mohilia sequnniur 'personam, which was opposed to such 
property being deemed to have a situation of its own. 

Statutes which disposed about persons were personal, and such 
statutes, existing in the places where the persons were domiciled, 
were to be applied, as the lex domicilii, even in other jurisdic- 
tions. The chief application of this was to questions of status 
and capacity. 

Statutes which were not clearly either real or personal were 
mixed, and effect might be given to them in other jurisdictions 
than those in which they existed, either on the ground of the lex 
si tvs or on that of the lex domicilii^ according as it was thought 
that they approached more nearly in character to real or to 
personal statutes ; or else questions not clearly referable either to 
the real or to the personal statute might be decided on one or 
other of certain maxims which stood outside the doctrine of 
statutes, namely : 

The lex loci contractus governed obligations arising out of a 
contract ; 

The lex loci actus governed the forms of instruments, and the 
validity of proceedings had abroad under judicial or other public 
authority; 

The lex fori governed the procedure in the action itself; and 
the same law, in its character of the lex loci concursus, governed 
questions arising out of the circumstance that several flaims, 
possibly originating under different laws, have to be adjudicafed 



INTRODUCTION. 


9 


on at once, such for example as the question of the ranking of 
creditors against a bankrupt ^s estate. 

It must not be siipi>osed that even on the continent the system 
thus sketched out was certain or coherent. As some among many 
examples of the vagueness which really beset it, there may be 
cited the endless discussions whether particular statutes were real 
or personal, or, if allowed to be mixed, whether they approached 
more nearly to real or to personal statutes; whether the lex loci 
contractus ought to be undervstood as the law of the place w’here 
a contract was entered into, or of that where it was to be per- 
formed ; whether the prescri2)tion by which an obligation is 
extinguished ought to be measured by the lex Ion contractus, as 
a limitation of the obligation itself, or by the lex fori, as a law 
of 2>rocedure determining the time for bringing an action on it; 
and, with regard to the lex actus, whether it was necessary to 
draw ujD invstruments in the form prescribed by it, or whether an 
option as to the form of instruments was allowed between the 
lex loci actus and the law of the place where they were to operate. 

As little must it be supposed that the system, such as it was, 
was imported wholesale into England. Certain parts of it, which 
suited the national temper or some peculiarity of English law, 
were eagerly seized on. Thus the principle of the lex situs, or 
of the real statute, was in harmony with the importance attached 
to landed proi}erty, and the estates -and interests which English 
law permitted to be held in land were so peculiar that great con- 
fusion w’ould have arisen if its tenure could have been interfered 
with by deeds in foreign form, or by matrimonial engagements 
tacitly entered into under and with reference to foreign laws. 
Hence the application of the lex situs to land received in England 
its utmost development, as against the lex loci actus and the lex 
loci contractus. On the other hand, the English courts were 
extremely backward in admitting a personal law of status and 
capacity, dependent on domicile, doubtless because the personal 
forum, which lies at the root of personal law, was not conceived 
in England, as already mentioned, to depend so much on a 
durable tie between the judge and his justiciable as on the 
defendant’s casual presence within the territory. And the prin- 
ciple of the lex loci actus for the forms of instruments was »ot 
only opposed in England by the considerations just mentioned 
with regard to land, but from another cause can scarcely be said 
to ha^^ been received at all. The institution of public notaries 
fell early in this country into great disuse, and deeds and wills 



10 


PRIVATE INTERNATIONAL LAW. 


were drawn in private, with such legal assistance as the parties 
might think fit to obtain. Hence it did not easily occur to the 
mind of an English lawyer that the necessity of recourse to a 
public officer, who would of course adopt the form of his own 
country, might make the forms of the locus actus unavoidable. 
It was only in 1861, by Lord Kingsdown’s Act, that the lex loci 
actus was admitted in England as a sufficient support for the 
formal validity of a will. 

But it is not enough to have noticed the reception in England 
of continental maxims on topics of private international law. In 
order that the subject may be fully understood, something must 
be said of the long history through which it had passed before 
England came into contact with it. 

The Roman law before its codification by Justinian was com- 
posed of two parts. One was the jus civile, the special law of the 
citizens, by which only Roman citizens were bound or could 
defend themselves, except so far as it had been extended to 
others (1) by express enactment, as in 193 b.c. the legal limita- 
tion of the rate of interest was extended to loans made to citizens 
by persons having the Latin franchise or being members of one 
of the dependent allied states {socii ac nomen Latinum: Livy, 
XXXV. 7) ; or (2) by a fiction attributing citizenship to a party 
where justice required it, as the civil action of theft was 
judicially applied both for and against i^eregrini : Gains, iv. 37. 
The other comprised such law as was equally observed by all the 
peoples known to the Romans, and was therefore referred by the 
latter to natural reason as its source, and called jus gentium, 
quasi quo jure ownes gentes utuntur : Gains, i. 1. We may pass 
over the controversies as to the date and mode of introduction of 


the generalization- thus known as the jus gentium, and as to its 
application. What is iiiiportant here to observe is that besides 
the two parts of their own law the Roman judges took account of 
other laws, not necessarily foreign to the Roman world, but 
belonging to aggregates which, being distinct at least for the 
purpose of private law, may be called civil or jural societies. 
Several passages proving this occur in the scanty fragments of 
pre- J ustinianean law which have come down to us otherwise than 
^mthe Corpus Juris. Gaius (i. 92) speaks of a child born of a 


'per^grina to a peregrinus, cui secundum leges moresque pere- 
conjuncta est. And (iii, 120) he says: Sponsoris et 
heres non tenetur, nisi si de peregtinSB 
qiueramus et alio jure civitas efus tenetur. ifii^d 



INTRODUCTION. 


11 


Ulpian (xx. 14) says that a dedititius cannot make a will, not as 
a Roman citizen cum sit peregrinus, nor as a peregrinusy quoniam 
nullius certce civitatis civis est ut adversus leges civitatis sum 
testetur. These passages were not inserted in the Corpus Juris, 
perhaps because Caracalla’s gift of Roman citizenship to all the 
free inhabitants of the empire greatly reduced, though certainly 
without entirely abolishing, the number of cases in which the 
law of a provincial civitas could operate.* But the Corpus "Juris 
preserves many passages in which a diversity of laws, or of 
customs practically equivalent to laws, is referred to, though 
coupled, not with civitas or any word implying a personal con- 
dition of a certain population, but with regio or some other word 
descriptive of locality: Dig. xxi. 2, 6 — si fundus venierity ex 
consuetudme ejus regionis in qua negotium gestum est pro 
evictione caveri oportet; Dig. xxii. 1. 1. pr. — ex more regionis 
ubi contractum est; Dig. Xxiv. 4. 1. § 15 — irios regionis; Dig. 1. 
17. 34 — regioy mos, id quad frequentatur ; Cod. vi. 23. 9 — speciale 
privilegium patrim turn; Cod. vi. 32. 2 — leges moresque locorum; 
Cod. viii. 49, 1 — lex municipii.f We see then that at the tinje 
of the fall of the Western empire, diversities of law or of prac- 
tically authoritative customs existed within the population called 
Roman as opposed to the Heruli, the Ostrogoths, or any other 
section of the northern conquerors. But neither the texts cited 
nor any others help us much to understand by what rules their 
application was determined where circumstances might suggest a 
conflict between two of them, or between one of them and the 
general Roman law. Often a text seems to assume that all the 
relevant circumstances point to one law only, so that the only 
conclusion to be drawn from it is the assertion in principle of the 
admissibility of particular law. Probably, however, we shall 
not be wrong if we get the impression of a system in which 
personal law was less limited than in any modern system by the 
place of an occurrence or the site of property, and in which, as 


♦Savigny thought that Caracalla’s gift did not change the personal law of a 
provincial (Syst. d. heut. Rom. Rechts, § 867), but von Bar takes the opposite 
view (p. 14). It must, however, be remembered that Caracalla’s gift was only to 
those then living and by a legal consequence to their descendants. A new, 
although much smaller, free population, not endowed with Roman citizenship^ 
must have arisen in the provinces from a variety of circumstances, and eve 
von Bar’s view would have maintained the pre-Justinianean passages iij, qu 
in some amount of use. ^ 

f Savigny held that the regional customs mentioned in the Digest 
acqgpted as keys to the* intentions of parties, or aa furnishing the me 
damages. Even so, however, they must have been practically equivalent"' to lawa 



12 


PRIVATE INTERNATIONAL LAW. 


Savigny teaches, a man’s personal law was that of the civitas to 
which he belonged by hereditary origo, though domicile was 
more important for jurisdiction.* 

In the times which followed, a system very highly, perhaps 
more highly, personal came into use. The members of each con- 
quering northern nation lived within the late empire by their own 
law, leaving each conquered nation, whether the last conquered 
or one more deeply submerged, to the enjoyment of its own. For 
example, as in Italy the Lombards left the Homan law, with its 
particular variants which have l>een mentioned, intact for the 
Romans, so the Franks in Italy left both it and the Lombard law 
intact for those respective nations, while bringing in not only 
their own law for themselves, but also, for those who accom- 
panied them, all the other laws recognized in their dominions 
beyond the Alps. If in any of the Germanic kingdoms a 
Germanic stranger arrived the law of whose nation was not 
recognized in it, he fell under the law of the nation which he 
found supreme. You might know, or might meet in the course 
of a day’s business, several persons living under different laws in 
the same city. It was just as now in India, where Europeans, 
Hindoos and Mahometans have their respective family or 
religious laws, only in Europe during the dark ages the diversity 
must have been more striking, because it invaded more depart- 


* The rule was that “a person may be cited as defendant in every town in 
which he has citizenship by origo, and also in every town in which he has a 
domicile.” But in the Corpus Juris we hear comparatively little of the former 
jurisdiction. ” In the first place that rule had complete application only in Italy, 
not in the provinces, in which there were no municipal magistrates with juris- 
diction. Here, therefore, origo could found no jurisdiction, while on the contrary 
the abstract notion of domicile was just as applicable to the territory of a province, 
and therefore to the jurisdiction of the imperial governor, as to the territory of a 
particular town. But several of the passages cited expressly speak of the provinces 
only, and others may also have spoken of them, although in their present form 
it is not apparent. In the second place, perhaps the application of the forum 
originis to one who had origo and domicilium in two different municipalities was 
always limited to the case in which he happened to be found in the town to 
which he belonged by origo. But even if such a restrictive rule of law had not 
existed, the plaintiff must still, for his own interest, have preferred the forum 
damicilii^ because the defendant was more easily and conveniently reached in the 
place of his domicile.” Savigny, Syst. d. heut. Rfim. Eechts. § 365; Guthrie’s 
translation, pp. 112, 113. Savigny ’s conclusions as to law were that, ” (a) in a 
contract between two citizens of different states, the purely positive law of the 
loreign state cannot militate against either of the parties; they are rather to be 
judged according to the jus gentium y yet for political reasons the contrary may 
be prescribed in particular cases ; {b) the right of citizenship in a particular town 
usually determines for each individual to what positive law he is psrsonally 
subject, and according to which, therefore, he must be judged.” § 
Guthrie, p. 117. 



INTRODUCTION. 


13 


ments of law at the same time that there was more social 
intercourse between the persons whom it affected. The general 
rule was that the law of the defendant governed; if an obligation 
could not be established against him by his own law, there was 
no other to which he was subject. But marriage was to be 
celebrated according to the law of the husband, and so strictly 
was this rule adhered to that wives who had been married by 
their law could be dismissed at caprice, a practice to which in 
the year 895 the Council of Tribur could oppose none but 
religious sanctions.* 

In Italy this system of personal laws, belonging to groups of 
persons not distinguished by citizenship or residence but by race, 
came to an end through the great preponderance of the group, or 
rather mass, living by Eoman law, and the absorption of the other 
groups into it. This we know to have happened, and we can see 
many causes for it. The political signifi(‘ance of the civitntes, 
and probably even their topographical limits, must have been 
largely effaced by the Germanic conquest, and correspondingly 
the legal importance of origo must have given way before that 
of domicile, the Roman mass being thus welded into' a 
non-political whole capable of receiving accessions with little 
fri(‘tion. The Germanic conquerors, except in the Lombard 
plain, were less numerous than they were beyond the Alps. On 
the otaer hand, many of the cities are known to have attained a 
flourishing position even during the dark and early middle ages^ 
and the industry and commerce to which they owed that povsition 
must have called for Roman law and jurisdiction, and have 
invited those Germans who adopted such pursuits to avail them- 
selves of them. And when most of the nobles had come to reside 
in the cities, as well from a preference for city life as from the 
compulsion which in some cavses was applied by the city people, 
few vestiges can have remained of any Germanic jurisdiction 
capable of upholding Germanic personal laws. (Certain it is that 
when, in the twelfth century, the renewed study of the Corpus 
Juris brings the legal condition of Italy again into daylight, we 
find the whole people subject to Roman law, with variants called 
the statutes of the cities, and to a jurisdiction based on domicile. 

The glossators of the Corpus J uris were unable to point out 
analogy which the statutes of the Italian cities bore to the laws 
of the 'peregrini and the civitates mentioned by Gains and Ulplan, 


t, 18, col. 161. I have been directed to this example by Savigny,. 
Geach. dea Rdm. rechts im Mitt., vol. 1, § 46. 



14 


PRIVATE INTERNATIONAL LAW. 


because they did not possess the fragments of pre-Justinianean 
law in which the position of the civitates is marked so much more 
clearly than by anything in the Digest or the Code. But that 
they in fact regarded the statutes from the same point of view is 
shown by the text on which they hung what they had to say 
about them. This was the first law of the Code, that by which 
the Emperors Gratian, Valentinian and Theodosius required all 
their subjects to profess the Trinitarian doctrine: Cunctos 
populos qiios cleTnentice no spree re git 'imperium in tali volumus 
religione versari, &c. Here was an acknowledgment that a ruler 
could legislate only for his subjects, and accordingly Accursius 
or some one else wrote the following gloss : Argumentum, 
Quodsi Bononiensis conveniatvr Mutince, non dehet judicari 
secundum statuta Mutince, quibus non suhest; cum dicat quos 
nostree clementice re git imperium. Let us see what was involved 
in approaching the subject in this manner. First, since the field 
of application of a statute was held to belong to principles of 
justice to be determined by reasoning, there was involved a denial 
of the doctrine to which John Voet and Huber were long after- 
wards led by an exaggeration of territorial sovereignty, namely, 
that no jurisdiction can apply any other law than the lex fori 
except at the demand of courtesy or interest. Secondly, since 
the reasoning started from the notion of personal subjection to a 
lawgiver, it followed that, whatever rules for delimiting the 
fields of application of the statutes inter se should be established, 
they would have to be equally adopted as between the legislations 
binding peoples differing in that political subjection which we 
now call nationality ; and this was assumed from the first by the 
post-glossators. Only, since a common political subjection to 
the Roman empire revived by the Germans existed for most of 
the cities of which the statutes were under consideration, it 
followed that, besides the questions concerning the limits of the 
application of the statutes inter se, other questions were raised 
concerning their relation to the common Roman law, to which 
they were regarded as exceptions introduced either by subordinate 
authority or by some forgotten exercise^of imperial authority.* 

* Venice did not acknowledge the supremacy of the emperor, yet as the 
yeaetians made their wills with only two witnesses, while the Roman law 
required five, one doctor trusted that they had received some forgotten dispensa- 
tion from the successors Justinian, while another argued, that since by the 
Roman law a parent coulB with two witnesses divide his property between his 
children, a city, which was the parpt of her subjects, might authorize^hem tg 
distribute their substance with no more elaborate formality. Bartolus,*a|| 
Cod. 1, 1, 1. ^ 




INTRODUCTION. 


15 


North of the Alps the course of legal history during the dark 
and early middle ages was different. The personal laws were 
crushed out by the pressure of feudal authority, which estab- 
lished itself in France on the fall of the Carlovingians, though in 
Germany the struggle of the central government against the 
usurpations of the strong lasted longer. The baronial fiefs or 
chdtelUnies became little states, of each of which the inhabitants 
held scant intercourse with those of any other. The stranger, 
aubatn, became a serf by living a year and a day on the lord^s 
soil, or a burgess by living a year and a day in a town, being 
aggregated in either case to the local community. Customs grew 
up which became the laws of the local courts. Few were the 
occasions when a want was felt for any other law than that of the 
chdtellenie. When they occurred, the rude justice of the chdte- 
lain applied some traditions, in France chiefly of Roman and in 
Germany of Germanic origin. Fewer still must in the eleventh 
and twelfth centuries have been the occasions which, under 
modern jurisprudence, would have called for the application of 
any law foreign to the chdtelleme^ and we cannot doubt that any 
such foreign law was usually ignored, and the judgment given 
according to the lex fon^ as if John Voet and Huber, with their 
extreme doctrine of territoriality put without their qualifying 
doctrine of international courtesy, were already authorities. Law 
had a base in feudal property, for its limits as well as for its sub- 
stance, and as soon as a principle could disengage itself from the 
obscurity, it was that of the French brocardy toutes les coutumes 
sont reelles — exclusive within their territories, of no effect out- 
side them. The limits of application of a law might depend on 
those of the lawgiver’s authority, but that authority was 
regarded as being over territory rather than over persons. 

It was during the course of the thirteenth century that any 
further elaboration of the gloss on the Corpus Juris was super- 
seded by independent legal treatises or commentaries on 
particular texts, starting the great series of the post-glossators, 
among whom the most famous name is that of Bartolus, in the 
fourteenth century. The series, at least so far as our subject 
is concerned, extends so far os to include Dumoulin (Molingeus), 
in the middle of the sixteenth. Their contributions to 
subject still chiefly take the form of commentaries on the law 
cunctoB populos, the first law^ of the Code, and their object is to 
Jay d<^n the rules for the fields of application of different 
^^utes, the necessity of which had been foreseen in the gloss. 



16 


PRIVATE INTERNATIONAL LAW. 


It is probable that some of the rules which they support only by 
reasoning, including, after the fashion of the time, the citation 
of numerous really irrelevant texts of the Digest and Code, were 
already applied in a practice which they did not notice because 
it wanted written authority, and j)erhaps consistency. Indeed, 
it is difficult to suppose that a society so advanced as that which 
by this time existed in Italy and the south of France, in the 
universities and law schools of which countries the post- 
glossators mostly learnt and taught, can have dispensed with 
some practice on the subject. Thus, wdien the doctors submit 
contracts to the law of the place where they are entered into 
{lex loci contractn.H celehrati)^ it can hardly be doubted that this 
muAt have been already the rule for the great fairs at which so 
much of the business of those times was transacted. And when 
they make domicile the test of one’s being bound by a statute 
on capacity, quoting the law that the president of a province 
can appoint guardians only for those belonging to the province 
or domiciled in it (Dig. xxvi. 5. 1. § 2), ])robably the quotation 
was not so irrelevant as it is sometimes represented, but was 
based on the postulate that the jurisdiction which alone could 
supply capacity if wanting must furnish the measure of the 
want to be supplied, in accordance with the maxim, sunt 

forum alicuhi sortiri ef statutis ligari : si ibi forum, ergo et jus. 
But in the main the task which lay before the post-glossators in 
determining the legitimate field of operation of laws was to 
effect a reconciliation, or at least a modus rivendi, between the 
Roman principle enforced by the gloss, that law depends on 
personal subjection to it, and the feudal principle which, as 
have seen, made law territorial. The former pointed to laying 
great stress on the domicile of the owner of property, the latter 
to laying the stress on its situation, with a possible variation 
dependent on its being movable or immovable ; and the opposition 
of the two culminates in the question of succession on death. 
The south of France was the meeting-ground of those principles. 
Of the four predecessors of Bartolus whose works he cites, all of 
whom were active within the thirteenth century, only one was 
a native of Italy, the others respectively of Languedoc, Lorraine 
^and Bourbonnais; three of the four studied law in Italy, and 
two taught it at Toulouse or Orleans,* So great is the difficulty 


* Gulielmus Lurantis (Languedoc), Jacobus de Ravena or de RavanisV^vigny, 
Lorraine), Petrus a Bella Pertica (Bourbonnais), and Cinus (Pistoia) : 1 L^n^f 
1X8—122. 




INTRODUCTION. 


17 


of delimiting the principles referred to, that to this day it 
remains the chief problem of private international law as a 
theoretical science. 

There followed two centuries of discussion, which left the 
science much as Bartolus had left it, the statutes of which the 
operation was to be territorial, and which were called real, 
having to be ascertained by the answer to a question about which 
there could be no agreement because it was insoluble, whether 
their motive was more concerned with things or with persons. 
At last an important contribution to the science was made by 
Dumoulin, one of the greatest legal geniuses that have worked 
on it. His tendency was to allow more influence to the intention 
of parties than to legal rules, and accordingly to regard customs 
rather as usages to which men were presumed to conform than 
as binding dispositions. This may be instanced by the doctrine, 
developed in his 53rd consilium^ that where a marriage is cele- 
brated without express contract, between persons domiciled 
within the area governed by a custom, that custom receives a 
contractuarforce through their tacit adoption of it, by which it 
applies even to the immovable property of the pair situate under 
another custom, contrary to the then prevailing opinion in favour 
of the lex situs in such case. But Dumoulin was immediately 
contradicted with asperity by d^Argentre, a Breton noble and 
magistrate, who in the interest of provincial autonomy* carried 
the reality of the customs to a higher point than it had yet 
reached in the French parliaments and universities, though it is 
possible that there may always have been remote feudal courts 
into which the learning of the post-glossators had never pene- 
trated. To the statutes which were classed as real or personal 

he added a mixed class, in which both things and persons are 

had in view; but these, he maintained, ought to be treated as 

real. The only statutes for which he admitted an extra- 
territorial operation were those which disposed de universali 


* Ils servaient Vun et V autre ^ A leurs risques et pirilst avec une Sgaie sincSritS, 
des causes d'igale importance. DumouUfi luttait pour VautoriU royale et VunitA 
du droit ^ d'Argentri pour la fAodaliU et pour V autonomic juridique des provinces. 

. . Les haines et les persecutions que s'attira Dumoulin sont hien connues; la 
vie de cet homme d' etude fut une des plus agitees qui furent mendes dans un sUctt 
des plus orageux. Quant d d^Argentriy sHl contrihuoy grdce d la moderation de sa 
conduits politique y d preserver son pays des malheurs de la guerre riligieusey la 
loyaute avec laquelle il dcrivit son Histone de Bretagne n'en fit pas pardonner la 
liberte ; ce^ivre lui valut les disgrdees de la cour et du parlement deeenu suspect 
(t par itre implique dans des troubles qui eurent lieu d Rennes y par quitter 
cette ville, et, pen aprSs, par mourir de chagrin. 1 Lain^, 814. 


W.I.L. 


2 



18 


PRIVATE INTERNATIONAL LAW. 


yersorue statu, and that pure, citra rerurn imrnobilium imxturam 
et abstracte ab omni materta reali* 

The syntem of d’Argentre did not at once gain much influence 
in the higher circles of French jurisprudence. The conflict of 
laws arose far oftener between the different provinces of the king- 
dom than lx)tween any of them and foreign states, and in the 
France of the seventeenth century the cause of provincial 
autonomy was too losing a one for legal doctrines tending in its 
direction to be successful. But elsewhere the growth of inter- 
national intercourse, the independence of the United Nether- 
lands, of which the union qualified but little the independence of 
their several provinces, and the practical separation of the 
Belgian provinces from the empire combined with their strong 
attachment to their franchises, caused the conflict of laws to be 
considered more as arising between separate political 
sovereignties. For such sovereignties feudalism had established 
the tenitorial character as dominant, and the j mists of the Low 
Countries welcomed the principle of d’Argentre, and carried 
them even further with unflinching logic. An edict of the 
Spanish governors of Belgium in 1611 provided that if there 
were difterenl customs as +o last wills in the place of a testator’s 
residence and in that whei^ his property was situate, tl^ customs 
and usages of the situation were to be followed in what touched 
the quality of the property (i.c., movable or immovable), the 
power to dispose of it, at what age, and with what fofm and 
solemnity. In 1684 an official interpretation declared that’ only 
essential solemnities [sol€nnit(\s dti fond) were intended by this, 
not exterior forms, but the lex situs was left as the rule for 
capacity, depending on age or otherwise, as Burgundus had 
taught in his work. Ad consuetmlines Flandricv aliarumque 
gentium controversice, published in 1621. In that work, which 
he wrote while a barrister at Ghent, he described d’Argentre as 
vir excellentissimi ingenii, and put the realistic aspect of the new 
doctrine on the conflict of laws in a striking light. “ Property,” 
he said, ‘‘ is the blood and soul of a man, and does not follow 
persons, but draws them to it. The solemnities of a will are a 
certain quality impressed on the property.” Almost at the same 
time the connection of the doctrine with territorial sovereignty 
was asserted by Grotius with equal strength. In the De jure 
belli ac pads, published in 1626, after observing that civil laws 


* De statutis personalibus et realibus. Nos. 7, 8, 14. 



INTRODUCTION. 


19 


make some promises of minors void, and grant restitution against 
others, he says (1. 2, c. 11, s. 5) that “these things are proper 
to civil law, and consequently have nothing to do with the law 
of nature and the jus gentium, except that it is natural to 
observe civil laws in the places where they have force. Where- 
fore, even if a foreigner contracts with a citizen, he will be 
bound by those laws, because he who contracts in any place is 
under the laws of that place as a temporary subject.’’ Grotius 
had said (1. 1, c. 1, s. 13, 14) that cl^il law draws its origin 
from the will of the civil power; his meaning must therefore 
be that the presumable will of a legislator is to grasp all that 
falls within the reach of his power. He does not will to enact a 
law of which the legitimate field of operation shall be determined 
by a science of jurisprudence, but to enact a law which shall 
apply to every question arising in his territory — for example, 
the capacity of a foreigner contracting in it. The 1e.r fori is 
thus set u]> as in })rinciple the only law for transactions within 
the jurisdiction, whatever assuagement of that severity Grotius 
would have admitted if the main purpose of his book had allowed 
him to enlarge on the subject. In the passage cited he goes on 
tc« say that “ it will be quite otherwise if a contract be made at 
sea or in an unoc(‘uj)ied island, or by letter between persons in 
different countries, for such contracts are governed by the law of 
nature alone ” ; so he did not shrink from the conclusion that the 
territorial principle as he understood it, pushed to its logical 
extreme, does not leave even the lex fori for the decision of many 
cases, but refers them practically to the judge’s opinion of what 
is equitable. 

From this time forward the new ideas prevailed in the North. 
The very titles of the principal books show that the notion of 
determining the proper field of each law had given way to that of 
arbitrating on the conflict between laws, a conflict which inevit- 
ably arises whenever territorial sovereignty and the temporary 
subjection of passing foreigners are insisted on with any 
strength, in relation to transactions which, by their scope, or by 
the persons who enter into them* are connected with more terri- 
tories than one. Thus within the seventeenth century we have 
Paul Voet, De statutis eorumque concursv; Huber, De confUctu 
legum; both these Dutch; and Hertius, a German, De collisione 
legum. They went to different lengths, and the formal statement 
that th? admission of any foreign law rests only on a comity 
contrasted with justice was reserved for Huber and the younger 



20 


PRIVATE INTERNATIONAL LAW. 


(John) Voet. The latter admitted foreign laws ex comitate, 
liberaliter et officiose ultra citroque, nullo alioquin ad id jure 
obstricta. And Huber laid down three axioms which have 
become famous : ‘‘ (1) The laws of every state reign within its 
territory and govern all its subjects, but have no force elsewhere; 
(2) All those who are found within its territory, whether with a 
permanent or temporary residence, are to be considered as sub- 
jects of the state; (3) The rulers of states admit by comity the 
laws of every people, after having been applied within its terri- 
tory, to preserve their effect everywhere, provided that neither 
other states nor their subjects receive thereby any injury to their 
power or to their rights.’’ 

In the eighteenth century activity on our subject passed again 
to France, but Froland, Bouhier and Boullenois were able only to 
rearrange the old ideas in new and hesitating combinations. 
Such, .however, as were their results, they formed the ultimate 
doctrine of les statutaires, which was considered to survive the 
introduction of the Code Napoleon so far as it was untouched by 
it, and to govern its interpretation. Its leading features were 
those which have been set forth on pp. 8, 9^, as having been 
elaborated on the continent by the middle of the eighteenth 
century, while the more particular affinity of the doctrines 
adopted in England to those of the Dutch school will be recog- 
nized in the extreme application of the lex situs mentioned on 
p. 9. Only, while English writers and judges freely borrowed 
the term ‘‘comity” from John Voet and Huber, it may be 
doubted whether they meant it strictly in a sense independent 
of justice. Although on the continent comity and justice are 
usually regarded as forming an antithesis, it is probable that in 
this country the prevailing view has been that while a concession 
is made in not determining every question by the lex fori, that 
concession is dictated not only by a convenience amounting to 
necessity, but also by deference to a science of law embodying 
justice, which the law of the land was deemed to have adopted 
as governing its own interpretation and application, and from 
which it was conceived that the rules of the comity were drawn. 
Imperfect acquaintance with the continental literature of the 
subject led to an over-estimate of the agreement which existed 
about the science and the rules, and as soon as any rule was 
accepted by the English courts, the practice of those courts to 
follow their precedents prevented a further investigation whiclj 
might have damaged the belief in its universal recognition. In 



INTRODUCTION. 


21 


this way a system of private international law applied in England 
was founded ; but of late years the courts have acted with greater 
independence in applying the wider legal knowledge which has 
been acquired. 

Since the eighteenth century the most remarkable contribution 
to the theory of private international law has been that made 
by Savigny, in the eighth volume of his System des hentiyen 
Romischen RechtSy published in 1849. His general view about 
law, which he did not connect with a lawgiver, would probably, 
in any case, have prevented him from pursuing the old course of 
deducing the proper field of each law from a government 
sovereign, either over i)ersons or over a territory; but his objec- 
tion to that course was strongly reinforced by his observation of 
the failure to produce a coherent system in which it had resulted. 
He made the true question to be to what rule of law each legal 
relation is subject, thus attributing to the rules a kind of 
authority of their own, to which his philosophy of law led him, 
but into which we need not here enter further than to observe 
that the authority of each rule was connected by him with an, 
area (Rechtsgehiet). So far as a rule applies simply to a person, 
as by defining his capacity to have and acquire rights and to act, 
the person was subject to it by his domicile within its area, a 
conclusion inevitable to one who approached the subject as an 
expositor of Roman law from which origo had dropped out. So 
far as the legal relation in question is one arising from contact 
between persons and things in or belonging to different areas, as 
in the cases of family law, obligations, and rights, whether to 
particular things or to things grouj>ed together as in succession on 
death, the governing rule was that to which the relation belongs 
or is subject by its proper nature, which Savigny also describes 
as the rule in the area of which the relation has its seat. This 
was equivalent to entrusting the selection of the rule in the case 
of each legal relation to an appreciation of what justice and con- 
venience require, for nothing is gained by interposing a seat of 
the relation which in its turn justice and convenience must point 
out. Apart, therefore, from the value of his judgment in dis- 
cussing particular questions, Savigny^s chief contribution to our 
subject lay in directing attention to the substantial nature erf 
each legal sitpation to be dealt with rather than to the sovereignty 
over persons or places, and in th# check which he thereby gave to 
ihe^xaggerated application of the leaf situs which had set in with 
d’Argentre. The spirit of this teaching has not ceased to 



22 


PRIVATE INTERNATIONAL LAW. 


operate, though sovereignty at present bulks so largely in the 
view of writers on our subject that few carry it out without 
referring to that consideration. 

Thus one of the latest and ablest of them, M. Fillet, while 
treating the choice between laws as a question of the respect due 
to the respective sovereignties from which they have emanated, 
lays down the principle that the preference is always to be given 
to that state which has the greatest interest in the solution.* 
But the interest which the sovereignties from which laws emanate 
have in the solution of a question arising between them can only 
be measured and compared by reason, and so the substantial 
nature of the legal relation to be dealt vith re-enters as furnish- 
ing the test. That nature may be considered more from the 
point of view of the parties or more from that of the 
sovereignties concerned, though a sound judgment will not wholly 
lose sight of either. But at least a legislator will be deemed to 
have intended that his enactments shall be interpreted by science, 
not that they shall be applied to all legal situations within his 
physical control, or to the acts of all persons acting in his terri- 
tory, except so far as he may concede exceptions by a comity 
contrasted with justice. t 


^Pillct, Pnncipes du Drojt International Pn\<^, 1903. 

t For a discussion of recent Continental theories of the subject, see Baty, 
Polarized Law, p. 148, ff. 1914. 



( 23 ) 


CHAPTER 11. 

DOMICILE AND NATIONALITY — RENVOI. 

A VERY summary view has now been given of the history of 
private international law to the close of the eighteenth century. 
Since then the development of the subject on the continent has 
been largely influenced in its external form by the codification 
of the law in the leading European countries, and by the inter- 
national conventions of 1896, 1902, and 1905, on procedure, 
marriage, divorce and guardianship, resulting from the official 
conferences of 1893, 1894, and 1900 at The Hague, England 
unfortunately not having been a party either to the conferences 
or to the conventions.* In its substance the subject has been no 
less deeply affected by the substitution, widely accepted on the 
continent, of political nationality for domicile as the criterion of 
personal law, and by the controversy which has consequently 
sprung up about the doctrine called the renvoi. It will be easily 
seen how the difficulties of private international law must be 
increased when to the differences between the laws that can come 
into conflict there is added a difference as to the rules which are 
to regulate that conflict. The latter difference was not, indeed, 
first created by the introduction of nationality in some countries 
as the criterion of personal law while domicile was retained for 
that purpose in other countries. It existed, for instance, as the 
result of the want of agreement whether the lex loot actvs was 
obligatory or only optional for the forms of acts, and whether for 
the form of a will the Je.v loci actus was not altogether over- 
ridden by the lex domicilii for movables and the lex situs for 
immovables. But the change of* base from nationality to 
domicile, imperfect in the extent of its adoption, brought the 
conflict between rules of private international law into much 
greater practical importance than it before possessed, and this 
for England as well as for the continent, notwithstanding that* 

* The Conventicms of 1902 and 1905 have been denounced by France and 
^some oFthem by Belgium. The Convention of 1906 about civil procedure has 
becti reaffirmed in Art. 287 of the Treaty of Versailles with Germany; but 
France is excepted from the States renewing their adhesion. 



24 


PRIVATE INTERNATIONAL LAW. 


England has so far clung to the old principle of domicile. It is 
therefore necessary to give a general account of the matter 
before entering on any of the particular doctrines of our subject, 
in which it will meet us from time to time. And in doing so I 
shall abide as far as possible by the historical method which has 
been pursued in the previous chapter. 

Before Savigny wrote, though as an expositor of Roman law, 
he had no concern with it, there had already begun on the con- 
tinent of Europe the substitution of political nationality for 
domicile as the test to be applied to status and capacity. This, 
which may rank with the extreme territoriality championed by 
d’Argentre as the two greatest changes in our subject since the 
twelfth century, has been progressive, and is not yet complete. 
It arose as follows. 

In France the reception of domicile as the criterion of the 
personal statute was early qualified by a very limited reference to 
political conditions, not, indeed, through any reintroduction of 
origo as a ground of jurisdiction, but through a jealousy of 
(lomicMium as such ground when by any possibility it might lead 
to consequences hurtful to Frenchmem. France attained early to 
the consciousness of a political unity within herself, marking her 
off from all foreign countries, the empire included, and which 
led, long before the consolidation of the royal power under Lewis 
the Eleventh, to certain peculiarities in her jurisprudence. The 
Roman notion of domicil iuvi was revived as in Italy and other 
parts of the empire, so that a Frenchman could not be sued for 
a personal matter except before the judge of his domicile; but 
the foreigner {auhain), being in France with a residence there 
short of domicile, was not allowed, when sued by a Frenchman, 
to plead that his proper judge was the judge of a foreign domi- 
cile. His only protection was that the French plaintiff could not 
bring him before any tribunal he chose, but only before that of 
his actual residence. Also a foreign judgment had the force of 
res judicata in France when pronounced against a foreigner, but 
by the ordinance of 1629, Art. 121, a Frenchman could again 
dispute the merits of the cause before a French tribunal. Hence 
the personal statute of a Frenchman was that of his French 
domicile, and if he acquired a foreign domicile, neither a judg- 
ment there pronounced, nor the statute of that place operating 
through the medium of such a judgment, could affect his status 
or capacity in France. But the foreigner was bound as^o his 
status and capacity by the res judicata^ and therefore by Ae 



DOMICILE AND NATIONALITY. 


26 


statute, of his foreign domicile, though it is more than probable 
that, if sued in France by a Frenchman for matters transacted 
in France, he would not have been allowed to defend himself by 
that statute.* Suppose, however, that the foreigner established 
in France, not merely a simple residence, but such a residence as 
satisfied the Roman notion of doimcilhim; could this be counted 
in his favour? The French legists, either by a misconception or 
through a desire to justify the inequitable droit d* aubainey seized 
on the Roman distinction between jus civile and jus gentium y 
and held that foreigners enjoyed the latter in France but not the 
former. Now the transfer of domicile was in Roman ideas a 
question of fact, domicilium re et facto transfertur : therefore it 
did not depend on the jus civile: therefore a foreigner was 
allowed to establish his domicile in France, with the effect of 
submitting his status and general capacity to the law of that 
domicile, his particular rights remaining limited by his exclusion 
from those which arose out of the jus civile y as succession to 
property on death, its transmission by will, the patria potestasy 
and adoption.! This exclusion is often sjmken of as incapacity,, 
and not without etymological accuracy; but questions about it 
must be distinguished from those about general capacity. A 
Frenchman, as a minor, may have wanted the latter capacity 
w^hile enjoying rights, for instance, of succession : a foreigner 
ill France inay have been sui juris while deprived of such 
rights. 

In this state of things the Code Napoleon (1803) enacted that — 

The laws concerning the status and capacity of persons govern Frenchmen, 
even though residing in foreign countries. Art. 3. 

Such was the natural outcome of the ancient French principles 
just explained. The internal differences of law, with regard to 
which the precise domicile within France was important, dis- 
appeared with the introduction of the code, but the political 
nationality of a Frenchman remained to govern his civil relations 
even abroad. The same code says — 

The foreigner who may have been admitted by the authority of the 
government to establish his domicil^ in France ’shall enjoy there all civil 
rights, so long as he continues to reside there. Art. 13. 

This article repeals, for the foreigner who has established lfip» 

domicile in France with the authority of the government, the old 

: 1 ^ 

* See^emangeat, Histoire de la condition civile des Strangers en France, 
pp#117-~121. 

fDemangeat, lib. cit., pp. 123 — 166. 



26 


PRIVATE INTERNATIONAL LAW. 


exclusion of aliens from the rig^hts given by the jus civile^ the 
difference between which and the jus gentium is still sometimes 
noticed by Freiu'h lawyers even under the empire of the code, but 
it neither says nor implies anything as to the law by which the 
status and general capacity of any foreigner are to be determined. 
As to that matter, the prevailing opinion is that a silent revolu- 
tion has been wrought by Art. 3, and that as the status and 
capacity of Frenchmen are to be determined by French law, so, 
by analogy, the status and capacity of foreigners, whether they 
have established a domicile in France with the authority of the 
government or not, . must be determined by the law of their 
political country. Nevertheless, the French courts have often 
refused to allow a Frenchman to suffer from the incapacity by 
his personal law of a foreigner who contracts in France, when 
the foreigner would have been capable by French law, and the 
Frenchman, in good faith and not having acted with legerete or 
imprudence, was ignorant of his incapacity. So much survived 
of the ancient practice, which in no cavse permitted a foreigner 
contracting in France to defend himself by his personal statute 
against a French plaintiff. But the most recent authorities pay 
respect to the incapacity of a foreigner by his personal law 
whenever he has not fraudulently concealed it from the French 
party.* 

The next great examf)le of codification in Europe was that 
given by the Austrian code of 1811, in force from 1st January, 
1812. In it the French precedent was followed so far as to claim 
the authority of their national law over the capacity of Austrian 
subjects abroad (Art. 4), but it left the capacity of foreigners to 
the old rule of domicile (Art. 34), as the Prussian code of 1794 
had done for the capacity of every one. After this the influence 
of nationality on private law received a great impetus from the 
circumstances of Italy, as a region possessing unity of language, 
social habits and sentiment, but without political unity, divided 
as it was between the foreign government of Austria and doraestiV 
governments controlled or supported by that of Austria. The 
conviction of an intimate connection between the political and 
the social or jural aspects of national life, which perhaps made 
;its» first appearance in the old French maxims which we have seen 
determining the line taken on our subject by the Code Napoleon, 

♦ Surville et Arthuys, § 161, quoting judgments of 2nd July 1878 and 4th MdBch 
1890, 6 Clunet 202 and 18 Clunet 206. 



DOMICILE AND NATIONALITY. 


27 


was developed by the Italians into a theory on which their 
political unity and independence might be claimed, and on which 
the legislation of the resulting state would have to be based. Any 
body of people occupying a certain territory, and united among 
themselves and differentiated from their neighbours by race, or 
by what makes up the tie imagined and described as that of race, 
was a nationality and might claim a separate political develop- 
ment. So far the theory was preached and acted on in many 
European countries. Buf by the Italians, among whom the 
greatest name in this subject was that of Mancini, nationality 
was regarded as the product of a living force, which tended to 
show itself at once in the political and social spheres, so that the 
political organization might as well be the index to that which 
ought to exist for private law, as the social characteristics might 
be the index to the organization which ought to exist in the 
political sphere. On these principles, when the political unity of 
the country had been to a large extent achieved, the Italian code 
of 1865, in force from 1st January, 1866, was framed, and 
declared that — 

The status and oaimcity of persons and their lamily relations are governed 
by the law of the nation to which they belong. Preliminary Art. 6. 

The case of a political nationality including within its terri- 
torial limits the areas of several distinct systems of private law, 
as the British Empire includes England, Scotland, the province 
of Quebec, the Cape Colony, and many other regions distinct for 
the purposes of private law, was not contemplated in drawing up 
this enactment. But wherever the national law of a subject of 
such a complex unit is referred to, there is no possible alternative 
except to find the law sought in that of the domicile to which he 
belongs within his political nationality. For a British subject 
domiciled in England, English law must l)e regarded in Italy as 
his national law, and so forth. 

From the date of the Italian code and the parallel decisions of 
the French courts as to the status and capacity of foreigners, 
the differences between laws ais to the age of the majority have 
been complicated by differenees as to the authority of the law- 
givers. From the time gloss on the law cunrtas 'pop^dos to 
nineteenth . century , the age of majority was determined by the 
law of the domicile, because it was agreed that the lawgiver of a 
^erritft’y had authority to fix that age for those domiciled in it 
and for no others. There might be a diflSculty in ascertaining 



28 


PRIVATE INTERNATIONAL LAW. 


the jjiomicile, but, that ascertained, there could be none in 
ascertaining the law. Now, however, we have an English or a 
Danish lawgiver fixing the age at twenty-one, and adhering to 
the old view that his authority over personal status depends on 
the English or Danish domicile of the persons to be affected, and 
an Italian lawgiver fixing the age at nineteen, and adopting the 
new view that his authority over personal status depends on the 
Italian nationality of the persons to be affected. If, then, one 
who is politically an Englishman or a Dane is domiciled in Italy 
and makes his will and dies there at the age of twenty, neither 
the English or Danish nor the Italian lawgiver has claimed 
authority to determine his majority. What, then, shall be 
done? 

In order to answer that question it is usual to distinguish what 
are called the internal laws of a country from the rules of 
private international law adopted in it, the two parts together 
forming the whole law of the country. For example, twenty-one 
as the English or Danish age of majority and nineteen as the 
Italian, carefully separated from all consideration of an enacting 
authority having a definite range of legitimate action, are 
treated, as being the internal laws of the respective countries, and 
their whole laws on the subject are made up by adding the 
principle of domicile or nationality as the case may be. Then 
on one view, which is called in French renvoi and in German 
Ruckverweuvngy the rules of private international law are under- 
stood as referring a judge to the whole law of a given country, 
and not merely to its internal laws, so that in the case put above 
the principle of domicile would be understood as referring an 
English or Danish judge who might be seized of the case to the 
whole law of Italy as determining the majority of the de cujus; 
this reference being made, the principle of nationality, included 
in the whole law of Italy, would refer the same judge back to the 
whole law of his own country; that whole law would send him 
again to Italy ; and so on for ever. No result is arrived at : there 
is a circxdus inextricahilis. It is needless to say that in practice 
some means must be found, and are found even by the partisans 
of the renvoi, to stop the series of references back. But the 
©pjoonents of the renvoi treat the theoretical possibility of the 
cArcuhis inextricaHiUs as proof that the rules of private inter- 
national law never refer a judge to the whole law of another 
country, but only to its internal laws. Thus they teach ftiatjlf 
the affair of our de cujus comes before an English or Danish 



DOMICILE AND NATIONALITY. 


20 


judge, lie must hold himself to be referred by his principle of 
domicile to the internal law of Italy, and must pronounce the 
testator to have attained majority at nineteen, and that if the 
same affair comes before an Italian judge, he must hold himself 
to be referred by his principle of nationality to the internal law 
of England or Denmark, and must pronounce the would-be 
testator not to have been of age because he was not twenty-one. 
And this view the opponents of the renvoi claim to have been the 
ancient one, although as long as the rules of private international 
law adopted in different countries did not differ, it did not 
matter whether they referred a judge to the internal law of 
another country or to its whole law, and the distinction between 
the internal and the whole law was not in fact made. 

It is difficult to be satisfied with either of these doctrines, both 
based on a notion of internal law from which the necessary (and, 
yace the opponents of the renvoi^ the historical) element of the 
authority claimed by the lawgiver has been eliminated. Let us 
suppose then that an English or Danish judge, seized of the affair 
of our de cujus^ declines to single out the so-called internal part 
of the law of Italy as being alone pointed out to him by his 
principle of domicile; and suppose him to perceive that the 
Italian principle of nationality, by preventing the Italian law- 
giver from claiming authority over the capacity of any but his 
political subjects, has made it impossible that any determination 
about the capacity of a British or Danish subject can enter into 
what in any true sense is the law of Italy. Then he will under- 
stand that the conflict of rules of private international law has 
had for its consequence that they lead to no result in the case 
before him. He will be thrown back on an examination of the 
true meaning of the principle of domicile in the law of his 
country. He will find that that principle is the expression of the 
view, entertained from the twelfth century or earlier to the nine- 
teenth, that the world is divided for the purposes of private law 
into civil societies based on domicile, and that no lawgiver can 
properly attempt to'withdraw his political subjects from any such 
civil society in which they may be included. He will further 
find that the law of Italy amounts to saying that no civil society 
based on domicile exists in that country, and he will finally con- 
sider that domicile is eliminated from the case, and that there is 
ncr reason for holding the political Dane or Englishman to have 
attaiilfed his majority sooner than he would have attained it in 
hf& own country. It is to the elimination of domicile, and not to 



30 


PRIVATE INTERNATIONAL LAW. 


any throwing back to a previous domicile, that the law of Italy 
leads. But if the status of a British subject is concerned, some 
means must be found of connecting him with one of the systems 
of law existing in the British empire. This may be done by 
tracing him back, where possible, to some British domicile, which 
he can be said not to have abandoned because he has not 
abandoned it with legal efficacy; and Farwell, J., took that line 
in Re Jolinsrtn (below, p. 36). If it is not possible, at least the 
ancestry of the de cujus may be traced to a British subject who 
had a British domicile ; and the result so reached must be 
a(‘cepted ej' iiecessitate, not from any continuity in the deduction 
of domicile. If it should be suggested that the age of majority 
ought to depend on that of maturity, as indicated by the climate 
of the domicile, he will no doubt reply, first, that the domicile at 
the age of nineieen proves nothing as to the climate under which 
the de cujus may have been growing up towards maturity, and 
secondly, that historically such a (‘onsideration had nothing to 
do with the establishment of the principle of domicile. 

The matter is so cardinal in relation to the real meaning of 
private international law, that, at the risk of being tedious, I will 
put it again in different langxiage, but with a difference only of 
language. The English or Danish judge cannot hold the lad of 
nineteen to have attained his age unless he is prepared to answer 
the question, what lawgiver made him of age? That is indepen- 
dent of all views about the conflict of laws, for it results from 
the nature of law itself. Now the Italian code does indeed seem 
to lay down a rule about the status and capacity of all persons 
without exception, but this is only a misleading generality, for 
no one can doubt that the principle of nationality adopted in 
Italy prevents the Italian lawgiver from claiming authority over 
the capacity of a British or Danish subject. The English or 
Danish judge therefore cannot say that the Italian lawgiver 
made the de cujus of age at nineteen : Then, it will be asked, 
who is the lawgiver that keeps him a minor till he has attained 
twenty-one? And the answer. is, the British or Danish lawgiver; 
for no one can doubt his authority over the capacity of his 
subjects if he chooses to exercise it, and the Italian lawgiver’s 
^jinK'laimer removes the objection which he would have felt to 
exercising it in the case of one of his subjects who was not domi- 
ciled in the British dominions or in Denmark. The result will 
coincide with that given by the renvoi, properly limited as to 
avoid an endless series of references to and fro, but its real base 



DOMICILE AND NATIONALITY. 


31 


lies, not in the doctrine of renvoi, but in the duty of considering 
the essential nature of the legal relation in question in any 
concrete case, and the essential meaning of the rules of private 
international law adopted in the different countries concerned. 

Writing in and for a country in which the principle of domicile 
is maintained, it is not my duty to express an opinion as to what 
an Italian judge ought to do if the case of our de ciijus came 
before him. But I may say that I see no reason why he also 
should not hold the age of majority in the concrete ease to be 
twenty-one. The same considerations as to the essential meaning 
of the Italian principle of nationality and the British and Danish 
principle of domicile, respectively, are open to him. And if he 
follows them, his decision in favour of the English or Danish 
age of majority will coincide with the result which would be 
given by regarding the rules of private international law as 
requiring the application only of the internal law\s of the 
countries to which they point. But a ditferent view has been 
adopted in the law introducing the German Civil Code 
{einfuhrungs(fesetz)y in force from 1st January, 1900, of which 
the important articles are as follows: — ^ 

Art. 7, The capacity of a person is to be judged according to the laws 
(gesetze) of the state to which he belongs. 

If a foreigner who is of full age or has the legal condition of a person of 
full age acquires the character of a German subject, he retains the legal 
condition of a jDerson of full age even though he is a minor according to 
the laws of Germany. 

If a foreigner acts in the empire in any way for which he is incapable 
or of limited capacity, he is to be treated as capable for such act so far as 
he would have been capable by the laws (gesetze) of Germany. This rule is 
not applicable in matters of family law and of succession, or to dispositions 
of foreign immovables. 

Art. 27. If by the law (recht) of a foreign state, of which the laws 
(gesetze) are declared by Art. 7, paragraph 1, Art. 13, paragraph 1, Art. 16, 
paragraph 2, Art. 17, paragraph 1, or Art. 25 to be applicable, the laws 
(gesetze) of Germany are to be applied, the latter shall be applied, t 

Thus Germany has followed France and Italy in substituting 
nationality for domicile as the criterion of personal law, though 

* It is noteworthy also that the International Convention drawn up at the 
Hague Conference of 1912 concerning a Uniform Law of Bills and Cheques 
contains a rule adopting the national law as the criterion of capacity to contract, 
subject to the acceptance of a reference from the national law to any other la\». 
Article 74 runs : — La capacity d’une personne pour s’engager . . . est d4termin4e 
par la loi nationale. Si cette loi nationale declare compdtente la loi d*un 
autre 4tat, cette derni&re loi est appliqu4el 

f Theanatters treated of in the other articles referred to are marriage (Art. 18), 
the^fFect of marriage on property (Art. 15), divorce (Art. 17), and succession on 
death (Art. 25). 



32 


PRIVATE INTERNATIONAL LAW. 


with express limitations intended for the security of transactions 
entered into in Germany, and while doing so has provided for the 
conflict of rules of private international law, as well in the case 
of capacity which we have been considering as in certain other 
parts of the subject. By gesetze the so-called internal laws of a 
country are meant, and by recht its whole legal system as 
resulting from them in combination with its rules of private 
international law. The German rules of the latter description 
are treated as pointing ta the internal laws of another country, 
but if, in the cases to which Art. 27 extends, the rule of private 
international law of the country of which the internal laws are 
so indicated refers back to Germany, the renvoi is admitted by 
exception and without any further reference back, and the 
internal laws of Germany are to be applied. If an Italian judge 
adopts this system, he will hold that a British subject or a Dane 
domiciled in Italy attains his majority at nineteen. The system 
has been supported from the point of view of general theory by 
the great authority of von Bar, in theses which he presented to 
the Institute of International Law. 

Theses propos^es par M. L. de Bar. 

1. Chaque tribunal doit observer la loi de son pays en ce qui concerne 
r application des lois 4trang6res. 

2. Pourtant, s’il n’y a pas de disposition contraire expresse, le tribunal, 
oonform4ment aux principes du droit international priv6, doit respecter : 

(a) La disposition d’une loi 4trang^re qui, en renon 9 ant k lier see 
nationaux quant au statut personnel en pays Stranger, veut que ce statut 
personnel soit d4termin4 par la loi du doinicile^ ou meme par la loi du lieu 
oh Tacte dont il est question a 4t6 fait ; 

(5) La decision de deux ou plusieurs legislations ^trangkres qui, pourvu 
qu’il soit certain qu’une d’entre elles est n^oessairement oomp^tente, 8*accor~ 
dent en attribuant la decision d’une question k la m^me legislation. 

Septembre, 1900. * 

It will be observed that the thesis (a) supposes a country (A) 
which makes nationality the criterion of personal laws, and that 
the country of the nationality so referred to (B) makes personal 
law depend on (C) the domicile of the de cnjns or the country in 
which he has done the act in question. If (C) is the same as (A) 
we have the case of the German Art. 27, and decided in the same 
way as by that article. If (C) is different from (A) we no longer 
hhve a reference back (riicJcverweisung), but a further reference 
(weiterverweisung). Both are called renvoi, and von Bar gives 
the same rule for both : the internal laws of the country either 

• ^ 

* 18 Annuaire de I’lnstitut de Droit International, p. 41. 



DOMICILE AND NATIONALITY. 


33 


referred back to or further referred to are to be applied, the 
doctrine of renvoi being carried so far and then stopped. To 
illustrate this further reference let us suppose that the will of 
our old de ciijus, an Englishman or Dane domiciled in Italy and 
making a will and dying there at the age of twenty, conies to be 
decided on in Germany. On the doctrine of the thesis he will be 
adjudged to have attained his majority at nineteen. In order 
that a case of weiterverweisung may come before an English 
judge, we may imagine that the further reference is made to the 
country where the act in question, say a marriage, has been done, 
by a country, say some American state, to which as the country 
of the domicile the first reference has been made by England, 
but which makes capacity to depend on the le.v loci actus. If the 
country of the act makes the validity of the act to depend on its 
conformity with its own internal law, the case of von Bar’s 
thesis (b) will be presented, for both the country first referred to 
and that further referred to will be agreed in placing the decision 
with the latter, while in the view of the English judge the com- 
petence will certainly lie with one or other of them. Probably, 
therefore, he will feel no hesitation in deciding by the le,x loci 
actus. But if the country of the act should make a still further 
reference, say to that of the nationality, the English judge would 
have to consider the* whole case with regard to the essential 
nature of all the legal relations and rules concerned. * 

The widest sanction which the German rules have received 
remains to be quoted. Official conferences on private inter- 
national law were held at The Hague in 1893, 1894 and 1900, 
Great Britain, unfortunately, taking no part in them. Among 
their results were the signature on 12th June, 1902, of three 
conventions between twelve European states, respectively, con- 
cerning marriage, divorce and the guardianship of minors; and 
the signature on 17th July, 1905, of three conventions between 
seven European states, respectively on the personal relations and 
property of husband and wife, on successions and wills, and on 
the curatorship of adults.* Another convention of the latter 


♦ France denounced her adhesion to the Conventions of 1902 in 1912 and 
to those of 1905 in 1916, on the ground that they interfered with questions 3f 
her public policy (see Clunet, 1914, p, 801 and 1917, p. 782). Belgium also 
denounced her adhesion to the Conventions of 1902 by decree dated SOth Oct. 1918. 
The Conventions of 1902 concerning thfe guardianship of minors and of 1906 
concemiiflg civil procedure are expressly reinstated between Germany and the 
other Allies and Associated Powers that were signatories to them by Arts. 282 
and 287 of the Treaty of Versailles. 


W.I.L. 


3 



34 


PRIVATE INTERNATIONAL LAW. 


date, between fifteen European states, on procedure in civil cases, 
revised a convention of 14th November, 1896. The convention 
on marriage agrees with Arts. 7 and 27 of the German law, on 
the framing of which the interchange of opinion at the con- 
ferences must, of course, have exerted an influence, and is thus 
expressed: Art. 1. Le droit de contractef rnariage est reglS par 
la loi natwnale de chacun des ' futurs epoux^ d moins qu’une 
disposition de cette loi ne se refute expressement d une autre 
loi,* Thus the capacity of each party to contract a given 
marriage is governed by his national law, but if that law 
expressly makes such capacity to depend on the law of the 
domicile, thereby making it plain that it has no interest in the 
matter, its internal dispositions will not be applied. 

On the continent of Europe the courts of law seem to adopt 
the renvoi oftener than to reject it. Dr. Bate, in his Notes on 
the Doctrine of Renvoi in Private International Law, pp. 24-26, 
enumerates the judicial pronouncements for and against that 
doctrine, from 1856, when it seems to have first come before a 
continental court, to 1901, with the following results : 
France, 13 for, 3 against; Belgium, 6 for, none against; Spain, 
1 for, none against; Netherlands and Switzerland, each none for 
and 1 against; Germany, before the code came into force, 10 for, 
12 against; totals, 29 for, 17 against. t Moreover, after the 
French *Court of Appeal had for a period given conflicting 
decisions, the Court of Cassation in 1910 emphatically restated 
its opinion in favour of the renvoi [U Affaire Soulie, Clunet 
(1910), p. 888), That opinion was originally given in the 
Affaire Fargo (10 Clunet (1883), 64). The French jurisprudence 
may therefore be regarded as decisively supporting the doctrine. 
But the opinions of eminent jurists against the renvoi preponder- 
ate numerically. The Institute of International Law gave in 1900, 
on ‘‘the principle of ’’ a rather involved article, a vote which 
may be taken as condemning the renvoi by 21 to 6, The names 
of the majority were Asser, Boiceau, Buzzati, Catellani, Corsi, 
Descamps, Dupuis, Fauchille, Hilty, Holland, Kebedgy, Lehr, 
von Liszt, Lyon-Caen, Midosi, Renault, Comte Rostworowski, 


• * 4 R. de D, I. et de L. C. 2e s4rie, p. 488 j 28 Olunet 18. By Art. 2 some 
effect is also given to the law of the place of celebration, to which we shall have to 
refer in treating of marriage. 

f This paragraph has been retained because the general trend of judical 
decisions in the last ten years has been the same; t^e argument therefsce holds. 
For a recent study of the question, see ha Qa^siion 4$ Bsneoi,’* by I>r. Sotu, 
Paris 1913. 


» DOMICILE AND NATIONALITY. 


35 


de Roszkowski, Sacerdoti, Streit, Vesnitch; and those of the 
minority were von Bar, Brusa, Harburger, Roguin, Weiss, 
Westlake.* 

The question, whether in its true meaning a rule of inter- 
national law refers a judge to the whole law or merely to the 
internal law of the country indicated by it, was raised in England 
at an earlier date than that of any of the continental cases quoted 
by Dr. Bate as above. It is not necessary here to trace historic- 
ally the connection of the succession to movables with the 
personal law or statute of the de cujus: it is enough to say that 
that connection was adopted in England in its extreme form, 
requiring not only that the distribution should be made in 
accordance with the law of the domicile of the de cujus, but also 
that a testator domiciled in England should make his will in the 
form given by the law of his domicile. Hence there arose a 
conflict between this English rule of private international law 
and the more widely received rule which at least allowed an act 
to be good if made in the form of the locus actus, even if it did 
not require it to be in that form. The cases turning on that- 
conflict have furnished the English court with the opportunity, 
of which it has abundantly availed itself, of declaring that in 
matters of movable succession its rule of private international 
law refers it to the whole law of the country indicated by it, or, 
which is the same thing, to the judgment which would be passed 
in that country on the concrete case. Thus, in De Bonneval v. 
De Bonneval (1838), 1 Curt. 857, where the question was on the 
form of a will, Sir Herbert Jenner, having decided that the 
deceased was domiciled in France, said : The courts of that 
country are the competent authority to determine the validity of 
his will and the succession to his personal estate, and, as in the 
case of Hare v. Nasmyth, 2 Add. 25, t the court suspends the 
proceedings here as to the validity of the will till it is pronounced 
valid or invalid by the tribunals of France.’’ In accordance 
with this pronouncement wills of movables, not in the normal 
forms of the countries where the testators were domiciled, have 
been admitted to probate because" it was held on the evidence that 
they would have been operative in those countries: Collier v. 
Rivaz (1841), 2 Curt. 855, Sir Herbert Jenner; Frere v. Frere 
(1847), 5 Notes of Cases 593, the same judge, then Sir H. Jenner 

^4 


*3# Annnaire de ITnstiiiit de Droit Intematibnal, pp. 84, 176, 177. 
f A similar case, putting Scotland for France, before Sir John Nicholl in 1815. 



36 


PRIVATE INTERNATIONAL LAW. 


Fust; Croohenden v. Fuller (1859), 1 Sw. & Tr. 441, Sir C. Cress- 
well; Laneuville v. Anderson (1860), 2 Sw. & Tr. 24, Sir C. 
Cresswell; Onsloiv and Allardice v. Cannon (1861), 2 Sw. & Tr. 
137 (Dr. Deane, Q.C.*^, withdrawing his opposition when it was 
decided in Scotland that the will of a testator there domiciled 
would be valid if in the form of the locus actus ) ; Re Brown- 
Sequard, [1894] 70 L. T., N. S. 811, Sir F. Jeune. And in Re 
Lacroix (1877), 2 P. ^D. 96, Sir J. Hannen held that in Lord 
Kingsdown’s Act the ‘‘ law of the place where [a will] was 
made ’’ means the law which in the locus actus would be deemed 
applicable in the given case. In Bremer v. Freeman (1857), 10 
Moore P. C. 306 (judgment of judicial committee pronounced 
by Lord Wensleydale), the will in English form of a testatrix 
domiciled in France was refused probate, the court having 
arrived by intricate reasoning at the conclusion that it would not 
be good in France.* 

In Re Trufort, meaning of our prin- 

ciple of domicile had to be considered by Mr. Justice Stirling in 
relation to the distribution of the movable succession of a Swiss 
citizen domiciled in France, with regard to which French law 
admits the authority of Switzerland both by its general refer- 
ence to nationality and by a Franco-Swivss treaty of 1869. There 
had been a decision in Switzerland, and the learned judge, in 
accordance with the cuvses relating to the forms of wills, said 
(p. 612) : The claim of the party litigating in this court has 
been actually raised and decided in the courts which according 
to the law of the deceased’s domicile w’ere the proper and 
competent courts to decide. ... I am bound by their decision.” 

So far the answer to the question with which we are dealing 
seems to have been given by the English courts almost as a 
matter of course, but it was seriously controverted before Mr, 
Justice Farwell in Re JohnsoUj Roberts v. Att.-Gen., [1903] 
1 Ch. 821. The case related to the distribution of the movable 
property of Miss Johnson, a British subject domiciled at her 
birth in Malta, but at the dates of her will and of her death in 
1894 domiciled in the grand duchy of Baden, in which she 

was never naturalized. The English principle of domicile 

% 

* In this and in some others of the above cases the domicile in France or 
Belgium had not been established with the authority of the government of that 
respective country, but the domicile of private international law, which is the 
“ domicile by the law of nations ” of the Judicial Committee in Brem^ v. Free- 
man y remains one established onimo et facto y as it was before domiciles^witb 
government authorization were invented. 



DOMICILE AND NATIONALITY. 


37 


referred the judge to the law of Baden, and the master^s certifi- 
cate found that, according to the law of Baden, the legal 
succession to the property of the deceased of which' she has not 
disposed by will is governed solely by the law of the country of 
which the testatrix was a subject at the time of her death.'’ 
Thus, in whatever sense the inquiry into the law of Baden may 
have been intended, it was answered by the master as meaning 
the whole law of that country and not merely its internal law. 
The learned judge practically accepted the finding as dealing 
properly with the question before him, and concluded “ that a 
domicile of choice, ineffectual to create any rights and liabilities 
governing the disiributioii of movables in the country supposed 
to have been chosen, is for this purpose no domicile at all, and 
that the propositus therefore is left with his domicile of origin 
unaffected. The Baden courts would in effect have disavowed 
him and disclaimed jurisdiction,” It may be remarked in 
passing that no reason was given, and there is none, for distin- 
guishing a domicile of ^‘hoice from one of origin for the purpose 
either of the succession to movables or of the personal statute 
generally. On the main 2>uint the judgment, as well as the 
reasoning which has been quoted from it, was in accordance with 
the doctrine which I have advocated. The Baden law having 
put the Baden domicile out of the case, the movables were dis- 
tributed as if it had never existed, and therefore by the law of 
Malta. In other words, domicile was not resorted to as an 
arbitrary rule, but only so far as implying membership of a civil 
society existing for the purpose of private law, and not therefore 
valid in the case of a country where no such society based on 
domicile exists. The circulus itiejctricahilis alleged to result 
from the doctrine of renvoi did not terrify the learned judge. 
He put the case of a subject of Baden domiciled in England, 
and held that ‘‘ an unavoidable conflict ” would arise in it. If 
and so far,” he said, “ as this court distributes his movables, they 
would be distributed according to our law; but if and so far as 
the courts in Baden distributed them, they would be distributed 
in accordance with Baden law.” That is true, subject to the 
question whether the death of the de cujus would not fix the rules 
of succession for his movables at that date in either countiy^ 
so that their distribution ought not to be affected by their subse- 
quent removal from Bad^n to England or vice versa; but on any 
doctrine as to the meaning of the rules of private international 
ItfW, whether that of renvoi or any other, concurring decisions 



38 


PRIVATE INTERNATIONAL LAW. 


will not always be given in countries Vhicb differ as to the 
criterion of the personal statute. 

There are countries in which the domicile of international law, 
also distinguished as that of fact, with which we have dealt in 
this chapter, is known (French civil code, § 102); but is of no 
effect for foreigners unless completed by government authoriza- 
tion (ih,; § 13), when it is distinguished as a legal domicile. 
The British subject who was the testator in Re Bowes, 1906, 22 
T. L. R. 711, had his domicile of fact, but not a legal domicile, 
in France; and Mr. Justice Swinfen Eady, avowedly following 
Mr. Justice FarwelPs decision in Re Johnson, held that his will 
was governed, both as to its construction and as to its administra- 
tion, by English law. Thus the renvoi is adopted by the English 
cases when the international domicile fails as a ground of 
decision, either because (1) nationality and not domicile is 
adopted as the criterion in the foreign country in question — 
Baden in Re Johnson — or (2) the international domicile has not 
been accompanied by a legal sanction necessary in that country — 
France in Re Bowes. 

I conclude with the opinion, as bounded in reason, that a rule 
referring to a foreign law should be understood as referring to 
the whole of that law, necessarily including the limits which it 
sets to its own application, without a regard to which it would 
not be really that law which was applied. It is also the only 
opinion accepted in the English judgments, and is at least 
strongly supported on the continent. 

In a recent case a question of renvoi arose in very different 
circumstances, but was not discussed by the court. The ques- 
tion was as to the construction of a bill of exchange drawn in 
America and accepted and payable in England. The bill was 
purchased by American dealers in bills, who sent it, together 
with the bill of lading for the goods in respect of which it was 
drawn, to the acceptors in England. They paid it at maturity; 
but, on the discovery that the bill of lading was U forgery^nd 
that no goods had been shipped under it, claimed that the bill 
was conditional on the genuineness of the bill of Jading, and 
brought an action in America to recover the amount paid by 
tl\pm. 

The American court held that the question whether the bill 
was conditional or unconditional should be decided according to 
the law of England. When an action was subsequently b»ught 
in England the English court decided that, in accordance wMi 



DOMICILE AND NATIONALITY. 


39 


the terms of Section 72 of the Bills of Exchange Act, the question 
whether the document was conditional or not was to be construed 
according to the American law, and, therefore, it examined that 
law, and gave its decision upon its interpretation of the American 
decisions. It is submitte'd that, the American court having held 
that the question of construction was for the English law to 
determine, the English court should have accepted the reference 
and decided the matter according to the English internal Law of 
Bills of Exchange. Scrutton, L.J., indeed, in the Court of 
Appeal, doubted whether the English court should have referred 
the matter back to the American law ; but the question of accept- 
ance or non-acceptance of the renvoi had not to be decided, 
because the Court of Appeal found that the result would be the 
same whether the document was construed by the English or by 
the American law.* 

* Guaranty Trust Co. v. Hannay d Co., [1918] 2 K. B. 660. 



( 40 ) 


CHAPTEE III. 

CAPACITY, AND FOIIEIGN GUARDIANSHIPS AND CURATOESHIPS . 

I NOW come to the main object of this work, the rules which 
are received in England on private international law, and it 
seems best to follow the Italian code by commencing with the 
capacity and family relations of jiersons. Any proj>osition which 
can be laid down as supported by the weight of English 
authority, and any proposition as to which the English authori- 
ties are too discrepant for either the affirmative or the negative 
of it to be so laid down, will be numbered for convenience as a §. 
Such propositions will differ in their breadth and importance 
with the measure in which our courts have had occasion to 
pronounce themselves on the different parts of the subject. They 
must not therefore be taken as draft articles of a codifying act 
of parliament, but simply as a mode of presenting the actual 
state of English jurisprudence. Irish authorities will occasion- 
ally be quoted, since the laws of England and Ireland are the 
same on the matters in question. And the decisions of the House 
of Lords on Scotch appeals, and those of the privy council on 
colonial appeals, will be quoted without special remark, whenever 
it is evident that nothing was meant to turn on the reception of 
any particular rule of private international law as a part of the 
national law of the country appealed from. 

§ 1. Whenever the operation of a personal law is admitted in 
England, the domicile of the person in question, and not his 
political nationality, is considered to determine such personal 
law. 

§ 2. When the capacity of a person to act in any given way is 
questioneil on the ground of his age, the solution of the question 
will be referred in England to his personal law. 

^ The following authorities were opposed to the admission of a 
personal law in such case. * 

A person is of less than full age by every law to which reference could be 
made. His capacity to bind himself by a contract for the purpose otarticles 
•of a given description, necessaries or other, is to be decided by “ the la%of 
the country where the contract arose.** Male v. ’Roberts (1800), 3 Esp. 163, 



CAPACITY. 


41 


Eldon. A person who is a minor by the law of his domicile resides and 
trades in another country, where he is adjudged insolvent. His personal 
property situate in the country of his domicile passes to the assignee in 
such insolvency. Stephens v. McFarland (1845), 8 Ir. Eq. 444, Blackburne. 
“ In general, the personal competency or inoompetency of individuals to 
contract has been held to depend upon the law of the place where the con- 
tract is made:’* Cresswell, in Simonin v. Mallac (1860), 2 S. & T. 77; 
though his opinion in Mette v. Mette^ quoted below under § 21, prevents 
this learned judge being counted as a positive authority in favour of the 
lex loci contractus. In Sottomayor v. Be Bathos (1879), 5 P. D. 94, Hannen, 
at p. 100, expressed himself in favour qf the lex loci contractus as governing 
personal competency, after citing the pronouncement of Lord Justice Cotton 
in the same case in 1877, quoted below. And now the judgments in Ogden 
V. Ogden^ [1908] P. 46 — Sir Gorell Barnes, Cozens-Hardy and Kennedy — 
and Chetti v. Chetti, [1909] P. 67 — Sir Gorell Barnes — which are discussed 
below, tend strongly in the same direction, though it may be doubted how 
far what was said in them about capacity for marriage was intended to 
apply to capacity in general. A minor whose domicile was Irish and whose 
father was domiciled in Ireland took service as a labourer in Scotland ; 
and having suffered injury made an agreement about compensation. Subse- 
quently, he claimed damages against his employer and urged that the 
agreement was invalid on the gix^iind that he was a minor by the Irish law. 
It was held that his capacity was determined by the lex loci contractus and 
not by his personal law, and his claim was dismissed. Me Feet ridge v. 
Stewarts and Lloxjd^ [1913] S. C. 773. In Huet v. Le Mesuiier (1786), 
1 Cox, 275, Kenyon required proof that a person who was baptized in 
Guernsey, and petitioned for the payment of money out of court, had 
attained twenty-one ; but it does not appear that the petitioner was domi- 
ciled in Guernsey, nor was the fact that majority there is at twenty referred 
to. A case rather apparently than really opposed to the admission of a 
personal law is that of the Comte de Paris, held to be domiciled in France 
and under twenty-one, but emancipated in accordance with French law, so 
far only however as still to require the assistance of a curator, who had 
been duly appointed in accordance with the same law. Sir C. Cresswell 
refused to make a grant of administration to him assisted by his curator, 
and required him, according to the English practice, to elect his next of kin 
as his guardian for the purpose of administration on his behalf. Be 
D^Orleans (1859), 1 S. & T. 253 ; 28 L. J. (N. S.) P. & M. 129. This case 
was cited with approval by Jeune, in The goods of Meatyard^ [1903] P., at 
p. 129. He explained it as a refusal to grant powers, to be exercised in 
England, to one whose minority by English law would prevent his exercising 
them. 

The following* authorities are in favour of the personal law. 

Sir J. Nicholl granted administration, limited to the receipt of the divi- 
dends on a sum of stock, to a Portuguese lady would have been a minor 
by English law, but was emancipated by the law of her domicile, and who 
was entitled during her life to the dividends in question. Dr. Lushington, 
who moved for the grant, put it on the ground that by the law of her 
domicile the lady could not appoint a guardian ; an argument which 
strengthens the assertion of the personal law as governing capacity. Be da 
Cun/ia/1828), 1 Hag. Ecc. 237. “ The civil status is governed universally 
bjpdhe single principle, namely that of domicile, which is the criterion 
established by law for the purpose of determining civil status. For it is 



42 


PRIVATE INTERNATIONAL LAW. 


on this basis that the personal rights of the party, that is to say the law 
which determines his majority or minority, his marriage, succession, 
testacy or intestacy, must depend/* Westbury, in Udny v. Udny (1869), 
L. R., 1 Sc. Ap. 467. “As in other contracts, so in that of marriage, 
personal capacity must depend on the law of domicile.’* Ck>tton, in Sotto- 
mayor v. De Barros (1877), L. R. 3 P. D. 6 : followed in Be Cooke's Trusts 
(1887), 66 L. J. (N. S.) Ch. 637, Stirling. “ The capacity to contract is 
regulated by the law of domicile.** Halsbi;ry, in Cooper v. Cooper (1888), 
13 Ap. Ca. 99. In this case Lords Watson and Macnaghten declared against 
the lex loci solutionis as regulating the capacity to contract, but expressed 
no clear opinion between the domicile and the locus contractus celehrati^ 
which happened to be the same. See also the next §. 

The following authority admits the personal l^w, but not as 
exclusive. 

A person domiciled abroad can give an effectual receipt for a legacy 
bequeathed to him by a testator domiciled in England, on attaining his 
majority by English law or by the law of his domicile, whichever first 
happens. Be Hellmann (1866), L. R. 2 Eq. 363, Romilly. 

It will be observed in the above that Lord Westbury puts 
majority or minority on the same footing as marriage, and that 
Lord Justice Cotton puts marriage on the same footing with 
other contracts. Indeed, in the case of marriage, there is an 
incapacity on the ground of age which cannot be distinguished 
in principle from incapacity on the ground of age to buy an 
estate, although the age for capacity w’ith regard to those two 
subjects of contract may be different. There is also, in the case 
of marriage, a relative incapacity on the ground of consanguinity 
or affinity with the other party, which on the continent is treated 
as being as much a matter for the personal law as absolute 
incapacity on the ground of age. At least, as to both these 
points, the marriage cannot be valid if the personal law 
pronounce a party to it incapable, whether for age or for 
consanguinity, but a similar objection existing by the law of the 
place of celebration would equally be fatal to it, because without 
a lawful celebration the tie cannot arise. Now it will be seen 
hereafter that the same view of the influence of the personal law 
on marriage has been adopted in England, by a decision later 
than most of the authorities above cited against the admission of 
the personal law on minority generally. I refer advisedly to the 
decision of the House of Lords in Brook v. Brooks 9 H. L. 193, 
because in the determination of that case by the court 'of first 
instance, in which Sir C. Cresswell himself took part, the point 
of domicile was not clearly referred to as decisive. B^t the 
dicta of Lord Westbury and Lord Justice Cotton were subsequftit 



CAPACITY. 


43 


to the full and final consideration of Brook v. Brooks and the 
express reference which, as already observed, is made in them 
to marriage, would seem to have been intended to mark the sense 
of those learned judges that the determination with regard to 
marriage had fixed the rule for capacity in other cases as well. 
And the adhesion of Lord Halsbury to the same side gives it a 
decisive preponderance.* 

Ought, however, all reference to the lex loci contractus on the 
subject of capacity to be excluded? -The case of marriage is 
peculiar, in that in almost all countries that particular tie is not 
created without the intervention of public authority, applied by 
means of some ceremonial, civil or religious. It may therefore 
well be that such a ceremonial is void unless the conditions are 
present which the law of the place of celebration requires to be 
fulfilled in the contracting parties, no less than those which their 
personal laws require, and yet that, if the latter conditions are 
present, the former may not be necessary to the legal effect of a 
different kind of contract which no public minister is called on 
to authenticate. But other considerations may arise, and in 
pp. 26, 31, we have seen the exceptions to the principle of the 
personal law which are allowed in France and Germany to operate 
in favour of the. validity of transactions. It is noteworthy that 
the article in The Hague Convention of 1912 concerning a 
Uniform Law for Bills and Cheques provides expressly that, 
while capacity to contract is normally governed by the national 
law; — La personne qui serait incapable, d’apres la loi indiquee 
par Talinea precedent, est, neanmoins, valablement tenue, si elle 
s’est obligee sur le territoire d’un Etat, d^apres la legislation 
duquel elle aurait ete capable.’’ Thus the lex loci contractus 
prevails over the personal law to make an engagement valid. 
Here, however, notwithstanding Lord Romilly’s opinion in Re 
HeJlmann, the limits which an all but invariable understanding 
sets in England to the authority of judges will certainly prevent 
them from establishing, without the aid of parliament, any 
similar exceptions to the rule of the personal law, once adopted 
as the general one for capacity.^ It will remain for parliament, 
in pursuance of conventions , to be concluded with foreign 
countries, to select between domicile and political nationality as* 
the criterion of personal law, and to establish such exceptions to 


♦ jpje later decisions in the marriage cases of Ogden v. Ogden and Chetti v, 
Ckeffi (below, p. 6Q) have impaired this principle. 



44 


PRIVATE INTERNATIONAL LAW. 


the application of the personal law as convenience may seem to 
require. 

§ 3. When the capacity of a married woman to act in any 
given way is questioned on the ground of her coverture, the 
solution will also be referred in England to her personal law. 

A woman having married during her minority, her capacity to repudiate 
and therefore also to confirm the marriage contract made for her was held 
to depend on the personal law which she acquired by her marriage. Viditz 
v. (yilagm), [1900] 2 Ch. 87 ; Lindley, Rigby, and Collins, reversing Cozens- 
Hardy, [1899] 2 Ch. 569. In Guepmtte v. Young (1851), 4 De G. & S. 217, 
Knight-Bruce, the capacity of a married woman to contract in England 
with the concurrence of her husband, on the subject of an expectation under 
an English settlement, their domicile being French, and the particular 
expectation having been comprised in her dot by a French contract made on 
their marriage, was referred by the vice-chancellor to the law of France. 
It is true that it was much discussed whether the law of France, as that 
of the marriage contract, permitted the contract before the court to be 
made, inde|)endently of any question about capacity properly so called ; 
but the latter question was not, and could not have been, absent from the 
mind of the judge. In Ife BankeSf BeynohL^ v. Ellisy [1902] 2 Ch. 333, 
the cai>acity of a lady domiciled in England to bind herself by a marriage 
settlement was decided by English law, but the point was not adverted to 
whether, if the settlement .was forbidden by the law of Italy, which was 
the husband’s country, it was not void as a contract for which both parties 
were not competent. In Be Groos (No. 2), [1916] 1 Ch. 572, Sargant, 
the capacity of a woman domiciled at her death in England to leave her 
property by will was decided by the English law, though the will was made 
when she was domiciled in Holland. 

The question whether a foreign wife, having capacity by the law of her 
domicile to trade in partnership with her husband, can sue in England, 
jointly with him, on contracts made in such trade, was noticed in Casio v. 
T)e Bernales (1824), 1 C. & P. 266, Ry. & ^lo. 102, Abbott, but not decided, 
because the foreign law was not proved. In Veillon v. Brooking (1858), 25 
Beav. 218, Romilly, it was held that a married woman was not freed from 
a restraint on anticipation, annexed to tho bequest of income to her by an 
English will, by the circumstance that the law of her domicile did^not allow 
of such a restraint on her capacity. In Leew, Ahdy (1886), 17 Q. B. P. 
309, Day and Wills, the assignment of a policy of insurance to the wife of 
the assignor was held void, but the assignment had been made in the 
domicile, and it was not made clear on which ground the law of that country 
was regarded as governing the wife’s capacity to take the assignment. See 
Duncan v. Cannan, 18 Beav. 128, 7 D. M. G. 78, quoted below, under § 39. 

§ 4. The authority of a foreig^u parent over his child living in 
England is recognized in England, to the extent to which an 
JEnglish parent would have similar authority. 

Cottenham, in Johnstone v. Beattie (1843), 10 Cl. & F. 113, 114. 

§ 5. When a foreign minor or lunatic is in Englairf (even 
temporarily: Re Burbidge, [1902] 1 Ch. 426, Vau^an 



FOREIGN GUARDIANSHIPS. 


45 


Williams, Stirling and Cozens-Hardy) the English Court is 
undoubtedly competent to appoint a guardian of his person and 
estate in the case of a minor, or to issue a commission of lunacy 
in the case of a lunatic, notwithstanding that he has a foreign 
guardian, curator, or committee of his j^erson or estate. But 
opinions have differed as to the cases in which this power ought 
to be exercised. 

§ 6. With regard to the person, one view has been that a 
guardian or committee of the person, either appointed by foreign 
jurisdiction or holding the office by force of foreign law without 
judicial appointment, has no authority over his minor or lunatic 
ill England; and that therefore, when the latter is in England, 
the English court ought, on application, to exercise the power 
mentioned in § 5. ' 

Lunatics : Be Honstoun (1826), 1 Russ. 312, Eldon. Minors : Beattie v. 
Johnstone (1841), 1 Ph. 17, Cottenham ; Johnstone v. Beattie (1843), 10 
Cl. & F. 42, Lyndhurst, Cottenham, Langdale. 

The other and better view is that guardians and committees, 
deriving their office from the proper personal law or jurisdiction- 
of the minors or lunatics, have authority over such minors or 
lunatics in England, and that therefore the English court ought 
not in such cases to appoint guardians or committees of the 
person without special cause. 

Brougham and Campbell, in Johnstone v. Beattie^ u. s. ; both expressing 
themselves with regard to minors, but Brougham also mentioning the case 
of lunatics, 10 Cl. & F. 97. 

§ 7. And the English court, even in appointing a guardian or 
committee of the person, will support the authority of the 
guardian or committee existing under the personal law or juris- 
diction, and not defeat it unless it should be abused. 

Minors: Nugent v. Vetzera (1866), L. R. 2 Eq. 704, Wood, where the 
minutes were as follows : “ Declare that the order appointing guardians 
in this country shall be without prejudice to the order of the [Austrian] 
consular court appointing Signor Vetzera guardian, and that Vetzera, as 
such guardian, shall have the exclusive right to the custody and control of 
the infants. Liberty to the defendant to apply as to the removal of the 
children from this country or otherwise. Motion to discharge the service 
abroad refused. On the motion to appoint a guardian ad literrij the defen- 
dant Vetzera appointed guardian ad litem.*' Vi Savini v. Lousada (187(ft, 
18 W. R. 425, Janies. See Stuart v. Bute (1861), 9 H. L. 440, Campbell, 
Cranworth, Wensleydale> Chelmsford Kingsdown. See also Dawson v. Jay 
(1854),93 D. M. G. 764, Cranworth ; l^rd Campbeirs comment on that case,' 
ir^Stuart v. Bute, 3 H. L. 467; and Be Magee's children, 31 L. R. Ire. 
513, Porter, where, the deceased father being a Roman Catholic and the 



^6 


PRIVATE INTERNATIONAL LAW. 


mother a Presbyterian, a Roman Catholic was appointed joint guardian 
with the mother. 

Lunatics : Be Sottomaior (1874), 9 Ch. Ap. 677, Mellish, James. 

§ 8. Where a minor is a British subject, though only by 
statute, the English court is competent to appoint him a guardian 
even though he is domiciled in a country politically foreign, and 
will do so in a proper case, notwithstanding that he is neither 
present within the jurisdiction nor has any property within it. 

Be Willoughby (1886), 30 Ch. D. 324, Kay, affirmed by Cotton and 
Lindley, Be Pavitt, [1907] 1 I. R. 234, Meredith. In Be Bourgoise (1889), 
U Ch. D. 310, Cotton, Lindley and Bowen, the appointment was refused 
because the case was not a proper one. 

A minor residing abroad being a necessary party, and she and her foreign 
guardian declining to appear, a guardian ad litem was appointed : White 
V. Duvernay, [1891] P. D. 290, Jeune. 

§ 9. With regard to the estate — the guardian, curator, or 
committee of the estate, either appointed by the personal juris- 
diction or holding the office by force of the personal law without 
judicial appointment, can sue and give receipts in England for 
the personal proj>erty of his minor or lunatic. Both as to this § 
ind as to § 6, it will be observed that the office is often held by 
iaw without judicial appointment in the case of minors, though 
it can scarcely be so in that of lunatics. The doctrine of this § 
very much restricts the occasions for the exercise of the power 
mentioned in § 5, but where it is exercised the power of the 
English committee of the estate will be exclusive in England : 
Re R, S, A., [1901] 2 K, B. 32, Rigby, Vaughan Williams, 
Stirling. 

Lunatics : Newton v. Manning (1849), 1 M. & G, 362, Cottenham ; Be 
Elias (1851), 3 M. & G. 234, Truro; v. Bentley (1865), 1 K. & J. 281, 
Wood; Hessing v. Sutherland (1866), 26 L. J. (N, S.) Ch. 687, Knight- 
Bruce and Turner; Be Baker (1871), L. R. 13 Eq. 168, Wickens, where the 
unatic had been judicially found such in the colony of Victoria, and the 
x)lonial master in lunacy appeared by the colonial statute to be in the 
f)osition of a committee ; Its Ve Linden, [1897] 1 Ch. 463, Stirling ; Thiery 
7. Chalmers, Guthrie & Co., [1900] 1 Ch. 80, Kekewich ; Vidisheim v. 
London and Westminster Bank, [1900] 2 Ch. 16, Lindley, Rigby and 
V'aughan Williams, reversing North, where the doctnne was applied in 
favour of an administrateur provisoire, the lunacy of the person beneficially 
mtitled not having been declared. The decision was followed in PiUgrin v. 
Ooutts, [1916] 1 Ch. 696, Sargant, where it was held that English trustees 
bowed undue caution in refusing to hand over securities deposited with 
.fiem in England to an administrator appointed by a French court for a 
unatic domiciled in France, the administrator having an express power 

receive the securities. Where the funds and securities are in England, 
be court has a discretion about handing them to the foreign curato^, a$ to 
be. exercise of which see Be de Larragotii, [1907] 1 Ch. 14, Oozen€i*>Ha^y 
ind Kennedy. ^ . 



FOREIGN GUARDIANSHIPS. 


47 


Where a woman was under restraint in New South Wales, but had not 
been found lunatic there nor was her estate vested in the master in lunacy 
there, although he hfid power to sue, it was held that he could not sue or 
give receipts for her estate in England, although a trustee would be justified 
in paying to him whatever he or any other proper authority in New South 
Wales decided that it was for her benefit to expend for her: Be Barlow's 
Will (1887), 36 Ch. D. 287, Cotton, Bowen and Fry, affirming Kay. Appar- 
ently the New South Wales master in lunacy could have sued and given 
receipts in England, (1) if the estate had been vested in him (Cotton), or 
(2) if there had been a declaration in New South Wales affecting the 
woman’s status (Bowen and Fry). Now, however, it has been settled by 
Be Brown, [1896] 2 Ch. 666, Lindley, Lopes and Rigby, that vesting the 
proprietary right in the committee, &c., which is rarely done, is of no 
importance, his right to sue and give receipts being sufficient. 

Lord Eldon seems to have questioned the power attributed in this § to a 
foreign committee of the estate of a lunatic : Be Houstoun (1826), 1 Russ. 
312. But both as td this point and as to the authority over the person, with 
reference to which the case is quoted above, § 6, the report is so worded 
as to leave it possible that Lord Eldon only issued the commission because, 
the lunatic being in England, he thought it necessary for his protection 
that not merely a committee, but an English court, should have authority 
over him and his property. 

Minors : A father claimed the enjoyment oi his children’s property up 
to the age of eighteen, under Art. 384 of the Code Napoleon, and Sir L. 
Shadwell appears to have rejected the claim only on the ground that th^ 
children were domiciled in this country, and not in that in which the Code 
Napoleon was in force. Gamhier v. Gamhier (1836), 7 Sim. 263. In Be 
Hellmann, however — (1866), L. R. 2 Eq. 363 — where a legacy was bequeathed 
to an infant, Lord Romilly refused to direct the executors to pay it to the 
father, entitled by the law of the domicile to receive it as guardian. The 
latter case may perhaps be put on the ground of judicial discretion, as in 
§ 10 : otherwise it would not seem td be maintainable, for a distinction 
could hardly be drawn between recognizing the guardian of an orphan and 
recognizing the father as guardian during his child’s life, or between recog- 
nizing a guardian by law and one judicially appointed, and the general 
doctrine seems to be sufficiently established as well by the cases with regard 
to lunatics as by that next cited. A Scotch curator honis and factor loco 
tutoris is the proper person to retain the English assets of his Scotch 
minors. Mackie v. Darling (1871), L. R. 12 Eq. 319, Wickens. In Ex parte 
Watkins (1752), 2 Ves. Sen. 470, it is said, but the saying appears to be only 
that of counsel, that the appointment in a colony of a guardian of personal 
estate failed as soon as the infant came to England. Lord Hardwicke 
appointed a guardian of the personal estate, for which there may have 
b^n some special necessity. 

§ 10. But where the property is in the custody of the court, or 
can only be reached by an order to be made by the court under 
its jurisdiction as to trust property, or under the statutory juris^* 
diction as to property vested in lunatics, it is in the discretion 
of the court whether and to what extent it will hand-over the 
properly, or the income of it, to the foreign guardian, curator or 
coiffmittee. 



48 


PRIVATE INTERNATIONAL LAW. 


Be Morgan (1849), 1 H. & T. 212, Cottenham ; Be Stark (1850), 2 M. & G. 
174, Langdale and Rolfe ; Be Sargazurieta (1853), 20 L. T. 299, Cranworth ; 
Be (Jarnier (1872), L. R. 13 Eq. 532, Malins ; Be Knight^ [1898] 1 Ch. 257, 
Lindley, Rigby, Vaughan Williams; Be ChatartVs Settlement ^ [1899] 1 Ch. 
712, Kekewich ; New York Security and Trust Co. v. Keyser, [1901] 1 Ch. 
666, Cozens-Hardy. All these are cases with regard to lunatics. 

§ 11. It is in the discretion of the court whether to treat a 
foreign minor as a ward of court, in a case where an English 
infant would be such a ward. 

Brown v. Collins (1883), 25 Ch. D. 56, Kay. 

§ 12. “ Where any stock is standing in the name of or vested 
in a person residing out of the jurisdiction of the High Court, 
the judge in ^lunacy, upon proof to his satisfaction that the 
person has been declared lunatic and that his personal estate has 
been vested in a person appointed for the management, thereof, 
according to the law of the place where he is residing, may order 
some fit person to make such transfer of the stock or any part 
thereof to or into the name of the person so appointed or other- 
wise, and also to receive and pay over the dividends thereof, as 
the judge thinks fit.’' Lunacy Act, 1890, st. 53 & 54 Viet. c. 5, 
s. 134.* 

By the interpretation clause, s. 341, “ stock includes any fund, annuity 
or security transferable in books kept by any company or society, or by 
instrument of transfer alone, or by instrument of transfer accompanied by 
other formalities, and any share or interest therein, and also shares in 
ships registered under the Merchant Shipping Act, 1854 ” (now Merchant 
Shipping Act, 1894). 

Vested ’’ in this enactment does not mean vested in the sense of English 
law, but is satisfied by a power to sue and give receipts ; Be Brown, quoted 
under § 9. Security will not be required from the foreign curator if it 
would not be required from him in the country of his appointment. Be 
Mitchell (1881), 17 Ch. D. 515, James, Baggallay, Lush ; decided on the 
similar enactment, st. 16 & 17 Viet. c. 70, s. 141. 

§ 13. But no English legislation about lunatics or their com- 
mittees can be applied to persons who have only been found 
lunatic in foreign proceedings, or to committees or curators 
appointed in foreign proceedings, without express words to that 
effect. 

• Sylva V. Ba Costa (1803), 8 Ves. 816, Eldon ; overruling Ex parte Otto 
Lewis (1749), 1 Ves. Sen. 298, Hardwicke. 


o 

* By the Mentally Deficients Act, 1913, this part of the Lunacy Act is appjied 
to the case of persons found mentally deficient. 



FOREIGN GUARDIANSHIPS 


49 


§ 14. Nor can the English jurisdiction in lunacy be applied to 
any one unless an inquiry into the state of his mind is first made 
under an English commission. 

Ee Houstoun (1826), 1 Russ. 312, Eldon. 

§ 15. The measures which in different legislations are taken to 
supply the defect of capacity are not confined to the case where 
that defect is total, but often extend to supplementing a capacity 
which is deemed to be only incomplete. Thus a wife may be 
capable of acting with her husband concurrence, but not other- 
wise; a minor who has passed out of guardianship may still be 
capable of acting with the concurrence of a curator, but not 
otherwise. In such instances it would seem on principle that 
the modified capacity is one entire institution, and cannot be 
divided into an abstract capacity to be determined by the 
personal law, and the practical limits set to that capacity by 
the personal law, which are to be ignored. But a different view 
was taken in Worms v. De Valdor (1880), 49 L. J. Ch. 261, 41 
L. T. 791, 28 W. R. 346, Fry. There a French plaintiff, who in 
France was incapable of suing without the concurrence of a 
conseil judiciaire^ on the ground of his having been adjudicated 
a prodigal, was allowed to sue without the concurrence of his 
conseil judiciaire. It was shown that the plaintiff’s condition 
in France was not that of total interdiction, and the learned 
judge said: There being therefore no change of status, but 
merely a requirement of French law in particular cases, it 
appears to me that that does not prevent the plaintiff in this case 
from suing in this action.” And on the same ground a French- 
man similarly circumstanced was held entitled to payment out of 
court of a fund, notwithstanding the opposition of his conseil 
judiciaire. Re Selot's Trust, [1902] 1 Ch. 488, Farwell, both as 
following Worms v. De Valdor and from his own opinion. But 
what is status except the sum of the particulars in which a 
person’s condition differs from that of the normal person P If 
there had been no change of condition the question would not 
have arisen. The learned judge in the first case quoted with 
approval this passage from Story’s Conflict of Laws, s. 104 : 

personal disqualifications not arising from the law of nature,* 
but from the principles of the customary or positive law of a 
foreign country, and especially such as are of a penal nature, are 
not generally regarded in other countries where the like disquali- 
fic^ions do not exist.” Probably no English judge would now 

4 


W.I.L. 



50 


PRIVATE INTERNATIONAL LAW. 


found any proposition on the law of nature, not in the sense of 
just and reasonable principles, but in that of an ascertainable 
code of rules. The true grounds for the two decisions are, there- 
fore, first, that in the opinion of some a partial limitation of 
capacity ought not to be classified as a status, to which the 
answer is that it is capacity, and status in no other sense, on 
which the question turns, and secondly, that subjection to a 
conseil judiciaire is an institution foreign to English law. But 
so is the curator horns of a person above the age of pupillarity, 
and yet the title of a Scotch curator honis is recognized : MacJcie 
V. Darling^ quoted above, p. 47. If the personal law is admitted 
when it declares the complete incapacity of a person under a 
certain age, the capacity of one above that age can scarcely, 
with consistency, be accepted to any greater extent than that in 
which the personal law confers it, unless the limitation under 
which it lies by that law is penal, or otherwise falls under the 
next following §. 

§ 16. An incapacity existing by a foreign law of a penal or 
religious nature, or so opposed to British principles as for 
example is slavery, will be disregarded in England. This is a 
more extensive doctrine than would result from the reservation in 
favour of any stringent domestic policy with which all rules for 
giving effect to foreign laws must be understood (see below, 
p. 51), for foreign }>enal laws may be thoroughly in accordance 
with English policy, but the doctrine seems nevertheless to have 
always been received in England in the whole extent here stated. 

Lord Justice Fry’s quotation with approval from Story in Worms v. 
De Valdor: see last §. The doctrine was held in England as to the in- 
capacity resulting from religious profession abroad, even while that 
incapacity was known to English law. “ If a man or woman be professed 
in religion in Normandy, or in any other foreign part, such a profession 
shall not disable them to bring any action in England, because it wanteth 
trial; but they must be professed in some house of religion within this 
realm, for that may be tried by the certificate of the ordinary, so as of 
foreign ^possessions the common law taketh no knowledge:” Co. Litt. 132 b. 

Has it not always been held that profession in a foreign country did not 
cause civil death?” Knight-Bruce, in Be Metcalfe (1864), 2 D. J. S. 124. 



( 61 ) 


CHAPTER IV. 

MARRIAGE, DIVORCE, LEGITIMACY. 

Marriage. 

Marriage introduces us to the question of public order, to a 
reservation in favour of which, as it is understood in the judge’s 
country, all rules for the application of foreign laws are subject. 
No attempt to define the limits of that reservation has ever 
succeeded, even to the extent of making its nature clearer than by 
saying that it exists in favour of any stringent domestic policy, 
and that it is for the law of each country, whether speaking by. 
the mouth of its legislature or by that of its judges, to determine 
what parts of its policy are stringent enough to require its being 
invoked. 

The Italian code has : 

Notwithstanding the dispositions of the preceding articles, neither the 
laws acts or judgments of a foreign country, nor private dispositions or 
contracts, can in any case derogate from prohibitive laws of the kingdom 
concerning persons property or acts, or from laws which in any way what- 
ever r^ard public order or good morals. Italian Code, Preliminary 
Article 12. 

Correspondingly the Code Napoleon has: 

Private contracts cannot derogate from laws which interest public order 
or good morals. Art. 6. 

The reservation is in theory inevitable. It merely amounts to 
saying that, just as there are nations, like the Turks or the 
Chinese, whose views and ways are so different from ours that 
we could not establish at all between them and us a system of 
private international law, by which effect might as a general rule 
be given in Christian states to their laws and judgments, so, 
between Christian states, differences of views and ways may exist 
which may necessitate exceptions to the general rule of giving 
effec^ to^their laws and judgments. Thus, even while slavery 
existed in certain Christian countries, the rights arising out of it 



62 


PRIVATE INTERNATIONAL LAW. 


were very rarely recognized in those Christian countries where it 
did not exist. Now, however, the most important practical effect 
of the reservation is in connection with marriage and divorce. 

Let us supj>ose that a marriage is contemplated in any country 
between persons who are foreigners to it by their personal law. 
So far as regards any objection which may be entertained to it 
on the ground of consanguinity, affinity, religion or morality, 
which are eminently questions of public order, it interests the 
Jocnn artifs or contractus celehrati, as being that pla(‘e in which 
it will begin and may continue for an indefinite time to have 
effect, just as much as it interests the domicile in which the 
parties are likely to pass most of their lives, or the political 
state for which their union will produce new subjects. And the 
case is further distinguished from that of other contracts in that 
in most countries the tie of marriage is not created without the 
intervention of public authority, applied by means of some 
ceremonial, civil or religious, and that the introduction of any 
foreign or private form of contracting would offend against pu])lic 
order by its tendency to clandestinity. The one point on which 
the country in which the tie originates may well give way to the 
country of the personal law, as being alone seriously concerned, 
would seem to be the capacity of the parties as depending on age, 
including the consent of parents or guardians as supplying a 
capacity which would otherwise fail. If then the rules of private 
international law are to be framed on grounds of principle, and 
so that the validity of a given marriage may be determined alike 
in every country in which it shall be called in question, the form 
of contracting marriage ought to be referred to the le.r loci actus 
or contractus celehrati absolutely and not merely as optional. 
The capacity of each party, as depending on age or the consent of 
third persons, ought to be referred with equal exclusiveness to his 
or her personal law; but respect ought to be paid to a prohibition 
either by the lex loci contra-ctvs celehrati or by the personal law 
of either party, on the ground of any other incapacity, relative 
or absolute. Marriage is a contract creating a status, and it 
might therefore fairly be expected that it should be subject to 
this combination of the law of contract and the law of status, 
but rules relieving it from some of the obstacles which so strict a 
view would raise may be introduced by international treaty, or 
even by independent legislation if some sacrifice be submitted to 
of the certainty that the validity of a given marriage wifi receive 
the same determination everywhere. 



MARRIAGE. 


53 


By the French and Italian codes the international aspect ot 
the capacity for marriage is not dealt with otherwise than by the 
general provisions as to capacity which we have seen (above, 
pp. 25, 27). We have also seen (above, pp. dl, d2) ho\v the 
German einfuhrungsyesctz deals by Arts. 7 and 27 with general 
capacity, and these provisions are applied to marriage as 
f ollow's : — 

Art, 13, first paragraph. The entering into marriage, if either of the 
jxarties is a German, must be decided in I'elation to each of the parties 
according to the laws ((jesetzf) of the state to which he or she belongs. 
The same holds good for foreigners wlio enter into marriage in Germany. 
[This is one of the paragraphs to which Art. 27 apiilies. See above, p. 31.1 

The convention of 1902 made between twelve states,* in its 
Art. 1 which we have seen aliove (p. 04), like the German 
Art. 13, requires the separate fulfilment by each party of the 
conditions of capacity to contract marriage; and this must be 
considered as beyond controversy. We shall see that, when the 
existence of the marriage tie is established, its effect on property 
may depend on the matrimonial domicile or the husbandls 
nationality; but it would be illogical, while it remains to be seen 
whether the tie has been established, to give the determination of 
the woman's capacity to the personal law of the man. The 
convention then jiroceeds to the objections to particular 
marriages, and Art, 2 provides that the law of the place of cele- 
bration may prohibit a marriage of foreigners which w^ould 
conflict with any absolute prohibition contained in it on the 
ground of consanguinity or affinity, of the adultery of the parties 
having caused the divorce of one of them, or of the parties having 
been convicted of conspiring against the life of the husband or 
wife of one of them. All these are relative incapacities, and it 
might be thought that the idea was to give to the place of 
celebration an equal authority in respect of them with that 
of the j>ersonal law. But this is not so, for there follows a 
provision that a marriage which has been celebrated in disregard 
of any such prohibition shall not l>e null, if valid according to 
the law indicated by Art. 1. And by a further clause of Art. 2 
combined with Art. 6, a state is not bound to lend the authority 
of its own celebration to a marriage which would l>e contrary ti 


*It has since been denounced by t>oth France and Belgium. On the other 
hand, ilp is notable that its provisions were adopted by the Mixed Court of 
Ai^al in Egypt as a kind of jus gentium, although Egypt was not a party to 
the Convention. (See Clunet 1914, p. 643.) 



54 


PRIVATE INTERNATIONAL LAW. 


its laws by reason of a prior marriage or of a religious obstacle, 
of which holy orders or vows may be taken as an example, but is 
bound to permit the celebration of such a marriage between two 
foreigners before a diplomatic or consular agent; while, if the 
parties succeed in getting such a marriage celebrated in the 
ordinary way, other countries must not give effect to the nullity 
arising in the place of celebration. So great indeed is the 
tenderness shown by the convention to parties who have gone 
through a form of marriage, that not only is capacity by the 
personal law allowed to prevail, to the extent which we have 
seen, over incapacity by the law of the place of celebration, but 
by Art. 3 the law of the place of celebration may permit the 
marriage of foreigners notwithstanding a prohibition by the 
personal law founded solely on religious motives, though other 
countries are to have the right not to recognize the validity of a 
marriage celebrated in those circumstances. 

With regard to the form of marriage, the Italian code has only 
the general provision : 

The external forms both of acts inter vivos and of last wills are deter- 
mined by the law of the place where they are made. Nevertheless, it is 
optional for parties making dispositions or contracts to follow the forms of 
their national law, provided such law be common to all the parties. Italian 
Code, Preliminary Article 9. 

But the German einfuhmngsgesetz has both a general permis- 
sion in Art. 11 and a special one in Art. 13. 

Art. 11, first paragraph. The form of an act in the law (rechtsgeschdft) 
is determined by the laws (gesetze) governing the legal relation which is 
the object of the act. But it is sufficient to observe the laws {gesetze) of 
the place where the act is done.* 

Art. 13, third paragraph. The form of a marriage which is celebrated 
in Germany is decided exclusively according to the German laws {gesetze). 

The convention of 1902 has these provisions : 

Art. 6. A marriage celebrated according to the law of the country where 
it takes place shall be recognized everywhere as valid so far as regards its 
form. 

It is, nevertheless, understood that countries of which the law requires 
a religious celebration may refuse to recognize as valid marriages con- 
tracted by their nationals abroad without observing that requirement. 

^ The dispositions of the national law as to the publication of banns are 
to be respected, but the want of such publication shall not cause the mar- 


♦This prevents the renvoi from being obligatory. If the whole law (recht) of 
the locus actus should refer to the form given by the internal laws oli another 
country, it will still be sufficient, to observe the form given by the internal l^ws 
of the locus actus. 


MARRIAGE. 


55 


riage to be null in any other countries than that of which the law has been 
violated. 

An official (autheritique) copy of the act of marriage shall be sent to the 
authorities of the country of each of the parties. 

Art. 5. A marriage celebrated before a diplomatic or consular agent con- 
formably to the law of his ‘country shall be recognized everywhere as valid 
so far as regards its form, if neither of the parties is a subject of the state 
in which the marriage has been celebrated, and if that state does not object, 
which it cannot do if the marriage would be contrary to its laws by reason 
of a former marriage or a religious obstacle. 

The reservation expressed by the second paragraph of Art. 5 is applicable 
to diplomatic and consular marriages. 

Art. 7. A marriage which is null for defect of form in the country in 
which it has been celebrated may nevertheless be recognized as valid in 
other countries, if the form prescribed by the national law of each of the 
parties has been observed. 

The anxiety to ui>hold what has been celebrated as a marriage, 
which the convention shows with relation to capacity, is here also 
traceable, but combined with a respect, which no doubt was 
necessary in order to its being concluded, for the objection felt 
in some countries to the absence of a religious form. 

We have now to exhibit the English doctrines on the inter- 
national validity of marriages. 

§ 17. It is indispensable to the validity of a marriage that the 
loci actus be satisfied so far as regards the forms or 
ceremonies. 

Butler V. Freeman (1766), Ambl. 303, Hardwicke; Lacon v. Higgins 
(1822), 3 Star. 171, Dow. & Ry. N. P. 38, Abbott; Kent v. Burgess (1840), 
11 Sim. 361, Shadwell; Be BozzellVs Settlement^ [1902] 1 Ch., at p. 757, 
Swinfen Eady ; Westlake v, Westlake, [1910] P. 167, Bargrave Deane ; 
Pepper v. Pepper, [1921] Ij. J. Newsp., p. 413, where a marriage was held 
to be null which was celebrated between two English parties in Scotland by 
declaration at a marriage office, on the ground that th^ twenty-one days* 
residence required in Scotland before the marriage had not been completed 
according to the Scotch computation of the period. See also Swift v. Kelly 
(1835), 3 Knapp, 257, Brougham ; where the validity of a marriage con- 
tracted at Rome depended on the sufficiency of the abjuration of pro- 
testantism by the parties^ and the question whether their abjuration was 
sufficient was decided according to the law of the Roman Church. And see 
Swifte V. Att,-Gen, for Ireland, [1912] A. C. 276, Loreburn, Halsbury, 
Atkinson, Haldane ; an Irish statute invalidating certain marriages if per- 
formed by a Popish priest held not to apply to a marriage celebrated out 
of Ireland. 

§ 17a. The religious or ecclesiastical law of a church will be 
disregarded if the requirements of the law of the state as to form 

have been observed. 

• • 

Thus a marriage celebrated in a private house in Ireland by a Roman 
Catholic priest in the presence of one witness was valid though alleged to 



56 


PRIVATE INTERNATIONAL LAW. 


be contrary to the rules of the Roman Church issued by the Pope in the 
Ne Temnr decree of 1907. Ussher v. Ussher^ [1912] 2 I. R. 446. Kenny, J., 
affirmed by O’Brien, C.J., Palles, C.B., Gibson, J., [1912] 2 I. R. 445. The 
old common law still applied in Ireland and under ft the presence of wit- 
nesses at a marriage celebrated by a clergyman was not necessary. The 
same principle was upheld in Vespatie v. Tremblay, P. C. [1921] A. C. 
102, judgment of Moulton, when it was held that a civil marriage in Canada 
was valid, though in a prohibited degree according to the law of the Roman 
Church to which the parties belonged. 

On the other hand, if the law of the state requires the observance of the 
rules of the religions community of the spouses, the marriage will be void 
if those rules are not followed. See Be Alison's Trusts (1874), 31 L. T. R. 
638, where a marriage celebrated in Persia between an English protestant 
man and an Armenian protestant woman was held void because the rules of 
the religious community were not followed, as the law of Persia required. 

A Chinese marriage has been recognized for Chinese subjects in Penang 
though no ceremony took place because the lex loci actus required no forms. 
i'heany Thye Fhin v. Tan al Lay, [1920] A. C. 369. 

§ 18. It is also indispensable to the validiiy of a marriage that 
the le,r loci artvs be satisfied so far as regards the consent of 
parents or guardians. 

Scrimshire v. Scrimshire (1752), 2 Hagg. Cons. 395, Simpson; Middleton 
V. Janverin (1802), 2 Hagg. Cons. 437, Wynne. In both these cases there 
was also a defect of form according to the lex loci actus, and in the second, 
where the marriage was solemnized by the chaplain of the Dutch garrison 
at Fumes in Austrian Flanders, it does not appear that by the law of 
Austrian Flanders the want of consent would have been fatal to the mar- 
riage, although by Dutch law it was so. But in each case the court went on 
the broad ground that a marriage void for any reasoTi by the lex loci actus 
cannot be set up by the lex domicilii. 

In Har far'd v. Morris — (1776), 2 Hagg. Cons. 423, Hay, and (1781) and 
(1784), 2 Hagg. Cons. 436, Court of Delegates — the marriage, which was 
solemnized abroad, was invalid according to the lex loci actus for want both 
of fonn and of the necessary consent, and it was further alleged that it 
had been procured by force. Also, since Lord Hardwicke’s marriage act had 
been passed in the interval between the marriages in Scrimshire v. Scrim- 
shire on the one hand and those in Harford v. Morris and Middleton v. 
Janverin on the other, the want of consent, which at the earlier date would 
have rendered the marriage only irregular if celebrated in England without 
banns, would have been fatal to it at either of the two later dates. Hence 
the validity of the marriage in the two later cases could only be maintained 
on the ground that there existed a jus gentium on the subject of marriage, 
adopted by the old law of England, and which therefore, through the saving 
in Ix>rd Hardwicke’s Act of Scotland and of marriages solemnized beyond 
sea, continued in force as an English law of marriage for English persons 
married abroad, notwithstanding that the lex loci actus might be quite 
different. This doctrine must not be confounded with that in Lautour v. 
Teesdale; see below, §§ 26, 28. To the latter no objection can be made, 
because the maxims of private international law do not apply with refer- 
ence to the native laws in India, between which and Christian legal systems 
there is no jural intercommunion. Stated as in Harford v. Morrif, with 
reference to a marriage in Christian Europe, the doctrine went far towa^s 
the denial of all private international law. 



MARRIAGE. 


57 


§ 19. It is equally indispensable to tlie validity of a marriage 
that the lex loci a^tus be satisfied so far as regards the capacity 
of the parties to contract it, whether in respect of the prohibited 
degrees of consanguinity or affinity, or in respect of any other 
cause of incapacity, absolute or relative. 

This proposition does not api>ear to have been questioned in any English 
case, and it is covered by the broad view above referred to as having been 
taken in Scriinshire v. ScrimMre and Middleton v. Janverin, that a mar- 
riage void for any reason by the lex loci actus cannot be set up by the lex 
domicilii. A still broader doctrine would seem to have been prf>pounded in 
Bah'ymple v. Dalrymple (1811), 2 Hagg. Cons. 54, Scott, which was the case 
of a marriage in Scotland between a Scotch lady and a gentleman who is 
treated in the judgment as domiciled in England (see pp. 64, 60, 61). The 
discussion in the judgment turns entirely on the sufficiency of the com- 
pliance with the forms necessary in Scotland, and the want of the consent 
of Mr. Dalrymple’s father is not alluded to. On the contrary. Sir William 
Scott says: “ The only principle applicable to such a case by the law of 
England is that the validity of Miss Gordon’s marriage rights must be 
tried by reference to the law of the country where, if they exist at all, they 
had their origin ” (p. 59). The proj3ositions contained in this and the 
two preceding §§ amount to the statement that no marriage rights can be 
valid unless they are valid by the law of the country where, if they exist 
at all, they had their origin ; but § 21 will show that marriage rights 
which are countenanced by the law of the country where, if they exist at 
all, they had their origin, are not always deemed valid in England. 

§ 20. A marriage in which the forms required by the lex loci 
actus have been satisfied is valid in England, in point of form. 

Berhert v. Herbert (1819), 3 Phil. Eccl. 58, 2 Hagg. Cons. 263, Scott ; 
Smith V. Maxwell (1824), Ry. & Mo. 80, Best; Be BozzellVs Settlement^ 
[1902] 2 Ch., at p. 757, Swinfen Eady. 

§ 21. It is indispensable to the validity of a marriage that the 
personal law of each party be satisfied so far as regards his 
capacity to contract it, whether absolute, in respect of age, or 
relative in respect of the prohibited degrees of consanguinity or 
affinity.* 

Brook V. Brook (1857) and (1858), 3 Sm. & G. 481, Cresswell and Stuart ; 
(1861), 9 H. L. 193, Campbell, Cranworth, St. Leonards, Wensleydale. In 
Mette V. Mette (1859), 1 S. & T. 416, Cresswell, the incapacity existed by 
the law of the man’s domicile, but not by that of the woman’s ; and the 
marriage was held invalid expressly on the ground that the capacity of each 
party by his own law was necessary, and without reference to liny superior 
claims of the law of the husband’s domicile, as being that of the matrimonial 
domicile if the marriage be supposed to be valid. In Sottomayor v. De 
Barros (1877), 3 P. D. 1, Cotton, James, Baggallay ; reversing S. C., (1877), 
2 P. 81, Phillimore; the case of a marriage solemnized in England 

m 


See note below at end of this section. 




58 


PRIVATE INTERNATIONAL LAW. 


between parties domiciled one in England and the other in Portugal, but 
at this stage of the case treated as both domiciled in Portugal, and related 
to each other within degrees prohibited in Portugal but not in England ; 
the circumstance that a marriage within the degrees in question would have 
been valid according to the lex domicilii , if a papal dispensation had been 
obtained, was adverted to but disregarded ; and the Court of Appeal, in 
decreeing nullity, said that their opinion was “ confined to the case where 
both the contracting parties are at the time of their marriage domiciled in 
a country the laws of which prohibit their marriage.” In the same case, 
(1879), 6 P. D. 94, it being considered that one of the parties was domiciled 
in England, Hannen held the marriage good ; but this authority is 
weakened, (1) by the learned judge’s pronouncement in favour of the lex 
loci contractus as governing competency, cited above, p. 41 j (2) by his 
taking Cresswell’s opinion in favour of the lex loci contractus from Simonin 
V. MallaCf without reference to that learned judge’s saying in Mette v. 
Mette ” there could be no valid contract unless each was competent to 
contract with the other,” 1 S. & T. 423 ; (3) by his reference to the statutes 
on the marriage of first cousins, which seems to imply that the rules of 
private international law are less applicable where the English law is con- 
tained in statutes than where it is the common law. In Be De Wilton, Be 
Wilton V. Montefiore, [1900] 2 Ch. 481, Stirling, the dependence of capacity 
for marriage on domicile was held not to be subject to an exception for the 
marriages of Jews. Where, therefore, the parties were domiciled in Eng- 
land, a marriage between uncle and niece, celebrated at Wiesbaden according 
to Jewish law, was held to be null. The recognition of Jewish law extends 
only to the forms of marriage and not to questions of capacity. 

And conversely a marriage in which the personal law of each party as 
regards his capacity is satisfied is valid in England so far as regards such 
capacity, notwithstanding that by English law it would be incestuous : 
Be Bozzelli's Settlement, [1902] 1 Ch. 751, Swinfen Eady, and the judg- 
ments of Lords Campbell and Cranworth in Brook v. Brook there quoted. 
There is no necessity to make an exception, as is sometimes done, for marri- 
ages regarded as incestuous by the general consent of Christendom, because 
no country with which the communion of private international law exists 
has such marriages. 


It must be observed that § 21, and, substantially, the above 
note on it, are left as they stood in the preceding edition of this 
work. Doubt, however, has been thrown on the principle of 
this § by the decisions in Ogden v. Ogden, [1908] P 46, and 
Chetti V. Chetti, [1909] P. 67, the discussion of which is placed 
after § 25. 

§ 22. That an incapacity to marry of a penal nature, or 
resulting from religious vows or orders, will not be admitted in 
England on the ground of the personal law, is a consequence of 
the doctrine stated in § 16. With regard indeed to religious 
vows or orders, no principle of British policy can be deemed to be 
more stringent than that which would refuse to exclude a whole 
class of the population from the possibility of marriage But 
where the penal or religious incapacity for marriage exists %y 



MARRIAGE. 


59 


the lex loci actus, its direct effect is to prevent the marriage from 
ever having an inception, and its indirect effect must therefore 
be to prevent the ceremony or the consent from being regarded in 
England as having constituted a marriage. 

It seems that, by the law of England, an attainted person is not in- 
capacitated from contracting marriage ; but the incapacity, if any, will not 
prevent the English court from recognizing a marriage contracted abroad 
by an Englishman attainted at home, supposing him to be capable —§ ** in 
the land in which he is living,** — by the lex loci contractus, Erie, Willes. 
Keating and Montague Smith concurred. Kynnaird v. Leslie (1866), L. R. 

1 C. P. 389. 

§ 23. When by his personal law a party may in some form 
or other marry without the consent of parents or guardians, the 
want of such consent will not invalidate a marriage by him which 
satisfies the lex loci actus, although the form observed was not 
that which by his personal law would have rendered the consent 
unnecessary. In other words, a consent which is not essential 
in the domicile ranks, for the purposes of private international 
law, among the forms of marriage, and not among the conditioxis 
of capacity. 

This is the case of what were called Gretna Green maiTiages, the validity 
of which appears to have first come up for formal decision in Compton v. 
Bearcroft (1767), Hay, and (1769), Court of Delegates, 2 Hagg. Cons. 430, 
443, 444. The marriage in this case, in which Dumfries took the place of 
GretJia Green, was upheld by Sir George Hay on the same ground which he 
took in Harford v. Morris \ but his sentence was affirmed by the Delegates 
on the ground of the lex loci. The same class of marriages was again 
upheld, and on the ground of the lex loci, in Grierson v. Grierson (1781), 

2 Hagg. Cons. 86, 98, 99 ; and a similar decision was given as to the marriage 
of French persons in England, in Simonin v. Mediae (1860), 2 S. & T. 67, 
Cresswell. 

§ 24. And a marriage celebrated in England is held valid 
under the doctrine of § 23, notwithstanding that it has been 
declared invalid in the country of the domicile on the ground of 
the purpose of the parties to evade the law of that country. 

Simonin v. Mallac (1860), 2 S. & T. 67, Cresswell. 

§ 25. When by his personal law a party cannot marry in any 
form without a certain consent, the want of such consent wiS 
invalidate a marriage by him notwithstanding that it satisfies 
the lex loci actus, unless, apparently, one of the parties is domi- 
ciled tn England, and the marriage is celebrated in England 
a^ording to the English form. 



60 


PRIVATE INTERNATIONAL LAW. 


Sussex Peerage Case (1844), 11 Cl. & F. 85, Tindal, delivering the opinion 
of the judges; Lyndhurst, Brougham, Cottenham, Denman, Campbell. In 
this case the marriage required either the express consent of the King in 
Council, under the first section of the Royal Marriage Act, or the tacit con- 
sent of Parliament under the second section. See also Sottomayor v. De 
Barros, above, § 21. 

There is an Irish decision contrary to the doctrine asserted in this §, 
Steele v. Brnddell (1838), Milw. 1, Radcliff ; and it seems to be approved by 
Lord Campbell, in Braok v. Brmk (1861), 9 H. L. 216. If this be followed, 
the necessary consents must be placed altogether among the forms of mar- 
riage, and not among the conditions of capacity; and then the Sussex 
Peerage Case must be justified by ascribing to the Royal Marriage Act an 
intention to create a peculiarly stringent incapacity by British law, over- 
riding the usual maxims of private international law. It need not be denied 
that such an intention would be within the competence of a statute of the 
domicile, although in Simoniu v Malta c (see § 24), the c< 3 urt gave no effect 
to the express claim of the French code to regulate the Hat civil of French- 
men abroad, or that such an intention might very reasonably be ascril>ed 
to the Royal Marriage Act. But since any statute, which enacts that a 
marriage celebrated in any form without a certain consent shall be null 
and void, does certainly create an incapacity for marriage without that 
consent, it apjiears to me hazardous to draw distinctions on presumed in- 
tention only, as to the degree of stringency which that incapacity was meant 
to have; and I prefer to dissent from Steele v. Braddell, and to justify 
Compton V. Bearcroft and Simot}in v. Mallac by the fact that in those cases 
the marriages were possible in the domicile if the proper forms had been 
there observed, as I understand Lord Campbell himself to do in Brook v. 
Brook (1861), 9 H. L. 215, 218 

The exception is thus stated because of the judgment in Ogden 
V. Ogden^ [1908] P. 46, Gorell Bames, Cozens-Hardy, M.R., and 
Kennedy, L.J., reversing Bargrave Deane, J. The result was to 
pronounce the validity of a marriage which had been celebrated 
in England between a woman of British nationality domiciled in 
England and a man of French nationality domiciled in France, 
who fell under Art. 148 of the French code by which, being 
under 25, he 'W*ould ndt contract marriage without a consent 
which he had not obtained, and Arts. 183 and 185, which limit 
the period for the nullity of his attempted marriage being 
declared. The case therefore goes beyond Simonin v. Mallac y 
where in consequence of the age of the parties the French consent 
which was missing would by Art. 152 as it then stood have 
become unnecessary after it had been three times refused in as 
many months, and might therefore be well treated as a form. 
I»n the case presented by Ogden v. O^en the necessity of the 
consent could not be eluded before proceeding to the marriage 
ceremony, and it was therefore a condition of capacity. The 
court of appeal, however, treated the question before it ^s one 
relating to forms, saying (p. 82) ‘‘ the observations made in tfiis 



MARRIAGE. 


61 


judgment are directed to questions arising in connection with 
the formalities required on entering into a marriage, and are 
not to be understood as necessarily advocating an interference 
with any views which may be held in any country as to marriages 
which are absolutely prohibited by the law of that country.” 
As an authority, therefore, Ogden v. Ogden seems to amount to 
the proposition that the incapacity of a party, as distinct from 
the unlawfulness of a marriage altogether, is a question of form, 
and, at least if it is that of one party only, will be disregarded in 
England when it arises from a foreign law. But in its long 
judgment the court of ap])eal manifested a great reluctance to 
admit any foreign determination of the capacity of a party, going 
so far as to say that it may be doubted whether there is much 
substantial difference of o})iniou between foreign and English 
jurists as to the general rule that between persons sui jnris the 
validity of the marriage is to be decided by the htw of the place 
where it is celebrated,” p. 58. Did the court consider that a 
person who in his own country cannot marry without a certain 
consent is sxii juvis as to marriage? Probably by a person sui 
juris is meant one to wdiose capacity for the marriage no objec- 
tion exists by the law of the place of celebration. 

Twenty days after the judgment in Ogden v. Ogden was pro- 
nounced, Sir Gorell Barnes decided the case of Chetti v. Chettiy 
[1909] P. 67. A Hindu, on the ground of an alleged personal 
incapacity by his religion, disputed the validity of a marriage 
which, being domiciled in India, he had contracted at a regis- 
trar’s office in England with a woman domiciled in England. A 
simple answer would have sufficed, for notwithstanding the 
popular use of the term “laws” for the rules of the Hindu 
religion, and w’hatever binding force those rules might have been 
allowed if India had been under Hindu Government, it was clear 
that, in the sense in which “ laws ” are cognizable by a court of 
justice, Chetti was not even in India under any legal incapacity 
to contract a monogamous marriage with a Christian, only by 
doing so he would have lost caste among his co-religionists, and 
in order to do so he might perhaps have had to renounce his 
religion. It scarcely needs to be pointed out that an obstacle to 
the performance of any act which the agent is free to get rid ^of 
is no personal incapacity. If the performance of the act is not 
in itself a sufficient renunciation to remove the obstacle, the 
obst^le, so far as it remains, can only be a matter of form, like 
^lie consent in Simonin v. MallaCy the necessity of which would 



62 


PRIVATE INTERNATIONAL LAW. 


have been made to vanish by a little delay. But the learned 
judge discussed the effect of personal incapacity as an obstacle 
to marriage, and arrived at a conclusion foreshadowed in Sotto- 
TThoyor V. De Barros and Ogden v. Ogden^ and for which, being 
treated in Chetti v. Chetti as an element of decision, the latter 
case must be regarded as an authority. It is that personal 
incapacity is not an obstacle to marriage unless it exists by the 
law of the place of celebration, or by the laws of the countries in 
which at the time of the marriage both parties are domiciled. 
The future must show whether this doctrine or that of Mette v. 
Mette will prevail. *In the meantime it is certain that it is not 
a juridical doctrine, that is, not one which can be reasoned out 
from legal principles. When a foreigner who by the law of his 
domicile has not a full capacity for marriage celebrates a 
marriage in England, an English court must, juridically, accept 
or reject the want of capacity as it is presented to it. Being a 
foreign one, the English court cannot modify it. If it accepts 
the incapacity as presented, it will never find that it contains an 
exception for the case of the person subject to it marrying 
abroad a party not subject to incapacity. If in spite of this the 
court rejects the incapacity presented when the other party to 
the marriage is capable, it leaves itself no ground for accepting 
it when the other party also is incapable. The legislature might 
draw the distinction, but it involves the tenet that foreign laws 
and the rights under them are not recognized ex debito justitiee 
but by virtue of a comity extended to them when thought 
expedient. That may be a legislative motive, but as one for 
courts of law it was expressly condemned by Lord Brougham 
in the often cited case of Warrender v. Warrender, 21 Cl. & F. 
530.* 

Another noticeable point in the judgment in Chetti v. Chetti 
is that, as foreshadowed in Ogden v. Ogden, it denies the exist- 
ence of any solid distinction between form and substance, at least 
in the conflict of laws on marriage. Where, it says, the English 
judgments cited speak of essentials and forms, those who 
decided these cases were looking at them from an English stand- 
point ; but it may be observed that what may be regarded as form 
im this country might in a foreign country be regarded as an 


♦In the question of legislation about marriages in Canada which was referred 
to the Judicial Committee in 1912, Haldane advised that a provincial legislature 
may make rules as to solemnization of marriage which may affect the validitj^ 
of the contract. 1912, A. C, 886. ^ 




MARRIAGE. 


63 


essential ’’ (p. 82). Again, “ if in a foreign country a marriage 
is dec(lared void for want of consent, which we hold a matter of 
form only, what difference is there in substance between the 
position in such a case and the case where the consent is more 
than form?’’ (p. 84). On such a footing all discussion of the 
scope of the lex loci actus in private international law must be 
idle. Mistakes may have been committed, but I am unaware of 
any established difference between England and the continent on 
the limits of form and substance. 

§ 26. Where a marriage valid according to the lex loci actus is 
impossible, from the want of any such law applicable to the 
case, parties may marry with the forms, so far as it is possible to 
observe them, and with the consents, respectively required by 
their own law. 

Anonymous case in Cruise on Dignities, 276, Eldon ; where it was sup- 
posed that there was no lex loci applicable to the marriage of Protestants 
at Rome, though it appears from the Sussex Peerage Case, 11 Cl. & F. 162, 
that the marriage in Protestant form might have been sustained as 
permitted by the lex loci, Lautour v. Teesdale (1816), 8 Taun. 830, 
Gibbs ; where the impossibility arose from there being no lex loci applicable 
to the marri^ige of Europeans at Madras, and these, if British subjects, 
were therefore held entitled to marry there in accordance with English 
law as it stood before Lord Hardwicke^s Act. Buding v. Smith (1821), 
2 Hagg. 371, S to well ; where the impossibility arose from the Dutch law 
at the Cape of Good Hope not applying to British persons passing through 
the place so soon after the conquest that its future legal system was not 
settled. And see the cases quoted under § 28. 

§ 27. Marriages in embassies and consulates are subject to 
certain special rules which probably drew their origin from the 
exaggerated exterritoriality formerly attributed to embassies, but 
are now maintained on the continent on the ground that the 
forms of the lex loci actus are not imperative but optional, and 
that the parties may adopt instead the forms which the legis- 
lation of their country provides for them in its foreign establish- 
ments. This ground will not extend beyond the case in which 
both the contracting parties are nationals of the state to which 
the embassy or consulate belongs. If only one of them is such* 
a national, no principle operates to give the other the benefit of 
the privileged form, and it is generally held that the inter- 
national validity of their marriage in point of ceremonial musf 
fall under the lex loci actus. But any legislation, while pro- 
viding for a couple of its nationals an internationally valid form 
of maif iage in its emb$ssies and consulates; may allow that form 
to darry a special validity in its own dominions for marriages 



64 


PRIVATE INTERNATIONAL LAW. 


one only of the parties to which is its national; and this, as we 
shall see, is what the British law does. In that law, of which 
the general rule treats the form of the lex loci a^tus as impera- 
tive, at least for marriage, convenience rather than the conti- 
nental ground referred to must be the support of the special rule, 
even where both parties are British. As to capacity an ambas- 
sadorial or consular marriage confers no privilege. Where both 
parties are nationals, general principles will be sufficient to 
refer their capacity to the law of their country, or to that of their 
domicile within it when it includes more than one system of 
private law. Where only one is a national the capacity of each 
must l>e decided by the law proper to it, and even the special 
validity which the legislation ])roviding the form gives in its own 
dominions to the marriage of its own national will be subject to 
the fulfilment by the other party of the condition so arising. 

§ 28. The British law now in force for the purpose thus 
ex])lained is the Foreign Marriage Act, 1892, s. 1 of which enacts 
that ‘‘ all marriages between parties of whom one at least is a 
British subject, solemnized in the manner in this act provided in 
any foreign country or place by or before a marriage officer within 
the meaning of this act, shall be as valid in law as if the same 
had been solemnized in the United Kingdom with a due observ- 
ance of all forms required by law.” The special validity thus 
given for the British dominions is illustrated by Hay v. North- 
cote, [1900] 2 Ch. 262, Farwell, in which a marriage solemnized 
under the act before a British consul in France was held good, 
notwithstanding that it had been declared void in France for 
non-observance of the French form. The act further contains, 
in s. 4 (1), a provision that “ the like consent shall be required to 
a marriage under this act as is required by law to marriages 
solemnized in England.” Here the contrast of “ England ” with 
“ the Ignited Kingdom ” mentioned in s. 1 must be noticed: it 
brings in the law of England as a prerogative British law for the 
purposes of the act. Of course, the act might have left the 
question of capacity to the British domicile of the parties, in 
which case an Australian and his deceased wife’s sister, capable 
of intermarrying by the law of their colony or so-called state, 
\night have intermarried effectually in a British embassy or con- 
sulate before such a marriage was made lawful in England. But 
the intention seems to have been that no marriage should be cele- 
brated under the act which could not have been effectual^ cele- 
brated in England, and therefore that English prohibitionf^^on 



MARRIAGE. 


65 


the ground of consanguinity or affinity must be respected. It 
remains to mention that by Arts. 1 and 2 of the the Foreign 
Marriages Order in Council, 1913, made under the Act now being 
considered : — * 

1. — (1) Where a marriage according to the local law of a foreign, country 
is valid by English law, then before the marriage is solemnized in that 
country under the Foreign Marriage Act, the marriage officer must be 
satisfied either — 

(а) That both of the parties are British subjects; or 

(б) If only one of the parties is a British subject, that the other is not 
a subject or citizen of the country ; or 

(c) If one of the parties is a British subject and the other a subject or 
citizen of the country, that sufficient facilities do not exist for the solemniza- 
tion of the marriage in the foreign country in accordance with the law of 
that country ; or 

(d) If the man about to be married is a British subject and the woman a 
subject or citizen of the country, that no objection will be taken by the 
authorities of the country to the solemnization of the marriage under the 
Foreign Marriage Act. 

(2) [A right of appeal from the marriage officer to the Secretary of State, 
as to matters in this article.] 

2. In the case of any marriage under the Foreign Marriage Act, if it 
appears to the marriage officer that the woman about to be married is, a 
British subject and that the man is an alien, he must be satisfied — 

(a) That the marriage will be recognized by the law of the foreign country 
to which the foreigner belongs ; or 

(b) That some other marriage ceremony, in addition to that under the 
Foreign Marriage Act, has taken place, or is about to take place, between 
the parties, and that such other ceremony is recognized by the law of the 
country to which the foreigner belongs ;+ or 

(c) That the leave of the Secretary of State has been obtained. 

Art. 2. Paragraphs (b) and (c) have been added to the former Order in 
Council issued in 1892 together with the Act. The new provisions are com- 
patible with the object of the original restriction, namely, to protect female 
British subjects from the danger of being disowned by their foreign husbands 
in the country of the latter. With regard to (b) nb objection has been 
found to permitting a British consular officer to perform a ceremony of 
marriage between a foreigner and a woman who was a British subject, but 
who has acquired the nationality of the foreigner by an immediately preced- 
ing marriage with him in some other form, and has thus technically lost her 
right to the benefit of the Foreign Marriage Act. 

§ 29. The previous history of the English law as to marriages 
in embassies had been this. Sir W. Scott, in Pertreis v. Ton- 
dear (1790), 1 Hagg. Cons. 136, a case on the validity of a 
marriage celebrated in England in the chapel of the Bavarian 
ambassador, appears to have considered the matter only from thS 

* This Order in Council repeals an earlier Order of 1892. 

t By the Marriage with Foreigner! Act, 1906 (6 Edw. 7, c. 46), a British 
subject proposing to marry a foreigner can ascertain through the Eegistrar of 
Mtmages in his district, whether this marriage will be valid according to the 
fore^ law. 


W.I.L. 


6 



66 


PRIVATE INTERNATIONAL LAW. 


point of view of exterritoiiality. From that point of view he 
doubted whether a j^rivilege could exist where neither party was 
of the country of the ambassador, and where the woman on whose 
account it was claimed had not during her residence in England 
been living in a house entitled to privilege,” or, as he also 
expressed it, was not ‘‘ domiciled in the family of the ambas- 
sador.” Then came the st. 4 Geo. 4, c. 91 (1823), since repealed 
by the Foreign Marriage Act, 1892, which enacted that all 
“ marriages solemnized by a minister of the Church of England, 
in the chapel or house of any British ambassador or minister 
residing within the country to the court of which he is accredited, 
or in the chapel belonging to any British factory abroad, or in 
the house of any British subject residing at such factory, 
[should be] as valid in law as if the same had been solemnized 
within her majesty’s dominions with a due observance of all 
forms required by law.” This got rid of the notion that 
membership of the ambassador’s household or retinue was 
necessary to the enjoyment of the privilege, and was so carried 
out in Lloijd v. Petitjean (1839), 2 Cur. 251, Lushington, and 
Kste V. Smyth (1854), 18 Beav. 112, Romilly; in the latter of 
which cases a difference of opinion between French advocates as 
to whether the marriage, celebrated in the British ambassador’s 
chapel at Paris, was valid in France did not prevent its being 
held valid in England. In the former case only one party was 
British and the other belonged to the country of the celebration. 
The factories mentioned in the st. 4 Geo. 4, c. 91, belonged to a 
system now obsolete. 

§ 30. The Foreign Marriage Act, 1892, applies not only to 
British embassies and consulates in foreign states, for which the 
diplomatic representative, consul, or some other proper person 
will be appointed as marriage officer by the secretary of state, 
but also to colonial protectorates and other places in which 
British authority exists without complete British institutions. 

A governor, high commissioner, resident, consular or other 
officer ” may be appointed a marriage officer, and “ such applica- 
tion [of the act] shall not be limited to places outside her 
majesty's dominions ” ; s. 11 (c). The act further brings under 
Hts system marriages solemnized on board one of her majesty's 
ships on a foreign station,” the commanding officer being the 
marriage officer either under a secretary of state's warrant or 
under admiralty instructions : s. 12, and Art. 10 of the (frdeir in 
council. And by s. 22 it is declared that all marriages 



MARRIAGE. 


67 


solemnized within the British lines by any chaplain, or officer or 
other person officiating under the orders of the commanding 
officer, of a British army serving abroad, shall be as valid in law 
as if the same had been solemnized within the United Kingdom 
with a due observance of all forms required by law.’’ The 
doctrine laid down by this declaration may be regarded as not 
being an exception to the general rule of the form of the lex loci 
actus for marriage, but rather as flowing from the principle that 
within the lines of an army, whether in hostile occupation of a 
place or admitted to it by a friendly government, its national law 
becomes the local law so far as concerns the institutions of per- 
sonal status necessary for the troops and those who are attached 
to them. It is in accordance with this view that the chaplain or 
other person officiating is not made by s. 22 a marriage officer 
under the act, nor is he tied to the use of the forms given in the 
act, but it must be considered that a simple Scotch marriage 
would be sufficient for Scotch parties. 

§ 31. Within the lines of a British ariiiy serving abroad, the 
soldiers and British subjects accompanying the army are not 
subject to the foreign law, even as a lex acins, and therefore may 
marry with the forms of their British law so far as it is possible 
to observe them. 

King v. Brampton (1808), 10 East, 282, Ellenborough and Grose. In 
this case the marriage was not solemnized by any one officiating under the 
orders of the British commander. The King's troops were said by Lord 
Ellenborough to carry English law with them, for themselves “ and other 
subjects who accompanied them, in the absence of proof that any other law 
was in force " ; and the form of celebration was held to be such as would 
have been good in England before Lord Hardwicke’s Act, so that it must have 
been intended to refer to the saving in that Act of marriages solemnized 
beyond sea. This corresponds with the view taken in Lautour v. Teesdale, as 
distinct from that of Sir George Hay in Harford v. Morris; see § 26. 
It is much easier to sup2K)se that Parliament intended to reserve an English 
form of contracting marriages abroad for English jiersons not subject to 
any other lex actus, than to suppose that a similar reservation was intended 
to operate in cases where an applicable lex actus exists. 

In Burn v. Farrar (1819), 2 Hagg. Cons. 369, Scott, the husband was an 
officer in the British army of occupation in France, and the eminent judge 

doubted whether he was at all sifbject to the French law, as pleaded in 
the libel." Had the case gone on, Uie doubt would probably have been 
confirmed. It will be observed that the same judge decided the case of* 
Buding v. Smith, which presents much analogy : see above, § 26. 

The authority of the commanding officer for the celebration of the mar- 
riage is not necessary, it is sufficient that the person officiating should be 
under hsB orders : Waldegrave Peerage (1837), 4 C. & F. 649, Cottenham and 
Brvugham ; a case depending on an enactment in st. 4, Geo. 4, c. 91, similar 
to that in the Foreign Marriage Act, 1892, s. 22. 



68 


PRIVATE INTERNATIONAL LAW. 


§ 32. Marriages celebrated on board public ships may well 
come within the principle of the preceding §, and the Confirma- 
tion of Marriages on Her Majesty’s Ships Act, 1879, st. 42 & 43 
Viet. c. 29, provided that all marriages between British subjects 
which had been “ solemnized on board one of her majesty’s 
vessels on a foreign station, in the presence of the officer com- 
manding such vessel, whether solemnized according to any 
religious rite or ceremony or contracted 'per verba de prcesenti, 
shall be valid in like manner as if the same had been solemnized 
within her majesty’s dominions with the due observance of all 
forms required by law.” And in the case of a marriage between 
British subjects, performed by the ship’s chaplain in the presence 
of the captain, on board a shirp of her majesty at Limasol, it was 
held that banns or licence were unnecessary, although the act 
just cited was not referred to in the judgment : Culling v. 
Culling, [1896] P. 116, Jeune. But the more limited space of 
shipboard as compared with the lines of an army, while it 
explains the reference in these authorities to the presence of the 
commanding officer, justifies the Foreign Marriage Act, 1892, in 
treating the two cases differently. 

§ 32^. The Naval Marriage Act, 1915 (5 Geo. 6, c. 35) pro- 
vides that where during the continuance of the war one of the 
parties to an intended marriage was a naval officer or seaman, 
and the parties had duly fulfilled all the conditions required by 
law to enable them to be married in a particular place of worship 
or*in any parish, the marriage might be solemnized by the com- 
manding officer of the ship or be lawfully solemnized in any other 
building. 

§ 33. The validity of a marriage being established, the con- 
jugal rights which flow from it must be decided according to the 
lex fori. This is a question of public order, or stringent 
domestic policy. 

Herbert v. Herbert (1819), 3 Phil. Eccl. 68, 2 Hagg. Oons. 263, Scott; 
in which case it was in vain argued that a sentence for restitution of con- 
jugal rights should only run from the expiration of a term during which, by 
the lex loci contractus, the husband was liable to imprisonment in a fortress, 
and the wife in a convent, as a punishment for the clandestinity of the 
^marriage. 

§ 34. Where the lex loci contractus allows polygamy, marriage 
under it, even in the case of a first wife, is a different thing from 
monogamous marriage, and will not be regarded in England ^ a 
marriage, nor will the matrimonial duties arising under it be 



MARRIAGE. 


69 


enforced, or any divorce or other relief granted for a breach of 
them. 

Kyde v. 'Eiyde (1886), L. R. 1 P. & D. 130, Penzance; following what 
was intimated by Lord Brougham in Warrender v. Warrmder (1836), 2 
Cl. & F. 631 ; 9 Bl. N. R. 112. Be Bethell (1888), 38 Ch. D. 220, Stirling. 
But a monogamous marriage contracted with a non-Christian under the law 
of a non-Christian but monogamous country by a Christian domiciled in 
this country will be recognized : Brinkley v. Att.-Gen. (1890), 16 P. D. 76, 
Hannen. And in Harvey v. Farnie (1^0), 6 P. D. 47 (see p. 63), it was 
said obiter, per Lush, L. J. : “If one of the numerous wives of a Moham- 
medan was to come to this country and marry in this country she could 
not be indicted for bigamy, because our laws do not recognise a marriage 
solemnized in that country ... as a marriage in our Christian country. “ 

§ 34a. A marriage celebrated before an English public officer 
(clergyman, registrar, marriage officer under the Foreign 
Mari'iage Act, &c.), must always be understood to be a mono- 
gamous one, even though a party to it may be a Hindoo or other 
person who in his own country could have contracted a poly- 
gamous marriage; and a divorce from such a marriage can only 
be obtained, if at all, on the principles applied to Christian 
marriages. Cf. Re Mir Anwareddin, [1917] 1 K. B. 364, and 
see below p. 87. And a person may be guilty of bigamy if, 
having contracted such a marriage here, he afterwards marries a 
second wife in the lifetime of the first, though his own personal 
law permits polygamy. 

B. V. Naguib, [1916] 116 L. T. R. 640, Reading, L.C.J., Bray and 
Atkin, affirming Avory, J. In that case an Egyptian married in Egypt 
according to Moslem law. Subsequently, when in England, he went 
through a form of marriage with an Englishwoman, and then, without 
having divorced this wife, went through a form of marriage with another 
Englishwoman. He was convicted of bigamy, the court holding that no 
regard should be paid to the polygamous marriage in Egypt, which, it was 
^argued, rendered the first marriage in England null. 

But there is semble no reason why persons to whom their 
personal law allows polygamy should not contract a polygamous 
marriage in England by such methods, not involving participa- 
tion by any English public officer, as they may* find available. 
See Re Ullee, below p. 103, where a marriage had taken place in 
England according to Moslem ritual. 


• Effect of Marriage on Property, 

The doctrine which descended from the mediaeval post- 
glossators was that the effect of marriage on immovables was 
^vemed by the lex $itus^ and that on movables by the lex 



70 


PRIVATE INTERNATIONAL LAW. 


domiciliif so much freedom of contract, to be expressly exercised, 
being allowed to the parties as the respective law gave them. 
That was the delimitation arrived at between the real and 
personal statutes : in the absence of an express contract those 
statutes would respectively take effect as law, and this for 
inovables as well as for immovables, the former being subjected 
to the persona] statute of their owner by the maxim mobilia 
sequmitur persoriam. And the domicile meant was that of the 
husband at the time of the marriage, which by the marriage 
would become that of the wife also, if it was not hers before. 

We have seen (above, p. 17) that a revolt against this doc- 
trine was led by Dumoulin, in whose opinion marriage without 
express contract tacitly applied the custom of the domicile con- 
cerning immovables to the immovables situate in the area of 
another cusiom. Evidently the principle of that revolt was a 
reference of the matrimonial system to the will of the parties 
rather than to the operation of statutes as law, but Dumoulin did 
not carry that reference far, for the custom under which the 
j>arties married was the only index of their will on which he 
relied, so that for their immovables, wherever situate, he imposed 
on them in the absence of express contract the dispositions of the 
domicilii as rigidly as the older view imposed on them those 
of the lejT situs. Savigny practically agreed with Dumoulin, 
though with great dialectical refinement he declined to assert 
implied or tacit contract in the matter, and described the exten- 
tion of the lex domicilii as produced by voluntary submission to 
it, coupled with the improbability that the parties intended to 
make the arrangement of their property depend on the situation 
of the several parts composing it.* For those who adopted this 
modification of the older doctrine without carrying it further, 
the unity of the matrimonial system for movables and immov- 
ables came to be a principle, but it was a uffity still on the whole 
depending in their view on law rather than on will, so that, when 
and where they adopted nationality as the criterion of the 
personal statute, the base of the matrimonial system of property 
was changed with it. It is thus that we have seen (above, p. 27) 
the Italian code placing family relations along with status and 
ca^pacity under the law of the nationality, and that Art. 15 of 
the law introducing the German civil code determines the 
matrimonial system of property by the national law of the 

husband. • 

^ 


♦Syst. § 379, Guthrie 293. 



MARRIAGE. 


71 


But other jurists, especially in France, have carried further 
the principle of respect for the will of the parties which lay at 
the bottom of Diimoiilin's innovation. They are pre])ared to 
accept and give effect to any indicia of the will which they seek 
to ascertain, and this for immovables and movables alike. In 
the same spirit they interpret the maxim nwhilia sequunfur per- 
sonam, not as subjecting movables to the personal statute taking 
effect as law, but as grouping at the owner's domicile goods which 
equally with immovables have a local situation, but of which the 
real local situation is too uncertain and liable to vary to be taken 
into account. From this point of view the adoption of 
nationality instead of domicile as a basis of status and cajiacity 
does not lead to a similar transfer of the matrimonial system of 
property, but the law of the domicile remains the law of that 
system when no indication can be found that the will of the 
parties pointed in a different direction. Thus the Institute of 
International Law adopted at Lausanne in 1888 the resolution 
that (i defaut d^nn contrat de manag^e, la loi dii dcntiicile matri- 
monial — c^est-d-dire du jrremier HahJissenienf des ^poux — regit 
les droits patrimonianx des ^poxix, s\l nappert j/ar des circon- 
stances on des faits V intention contraire des parties * To judge 
this properly it must be noticed that the Institute had already, 
at Oxford in 1880, voted that Vetat ef la capacite d^une personne 
sont regis par les lois de Vetat auquel elle appartient par sa 
nationahtc\i And thus Surville and Arthuys, after laying down 
that the system of law under which husband and wife live who 
have not drawn up a marriage contract is not a statute in the sense 
of the theory of statutes, and that there is no room for seeking a 
criterion where everything turns on facts and their appreciation, 
sum up as follows the practice of the French Courts : I'elle est la, 
seule vraie doctrine, Elle est sxavie tres generalement par notre 
jurisprudence frar^'aise qui applique, suivant les cir con stances, 
tantot la loi natiorude des epoux, tantot celle du domicile matri- 
monial, voire meme d^ autre s lois, Ses arrCds, qui au premier 
ahord paraissent inconciliahles, sont au contraire des plus 
concordants si' Von admet la doctrine de la convention tficite dans 
toute son ampleur. And they answer the objection, founded on 
the marriage of minors, to the notion of a free convention of the 


*10 Annaaire 78, Tableau Gdn^ral 43. 
f 5 Annuaire 57, Tableau G4n4ral 34. 




72 


PRIVATE INTERNATIONAL L\W. 


parties by citing the maxim : Habilis ad nuptias, kahilis ad pacta 
nuptialia. * 

§ 35. The^ law of the matrimonial domicile regulates the rights 
of the husband and wife to immovable property, whether in 
England or abroad, belonging to either of them, at least where 
that law by its rules of private international law holds the 
matrimonial system of property to be indivisible. 

This statement is substituted for that in the last edition in view of the 
decision of I)e Nicols v. Curlier (below, p. 74), which has not been doubted 
for over 20 years. 

§ 36. In the absence of express contract, the law of the matri- 
monial domicile regulates the rights of the husband and wife in 
the movable property belonging to either of them at the time of 
the marriage, or acquired by either of them during the marriage. 
By the matrimonial domicile is to be understood that of the 
husband at the date of the marriage, with a possible exception in 
favour of any other whicdi may have been acquired immediately 
after the marriage, in pursuance of an agreement to that effect 
made before it. 

With regard to the sc(Jpe suggested in the last part of § 36 for the term 

matrimonial domicile,” Vaughan Williams, L. J., quoting it from previous 
editions of this book in Be Martin, Loustalan v. Loustalan, [1900] P. 239, 
held that the agreement as to domicile must be express in order to have 
any effect on the property. Certainly those who regard the lex domicilii as 
governing the matrimonial system for movables by its own force, in the 
character of the personal statute, can find that statute only in the law of 
the husband’s actual domicile at the date of the marriage. But those who 
accept the doctrine of the tacit convention, above explained, must find it 
in accordance with their ideas that a domicile chosen even by tacit agree- 
ment as the matrimonial one should bring in the law of that domicile as the 
matrimonial law. See the resolution of the Institute of International Law 
quoted above, p. 71. So too the Prussian code of 1794 said — ” community of 
property can only arise from provincial laws or statutes when these are in 
force at the place where the consorts establish their first domicile after the 
consummation of the marriage,” part 2, title 1, § 360. 

§ 36a. Sup]K)vse that during the marriage the husband changes 
the domicile of himself and his wife. Those who adhere firmly 
to the view that the lea; domicilii enters into the matrimonial 
system of property by its own force, in the character of the per- 
sonal statute, are likely, though perhaps not obliged, to hold that 
tfie law of the new domicile will thenceforward take the place of 

* Cours 414mentaire de Droit International Priv4, § 872, 2® Edition, pp. 897 — 898. 
See too the section on the matrimonial system of property where there not 
been an express contract, in Weiss’s Traits th^orique et pratique de Droit Inteif- 
national Priv4, tome 8®e, pp. 647 — 661. 



MARRIAOE. 


73 


the matrimonial one in governing the relations of the parties in 
respect of property, or at least that it will do so as to future 
acquisitions, the rights as to property enjoyed before the change 
of domicile being allowed to stand as acquired rights. But 
justice is shocked by allowing the husband to affect the wife^s 
position by a change for which he does not need her assent, and, 
as Savigny points out, the wife who has married without an 
express contract “ has accepted the conjugal rights as fixed by 
the law of the domicile, and naturally has reckoned on its 
perpetual continuance.^'* 

The principle that the law of the matrimonial domicile is not ousted by 
a change of domicile during the marriage has been adopted in the Married 
Women’s Property Scotland Act (1881), at. 44 & 45 Viet. c. 21, of which 
s. 1, Nos. (1) and (6), are as follows : “ (1) Where a marriage is contracted 
after the passing of this Act, and the husband shall at the time of the 
marriage have his domicile in Scotland, the whole movable or personal 
estate of the wife, whether acquired before or during the marriage, shall 
operation of law be vested in the wife as her separate estates, and shall not 
be subject to the jua maritl. (5) Nothing herein contained shall exclude or 
abridge the power of settlement by antenuptial contract of marriage.” 

Sawer v. Shute (1792), 1 Anstr. 63, Court of Exchequer. This is perhaps 
the case referred to by Lord Loughborough in Campbell v. French (1797), 

3 Ves. 323, and supposed by him to have been decided by Lord Thurlow. 
Dues V. Smith (1822), Jacob 644, Plumer; McCormick v. Garnett (1854), 6 
D. M. G. 278, Knight-Bruce and Turner ; Be Serre v. Clarke (1874), L. R. 
18 Eq. 587, Malins. No change of domicile was in question in any of these 
cases, but in Watts v. Shrimpton (1855), 21 Beav. 97, Romilly, a British 
subject domiciled in France married an Englishwoman in the British ambas- 
sador’s chapel at Paris, and afterwards became naturalized as a Frenchman. 
The discussion arose about money to which the wife became entitled after 
such naturalization, and which was not comprised in an agreement which 
had been entered into on the marriage. Therefore a change of the personal 
law was in question, if political nationality should be accepted as the test 
•of that law, but not if domicile should be taken as the test. The judge said : 

” I am of opinion that the marriage contract was English, and that the 
English law regulated the rights of the husband and wife at the time of the 
marriage; that, consequently, property coming to the wife subsequently 
must be dealt with according to the English law by the courts in this 
country, which have a dominion over the fund, although the husband is 
now a domiciled Frenchman.” The last expression should have been ” a 
naturalized Frenchman,” and on the whole, whatever weight may be allowed 
to the dominion over the fund as an ingredient in the decision, it appears 
that the original personal law was treated as governing the rights even after 
a change in that law. 

The principle that the law of the original matrimonial* 
domicile governs the relations of the parties in respect of 
property, despite any change of domicile, during marriage 
was decisively laid down in De NicoU v. Curlier, [1898] 1 Ch. 


♦ Syst, t 379, Guthrie 294. 



74 


PRIVATE INTERNATIONAL LAW. 


403, Kekewich; reversed, [1898] 2 Cli. 60, by Lindley, Rigby 
and Collins; reversal reversed, [1900] A. C. 21,* by Halsbury, 
Macnagliten, Morris, Shand and Brampton. The consorts, both 
French by nutioiialily ajid domicile, were married in France 
without exj)ress (‘ontirnd, and therefore under the system of 
(‘ominunity. They removed to England, where the husband 
was naturalized, and where they amassed by their industry a 
large fortune, ol wliich a part was invested in English freeholds 
and leaseholds and a ])art remained in money and securities. 
The husband having died, leaving a will by which he had dis- 
j)()He<l of the whole as though he were sole owner, the widow 
claimed her share as of a (‘ommunity, and the House of Lords 
decided unanimously in her favour as to the personal chattels, 
which alone were before it. The evidence was that by French 
law the marriage placed the parties in the same position as if 
they had entered into an express contract to the effect of the 
Arts. 1401 to 1496 of the Code Civil, and on this their lordships 
held that there was between them a contract created by law, 
from which the husband could not free himself by a change of 
domicile. The Court of Appeal had held, unwillingly, that in 
a Scotch case of Lashley v. Hog, 4 Paton 581, 1 Robertson Sc. 
Ap. Ca. 4, Lords Eldon and Rosslyn had decided that the pro- 
prietary relations between husband and wife changed with the 
domicile; but the House of Lords arrived at the conclusion tliat 
that case turned on testamentary and not on matrimonial law. 
It is evident that there was nothing to differentiate the case 
under decision from the general one. There could be no argu- 
ment to show that by French law a contract was made between 
the ])arties wdiich would not equally apply in any country, and 
it must therefore be now treated as a general rule of the private 
international law practised in England that a change of domicile 
after the matrimonial domicile has been once established — or, by 
parity of reason, a postnuptial change of nationality — ^will not 
affect the matrimonial system of property. 

The ease of De Nicols v. Curlier came again before Keke- 
wich, J., for a determination as to the English freeholds and 
leaseholds : [1900] 2 Ch. 410. On these the point put in argu- 
‘ment for the widow, that they represented the investment of the 
money acquired during the marriage, which the House of Lords 
had practically declared to have been subject to community, 
would have been amply sufficient to support a decisiont>in her 

. ♦On p. 22, “ Westgate, Q.C.** is a misprint for '* Westlake, Q.C,” 



MARRIAGE. 


75 


favour. But the learned judge decided in her favour on the 
ground that immovables, wherever situate, were within the scope 
of the contract made for the parties by the French code, the 
words of which — comprising in the community immovables 
acquired during the marriage otherwise than by succession or 
donation — he said appeared to be wide enougli to include them, 
and which the expert evidence declared that they did include. 
Now there is no express mention of foreign immovables in the 
French code, and whether they are to be considered as tacitly 
included by it was indeed a matter for expert evidence, but not 
as a point of so-called*internal French law, only as a point of the 
international law received in France. Taking the French 
international doctrine to be that the matrimonial system of 
property ought to be indivisible, and therefore independent of 
the situation of the objects comprised, it becomes a part of 
French law — not of the so-called internal law of France, but of 
French law as a whole — that persons who on their marriage 
tacitly contract under and by reference to it include foreign 
immovables in their contract. The law of the country where 
these are situate may prevent that contract from being carried* 
into effect, but Kekewich, J., held that no such difficulty arose 
in the case before him from the Statute of Frauds, because com- 
munity is partnership, to which it is settled that the require- 
ment of a writing in order to confer an interest in land does not 
apply. Therefore the learned judge’s reasons, which would 
equally have applied if the French code had declared immov- 
ables owned by the parties at the date of the marriage to enter 
into the community, really adopt Dumoulin’s doctrine that the 
law of the matrimonial domicile (or matrimonial nationality, as 
the case may be) extends by tacit contract to foreign immovables, 
if not in every case, at least whenever the matrimonial domicile 
or nationality is in or of a country in which the matrimonial 
system of property is held to be indivisible as a matter of private 
international law. I approve of that result, holding the doctrine 
of tacit contract on marriage to be well founded, and that the 
unity of the matrimonial systeip of property generally coincides 
best with the wishes of persons who, by not entering into an 
express contract, show that they do not desire complicated or 
unusual arrangements.* 


* The i^rinciple that immovable as well as movable property of the consorts 
shou^ be regulated by <me law is laid down also in the Hague Convention of 
1905 , 8 . 2 . 




76 


PRIVATE INTERNATIONAL LAW. 


In Welch v. Tennenty [1891] A. C. 639, Herschell, Watson, Morris, the 
matrimonial domicile was Scotch, and there was no express marriage con- 
tract. The wife claimed by Scotch law, as a surrogatum, the price of English 
freeholds which belonged to her at the time of her marriage and which she 
and her husband had sold; but the price was not held to represent her 
rights in the estates. In Be Martin, Loustalan v. Louatalan, [1900] P. 211, 
the matrimonial domicile was held by Rigby and Vaughan Williams, L. JJ., 
to have been English, but the domicile was changed to France while the 
wife was still living. Those learned judges held that on her death English 
law operated to revoke a will which she had made before her marriage, 
and Vaughan Williams, L.J. (p. 240), considered that the English rule 
which avoids a woman’s will on her marriage is part of the matrimonial 
and not of the testamentary law. Lindley, M.R., dissenting (and 
Jeune, President, in the court below), held that*the domicile was always 
French. 

If the marriage be accompanied by a settlement or express 
contract relating to property, we have the following rules, of 
which § 37 flows from the general principles of our subject and 
§ 38 from the peculiar nature of English conveyancing. 

§ 37. The formal requisites of a marriage settlement or con- 
tract will generally de 2 :)end on the law of the place where it is 
made, the lea; loci actvs. 

In GuSpratte v. Young (1851), 4 De G. & S. 233, where however the con- 
tract was not one on marriage, Knight-Bruce quoted, as “ generally true,” 
the maxims : si lex actui formam dat, inspiciendus est locus actus, non domu 
cilii; si de solemnihus quceritur aut de modo actus, ratio ejus loci hahenda 
est uhi celehratur. 

§ 38. But if the marriage settlement or contract relates to 
English land, it cannot operate as a conveyance unless it is in 
proper English form for that purpose, although, if otherwise 
valid, it will have with regard to the land whatever operation it 
may be entitled to as a contract. 

§ 39. With regard to the substance of the settlement or con- 
tract, the first question will be whether the unity of the matri- 
monial relation in its proprietary asj>ect is regarded by the judge 
as a principle requiring him to refer the whole matter to one law, 
which with the English adherence to domicile can only be that of 
the domicile. On this, which was the old view at least for 
movables, and in Dumoulin’s doctrine for immovables too, it was 
possible in earlier editions of this work to say that the legality 
and operation of a marriage settlement or contract, when its 
meaning has been ascertained, and generally its interpretation 
also,*will be referred to the law of the matrimonial domicile.^’ It 
would now be more correct tq say that these questions are referred 
to the law which is judged from all the circumstances of the tase 



MARRIAGE. 


77 


to be intended by the parties to govern their rights. The unity 
of the effect of marriage on property has not been so highly 
valued as to prevent express contracts dealing with certain pieces 
of property from receiving effect in accordance with the inten- 
tions of the parties, notwithstanding that the law of the 
matrimonial domicile may be opposed to such intention. In 
placing the will of the parties in the first rank of considerations, 
and declining to treat the law of the matrimonial domicile as the 
exclusire index of that will, the tendency referred to may be 
compared with that of the French decisions on the matrimonial 
law of property in the absence of contract (above, p. 71). 

It is common for the laws of a country to fence marriage con- 
tracts with peculiar safeguards. Where these relate to form, as 
that such contracts shall be made by notarial act Art. 1394 
of the Code Napoleon), the courts of the country in question may 
say, in the case of a contract entered into abroad, either that 
those safeguards must ^ield to the general rule that the lex loci 
actus determines forms, or that a compliance with them shall be 
demanded from the domiciled or political subjects of the country, 
as a point of its public policy affecting the marriages of those 
with whom it deems itself to be concerned. When the peculiar 
rules for marriage contracts relate to their substance, a 'com- 
pliance with them will of course be required by public policy on 
the marriage of those with whom the country deems itself to be 
concerned. But whether the peculiar requirements relate to form 
or to substance, if the parties disregard them in a special contract 
made with relation to property so circumstanced that the courts 
of another country can give effect to their intention about it, the 
courts of that country, not being bound to enforce the public 
policy of the country to which the parties belong, will find 
nothing in the general law of contract to prevent their giving 
effect to the intention. They may decline to treat the arrange- 
ments made on a marriage as presenting a special case in that 
law, and may deal on its general principles with so much of them 
as falls within their cognizance. 

The question seems first to have arisen in England about form. 
Suppose that an Englishwoman marries a man domiciled in a 
country where marriage contracts are required to be made by" 
notarial act, and that her fortune comprises money vested in 
English trustees under the ti^sts of an English will or settle- 
ment.*^ She and her friends and their English solicitor naturally 
wish that any disposition which on her marriage may be made of 



78 


PRIVATE INTERNATIONAL LAW. 


her fortune should be made by a deed in the English language 
and form, not only as being more intelligible to themselves, but 
as being also more intelligible to the trustees of the will or settle- 
ment under which her fortune is held, who will one day have to 
act on the disposition now to be made. The proper course would 
be to execute such ii deed and incorporate it besides in a notarial 
act, so as to satisfy every possible requirement. But the notarial 
act is omitted, from haste or thoughtlessness. Will the English 
deed, which alone is executed, be operative? If it was executed 
in the foreign country, it does not satisfy the lejt loci actus : If in 
England, and it should appear that the requirement of a notarial 
act is held in the foreign country to be a stringent rule of 
domestic policy, excluding the usual maxims of ])rivate inter- 
national law, will the deed be permitted to o])erate in England 
when operative force is denied to it by the law of the matri- 
monial domicile, which generally regulates the rights of the 
husband and wife in movable ])ro])erty? Such cases have long 
been dealt with in this (*ountry with a strong disposition to give 
effect to the inlention of the parties, and with that disregard of 
the J(\v loci actus which has been noticed above, p. 9, as 
characteristic of the English treatment of the subject. And of 
late years this mode of dealing with the form of marriage settle- 
ments has been repeatedly extended to their substance. 

In Van GruHeii v. Dighy (1862), 31 Beav. 561, Romilly, where the deed 
in English form was executed in France, the judge said : “I hold it to be 
the law of this country that if a. foreigner and Englishwoman make an 
express cxmtract previous to marriage, and if on the faith of that contract 
the marriage afterwards takes place, and if the contract relates to the 
regulation of property within the jurisdiction and subject to the laws of 
this country, then and in that case this court will administer the law on 
the subject as if the whole matter were to be regulated by English law:” 
p. 567. This may be compared with the reference made by the same judge 
to the circumstance of his court having dominion over the fund, as a ground 
of decision in a case where the fund was not comprised in the contract made 
on the marriage : Watts v. Shrimpton, above, p. 73. Probably in both 
cases the dominion over the fund was not meant to be an element in the 
choice of the law to apply, but was referred to as giving to the court the 
opportunity of acting on its opinion as to the law. In Viditz v. 0^ Hagan ^ 
[1899] 2 Ch. 669, Cozens-Hardy, Van Grutten v. Dighy was followed not- 
withstanding evidence that by the law of the Austrian matrimonial domicile 
/he marriage articles acted on by the court were void as not being notarial, 
and, if good, had been effectually annulled by a postnuptial notarial act. 
In Be Banker y Beynolds v. Ellis y [1902] 2 Ch. 333, Buckley, the court acted 
on a settlement made in English form on the marriage of an Englishwoman 
with an Italian by nationality and domicile, though saying, ” the evidence 
is that, inasmuch as it openly violates the legal order of succession estab- 
lished by Italian law, it can have no effect at all in Italy. ” And cdl^rsely, 



MARRIAGE. 


79 


where the matrimonial domicile was English, the court has given effect to 
the settlement made in Scotch form of the property of a lady whose ante- 
nuptial domicile was Scotch : Be Barnard^ Barnard v. White (1887), 56 
L. T. 9, Kay; Be Fitzgerald^ Sunnan v. Fitzgerald^ [1904] 1 Ch. 673, 
Cozens-Hardy, Stirling and Vaughan Williams, founding on various indicia 
of intention. In the last cas^ Stirling, L.J., differed from his colleagues 
only by holding, in agreement with Joyce, J., that the settlement, giving in 
accordance with Scotch law an alimentary provision to the husband, could 
not restrict his power of dealing with it, because the English law which 
refuses to recognise a restriction on anticipation by an adult male was a 
matter regarding public order. It seems me that the majority of the 
Court of Appeal was right, for an assignee cannot maintain a claim to a 
Scotch alimentary provision consistently with its nature, and the enjoyment 
by the husband of such a provision, consistently with its nature and therefore 
in the only way in which it was given him, does not seem to be against the 
public policy of England. Effect was given to an Englishwoman’s settle- 
ment in English form made in contemplation of her marriage with a 
Spaniard : Be HernandOy Hernando v. Sawtell (1884), 27 Ch. D. 284, 
Pearson. Where a domiciled Scotchman married a domiciled English- 
woman, and settlements were made by them resj)ectively in Scottish and 
English form, it was held that the parties intended those settlecments to be 
governed respectively by Scottish and English law, and such intention was 
followed : Be Mackenzie^ Mackenzie v. Edwards-Moss, [1911] 1 Ch. 578, 596, 
S win fen Eady Where an antenuptial contract was made between an 
Englishman, resident in Scotland, and a Scotchwoman, in Scotch form, 
with a provision that the wife’s fund, after her death, should go to her 
next-of-kin, and after marriage the matrimonial home was moved to 
England and the wife died there, it was held that the intention of the parties 
must be deemed to ascertain the next-of-kin by Scotch law : TAster's Judicial 
Factor v. Symons^ [1914] S. C. 204. 

Where, on the marriage of a husband domiciled in Scotland, and a wife 
domiciled in England, a marriage settlement was made in English form, 
with a provision that the rights of all persons claiming under it should be 
regulated by English law, and the matrimonial domicile was Scotch, and the 
husband obtciined a divorce in Scotland, it was held that the husband was not 
entitled to the income of a fund according to Scotch law. English law 
exclusively must regulate the rights to the matrimonial property : Mont- 
gomery v. Zarifij H. L. (Finlay, Haldane and Shaw), [1919] L. J. P. C. 20. 

A marriage settlement made in England but in Scotch form on the 
marriage of a domiciled Englishman with a domiciled Scotchwoman, was 
held to be a Scotch settlement : Hewitt v. Hewitt ^ [1914] 31 T. L. R. 13, Eve. 

Where a marriage settlement takes effect in England under the doctrine 
of the above cases, a person having a power of appointment under it may 
exercise that power in a way in which he could not dispose of his property 
by the law of his matrimonial domicile : Pouey v. Hordern^ [1900] 1 Ch. 
492, Farwell; Be Migret^ Tweedie v. Tweedie^ [1901] 1 Ch. 647, Oozens- 
Hardy. See Be Baldy Bald v. Bald, [1897] 76 L. T. 462, Byrne. 

The court can, on divorce, vary a marriage settlement made with refer- 
ence to the law of the wife’s matrimonial domicile : Nunneley v. Nunneley, 
[1890] 16 P. D. 186, Hannen. Even although the matrimonial domicile was 
foreign, but iiiat at the time of the divorce was English: Forsyth v. 
Forsyth, [1891] P. 363, Jeune. 

Tlx^fis a convenient place for giving an elementary notion of 
inter]M|||»tion, as private international law is concerned with it. 



80 


PRIVATE INTERNATIONAL LAW. 


Interpretation is a question of fact. Prima facie, the law of the 
place of contract will furnish the most proper clue to the meaning 
of the parties. If they have used words which there are 
technical, or have mentioned coins, weights, or measures which 
under the same name have a different value there and elsewhere, 
it is the technical sense or the value of that place which they are 
most likely to have contemplated. Whatever they have not 
mentioned, yet must necessarily have had in mind, they most 
likely intended to follow according to the law of the same place, 
or the usages there prevailing. Yet these are but presumptions, 
and therefore liable to be rebutted. If the agreement expressly 
stipulate for a performance elsewhere, the usages and technical 
language of the latter place, at least in all that relates to the 
performance, are more likely to have been present to the minds 
of the contractors than those of the place of contract. Still more 
will this be the ease if the place of performance be in the country 
from which both parties derive their personal law. The Italian 
code. Preliminary Article 9, is certainly right in laying down — 
that the common personal law of the parties will, even without 
the circumstance of a stipulated performance in its country, 
afford a safer guide to their meaning than the law of the merely 
casual place of contract. On all these points, the greatest 
writers on private international law have abstained from laying 
down sweeping presumptions applicable to every description or 
example of agreement. But there can be no doubt that, gener- 
ally, the interpretation of a marriage settlement or contract will 
be referred in England to the law of the matrimonial domicile, 
as being the place in which the performance of the contract is 
contemplated, and that from which the personal law of one party 
at least is derived. 

Interpretation of a power to charge, on marriage, an annual sum on land 
in Ireland, and of the execution of that power, the domicile being in Eng- 
land. ** If this were the case of a simple charge of £3,000 on lands in 
Ireland, the place of contract, the domicile of the parties, the place appointed 
for payment, and other circumstances might require consideration, and 
would furnish the ground for the decision of the case ; but the instrument 
itself must in this case give the rule of decision — a settlement making various 
arrangements, some like to the provision in question, others different from 
it:** Eldon ; Lansdowne v. Lansdovme (1820), 2 Bligh 60, 87. A marriage 
contract was made between persons domiciled in Scotland, and an equity 
was afterwards alleged to exist for a settlement out of a fund comprised 
in such contract. The operation of the contract by Scotch law was held 
to govern the case. Anstruther v. Adair (1834), 2 M. & K. 613, B^ugham. 
A marriage settlement construed partly according to English law and pytly 
according to Scotch, in obedience to the plain intent of the settleno^t itself ; 



MAREIAGE. 


81 


Chamberlain v. Napier (1880), 16 Ch. D. 614, Hall. A husband is trustee 
in England for his wife of property which belongs to her separately under a 
foreign marriage settlement of which there is no trustee : exp. Siheth, Be 
Siheth (1885), 14 Q. B. D. 417, Brett, Cotton, Lindley. Where there was a 
conflict of opinion among Scotch experts as to the meaning of certain 
words in a settlement in Scotch form, though the matrimonial domicile was 
in Scotland, English canons of construction were applied by the English 
court : Be Capel (1914), W. N. 452, Eve. The English lex fori prevailed in 
the absence of any clear indication of the foreign law. 

It is not easy to see how a change of domicile, important as are the 
questions it raises with regard to the matter of § 36a, can give rise to any 
question as to the operation of an express contract. But in Duncan v. 
Cannan (1854), 18 Beav. 128, Romilly, and (1865), 7 D. M. G. 78, Knight- 
Bruce and Turner, the matrimonial domicile was Scotch, and it was admitted 
that Scotch law governed. Under the contract, as operating by that law, the 
wife’s concurrence in a receipt for a sum of money comprised in the contract 
was assumed to be necessary, and, if necessary, would certainly be effectual. 
She concurred in such a receipt after the domicile had been transferred to 
England, by the law of which country her receipt would be ineffectual, 
having regard to the words of the matrimonial contract, though by men- 
tioning separate use the contract might have made her receipt effectual 
under the law of England. It was argued that Scotch law adopts tho rule 
of private international law which determines capacity according to the 
actual domicile ; that the wife, by the law of her actual domicile, wanted 
capacity to give a receipt; and that her receipt was therefore ineffectual. 
But all three judges held it to be effectual. There is no magic in the word 
“ capacity.” That which a person has capacity to do is simply that which 
he can effectually do ; and his capacity, spoken of collectively, is the total of 
his abilities to do different things effectually. The matrimonial contract in 
this case gave the lady a pecuniary benefit, and the question whether she 
could still receive it after the change of domicile, was identical with the 
question raised about her capacity ; they were not two questions, admitting 
of the former being solved by help of the answer to the latter. In Ou^pratte 
V. Young (see above, p. 44), the question of capacity related to the making 
of a new agreement. 

§ 40. Where the marriage takes place on the faith of an agree- 
ment that the husband shall transfer his domicile to another 
country, the law of the latter country must be considered as that 
of the matrimonial domicile in what regards an express matri- 
monial contract as to property. 

Colliss V. Hector (1875), L. R. 19 Eq. 334, Hall. See § 36, above, as to 
the true meaning of matrimonial domicile. 

§ 41. If a settlement or express contract is made on the 
marriage, not comprising all the movable property of both con- 
sorts, the question whether it excludes any rights which would 
otherwise arise in the part not comprised in it will be decided by 
the law. of the matrimonial domicile, as appropriate both to the 
operation of the settlement or contract and to the destination of 
th^property on which it has no operation; subject however to 

6 


W.I.Ii. 



82 


PRIVATE INTERNATIONAL LAW. 


the wider reference to the will of the parties now made, as in 
§ 39. 

See Watts v. Shrimpton, above, p. 73. 

§ 42. It is admitted in principle that the succession to either 
consort on death must be separated from the effect of marriag^e 
on property, and be regulated by the law of the last domicile of 
the deceased. In practice however there is occasionally some 
difficulty, on the question what points belong to the department 
of succession and what to the pecuniary effects of the marriage.* 

In Fouhert v. Turst (1702), Pre. Cha. 207, and (1703), 1 Bro. P. C., 38 foL, 
129 oot., the consorts were in community under an antenuptial contract, 
except as to a sum of 800 livres^ which was to “ be the proper estate of the 
wife and her heirs of her part.” There was also a postnuptial contract, 
which appears to have been held inoperative. The wife predeceasing the 
husband, and without issue, after a removal of the domicile from the custom 
of Paris tf> ICngland, ” her heirs of her part ” according to the custom were 
of course entitled, by contract, to the 800 Uvres ; but the husband, as suc- 
cessor to his wife by the law of England, claimed her share in the community 
as to the ifst ; while her relations claimed this also, evidently on the 
ground that the antenujitial contract had been made with the intervention 
of the wife’s mother, who should therefore be considered as having stipu- 
lated for them by imjdication, when she stipulated for the community in 
return for tho portion which she gave with her daughter. Lord Keeper 
Wright repelled this implication, holding that a contract, which so far as it 
went coincided with the custom of Paris, must be taken as an adoption of 
the custom. But his decree was reversed in the House of Lords, and the 
wife’s share in the community given to the heirs of her part, on their 
counsel pointing out that in certain particulars, collateral to the stipula- 
tion of community, the contract deviated from the custom of Paris, whence 
it was argued that it could not in any part be considered as an adoption of 
it. The contract was probably most correctly interpreted by the higher 
court. If the antenuptial contract had been between the husband and wife 
alone, with no particular reason for implying a stipulation in favour of her 
relations, or if the parties had married under the custom of Paris without 
express contract, there is no reason to suppose that the House of Lords 
would not have held the husband entitled, as successor to his wife by the law 
of her last domicile, to the share in the community which the contract, or 
the law of the matrimonial domicile, would have given her on her death. In 
Lashley v. Hog (1804), 1 Robertson’s Sc. Ap. Ca. 4, Lord Eldon said of 
Fouhert v. T\irst that ” if there had been no contract the law of England 
would have regulated the rights of the husband and wife, who were domi- 
ciliated in England, at the dissolution of the marriage.” This dictum has 
been quoted in favour of the new as against the matrimonial domicile, in 
the question which arises between them on the matter of § 36a : but it is 
not likely that Lord Eldon meant anything of that kind. See above, p. 74, 
and Be Craig nishj Craignish v. Hewitt ^ [1892] 3 Oh. 180. In Be Hernando, 
Hernando v. Sawtell (1884), 27 Ch. D. 284, Pearson, a question again arose 
as to the rights of succession, having regard to the terms of the marriage 
settlement. See too Montgomery v. Zarifi, above, p. 79. % 


♦ See Savigny, syst. § 379, Guthrie, 247. 



MARRIAGE. 


83 


Divorce. 

Two causes affecting the tie of marriage, jactitation of 
marriage and nullity of marriage, and two affecting the personal 
relations of the parties during the continuance of that tie, divorce 
a mensa et toro and restitution of conjugal rights, were ancient 
subjects of ecclesiastical jurisdiction.^ That is to say, the juris- 
diction in them was exercised by the courts of bishops who 
acknowledged each other, and were acknowledged by the secular 
power in their respective countries, as officers of the same 
church ; the laws administered in those courts were kept uniform 
by a common appeal to the pope; and the same laws distributed 
suits among those courts by rules of competence as authoritative 
as those which the law of England lays down for the competence 
of different county courts or the law of France for that of the 
tribunals of first instance. As long as this state of things con- 
tinued, and between countries in which it continued, no question 
similar to those of private international law could arise about the 
causes in question. But in consequence of the reformation, the 
English bishops ceased to be officers of the same church with the 
continental bishops; an appeal from their courts to the crown 
was substituted for one to the pope; and divorce a vinculo y which 
the church did not grant at all, came to be granted by private 
act of parliament, but with a regularity in the procedure for 
obtaining it which in the opinion of the best authorities caused 
it to rank among legal remedies. And by the act to amend 
the law relating to divorce and matrimonial causes in England,’^ 
st. 20 & 21 Viet. c. 85, which came into operation in 1858, the 
episcopal jurisdiction in the matrimonial causes which had 
belonged to it was transferred to the crown, the name of divorce 
a mensa et toro was changed to judicial separation, and the pro- 
cedure for divorce a vinculo was transferred from parliament to a 
regular court. In the meantime, the reformation in Scotland 
had led at a much earlier date to the transfer of the episcopal 
jurisdiction in matrimonial causes to the crown, and the estab- 
lishment of judicial procedure for divorce a vinculo \ and changes 
more or less similar have taken place at different times almost 
throughout the civilized world. Hence matrimonial causes now 
afford as prolific a field as any other for the questions of law 
and^ jurisdiction which constitute private international law. 
Am<||3Lg those questions it will be convenient to take first those 



84 


PRIVATE INTERNATIONAL LAW. 


relating to jurisdiction, and, last, that of the cause for wnicn a 
divorce will be granted. 

The act of 1857 is silent as to the conditions of competence in 
the matter which had previously been of parliamentary cogni- 
zance, divorce, by which term I shall intend divorce a vinculo 
where it is not otherwise expressed. On the appeal in Niboyet v. 
Niboyet (1878), 4 P. D. -1, it was held by James and Cotton, 
L.JJ., against Brett, L.J.^, that those conditions must be taken 
from the ecclesiastical rules relating to suits for divorce a mensa 
et toro which had been subject to such rules. But after a period 
of uncertainty the opinion that divorce a vinculo, which affects 
status, is so different from the old ecclesiastical divorce a mensa 
et toro, which was administered for the health of the soul and 
did not affect status, that it must be subject to rules of its own, 
and that the novelty of the occasion in England must be availed 
of to establish those rules on the soundest principles, triumphed 
in Le Mesurier v. Le Mesuner, [1895] A. C. 517, an. appeal from 
Ceylon in which the judgment of the judicial committee was 
given by Lord Watson. During the intervening period there 
was no doubt, as there is none now, that : 

§ 43. The place where the marriage was contracted is of no 
importance with regard to the authority of the English court to 
grant a divorce. 

And to this it may be added that there is equally no doubt that 
the authority of the English court to grant a divorce is indepen- 
dent of the place where the adultery was committed, or, if the 
husband is respondent, where the adultery and cruelty or deser- 
*tion were committed; independent also of the domicile of the 
parties at the time of their marriage, if that was different from 
their domicile at the time of the suit. 

But on the whole the decisions led to a doctrine that a divorce 
will be granted in England when the husband, being either 
petitioner or respondent, is either domiciled in England (§ 44), 
or resident there, not on a visit or as a traveller, and not having 
taken up that residence for the purpose of obtaining or facili- 
tating a divorce (§ 45); but that on the other hand a divorce 
pronounced by a foreign court is treated as valid in England 
when, and only when, the parties were domiciled within the 
jurisdiction of that court at the time of the suit in it (§ 50). 
This difference between the conditions for granting a divorce and 
those for recognizing the validity of a foreign one, the fojmaer 
allowing the local English dissolution of a marriage whi(J in 



MARRIAGE. 


85 


view of the latter we could not expect to see treated abroad as 
having been dissolved, was very regrettable. But while it was 
inevitable so long as divorce a vincxilo was assimilated to that 
CL menm et torOy it was countenanced by certain Scotch decisions 
which upheld for the former a foundation in residence falling 
short of domicile, and described such residence as a matrimonial 
domicile distinct from one for succession, a use of the term 
matrimonial domicile ” which must not be confounded with its 
commoner employment to express the true domicile at the time 
or established on the occasion of marriage (§ 36). The doctrine 
in question was however dispelled by Le Mesurier v. Le Mesurievy 
the judgment in which put the matter, whether as Engliwsh, 
Scotch or international, on a single and reasonable footing. The 
principle has been recently affirmed in a most emphatic and 
embarrassing fashion by the decision in Keyes v. Keyes and 
Grayy [1921] P. 205, Duke, where it was held that the court 
in India set up by statute to try matrimonial causes had no juris- 
diction to decree a dissolution of marriage between parties not 
domiciled in India, though the marriage was celebrated and the 
parties were resident in India and the act of adultery was com- 
mitted within the jurisdiction of the court. The Indian 
Councils Act, 1861, allows the Governor-General in Council to 
make laws and regulations, and the Indian Divorce Act, 1869, 
purported to permit an Indian court to grant divorce to a person 
professing the Christian religion and residing in India. But 
the court held that the statute of 1861 cojald not, in the light of 
principles enunciated later, empower the Governor-General to 
legislate for British subjects merely resident in India so as to 
affect their status as to marriage in the country of their domicile. 

The following extracts from the judgment in the Le Mesurier 
case state the principles of the law, and are substituted for the 
§§ in earlier editions. 

§§ 44, 45, *50. When carefully examined, neither the 
English nor the Scottish decisions are in their lordships’ opinion 
sufficient to establish the proposition that, in either of those 
countries, there exists a recognized rule of general law to the 
effect that a so-called rule of matrimonial domicile gives jurisdic- 
tion to dissolve marriage. . . . Their lordships have . . . come 
to the conclusion that, according to international law, the domi- 
cile for the time being of the married pair affords the only true 
test of# jurisdiction to dissolve their marriage. They concur 
wiffcout reservation in the views expressed by Lord Penzance in 



86 


PRIVATE INTERNATIONAL LAW. 


Wilson V. Wilson,* which were obviously meant to refer, not to 
questions arising in regard to the mutual rights of married 
persons, but to jurisdiction in the matter of divorce : ‘ It is the 
strong inclination of my own opinion that the only fair and satis- 
factory rule to adopt on this matter of jurisdiction is to insist 
upon the parties in all cases referring their matrimonial 
differences to the courts of the country in which they are 
domiciled. Different communities have different views and laws 
respecting matrimonial obligations, and a different estimate of 
the cauvses which should justify divorce. It is both just and 
reasonable therefore that the differences of married people should 
be adjusted in accordance with the laws of the community to 
which they belong, and dealt with by the tribunals which alone 
can administer those laws. An honest adherence to this prin- 
ciple, moreover, will preclude the scandal which arises when a 
man and woman are held to be man and wife in one country and 
strangers in another.’ Of course, it will be understood that, 
in thus referring to domicile, both Lord Penzance and Lord 
Watson intend to refer to the personal jiirisdiction over the 
parties, as governing their status, which divorce affects. The 
English court will claim or disclaim authority to divorce the 
parties on the ground of their domicile being or not being 
English, and on no other ground; but, whatever may be their 
domicile, it must recognize their divorce pronounced by a juris- 
diction which claimed authority over them on the ground of their 
nationality. And it will recognize a divorce pronounced by a 
jurisdiction to which the parties were not personally subject, if 
it would be held valid in the country to which the husband was 
personally subject at the time of the proceedings by domicile, or 
by nationality if that is there taken as the ground of subjection : 
Armitage v. Att,-Gen,, Gillig v. Gillig, [1906] P. 135, Gorell 
Barnes. 

The English court will not, however, recognize a divorce 
granted by a Moslem husband in India to an English wife 


*1872, L. R., 2 P. & M. 436, at p. 442. In Manning v. Manning (1871), L. R., 
2 P. & M. 223, p. 220, Lord Penzance had said : “ When the case has been 
reversed, and when the courts of this country have had to consider how far persons 
who are domiciled Englishmen shall be bound by the decree of a foreign matri- 
monial court, the strong tendency has been to repudiate the povrer of the foreign 
court under such circumstances to dissolve an English marriage. It would be 
unfortunate if an opposite course should be followed by the courts of this country, 
when they are determining to what extent they will entertain the ma4rimonial 
suits of foreigners.” ^ 

f Le Mesurier v. Le Mesurieff pef Lord Watson, [1895]* A. C,, at pp. 536, 640. 



MARRIAGE. 


87 


married in England, though the divorce might be valid in the 
•Moslem community of India to which the husband belongs, 
Ex parte, Mir Anwareddin [1917] 1 K. B., 882, Court of Appeal 
(Swinfen-Eady, Bankes, Lawrence, A. T., affirming Reading, 
C.J., Darling, Bray, J.J. 

In that case a Moslem native of India, domiciled there, married an 
Englishwoman at an English registry office. Later he separated from his 
wife and returned to India, where his wife refused to join him. He then 
obtained in India a decree of restitution of conjugal rights which was not 
complied with ; and in accordance with Moslem law sent his wife a bill of 
divorcement, purporting to dissolve the marriage. Later, on his return to 
England, he petitioned for a divorce, which was refused on the ground that he 
was not domiciled in England. Thereupon he applied to an English 
registrar for a licence to marry again ; and this was refused on the ground 
that there was a lawful impediment to the marriage. 

The Divisional Court and the Court of Appeal, upholding the registrar’s 
decision, held that there was neither principle nor authority that a marriage 
celebrated in England can be dissolved according to the law of England by 
mere operation of the law of the husband’s religion without the decree of a 
court of law. An Englishwoman acquires by marriage the domicile of her 
husband, and is subject to the law of that domicile. But if she is a Christian 
she does not acquire the non-Christian religion of her husband, or enter into 
his religious community or become subject to his special religious system of 
law. If the Moslem husband had obtained a divorce from a court in India, 
the English court, on the authority of Attorney-deneral v. Armitage, 
would have recognized the decree and treated the marriage as dissolved. 
But the court in India can only grant a divorce when the two parties belong 
to the same religion ; and here no decree was applied for. 

It was suggested obiter by Lord Watson in Skinner v. Skinner (26 I. A., 
p 43), that a Moslem husband who desires to divorce his wife can do so by 
Moslem law. But such a divorce, however good in a Moslem country, will 
not be recognized in an English court as a dissolution of a marriage with a 
woman who has married in England with an implied understanding that she 
will be a sole and permanent wife and not just a wife at her husband’s 
pleasure. 

The respondent in a divorce suit does not give jurisdiction to 
a court by appearing before it without protest and absolutely. 
And if the divorce would not have been recognised in the country 
of the husband’s domicile, the English court will annul the 
second marriage by the divorced wife on a petition of the 
husband, he being a domiciled British subject. Cass v. Cass, 
[1910] 108 L. T. 897, Bigham. 

It may be noted that in Wilson v. Wilson the marriage was contracted 
and the adultery committed abroad, and the husband, who was the 
petitioner, had acquired an English domicile only after the adultery, and it 
does not appear that the wife had jcver been in England. It therefore 
decides for England, as Warrender v. Warrender, 2 Cl. & F. 488, decided for 
Scotlaift, the possibility of founding jurisdiction in divorce against the wife 
on^ domicile imputed to her by a rule of law. 



. PRIVATE INTERNATIONAL LAW. 


When the law under which a divorce has been pronounced prohibits the 
marriage of either party within a given time, their marriage is nob fully 
dissolved till the expiration of that time : Warte7' v. TVarter (1890), 15 P. 
162, Hannen. It might bo put that their incapacity to femarry within the 
times adheres to them in other jurisdictions as a part of their status. But 
where the remarriage of the guilty jjarty only is restricted, the incapacity so 
created is penal, and will not follow that party to England : Scott v. Att.- 
Gen. (1886), 11 P. D. 128, Hannen ; decision explained in Warier y. Warier, 

§ 46. But to the doctrine that ‘‘ the [English] court does 
not now pronounce a decree of dissolution where the parties 
are not domiciled in this country,” it must be added ‘‘except 
ill favour of a wife deserted 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 justified, was domiciled with -her 
husband in this country”; Gorell Barnes, J., in Armytuge v. 
ArmytagCy [1898] P. D. 178, at p. 185. He proceeded to say 
that in the case described, “ 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 matri- 
monial home, it is considered that, in order to meet the injus- 
tice which might be done by compelling a wife to follow her 
husband from country to country, he cannot be allowed to 
assert for the purposes of the suit that he has ceased to be 
domiciled in this country.” And see his remarks in Bater v. 
Bater^ P- 216; and in Ogden v. Ogden, [1908] P. 78. 

The rule lias been adopted, and indeed extended, in later 
cases [Stathaios v. Stathatos [1913] P. 46, Deane; and Be 
Montaign v. Be Montaigu [1913] P, 154, Evans). In the 
former case it w^as said : “ In proper circumstances the court 
here ought to assume jurisdiction in a wife’s suit for divorce 
by treating her as having a domicile of her own sufficient to 
support such suit.” The wife was domiciled in England at 
the time of her marriage with a foreigner. He obtained a 
decree of nullity in the foreign domicile which debarred her 
from suing for any relief. She reverted then to her English 
domicile, and the court granted her a decree of dissolution. 

The grant of divorce to an Englishwoman married to a domiciled^ 
foreigner is in principle questionable. 

The Matrimonial Causes Bill introduced into the House of Lords in 
1920 to give effect to the recommendations of the Royal Commission, which 
before the war reported on the amendment of the law of divorce, proposed to 
give authority to the limited exception in section 5 as follows : ^ 

5. The j urisdiction of the High Court in divorce shall be limited to c^|pB 
in which the parties to the marriage are domiciled in England and Wales : 



MARRIAGE. 


Provided that where a wife has been deserted by her husband, or where 
her husband has been deported from the United Kingdom under any law 
for the time being in force relating to the deportation of aliens, and was 
immediately before the desertion or deportation domiciled in England or 
Wales, her domicile shall for the purposes of this Act be treated as the same 
as it was immediately before the desertion or d^ortatiou. 

The same exception was confidently suggested by Brett, L.J., in Nihoyet 
V. Nihoyet (1878), 4 P. D., at p. 14—before Le Mesurier v. Le Mesurkry 
it is true, but while contending against his colleagues for the exclusive 
authority of the domicile which the latter case established. As to the older 
authorities, a divorce was granted to the wife under the circumstances stated 
in the exception, but on the ground of her political nationality being 
British : Deck v. Deck (1860), 2 S. & T. 90, Cresswell, Martin, Willes; who 
on the same day threw furtfier doubt on the applicability of Deck v. Deck for 
this purpose by saying that Bond v. Bond, 2 S. & T. 93, was the same case 
with it in substance, though the point of the wife alone being domiciled or 
resident in England did not there arise. And in Santo Teodoro v. Santo 
Teodoro (1876), 5 P. D. 79, Phillimore, where the domicile was foreign 
throughout, a divorce was granted to a wife who continued to reside in 
England though the husband had left it. Where the Wife came to reside in 
England only after her desertion it was refused : Le Sueur v. Le Sueur 
(1876), 1 P. D. 139, Phillimore. 

§ 46a. Where a marriage is held good in England but is not 
recognized in the husband’s country, so that the wife cannot 
there obtain a divorce, a case which may easily happen when a 
foreigner goes through the ceremony of marriage with an 
Englishwoman in England, if the dependence of capacity for 
marriage on the personal law is not here recognized, ^‘it would 
seem reasonable to permit her to sue [in England] for the 
dissolution of the tie which is recognized therein, ... in ease 
she has grounds of suit which would entitle her to a divorce if 
her husband had been domiciled in her country.” Sir Gorell 
Barnes (Lord Gorell) in Ogden v. Ogden, [1908] P. 83. 

§ 466. The jurisdiction of the court over the co-respondent, 
both as to damages and costs, in a suit properly instituted here, 
does not depend on domicile, allegiance or residence. If a 
foreign co-respondent is served in England, this court has for 
that reason jurisdiction over him. He can be served abroad, 
whatever his nationality, and if he is served abroad the statute 
authorizing such service gives to this court jurisdiction over him. 
Tn proper cases this court may exercise discretionary power, and 
dismiss or dispense with a co-respondent domiciled abroad, but 
he is not entitled to demand as of right that he be dismissed from 
the suit.” Sir Samuel Evaus, in Rayment v. Rayment and 
Stuart and Chapman v. Chapman and Buist^ [1910] P. 271, at 
p^ 292. Approved in Rush v. Rush and Pimenta (Duke, P., 



00 


PRIVATE INTERNATIONAL LAW. 


affirmed by C. A., Sterndale, M.R. See, too, Phillips, v. 
Batho [1913] 3 K. B. 26, Scnitton, where damages granted by an 
Indian court against a co-respondent, though he was out of the 
jurisdiction, were held to be recoverable in England in an action 
on the Indian judgment. In earlier cases it was held that the 
court here had no jurisdiction over a co-respondent domiciled 
abroad, and the petitioner should proceed without citing him : 
Levy V. Levy and De Ronmnce [1908] P. 256. Boyer v. Boyer, 
Ib. 300. But the later decisions indicate a stead tendency of the 
court to widen its jurisdiction over ancillary matters where the 
principal parties are subject to it. 

§ 47. If the matter be considered on the ground of social 
rather than of legal principle, a doubt may be suggested whether 
it is necessary to identify the jurisdiction for judicial separation 
with that for divorce. The former decree leaves the parties man 
and wife, but gives to the injured party a ])rotection agai'""^ some 
of the consequences of that status; and it may therefore be 
reasonable to allow its Iwnefit to be enjoyed within the territory 
by those who are resident in it, even t]}ough the court of their 
country or domicile should alone be held (‘ompetent to dissolve 
the tie of marriage between them. In saying this -which was 
cited with approval by Gorell Barnes, J., in Armytayc v. Army- 
to ye, [1898] P. D. 178, at p. 191- -T was led to reserve 
the question of legal principle owing to Brett, L.J., in Nihoyet 
V, Nihoyet, holding that the exclusive rule of domicile applies 
to the court’s power lo grant any relief which, alters in any way 
that gelation between the parties which arises by law from their 
marriage. It applies therefore,’^ he said, as it seems to me, to 
suits for judicial separation and to suits for the restitution of 
conjugal rights. I do not think it does apply to suits for a 
declaration of nullity of marriage or in respect of jactitation of 
marriage 4 P. D. 19. But the judicial committee, per Lord 
Watson, in Le Mes'iirier v. Le Mesurier, adopted the other view. 
They said : “ There are unquestionably other remedies for matri- 
monial misconduct, short of dissolution, which according to the 
rules of the jus yentiuin may be administered by the courts of the 
country in which spoinses, domiciled elsewhere, are for the time 
'lesident. If for instance a husband deserts his wife, although 
their residence be of a temporary character, these courts may 
compel him to aliment her ; and in cases where the residence is of 
a more permanent. character, and the husband treats hi% wife 
with such ‘a degree of cruelty as to render her continuance 



MARRIAGE. 


91 


his society intolerable, the weight of opinion among international 
jurists and the general practice is to the effect that the courts of 
the residence are warranted in giving the remedy of judicial 
separation, without reference to the domicile of the parties.’’ 
This' was acted on in Armytage v. Armytage, and again in 
AnghineUi v. Anghinelli [1918] P. 247, C. A., Swinfen Eady, 
M.R., Duke, Warrington, and must now be considered to be 
the law of the English court. In the latter case the husband’s 
domicile was in Italy, but both parties at the commencement of 
the suit were resident in England and the wife before marriage 
was domiciled in England. The court granted a decree of 
separation, and distinguished the case from one of divorce, on the 
ground that it was not clear that a decree of judicial separation 
affected status. 

See also Christian v. Christiaiiy [1897] 78 L. T. 86, Jeune, and Eiera v. 
Bieraj [1914] 112 L. T. 223, Deane. 

§ 48. The English court has jurisdiction to decree restitution 
of conjugal rights where both parties are resident in England 
at the lime of the commencement of the action. 

As to the question whether domicile is necessary to found the 
jurisdiction, there is an agreement to treat this matter on the 
same footing as judicial separation. In Nihoyet v. Nihoyet, 
Brett, L.J., paralleled both with divorce (above, § 47); in Le 
Mesurier v. Le Mesurier neither is distinctly mentioned by Lord 
Watson; and in Armytage v. Armytage, Gorell Barnes, »T., 
though the case before him was one of judicial separation, showed 
by his reasoning that he held restitution of conjugal rights to be 
also cognizable on the ground of mere residence ([1898] P., at 
pp. 192, 193). And so the same judge held in DieJes v. Dicl<s, 
[1899] P. 275, and Bateman v. Bateman, [1901] P. 136; and he 
was followed by Evans, P., in Perrin v. Perrin [1914] P. Ie36. 

The older cases to the same effect — Newton v. Newton (1885), 11 P. D. 11, 
Hannen, and Thornton v. Thornton (1886), 11 P. D. 176, Cotton, Bowen and 
Fry, affirming Butt — are subject to the remark that divorce was then held, on 
the authority of Nihoyet v. Nihenjet, to be cognizable on the ground of mere 
residence. 

For the other point comprised in § 48, namely, that the residence of one 
party only will not be sufficient to found the jurisdiction, there is Firehrace^ 
V. Firehrace (1878), 4 P. D. 63, Hannen, where ** the difficulty, amounting 
in most cases to an impossibility, of enforcing the decree of the court 
against a respondent neither domic^ed nor resident in the country, was 
referred to as a reason for not claiming jurisdiction over a husband who had 
f^led in rendering conjugal rights to his wife while he was here. Neverthe- 
less, if a wife who has been deserted, in England remains there, it would 



92 


PRIVATE INTERNATIONAL LAW. 


seem that she may bring her suit for restitution of conjugal rights on the 
ground of her own residence, on the principle of the exceptions to the strict 
rule of jurisdiction in §§ 46, 46a and 47. Bateman v. Bateman, u. s., would 
be an authority for this if it were clear that the husband in that case had 
changed his domicile; and the doctrine is not opposed to Yelverton v. 
Yelverton (1869), 1 S. & T. 674, Cresswell, where it was held that a wife 
cannot obtain a decree of restitution, the husband being neither domiciled 
nor resident in the country, notwithstanding her having established a 
residence in it since his desertion of her. 

When neither party has had a residence or domicile in England, it is 
clear that no decree for restitution will be granted by the English Court. Be 
Gasquet Jam.es v. Mecklenburg, [1914] P. 63, Evans. 

In the case of Perrin v. Perrin, u. s., Evans, P., laid down the following 
rules of practice as to service : — 

“ In a suit for restitution of conjugal rights when it is stated in the petition 
either that the parties to the suit were domiciled in England at the time of 
the institution thereof ; or that they had a matrimonial home in England at 
the date when their cohabitation ceased ; or that they were both resident in 
England at the time of the institution of the suit, the petition and citation 
may be served either within or without his Majesty’s Dominions. 

“ When a suit for restitution of conjugal rights has been duly instituted, 
and a decree is made therein, such decree may be served either within or 
without his Majesty’s Dominions.” 

In any further proceedings arising out of a non-compliance with the 
decree, the petitioner must satisfy the court that the respondent has been 
served therewith at a place from which he could reasonably have returned to 
his wife within the period named in the decree. Bateman v. Bateman, 
[1901] P. 136, Gorell Barnes ; see also Vicks v. Vicks, [1899] P. 275, Gorell 
Barnes. 

Substituted service of a decree for restitution was allowed where the 
resjx)ndent’s whereabouts were unknown. Palmer v. Palmer, [1921] W. N. 
247, Horridge, 

§ 49. The jurisdiction of the English court in suits for a 
declaration of nullity of marriage, or in respect of jactitation of 
marriage, is sufficiently founded by the defendant’s being resi- 
dent in England, not on a visit or as a traveller, and not having 
taken up that residence for the purpose of the suit. 

Williams v. Vormer (1861), Fust, and (1852), Dodson, 2 Robertson 605. 
** A decree of nullity of a pretended marriage is quite as much a decree in 
rem ” [as one of divorce], and has all the consequences. How would it 
be possible to make domicile the test of jurisdiction in such a case? Sup- 
pose the alleged wife were the complainant, her domicile would depend on 
the very matter in controversy. If she was really married, her domicile 
would be the domicile of her husband ; if not married, then it would be her 
own previous domicile.” Lord Justice James, in Nihoyet v. Nihoyet, 4 
P. D. 9. And see the quotation from Lord Justice Brett in the same case, 
under § 47. Thus both sides to the controversy mentioned on p. 90 are 
agreed as to this §. But the alleged wife, being the defendant and main- 
taining the marriage, is bound by her own contention to submit to the 
jurisdiction of the petitioner’s domicile: Chichester v. Vonegal (1822), 1 
Add. 6, at p. 19, Nicholl. In Boherts v. Brennan, [1902] P. 143, JeiSie, no 
other ground appears for assuming the jurisdiction in a woman’s suit 



MARRIAGE. 


93 


nullity except that the parties had lived together in England during some 
part of the time since the celebration of the disputed marriage; but it 
was an undefended case. 

But in suits for a declaration of nullity of marriage jurisdic- 
tion has also been entertained in England on the ground of the 
marriage which is questioned having been contracted here. It is 
questionable, however, whether jurisdiction will any longer be 
entertained on this ground only. De Gasqiiet James v. Mech- 
lenburg (u.s.). 

Evans, P., refused a declaration of the validity of a marriage where 
neither party had domicile or residence in England, and he said : “ The mere 
fact that the marriage was celebrated in England and petitioner purported 
to reside here at the date of the institution of proceedings, cannot give the 
court power to give a declaratory judgment as to the validity of the marri- 
age.” The court of the matrimonial domicile is the natural forum for deter- 
mining the goodness of the marriage; and in this case the court of the 
husband’s domicile had declared the marriage null and void. Possibly, if the 
foreign court had not so pronounced, the scintilla of jurisdiction derived 
from the marriage in England would have been accepted ; but in view of the 
decision, the jurisdiction in a suit for nullity based on the forum con- 
tractus would now appear to be doubtful. 

In Simonin v. Mallac (1860), 2 S. & T. 67, Cresswell held the jurisdiction"' 
founded against a defendant neither domiciled nor resident in England, nor 
a British subject, who also had been served abroad, because ” the parties, by 
professing to enter into a contract in England, mutually gave to each other 
the right to have the force and effect of that contract determined by an 
English tribunal ” : p. 75. He quoted old authorities in favour of a forum 
rei gestcBf which he seems to have considered was supported by the Common 
Law Procedure Act, 1852, s. 19. Now however that the Supreme Court 
Rules, 1883, have abandoned the forum contractus celebrati for the actions 
to which they apply, even could that forum be extended to the case where 
the existence of the contract is in question, the reason given in Simonin v. 
Mallac can hardly be maintained. But the jurisdiction in nullity on the 
ground of the disputed marriage having been celebrated in England was 
asserted in Sottomayor v. De Barros (1877), 2 P. D. 81, Phillimore ; Linke 
V. Van AerdCj [1894] Times Reports, 1893-4, 426, Gorell Barnes; and 
Sproule V. HopkinSf [1903] 2 I. R. 133, Andrews. 

§ 49(2. A sentence of nullity in the domicile will not neces- 
sarily be authoritative in. England; Ogden v. Ogden, [1908] 
P. 46, Gorell Barnes, Cozens-Hardy, Kennedy; 2nd question, 
p. 78. 

It is noteworthy, however, that the Matrimonial Causes Rill introduced 
into the House of Lords in 1920, proposed in section 6 to empower the Engli^ 
Court to give effect to a decree of divorcer, judicial separation, or nullity,' 
obtained by a British subject domiciled in England, while resident in any 
British possession ; provided that, th^ decree was made on grounds which 
woul^ be recognized in England as sufScient for the decree. 

0 The section also proposed to dear up the doubts raised in Ogdm v, 
Ogden by providing : 



94 


PRIVATE INTERNATIONAL LAW. 


(2) Where a woman who is a British subject domiciled in England or 
Wales marries a foreign subject, and the marriage is subsequently declared 
invalid by a court of competent jurisdiction in the foreign country of which 
the husband is a subject, the High Court may grant a decree nisi of nullity 
of marriage notwithstanding *that the marriage was valid according to the 
law of the place of celebration of the marriage, and the provisions of this 
part of this Act with respect to such decrees shall apply accordingly. 

§ 51. Not even where the husband had deserted the wife, or so 
conducted himself that she was justified in living apart from him, 
will a divorce be treated in England as valid which she has 
obtained in a country neither his actual domicile, nor that in 
which she has remained after a change by him of domicile in 
which she was justified in not following him. 

The last clause of the § is based on the fact that the English 
court would grant a divorce to the wife who was justified in not 
following her husband in a change of domicile from England 
(above, § 46), combined with the principle, not only just but 
now ap 2 )arent]y established, that the recognition of a foreign 
divorce and the grant of a divorce in this country ought to be 
governed by the same rules. For the rest of the § see Shaw v. 
Aft. -Gen, (1870), L. R., 2 P. & M. 156, Penzance; Green v. 
Green^ [1898] P. 89, Gorell Barnes. 

§ 51^. Unless the divorce so obtained by the wife is recognized 
as valid by the law of the husband’s actual domicile: Armitage 
V. Ait, -Gen,, Gillig v. GiUig, [1906] P. 135, Gorell Barnes. 
But see Ex jxirte Mir Anwareddin (u.s.). 

§ 52. Divorce can only be pronounced for cause sufficient by 
the lex fori ; and when cause sufficient by the lex fori exists, the 
jurisdiction being established under the rules already considered, 
divorce cannot be refused becau.se it would be refused either by 
the lex loci confracins of the marriage, or by the personal law of 
the parties at the time of the marriage, or by the law of the place 
where any fact occurred on which the application for a divorce 
is grounded, or by the personal law of the parties at the time 
when any such fact occurred. This doctrine is received in 
England, both for granting divorces there and for recognizing 
the validity of foreign divorces. 

A divorce pronounced in Florida on the ground of ungovernable temper, 
where both parties were domiciled in Florida, was upheld in Pemberton v. 
Hughes f [1899] 1 Ch. 781, Lindley, Rigby, Vaughan Williams. 

The complete dependence of the cause for divorce on the lex 
fori, if divorce be allowed at all, results for us in England ^rom 
the reservation in favour^ of all stringent domestic policy whicS 



MARRIAGE. 


95 


is understood in private international law; see above, p. 61. The 
only law, except that of the forum, the claim of which to decide 
on the cause of divorce can be advanced with much plausibility, 
is the personal law of the parties derived from their matrimonial 
domicile. Representing marriage as a contract made at a given 
place, with contemplated performance in the matrimonial domi- 
cile, it may be said that the substance of the marriage, including 
the causes of its possible dissolution, must be affected by the 
place of contemplated performance to the same extent to which 
that place affects the operation of the marriage, or of any contract 
collateral to it, on property. The answer is that the substance 
of the marriage is not left to the choice of the parties, like its 
operation on their property. They are free to contract the 
marriage, but not to modify its substance. The existence of the 
marriage is an effect of contract, but its terms are not. The 
parties contract a mutual relation on some of the particulars of 
which different views are held in different countries, but as io 
which all nations agi^ee in thinking it to be of the utmost social 
importance that all its particulars shall be determined by law. 

In England, the propriety of putting in force our procedure 
for the dissolution of a marriage has never been disputed on the 
ground that a foreign law, having any possible relation to the 
matter, w'ould either not divorce for the cause in question, or 
even would refuse to divorce at all. There are however authori- 
ties to the effect that what is called in them an English marriage 
cannot be dissolved by a foreign decree, for any cause for which 
it would not be dissoluble in England; and these authorities are 
complicated by an argument which used to be put forward when 
the English procedure for divorce was by private act of parlia- 
ment, namely that English law, law being taken for the purpose 
of the argument in a narrow sense, did not admit divorce at all, 
and that therefore an English marriage was not dissoluble for 
any cause by a foreign decree. It will presently be seen to what 
extent the cases justify the statement in the §, that no limitation 
is now placed in this country on the cause for which any marriage 
can be dissolved by a competent court, so that the dissolution 
may be treated here as valid. But in the meantime a remark 
must be made on the circumstance that the cases referred to* 
designate the marriages, as to the dissolution of which abroad the 
doubt arose, as English marriages. It would have been con- 
sistenf^with the extent to which domicile is now allowed by our 
cdtrts to be influential with regard to marriage — see above, 



96 


PRIVATE INTERNATIONAL LAW. 


§§ 21, 25 — to hold that the sufficiency by English law of the 
cause for divorce was a question affecting the divorce of persons 
domiciled in England at the date of the foreign decree. The 
matrimonial domicile, as before observed, could not properly be 
introduced into the question, but the domicile, if any, which 
should govern with regard to a change of status, whether to or 
from marriage, would be that existing at the time of the change 
asserted. But the marriages on which the argument that they 
were not dissoluble by a foreign decree for a cause insufficient by 
English law, or even at all by any foreign decree, used to be 
urged before the passing of the Matrimonial Clauses Act, were 
those which had been contracted in England. This will appear 
the less surprising to any one who will consider what confused 
notions on the international bearings of marriage are displayed 
in some of the earlier English cases, or the excessive breadth of 
the reference to the lex loci contractus y quoted from DaJryinple 
v. Dal rymple under § 19, 

In LoUey's Case (1812), Ru. & Ry. 237, all the judges were “ unani- 
mously of opinion that no sentence or act of any foreign country or State 
could dissolve an English marriage a vinculo matrimonii^ for ground on 
which it was not liable to be dissolved a vinculo matrimonii in England.’* 
Lolley’s first marriage was contracted in England, and his domicile at its 
date was English ; but it is to the former point alone that the term 
“ English marriage,” in the above resolution, has always been understood 
to refer, and was certainly meant to refer. He was divorced in Scotland, 
where he had only a very transient residence, at the suit of his wife, for his 
adultery, without the aggravating circumstances which in a very few cases 
induced Parliament to grant to the wife a divorce by private Act ; and it ' 
is evidently to this that the resolution alludes, in speaking of a divorce for 
ground on which a marriage was not liable to be dissolved in England. The 
careful wording implies the opinion, which has been expressly adopted by 
the highest authorities, that divorce by private Act of Parliament was 
essentially a judicial proceeding, and that it would have been an error, 
even in 1812, to say that divorce a vinculo was not known to the regular 
course of English law. See Lords Westbury and Colonsay, in Shaw v. 
Gould (1868), L. R. 3 E. & I. A. 86, 91. Lolley married secondly in 
England, and was found guilty of bigamy : the conviction was sustained, 
after argument, by all the judges, who came to the resolution above cited, 
which in consequence of his continuing English domicile at the time of the 
divorce was not necessary to the decision of the case : and he was sent to 
the hulks for one or two years, the residue of the sentence being remitted. 
In McCarthy v. Decaix (1831), 2 Ru. & My. 614, Brougham,' the question 
arose incidentally in a suit about property. The cause of the divorce, which 
in this case was granted in the domicile, does not appear ; but the learned 
Chancellor thought himself bound to follow the rescdution in Lolley* $ CasCy 
which he, while strongly objecting to it, extended, perhaps inadvertently, 
by interpreting it as deciding that a marriage contracted in England was 
indissoluble by any foreign proceeding, and therefore of course ^or any 
cause alleged in such proceeding. But the resolution in Lolley* s 6kse 



MARRIAGE. 


97 


does not appear to have passed at any time without question. Lord 
Eldon, before whom McCarthy v. Decaix had been argued prior to its 
being heard by Lord Brougham, had refused to ignore the divorce in the 
domicile without further assistance : 2 Ru. & My. 619. Then, by 
Lushington, in Conway v. Beazley (1831), 3 Hagg. Eccl. 639; by Black- 
burne, Lord Chancellor of Irel&nd, in MagheC v. McAllister (1863), 
3 Ir. Ch. 604 ; and by Cran worth and Kingsdown, in Dolphin v. Bohins 
(1869), 7 TH. L. 390; LoUey's Case was treated as not concluding the point 
where the divorce is granted in the domicile, though the decisions in the 
first and third cases were against the validity of the divorce, which had not 
been granted in the domicile. In Wilson's Trusts (1866), L. R. 1 Eq 247, 
Kindersley revived Brougham’s extension of the resolution in LoUey's Case, 
and relied on it as against the foreign dissolution of a marriage which 
had been contracted in England before the Matrimonial Causes Act came 
into operation ; but when his judgment was affirmed on other grounds, 
suh nom. Shaw v. Gould (1868), L. R. 3 E. & I. A. 66, Cranworth, 
Chelmsford, Westbury and Colonsay renewed the refusal to adopt the 
resolution even in its projicr interpretation, and Lord Westbury (p. 84) 
strongly urged the inconvenience of referring to the lex loci contractus of 
a marriage on the subject of divorce. In Shaw v. Att.-Gen (1870), Lord 
Penzance said that Lolley's Case had never been overruled, and referred 
to the grounds of divorce admitted in this country, as being possibly 
important with regard to the recognition in England of a divorce, granted 
in the actual domicile of the parties, from “ an English marriage between 
English subjects,” by which he probably meant a marriage in which both 
the locus contractus and the matrimonial domicile are English : L. R. 
2 P. & M. 161. 

Now however the resolution in Lolley's Case, and all reference to the 
causes for which a marriage is dissoluble in England when the question is 
about the validity to be allowed in this country to a foreign divorce, have 
been set aside, it may be supposed finally, by Harvey v. Farnie (1880), 
6 P. D. 153, Hannen ; affirmed (1880), 6 P. D. 35, James, Cotton and Lush ; 
affirmed again (1882), 8 Ap. Ca. 43, Selborne, Blackburn and Watson.* See 
also Briggs v. Briggs (1880), 5 P. D. 163, Hannen. + In some of the judg- 
ments in these cases a desire was shown to save the credit of the famous 
resolution by interpreting the expression in it, ” an English marriage,” as 
referring to the matrimonial domicile and not to the place of celebration, 
and importing into it the further condition that the English domicil^ con- 
tinues at the date of the foreign divorce. But, not to mention that the 
authorities nearest to the date probably knew best what was intended, and 
that a reference to the matrimonial domicile is not at all in the vein of 
that day, it may be remarked that such an interpretation would only shift 
the difficulty without getting rid of it. The judgments in Harvey v. Farnie 
and Briggs v. Briggs plainly show that the real intention in these latest 

* S. P., Bater v. Bater, [1906] P. 209. But the cause for divorce, as possibly 
connected with the contract of marriage, crqaped up again, though harmlessly, in 
Re Stirling; Stirling v. Stirling, [1908] 2 Ch. 344, Swinfen Eady. 

f It has been held in the Australian courts that, where there has been 
desertion, and by the law of the domicile of the parties at the time of the 
desertion the court could have granted a judicial separation, but the husband 
subsequently acquired a domicile in a couiitry where the court could grant a 
divorce, the court in that country should grant the decree of dissolution fsee 
Cfenter ■jL Cremer, [1906] V. L. K. 632). The redress granted is not that 
givm in the foreign country but the particular redress attached to the particular 
offeSe by the lex fori. 


W.I.L. 


7 



98 


PRIVATE INTERNATIONAL LAW. 


cases was to support the divorce pronounced in the actual domicile for what- 
ever cause, irrespective as well of the matrimonial domicile as of the place 
where the marriage was celebrated. Lord Justice James appears to have 
questioned whether the resolution in Lolley's Case is correctly reported, 
thinking it rather in the style of Lord Cokers time than in that of 1812 : 
6 P. D. 43, 44. But the difference from Lord Coke’s time is probably less due 
to the judges, who have always given their reasons, than to the reporters, 
who then put the substance of the reasons sententiously, and now report 
the speech from the Bench as they would a speech from a platform. Lolley^s 
Case is no doubt one of the last reported in the old sententious style, but 
tliat is not a cause for doubting that, as we have it, the so-called resolution in 
it correctly singles out the jxiints on which the judges laid the stress of their 
decision. It only remains to observe that in the judgments in Ha/rvey v. 
Farnie will be found proof that Lord Brougham’s dicta in McCarthy v. 
Vecaix were not called for by the matter before him. This is a converse error 
to that imputed to the reporter in Lolley*s Oa«e, who at least did not travel 
outside the facts, but is accused of having indicated too precisely on which of 
the facts the judges relied. 

The lex loci contractus of a marriage was also more or less vaguely referred 
to, with reference to the validity of a divorce from it, in the following cases 
from which no rule can be extracted. Tovey v. Lindsay (1813), 1 Dow 117, 
Eldon and Redesdale ; Byan v. Byan (1816), 2 Phil. Eccl. 332, Nicholl ; 
Connelly v. Connelly (1861), 7 Mo. P. C. 438, Lushington, in which case the 
validity of a separation a mensa et toro was in question ; Argent v. Argent 
(1865), 11 Jur. (N. S.) 864, Wilde; Rirt v. Boutinez (1868), L. R. 1 P. & M. 
487, Penzance. 

The extent to which the rules of private international law 
adopted in England fall short of receiving universal assent is 
perhaps more remarkable in the matter of divorce than in any 
other part of our subje(d. To illustrate it, I will give the 
substance of the Hague convention of 12th June, 1902, on 
divorce, concluded between the twelve states mentioned on 
p. 37.* Neither divorce nor judicial separation (separation de 
corps) is to be granted unless it is allowed both by the lex fori 
and by the national law of the parties, and that, both generally 
(Art. 1) and in the particular case (Art. 2). Nevertheless, the 
national law alone shall be observed if the lex fori directs or 
permits that course (Art. 3). The^ national law of the parties 
cannot give the character of a cause of divorce or of judicial 
separation to a fact which took place when the parties or one of 
them had another nationality (Art. 4). An action for divorce or 
judicial separation can be brought (1®) in the jurisdiction com- 
petent by the national law of the parties; (2®) in the competent 
jurisdiction of their domicile. If by their national law the domi- 
cile of the parties is not the same, the competent jurisdiction is 

that of the defendant’s domicile. If the domicile has been 

% 


♦ Now denounced by France and Belgium. See above, p. 33, 



MARRIAGE. 


99 


abandoned or changed after the happening of the cause of divorce 
or judicial separation, the action may also be brought in the 
competent jurisdiction of the last common domicile. However, 
the national jurisdiction of the parties is reserved, so far as it is 
exclusively competent for actions for divorce or judicial separa- 
tion. The foreign jurisdiction remains competent for a marriage 
which cannot be the subject of an action for divorce or judicial 
separation in the competent national jurisdiction (Art. 5). 
Where a husband and wife are not authorized to bring an action 
for divorce or judicial sej)aration in the country where they are 
domiciled, either of them may nevertheless apply to the com- 
petent jurisdiction of that country for the provisional measures 
which its laws furnish in view of the cessation of the common 
life. Those measures shall be maintained if they are confirmed 
within a year by the national jurisdiction of the parties; they 
shall not last longer than the law of the domicile permits 
(Art. 6). Divorce and judicial separation, pronounced by a 
court competent according to Art. 5, shall be recognized every- 
where, on condition that the clauses of the present convention 
have been observed, and that, if the judgment has been given in 
default of appearance, the defendant has been cited in accordance 
with the special dispositions required by his national law for the 
recognition of foreign judgments. Divorce and judicial separa- 
tion pronounced by an administrative jurisdiction shall equally 
be recognized everywhere, if the law of each of the parties 
recognizes such divorce or separation (Art. 7). If the parties 
have not the same nationality, the law last common to them shall 
be considered as their national law for the application of the 
preceding articles (Art. 8).* 

Legitimacy, 

The subject of legitimacy is one with regard to which it is 
impossible fully to carry out the maxim of determining questions 
of status by the personal law of the party concerned, for whether 
the criterion be domicile or political nationality, the personal 
law of a' newly born child will generally be that of its father if it 
be legitimate, but if it be illegitimate will be derived from its 
mother or from the place of its birth. Hence in numberless 
cases a decision on the personal law pan only be reached through 
a previcyis decision on the legitimacy. But every question of 

0 , 

♦Bevae de B. I. et de Ii. C., «4rie, t, 4, p. 492. 


100 


PRIVATE INTERNATIONAL LAW. 


legitimacy must involve that of the validity of some marriage, 
and if the party concerned was born before the marriage it must 
involve the further question of the a 2 )plicability to his case of a 
rule concerning subsequent legitimation existing in some 
national law. Also the validity of a marriage may depend on 
that of the divorce of one of the j)arties to it from a previous 
marriage, and thus the subject of legitimacy can be treated as a 
corollary to those of marriage and divorce, with an appendix 
relating to legitimation per suhsequens matrimoniutn. 

Different cases may occur on the remarriage of a divorced 
person during the life of his or her former consort. When it ivS 
the man who has been divorced and remarries, and at the date 
of his remarriage his jiersonal law is that of a country in which, 
as well as in the locus actus of the remarriage, the whole series 
of transactions is held to be valid, it would seem to be an excess 
of refinement to make any objection on the ground that at the 
date of the divorce his personal law was that of a country in 
which the jurisdiction that granted the divorce would not be 
deemed internationally competent. He has changed his domicile 
or his political nationality between the dates of the divorce and 
the remarriage; he was competent to make such change, whether 
the divorce was valid or not; and it would be unreasonable to 
make the legitimacy of In’s children de])end on his personal law 
at any date prior to that of the marriage from which they spring. 
But when the woman has been divorced and remarries, her power 
to change her domicile or ])olitical nationality in the interval 
dej)ends on the validity of the divorce. Therefore if her personal 
law at the date of the divorce was that of a country which would 
not recognize it, she never acquired a capacity to remarry in 
accordance with her personal law; and pursuant to the doctrine 
that the capacity of each party to a marriage according to his 
personal law is requisite, which in § 21 has been expressed with 
regard to age and the j^rohibited degrees, it must be unavailing to 
allege that the divorce and the remarriage would be deemed valid 
in the locus actus of the latter and by the personal law of the 
second husband. Since the main scope of this work is to present 
the English authorities, it is not necessary here to discuss a case 
which does not appear to have arisen before our courts, namely 
that in which a sentence of judicial separation, pronounced in her 
undoubted country, may authorize a woman to transfer her 
domicile independently of her husband, and thereby to Acquire a 
capacity for remarriage without any divorce which otherwise 



MARRIAGE. 


101 


than by reason of such transfer would be held valid in her former 
country. The next § shows that on the point which has occurred 
the English authorities take the view just now expressed. 

§ 53. Where the capacity of a woman to remarry depends on 
the validity of a divorce the jurisdiction for which is not deemed 
in England to have been internationally competent, the children 
of the remarriage will be deemed illegitimate in England, not- 
withstanding that the remarriage is deemed to be valid in its 
locus actus and by the personal law of the new husband. 

lie Wilnon (1865), L. R. 1 Eq. 247, Kindersley ; confirmed, suh nom. 
Shaic V. Gould (1868), L. R. 3 E. & I. A. 55, Cranworth, Chelmsford, 
Westbury, Colonsay. 

§ 54. With regard to the legitimation of a child by the subse- 
quent marriage of its parents, neither the place of its birth nor 
that where the marriage is contracted is important. But such 
legitimation cannot take place unless permitted by the personal 
law of the father at the date of the marriage. 

Since the legitimated child must acquire the personal law of its 
father, its legitimation in despite of the personal law of the 
father at the time of the legitimation would be a contradiction. 

DnJhousie v. McDouall (1840), 7 Cl. & F. 817 ; Mvnro v. Munro (1840), 
7 Cl. & F. 842 ; both decided together by Cottenham and Brougham. In 
these cases the father’s domicile was held not to have been changed between 
the date of the birth and that of the marriage, but in stating the point 
before the house Brougham made no mention of the domicile of the father 
at the former date, but only at the latter : p. 882. Then he quoted the 
opinion of certain of the Scotch judges appealed from, that “ the condition 
of children previously born . . . must be determined by the law of the 
country where the parents were domiciled at the birth and the marriage. 
If the domicile was not the same for both parents at these two periods, we 
should hold that that of the father at the time of the marriage should give 
the rule. But as they were the same in this case, the question does not 
arise.” And with reference to the opinion thus quoted he added imme- 
diately, ” thus agreeing clearly upon the point of law with the majority of 
the learned judges, though they differed in point of fact;” p. 884. 
Finally, he described himself- as ” agreeing with almost the whole of 
them,” the Scotch judges, “upon the question of law:” p. 893. Lord 
Brougham therefore would have supported a wider statement than has 
been ventured on in the §, namely one^ that legitimation by subsequent 
marriage depends only on the law of the father’s domicile at the date of 
the marriage ; but Lord Cottenham contented himself with ” the proposition^ 
that the child of a Scotchman, though born in England, becomes legitimate 
for all civil purposes in Scotland by the subsequent marriage of the parents 
in England, if the domicile of the father w»s and continued throughout to be 
Scotch;” p. 876. The subsequent marriage of Jewish parents in England 
does n^t make their children already bom abroad legitimate, the Jewish 
l^w on legitimation not being recognised as a personal law. Levy v. 



102 


PRIVATE INTERNATIONAL LAW. 


Solomon (1877), 26 W. R. 342. See too The Lauderdale Peerage, 
10 A. C. 692, at p. 739, Selborne. 

§ 55. Neither however can the legitimation of a child by the 
subsequent marriage of its parents take place unless it is also 
permitted by the personal law of the father at the date of the 
birth. 

This was decided by Vicechancellor Wood, in Re Wright (1856), 
2 K. & J. 696, not noticing the contrary opinion of Lord Brougham shown 
under the last § and erroneously quoting Lord Cottenham as saying in 
Munro v. Munro that “ the question in such cases must be, can the 
legitimization of the children be effected in the country in which the father 
is domiciled at their birth?” p. 614. The doctrine however was repeated 
by the same judge, as Lord Hatherley, in Udny v. Udny (1869), L. R. 
1 S. & D. A. 447, and followed in Goodman v. Goodman (1862), 3 Giff. 643, 
Stuart; and it has since been again asserted in Be Grove^ Vaucher v. 
Solicitor to Treasury, 40 Ch. D. 216, Cotton, Fry and Lopes (1888), 
affirming Stirling (1887). 

Suvigny’s opinion is the same as that of the Scotch judges in 
Munro V. Munro and of Lord Brougham. He says: “legitima- 
tion by subsequent marriage is regulated according to the father’s 
domicile at the time of the marriage, and in this respect the time 
of the birth of the child is immaterial. It has indeed been 
asserted that this latter point of time must be regarded, because 
by his birth the child has already established a certain legal 
relation, which only obtains fuller effect by the subsequent 
marriage of the parents; and it is added that the father could 
arbitrarily elect before the marriage a domicile disadvantageous 
to the child. But we cannot speak at all of a right of such 
children or of a violation of it, since it depends on the free will 
of the father not only whether he marries the mother at all, but 
even, if he contracts such a marriage, whether he will recognize 
the child. In both these cases the child obtains no right of 
legitimacy, for a true proof of filiation out of wedlock is impos- 
sible, and accordingly voluntary recognition, along with 
marriage and independently of it, can alone confer on the child 
the rights of legitimacy.”* 

The following cases bear on the subject of legitimacy, but it is not possible 
to extract a rule from them. Strathmore Peerage (1821), 6 Paton 645. 
•Eldon and Redesdale ; Munro v. Saunders, or Bose v. Boss (1830), 6 Bligh 
N. R. 468, 4 Wils & Sh. 289, Eldon, Lyndhurst, Wynford. In Bligh’s 
report of Bose v. Boss the date is incorrectly given as 1832, and the 
respondent is incorrectly named Bose in the title. 

— 1 


♦Syst. § 880, Guthrie 260. 


MARRIAGE. 


103 


§ 66. A cliild whose legitimacy has been acquired through the 
subsequent marriage of its father, domiciled abroad, ranks as a 
child under the British legacy and succession duty acts. 

Skottowe V. Young (1871), L. R. 11 Eq. 474, Stuart. 

See the same principle applied to the statute of distributions and to the 
construction of wills of personalty in § 126, which might equally well 
have been placed here, but it was desirable to notice the point both here 
and in connection with personal successions. 

§ 57. But if a child born in a country politically foreign be 
legitimated by the subsequent marriage of its parents, it will not 
thereby be naturalized under st. 4 Geo. 2, c. 21, although its 
father was a natural-born British subject; because the benefit of 
that act is expressly limited to children whose fathers were 
natural-born subjects at the time of their birth, and at the time 
of its birth the child was not only an alien but films nullivSy and 
in legal understanding had no natural-born subject for its father. 

Shedden v. Patrick (1864), 1 Macq. 636, Cran worth, Brougham, St. 
Leonards. 

§ 58. Where there has been no marriage at all between the 
parents, a foreign law entitling illegitimate children to succeed, 
as such, leaves them strangers in blood within the English 
Succession Duty Act. 

Atkinson v. Anderson (1882), 21 Ch. D. 100, Hall. 

There is a curious case of Be VlleCy the Nawah Nazim of BengaVs 
infants (1886), 63 L. T. (N. S.) 711, Chitty ; 64 L. T. (N. S.) 286, 
Baggallay, Bowen and Fry. The Nawab Nazim, a Mahometan British 
subject, domiciled in British India, and who had at least one wife living 
in that country, went in England through a ceremony of marriage 
according to Mahometan rites with a Christian Englishwoman who did 
not know that he had any other wife. The issue of that union were 
treated by the British Government of India as being children of the 
Nawab Nazim, and it seems that this could not have been otherwise, 
whatever opinion was entertained about the effect of the marriage 
ceremony, because the father had recognised them and, as Mr. Justice 
Chitty said, that the Mahommedan law allows recognition to establish 
legitimacy is clear from the authorities referred to by Mr. Macnaghten 
in his argument. The status of the children in England was discussed, 
but it was not necessary to determine it. Had it been so, Mr. (later Lord) 
Macnaghten’s argument in favour of thei^ legitimacy, which was in effect 
that the personal law of the father ought to be as efficacious in the case 
of legitimation by acknowledgment as in that of legitimation by subsequent ^ 
marriage, appears to be conclusive, and Mr. Justice Chitty evidently leant 
to that opinion. If in similar circumstances it should become important 
to determine the effect of the ceremony as^^nstituting a valid Mahometan 
marriage, the first question would be whether the woman intended such 
a marrfage, and if she did it might be argued, in accordance with the 
prftciple^of § 26, p. 63 and haying regard to the man’s Indian domicile, 



104 


PRIVATE INTERNATIONAL LAW. 


that he might marry with the forms of his own law where the Jejr loci 
actus supplied no applicable form. See § 34a, p. 69. But a marriage 
of a Moslem Indian celebrated before a registrar in England will be assumed 
to be a Christian marriage. See Ejc parte Mir Amvareddin (u.s.). 

It must be observed, with regard to the doctrines on legitima- 
tion quoted in this section even from English authorities, that 
they do not determine the right of succeeding to real property in 
England. We shall see ii» thu oljre that the right of inheriting 
English land is held to be limited by the condition of having 
been born in wedlock, in addition to that of being legitimate. 

§ 58<7. The question whether a child is a bastard depends 
entirely on the law of the domicile of the parents at the time 
of the birth : and the fact that the child is born abroad is 
immaterial as regards status — /?. v. Hmnqyhreys^ [1914] 3 K. B. 
123, Bankes and Lush, JJ., Avory, J., dissenting. So too the 
liability of a father to maintain his son is determined solely by 
the law of the father^s domicile — Cohlnngham Parish Council v. 
Smith, [1918] L. J. Newsp., p. 181, Sutton, J. 



( 105 ) 


CHAPTEE V. 

SUCCESSION TO MOVABLES ON DEATH. 

After status, capacity, and family relations, I pass to the 
remaining* cases in which property is considered in special con- 
nection with a person, in order to exhaust the applications of the 
personal law while on the subject of it; and of such applications 
the most important, after those connected with marriage, are 
those connected with death. These must for English practice be 
limited to movables, because for that branch of our subject 
English land is in no case subjected to the personal law but 
always to the lex situs. 

In England, and in those countries and colonies of which the 
law is derived from that of England, the personal or movable 
property of a deceased person can only be possessed under a 
grant from public authority, usually judicial. Such grant is, in 
England, in one of three forms : 

(1) Probate of a will, granted to the persons, one or more, 
appointed in such will as executors; 

(2) Administration with the will annexed, where no executor 
is appointed by the will ; 

(3) Administration, where the deceased left no will. 

The executors or administrators have to realize the personal 
property of the de(‘eased, pay his debts, and distribute the surplus 
among those who may be entitled under the will, or by law in 
case of intestacy. These duties are classed together under the 
name of administration, which term has therefore two meanings : 
it is used in opposition to probate, to express a certain description 
of public grant, and it is used to express that course of dealing 
with the property granted which is expected from the grantee, 
whatever was the kind of grant. 

In cases where the deceased person died after the Land * 
Transfer Act, 1897, 60 & 61 Viet. c. 65, came into operation, on 
Ist January, 1898, the real or immovable property also vests in 
the executor or administrator in the same way as personal 
pAperty. 



106 


PRIVATE INTERNATIONAL LAW. 


In those countries of which the law has been derived from 
that of Rome more directly than has been the case with the 
English law on the subject, the movable property of a deceased 
person, like his immovable property, descends on the heirs 
appointed by his will or entitled by law as the case may be, and 
in some cases on his universal legatees, subject of course to the 
acceptance of such heirs or legatees. And these are liable 
personally for the debts of the deceased, though, if they have 
accepted the succession with benefit of inventory, only to the 
amount of the property received by them, to which amount they 
are also liable for the particular legacies bequeathed by the will ; 
but the beneficial interest is theirs, subject to the satiwsfaction of 
the debts and particular legacies. The appointment of 
executors by a testator is exceptional, and the power of making it 
is usually limited, as for instance by Art. 1026 of the Code 
Napoleon, which permits seisin of movable property alone to be 
given to the executors, and of this for not more than a year and 
a day. 

In the former or English system, only the beneficial interest 
in the surplus of personal property (and since 1898 in the real 
property also), remaining after payment of debts, is transmitted 
on death, whether in the case of testacy or of intestacy. The 
personal property itself passes by the public grant, made after 
the death and implying no beneficial interest, though in the 
absence of an executor appointed by will it is usually made to 
some one beneficially interested. In the latter or continental 
system, the movable property is itself transmitted on death, 
whether in the case of testacy or of intestacy, and such trans- 
mission implies a beneficial interest, which is limited only by the 
debts and legacies to be satisfied out of it. This system, as will 
be perceived, is very similar to that which through successive 
legislative changes came to exist in England for real property 
before the Land Transfer Act, 1897. The common origin of 
both systems is the ancient principle of Roman law, by which 
the heir continued, and in that sense represented, the person of 
the deceased, both as to his rights and as to his obligations. The 
principle has been modified in England, for pergonal property, 
first by making a public grant necessary in all cases for the repre- 
sentation of a deceased person, and secondly by separating the 
beneficial interest in the representation from the representation 
itself ; and the executor or administrator, called in Engla^id the 
personal representative, has thus come to be something vjfcy 



SUCCESSION TO MOVABLES ON DEATH. 


107 


different from the complete continuator of the deceased’s person. 
In the continental system the principle has been modified only 
by the benefit of inventory, introduced by Justinian. 

In working out the problems which arise for private inter- 
national law out of these systems, the continental rule governs 
movable succession, whether testate or intestate, by the personal 
law of the deceased, this being extended by the Italian code, in 
accordance with the opinion of Savigny,* even to the immovable 
property of the deceased situate in other countries than his own. 

The principle which lies at the base of the English authorities 
with regard to succession in personal property is in substance an 
adaptation of the same rule to the English system, and may be 
stated thus : 

§ 59. The law of a deceased person’s last domicile governs the 
beneficial interest in the surplus of his personal property, after 
payment of his debts, funeral expenses, and expenses of adminis- 
tration, that is of getting in and distributing such property; and 
this, whether in the case of testacy or in that of intestacy. The 
law here meant is the whole law of the last domicile, and not 
merely its so-called internal law. See the discussion of renvoi 
in Chapter II., and especially Re Trufort and Re Johnson, 
quoted on pp. 36, 37. In the latter case Farwell, J., explaining 
what the law of Baden must have intended by its reference to the 
British nationality of the de cujus, said that distribution 
according to the law of the nationality means according to 
English law, but according to that law as applicable to the par- 
ticular propositus, and not to Englishmen generally without 
regard to their domicile of origin:” [1903] 1 Ch. 835. The 
words of origin ” must be read only in connection with the 
particular case. If Miss Johnson had left Malta for another 
British domicile before she went to Baden, it is that British 
domicile of choice which would have governed. 

And since no law can be so well expounded or applied as by the 
courts of the country where it is in force, the following corollary 
from the last § is well established : 

§ 60. Where the court of a deceased person’s last domicile has 
had an opportunity of declaring who are entitled to the bene- 
ficial interest in his personal property, subject to payment of his 
debts, funeral expenses, and expenses of administration, its 
authority is regarded in England as final, whether the question 


♦Syst. § 376, Guthrie 227. 



108 


PRIVATE INTERNATIONAL LAW. 


ariHe.s on a claim to a grant of administration, on a cdaim to be 
heard as contradictor to a will })ropounded for probate, in the 
distribution of the English assets after payment of debts and the 
oUier expenses above mentioned, or in any other way. This 
consequence would not follow from the first sentence of § 59 
on the theory of those who oppose the renvoi and the doctrine of 
(’hapter If., for a(*cording to them the English court would have 
to follow the internal law of the last domicile, whereas a court of 
that country would apply its whole law. That the present § is 
well established in English practice is therefore another argu- 
ment to disprove the alleged reception in England of the view 
that our rules of private international law refer only to the 
so-called internal laws of other countries. 

('rispin v. Poglioni (1863), 3 S. & T. 96, Cresswell ; (1866), L. R. 
1 E. & I. A. 301, Chelmsford and Cranworth ; Be Trufort^ above, p. 39, 
and the citation from Farwell, J., in Be Johnson^ under § 69. 

§ 61. Where the law of the deceased’s last domicile refers his 
movable succession to the law of his nationality, the doctrine of 

60 applies to the court of the country to which he belonged 
by nationality. 

This is the very point of Be Trufort, Trafford v. Blanc (1887), 
36 Ch. D. 600, Stirling. The question of domicile in Turkey and other 
countries with which we have not the full communion of private inter- 
national law will be considered in the chapter on Domicile. 

§ 62. I3y the law of the deceased’s last domiciie, in the pre- 
ceding must be understood that law as it existed at the date 
of his death. A retrosj>ective law, ])assed since the death, will 
Ik' disregarded by the English <‘ourt in all questions concerning 
the succession. 

Lynch v. Frovisional Government of Paraguay (1871), L. R. 2 P. & M. 
268, Penzance; Be Aganoor's Trusts^ [1895] 64 L. J. (N. S.) Ch. 621, 
Homer. 

The more detailed international questions which arise in 
England on the matter of personal succession may conveniently 
be taken in the order of the proceedings in a particular case. 
First will come the rules as to the person to whom a grant of 
j)robate or administration is made, and those as to what wills 
are provable : both these operate at the same time in determin- 
ing the grant, but the former are of more general application, 
because they comprise the case of intestacy as well asithat of 
testacy. Next will come the rules as to what property passel^by 



SUCCESSION TO MOVABLES ON DEATH. 


109 


the grant of probate or administration, and, last, those which 
decide the questions that can arise in the administration of such 
property, taking the word administration in the second of the 
two senses contrasted on p. 105. 


The Grant of Probate or Administration, 

§ 63. Whatever the domicile or j)olitical nationality of the 
deceased, his personal property situate in England cannot bo law- 
fully possessed, or if recoverable in England cannot be sued for, 
without an English grant of probate or administration, unless 
the j)roperty be money due under an insurai)(*e policy upon his 
own life. 

Taurton v. Flower (1736), 3 P. W. 369, Talbot. New York Breweries 
Co.y Lim. V. Att,-(fCn.^ [1899] A. C. 62, Halsbury, Watson, Shand and 
Davey, affirming Smith, Rigby and Collins, who had reversed Wills and 
Grantham ; a case of shares and debentures in an English company. Price 
V. Dewhurst (1838), 4 M. & C. 76, Cottenham ; illustrating what is a 
necessary consequence of the §, that in the judicial administration of the 
personal estate of a deceased person, that is to say when the duty of the 
executors or administrators to administer is being carried out under the 
direction of a court — see the second sense of administration, p. 106 — the 
court can take no notice of any will which has not been ]) roved in P'ngland. 
Er parte Fernandes' Exccutois (1870), L. H. 6 Ch. Ap. 314, Giffard, 
reversing Romilly. The exception is based on a statutory provision 
(section 19 of the Revenue Act, 1889), which provides that in the case of 
a policy upon his own life taken out by a person dying domiciled out oi 
the United Kingdom, the production of a grant from a court in the 
United Kingdom shall not be necessary to “ establish the right to receive 
the amount assured.” Haas v. Atlas Insurance Go., [1913] 2 K. B. 209, 
Scrutton. 

In Huthwaite v. Phayre (1840), 1 M. & Gr. 159, Tindal, Bosanquet, 
Coltman and Erskine allowed an administrator under an Irish grant to 
sue on a deed which was assumed to have been hona notahilia in Ireland 
at the date of the death. But this was certainly an error : see Whyte v. 
liosCy under the next §. In Vanquelin v. Bouard (1863), 16 C. B. (N. S.) 
341 ; second count and 16th plea f it was held by Erie, Williams, and 
Keating that a universal successor, entitled under the law of a deceased 
person’s domicile to sue in his own right for debts comprised in the 
succession, could sue for them in England in his own name, without an 
English grant. At the same time they were anxious to save the rule laid 
down in this §, only they seemed to tliink that their own holding applied 
to a peculiar case, instead of the case before them being the general one 
under continental law. 

If however the question does not relate to the personal estate of a 
deceased person as such, but to property which the persons acting under 
his will admit to be held by them in t^ust pursuant to it, qucere whether 
the English court may not look at a foreign probate as it might look at 
tmy ot]^er document presented to it as containing the terms of the trust. 
Me TootaVs Trusts (1883), 23 Ch. D. 632 (pp. 641, 2), Chitty, may perhaps 



110 


PRIVATE INTERNATIONAL LAW. 


be sustained on this ground, independent of the ground noticed in Be 
Vallance (1883), 24 Gh. D. 177, Pearson. 

§ 64. And no grant from any foreign jurisdiction is necessary, 
to enable a suit for any personal property of the deceased to be 
maintained in England. 

Whyte V. Bose (1842), 3 Q. B. 496, Tindal, Abinger, Coltman, Maule, 
Parke, Alderson, Rolfe ; reversing the same case, (1840), ib. 493, Denman, 
Littledale, Patteson, Coleridge. 

§ 65. The leading maxim for determining the person to whom 
the English grant should be made cannot be better expressed than 
by the following quotation. I have before acted on the general 
principle that where the court of the country of the domicile of 
the deceased makes a grant to a party, who then comes to this 
court and satisfies it that by the proper authority of his own 
country he has been authorized to, administer the estate of the 
deceased, I ought without further consideration to grant power to 
that person to administer the English assets.’’ Lord Penzance in 
Re Hill (1870), L. R., 2 P. & M. 90. Only, this court cannot 
follow the foreign law so far as to grant administration to any 
one who is personally disqualified from taking the grant. For 
instance, however much the foreign courts may think that a 
minor should have the grant, this court cannot go so far as to 
give it to such a person.” Jeune, P., in Re Meatyardy [1903] 
P., at pp. 129, 130. In that case administration with the will 
annexed was granted to receivers appointed by the court of the 
domicile, passing over executors appointed by the will. Cf. Re 
ITOrUans^ u.s., p. 41. 

Lord Penzance is reported to have expressed the same maxim on another 
occasion as follows: “It is a general rule on which I have already acted 
that where a person dies domiciled in a foreign country, and the court of 
that country invests anybody, no matter whom, with the right to administer 
the estate, this court ought to follow the grant simply, because it is the 
grant of a foreign court, without investigating the grounds on which it 
was made, and without reference to the principles on which grants are 
made in this country.’^ Be Smith (1868), 16 W. R. 1130, Wilde. But this 
mode of expressing the maxim is scarcely so accurate, for it will be seen 
that so long as power to administer is granted to the same person who has 
received it from the court of the domicile, it is not always necessary that 
he should receive it in the same form : below, § 69. In support of the 
present §, see also Be Bogerson (1840), 2 Cur. 6^, Jenner. 

The grant, whether or not in pursuance of a foreign grant, ought to be 
in such form as will enable the grantee to fulfil the duties imposed on him 
by the law of the domicile; Be Brieeemanny [1894] P. 260, Jeune. See 
Be von Linden, [1896] P. 148, Jeune; Be Mary Moffatt, [1900] 1^, 

Jeune; Be Fonnini, [1901] P. 330, Jeune. 



SUCCESSION TO MOVABLES ON DEATH. 


Ill 


A converse rule to that of § 65, requiring that, where the deceased was 
domiciled in England, power to administer should be granted in the 
colonies to the person who had received such power in England, was laid 
down by the Privy Council as early as 1762, in Burn v. Co/e, Ambl. 416, 
Mansfield. In Browne v. Phillips (1737), there cited, the Privy Council 
considered that the rule did not extend to the case where administration 
in the domicile had been granted to a creditor ; and it may not be quite 
certain that Lord Mansfield disapproved this limitation, though his own 
words in Burn v. Cole do not repeat it. He cited however with 

disapproval the reason given for the rule in Williams v. (1747), 

P. C., Lee, “ that the plantations, being within the diocese of London, 
are subordinate to the prerogative of Canterbury “the better and more 
substantial reason for such a determination, “ he said, “is the residency.” 

Where a foreign court had assigned certain property of the testator to 
one of his heirs, administration was granted to that heir, limited to the 
property so assigned: Re Dost Aly Khan (1880), 6 P. D. 6, Hannen. 

Administration with will annexed granted to attorneys for the use and 
benefit of one who by the executor in the domicile had been lawfully 
substituted as such for himself : Be Black (1887), 13 P. D. 6, Butt. 

§ 65a. If no order has been made by the court of the foreign 
domicile appointing executors, the English court will, in a 
proper case, grant probate to executors appointed by an English 
will. The rule that the English court will not grant probate so 
as to conflict with any appointment made by the court of the 
deceased’s foreign domicile only a])plie8 if the actual order is 
made by the foreign court, and not when proceedings only have 
been commenced — lie Cocquerel, [1918] P. 4, Evans. 

§ 66. The rule of § 65 applies in favour of one who has 
received in the domicile a grant de bonis non, as well as to one 
who has received an original grant. 

Be Hill (1870), L. R. 2 P. & M. 89, Penzance. 

§ 67. And it has been applied in favour of one who in the 
domicile had been appointed judicial administrator, pending a 
suit to determine which of two wills was valid. 

Viesca v. d*Aramhuru (1839), 2 Cur. 277, Jenner. 

§ 68. Also in favour of one who in the domicile has been 
appointed provisional executor, during the incapacity of the 
executor named by the will ; and the grant of administration was 
then limited to such time as the authority of the provisional 
executor should continue in the domicile. 

Be Sieigerwald (1864), 19 Jur. (N. S.) 169, Wilde. 

In Be Levy, [1908] P. 108, Gorell Barnes, where a foreign court 
appointed a judicial administrator for a limited time, the English court 
made a^general grant to him. But it is doubtful if this decision would 
be^oUowed. (See L. Q. R., [1913] p. 40). 



112 


PRIVATE INTERNATIONAL LAW. 


§ 69. Where in the testator’s domicile probate had been 
granted to one as executor according to the tenour, the case being 
such that according to English practice he would only have been 
entitled to administration with the will annexed, the grant to 
the foreign executor will only l3e administration with the will 
annexed. 

lie Head (1828), 1 Eccl. 474, Nicholl ; He Mackenzie (1856), 

Deane 17, Dodson; He CoHnahnn (1866), L. R. 1 P. M. 183, Wilde; 
He Kail (1867), L. R. 1 P. & M. 450, Wilde. 

§ 70. “ From and after the date aforesaid ” [12th November, 
1858] “ it shall be competent to include in the inventory of the 
])ers()nal estate and ert'ects of any person who shall have died 
domiciled in Scotland any personal estate or effects of the 
deceased situated in England or in Ireland, or in both : provided 
that the person a])plying for confirmation shall satisfy the com* 
missary, and that the commissary shall by his interlocutor find, 
that the deceased died domi(‘iled in Scotland, which interlocutor 
shall be conedusive evidence of the fact of domicile: provided 
also that the vjiluc of su<*h persojial estate and effects situated in 
England or Ireland respectively shall be separately stated in 
sindi inventory, and siich inventory shall be impressed with a 
stamp corresponding to the entire value of the estate and effects 
imduded therein, wheresoever situated within the United King- 
dom.” (\)nfirmation and Probate Act, 1858; st. 21 & 22 
Viet. c. 56; s. 9. 

From and after the date aforesaid, when any confirmation of 
the executor of a person who sliall in manner aforesaid be found 
to have died domiciled in Scotland, which includes besides the 
personal estate situated in Scotland also personal estate situated 
in England, shall l)o ])roduced in the principal court of probate 
in England, and a copy thereof deposited wnth the registrar, 
together with a certified copy of the interlocutor of the com- 
missary finding that such deceased person died domiciled in 
Scotland, such confirmation shall be sealed with the seal of the 
said court and returned to the person producing the same, and 
shall thereafter have the like force and effect in England as if 
a probate or letters of administration, as the case may be, had 
been granted by the said court of probate.” Ib. s. 12. 

This legislation provides, in fact, for a new form of English 
grant and proof, and therefore does not impair the necessity of 
an English grant for possession or suit in England, or the necjjs- 



SUCCESSION TO MOVABLES ON DEATH. 


113 


sity of an English proof before a court of administration in 
England can take notice of a will, as laid down under § 63. 

Where confirmation of a Scotch will has been granted in Scotland to 
the executors, the resealing in England will be granted by the English 
probate authorities, although the confirmation is to a person who, 
according to English law, is not competent to be an executor : Be 
Bankings Estate, [1918] P. 134, Court of Appeal, Swinfen Eady, Bankes, 
Eve ; reversing Coleridge. The Scotch will appointed a corporation as 
executors, and it was held that the confirmation of the will must be 
resealed in England without question, although a corporation by English 
law cannot take out probate. 

Sect. 13 of the same act is identical with s. 12, putting Ireland 
for England, and s. 14 makes a corresponding provision for 
giving efficacy in Scotland to probates and letters of adminis- 
tration granted in England or Ireland to the executors or 
administrators of persons who died domiciled in the latter 
countries respectively. 

The English court can however grant probate or letters of administra- 
tion in a case where the Irish grant has not in fact been resealed : 
Irwin V. Caruth, [1916] P. 23, Horridge. # 

§ 70a. Another new form of English grant is given by the 
Colonial Probates Act, 1892, which provides for the sealing in 
the United Kingdom of probates and letters of administration 
granted in British possessions which have made adequate pro- 
vision for reciprocity, or by British courts in foreign countries. 
The latter of course are consular courts, either in countries really 
foreign or in British colonial protectorates. 

Resealing of colonial letters of administration may be allowed in 
England though the intestate leaves no estate in England : Be Sanders, 
[1900] P. 292, Gorell. 

706. The Government of Ireland Act, 1920, has not affected the procedure 
in resealing Irish grants of administration, and the Colonial Probates 
Act, 1892, has no application to Ireland, Be Bohert Gault, [1922] W. N. 
p. 116, Duke, P. 

§ 71. Where the deceased died domiciled abroad, and no one 
has been authorized to administer his personal estate by any 
court of his domicile, either because^ such authorization was 
unnecessary by the law of that country or otherwise, the English 
court makes the grant ; 

First, to the executors, if any, appointed by the will or 
appearing from its tenour. 

And where the will of a testator who died domiciled abroad 
conIStins a general appointment of executors, the English court 

8 


W.I.L. 



114 


PRIVATE INTERNATIONAL LAW. 


ought to grant probate of it to the executors so appointed with- 
out inquiring whether the will operates on any personal 
property in tlngland, just as it would do in the case of the will 
of an English testator. 

Lord Chelmsford, in Enohin v. Wylie (1862), 10 H. L. 1, p. 23. Lord 
Westbury, in the same case, p. 14, referred to the further circumstance 
that the will had been authenticated by the executors in the proper court 
of the domicile ; but the proposition does not seem to need that qualification. 

§ 72. But whore a testator ap|>oints by the same will different 
executors for his f]uglish and foreign property, it may reason- 
ably be assumed that those appointed for the latter will not be 
entitled to any probate in England. 

In Re Whiter y cited under § 78, Sir C. Cresswell said: “I find that 
when a testator has left general executors and a limited executor, the 
practice has been to grant probate to each of them according to the terms 
of his appointment. I do not quite see the principle upon which that 
practice has obtained.” With deference, the practice seems sound, and it 
leads to the conclusion that no probate can be granted to an executor 
specially appointed for property not within the jurisdiction. 

Where a will is only good so far as it is an execution of a power of 

appointment, the grant will be limited to such property as the deceased 
had power to dispose of and did dispose of by will, unless a larger grant 
can be supported by necessary consents: Be Tr^fond, [1899] P. 247, Jeune. 

Where a testator domiciled abroad makes two wills, one dealing 

exclusively with land in England and appointing English executors, and 
the other dealing with foreign property and personalty in England and 
appointing a foreign executor, the court may make a grant to the 
executors of the former will limited to the re^ty in England and a 
ecpteroTurn grant to the foreign executor : Re Von BrentanOy [1911] P. 172, 
Evans. 

§ 7f3. And an executor appointed by the will, but whose 

executorship has expired by the law of the testator^s last domi- 
cile, is not entitled to any grant in England. 

Laneuville v. Anderson (1860), 2 S. & T. 24, Cresswell. Where by the 
law of the testator’s last domicile the executor was only entitled to 
possession for a year, probate was granted limited to the expiration of one 
year from the death : Re Chroos, [1904] P 269, Gorell Barnes. 

§ 74. In the case of foreign wills not expressly appointing 
executors, the English practice, where one is named as heir, is 
to grant him probate as executor according to the tenour, but 
only to grant administration with the will annexed to a 
universal legatee. 

Be Oliphant (1860), 30 L. J. (N. S.) P. & M. 82, Cresswell; Be Groos 
(ub. sup.). And see what is said under § 65 as to the form of th% grant to 
be made. ^ 



SUCCESSION TO MOVABLES ON DEATH. 


115 


§ 75. Reverting to § 71, if there is no will, or no executors 
are appointed by the will or appear from its tenour, the second 
class of persons entitled to the grant, which under these circum- 
stances must be one of administration and not of probate, is 
composed of those who as heirs, aext of kin, or legatees, are 
interested in the beneficial succession, that is to say in the 
surplus after payment of debts and funeral and administration 
expenses. The English practice will be followed in selecting the 
grantees, subject to referring the question of beneficial interest 
to the law of the deceased’s last domicile, understood as in § 59. 

Re Stewart (1838), 1 Cur. 904, Nicholl. And see Re Oliphanty under the 
preceding §. 

§ 76. And one who in the last domicile of the deceased repre- 
sents the persons interested in the beneficial succession, for 
example as guardian of the deceased’s children, is entitled to a 
grant of administration in England. 

Re Bianchi (1862), 3 S. & T. 16, Cresswell. 

§ 77. Thirdly, failing any title to the grant under the pre- 
ceding §§, it will be made to a creditor. 

Re Maraver (1828), 1 Hagg. Eccl. 498, Nicholl. 

§ 78, Whether a testator died domiciled in England or 
abroad, administration will not be granted with a will or codicil 
relating only to foreign property annexed, nor will probate be 
granted of any such will or codicil unless it be incorporated by 
reference in some will otherwise entitled to probate in England, 
in which case not only do the two become virtually one docu- 
ment, but, also, it is necessary for the justification of the 
English executors that the will or codicil referred to should be 
included in the probate, in order that it may be seen that they 
have no concern with the property disposed of by it. 

Re Murray y [1896] P. 65, Gorell Barnes ; where it is said, p. 71, that on 
the other hand “ the foreign will may incorporate the English will, in 
which case the foreign will would not be limited in its operation to property 
abroad, and both would be included in the probate.’’ 

Re Coode (1867), L. R. 1 P. & M. 449, Wilde; overruling Spratt v. 
Harris (3B33), 4 Hagg. Eccl. 405, Nicholl, and Be Winter (1861), 30 L. J. 
(N.^B.) P. & M. 56, Cresswell. Be Harris (1870), L. R. 2 P. & M. 83, 



116 


PRIVATE INTERNATIONAL LAW. 


Penzance; Be Be La Saussaye (1873), L. R. 3 P. & M. 42, Hannen 
Be Howden (1874), 43 L. J. (N. S.) P. & M. 26, Hannen; in all which 
cases the documents disposing of the foreign property were admitted to 
probate on the ground of incorporation, and in the last of them the 
second reason given in the § was assigned by the judge. Where there is 
no incorporation, an affidavit exhibiting an attested copy is filed, and 
is referred to in the probate of the will relating to English property : 
Be Astor (1876), 1 P. D. 160, Hannen; Be Callaway (1890), 15 P. D. 147, 
Butt. See too Be Be La Bue (1890), 15 P. D. 185, Hannen ; Be Seaman, 
[1891] P. 263, Jeune, where an affidavit was required showing that the 
movables mentioned in the Canadian will were in Canada at the time 
of the testator’s death, and that the movables mentioned in the English 
will were in England; Be P. A. Fraser, [1891] P. 285, Jeune; Be 
Tamplin, [1894] P. 39, Gorell Barnes. 

In Be Bolton (1877), 12 P. B. 202, Jeune, the wills dealing respectively 
with the English and Belgian property were both admitted to probate 
although neither was incorporated with the other, the Belgian executor 
having renounced and consented to the grant. 

§ 79. By st. 24 & 25 Viet. c. 121, s. 4, it is enacted that sub- 
ject to reciprocity being secured by a convention with the foreign 
state in question, and to the making of an order in council there- 
upon, whenever any subject of such foreign state shall die 
within the dominions of her majesty, and there shall be no 
person present at the time of such death who shall be rightfully 
entitled to administer to the 'estate of such deceased person, it 
shall be lawful for the consul vice-consul or consular agent of 
such foreign state within that part of her majesty’s dominions 
where such foreign subject shall die to take possession and have 
the custody of the personal property of the deceased, and to 
apply the same in payment of his or her debts and funeral 
expenses, and to retain the surplus for the benefit of the persons 
entitled thereto; but such consul, vice-consul or consular agent 
shall immediately apply for and shall be entitled to obtain from 
the proper court letters of administration of the effects of such 
deceased person, limited in such manner and for such time as to 
such court shall seem fit.” 

§ 79a. During the Great War the Public Trustee was invested with the 
custody of property left by will or on intestacy to alien enemies, and was 
authorised to take out administration for enemy next-of-kin. Be J. Schiff, 
[1915] P. 86, Deane; Be Orundt and Oetl, [1915] P. 126, Evans; In the 
Goods of Woolf, [1920]. McCardie, L.J. 

After the conclusion of peace, the Public Trustee was also held entitled 
to a full grant of administration to the property in England of German 
subjects domiciled in (Germany, without reference to the (German executors 
and beneficiaries, the whole of such property being subject to the charge 
in favour of the Clearing House : Be von dem Busche, [1921] N. 369, 
Duk^, P. ^ 



SUCCESSION TO MOVABLES ON DEATH. 


117 


Validity of Wills of Personal Estate, 

§ 80. As to the testamentary character of a document, and 
its validity as a will or codicil, with respect not only to the forms 
of execution but also to every circumstance on which the validity 
of a will may depend, the English court will follow a judgment 
obtained in the country in which the testator or alleged testator 
had his last domicile, which must be imderstocJd as including 
the country of his nationality in the case of § 61. 

Probate, or administration with document annexed, granted on the 
strength of a judgment in the domicile. Hare v. Nasmyth (1816), 2 Add. 
25, Nicholl ; Be Cosnahan (1866), L. R. 1 P. & M. 183, Wilde ; Miller v. 
James (1872), L. R. 3 P. <& M. 4, Hannen. In the last case unsound 
mind and undue influence were objected, but the court held itself bound 
by the judgment in the domicile in favour of the will, although those 
objections had not been made there. 

Probate, or administration with document annexed, refused or revoked 
on the strength of a judgment in the domicile. Hare v. Nasmyth (1821), 
2 Add. 25, Nicholl, probate revoked; Moore v. Bareli (1832), 4 Hagg. Eccl. 
346, Nicholl ; Laneuville v. Anderson (1860), 2 S. & T. 24, Cresswell 

But the English rule that a will is revoked by marriage, being part of 
matrimonial and not of testamentary law, will be applied when the 
matrimonial domicile was English, irrespective of the last domicile. All 
the judges in Be Martin ^ Loustalan v. Loustalan^ [1900] P. 211, seem 
to have agreed in this — Jeune, Lindley, Rigby, Vaughan Williams. A 
domiciled Englishwoman, who had made her will while domiciled in 
England, married a domiciled Scotchman. By Scotch law marriage 
does not revoke a will. Her will was not revoked: Westerman v. Schwab ^ 
[1905] 43 Scottish Law Reporter, 161. 

§ 81. Yet it is said that where a court of the domicile has pro- 
nounced on a document propounded as testamentary, the 
authority which is allowed to that judgment in accordance with 
the preceding § rests only on its being conclusive evidence of 
the law of the domicile, and that it is therefore not sufficient to 
aver the judgment, but those who propound the document must 
aver its execution according to the law of the domicile. 

Isherwood v. Cheetham (1862), 7 L. T. (N. S.) 250, Cresswell. 

§ 82. On the other hand, where the original document is in 
English, and a translation of it has been established in the court 
of the domicile, if the doctrine of § 80 be relied on, what will be 
obtained will be administration with a retranslation of the trans- 
lation annexed, although the original will be admitted to probate 
on proof of its validity according to the law of the domicile. 

. Be Be Vigny (1866), 4 S. & T. 13, Wilde ; Be Clarke (1867), 36 L. J. 
(NTs.) P. & M. 72, Wilde; Be Buie (1878), 4 P. D. 76, Hannen. It 



118 


PRIVATE INTERNATIONAL LAW. 


seems difficult to reconcile this with § 81, for if the foreign judgment 
operates only as evidence of due execution according to the law of the 
domicile, it is the original the due execution of which is so testified by it, 
and therefore it might be argued that probate of the original, or 
administration with a copy of the original annexed, ought to be granted 
in England, even on the strength of the foreign judgment. 

The original will being in a foreign language, the English court will not 
grant probate of a translation of it : Be Petty, 41 L. T. 629, Hannen. 

§ 83. If the testamentary character of a document, or its 
validity as a will, is being litigated in the testator’s last domi- 
cile, probate in England will be suspended in order to await the 
result of those proceedings. 

Hare v. Nasmyth (1821), 2 Add. 25, Nicholl ; De Bonneval v. He 
Bonneval (1838), 1 Cur. 866, Jenner. 

§ 84. The English court will also follow the court of the 
domicile, on the question whether two papers are to be admitted 
to probate as a will and codicil, or as containing together the 
will of the deceased. 

Larpent v. Sindry (1828), 1 Hagg. Eccl. 382, Nicholl. 

§ 84^. In the case of a testator domiciled in England the 
English court will determine for itself upon evidence of the 
foreign law whether a document is a valid will by the law of the 
place where it was made. 

Lyne v. de la FerU, [1910] 102 L. T. 143, Eve. 

§ 85. When the English court is not aided by any judgment 
in the testator’s last domicile, the old rule was that the testa- 
mentary character and validity of any document propounded 
must be tried by the law of that domicile. But now, by section 3 
of st. 24 & 25 Viet. c. 114, commonly called Lord Kingsdown’s 
Act, no will or other testamentary instrument shall be Ijeld to 
be revoked or to have become invalid, nor shall the construction 
thereof be altered, by reason of any subsequent change of domi- 
cile of the person making the same.” And by section 5, this 
act shall extend only to wills and other testamentary instruments 
made by persons who die after the passing of this Act,” 6th 
August, 1861. Consequently, in the case of future testators, or 
of those who have died since the date just named, the document 
will be held a valid testamentary one if it satisfies either the law 
of the testator’s last domicile, or that of the place whfch jras 
his domicile at the date of the document; and it is necessary 



SUCCESSION TO MOVABLES ON DEATH. 


119 


that it should satisfy one of those two laws, so far as the case 
does not fall within the exceptions stated in §§ 87, 88.* 

For the old rule, see Stanley v. Bernes (1831), 3 Hagg. Eccl. 447, Court 
of Delegates, Parke, afterwards Lord Wensleydale, apparently being their 
president; reversing the same case -(1830), 3 Hagg. Eccl. 373, Nicholl, who 
had admitted to probate codicils not executed according to the law of the 
domicile, on mixed considerations, referring to the testator’s political 
nationality, to the situation of the property bequeathed (money in the 
British funds), and to a supposed difference between the respect to be paid 
to the law of the domicile in cases of testacy and of intestacy. Sir John 
Nicholl had expressed similar views in Curling v. Thornton (1823), 
2 Add. 6. See also de Zichy Ferraris v. Hertford (1843), 3 Cur. 468, 
Jenner Fust ; affirmed (1844), sub nom. Croken v. Hertford, 3 Mo. P. C. 
339, Lushington ; in which the place of execution and the situation of the 
property disposed of were repudiated as grounds of decision on the form 
of a will : and Page v. Donovan (1857), Deane 278, Dodson, where the 
lex loci actus was not even referred to. 

In Be Prince P. G. Oldenburg (1884), 9 P. D. 234, Butt, it was 
determined by the special law of an imperial family what document should 
be admitted to probate as the will of a member of that family. 

S. 3 of Lord Kingsdown’s Act is not confined to the wills of British 
subjects, notwithstanding the mention of such subjects in the title of the 
act : Be Groos, [1904] P. 269, Gorell Barnes. 

§ 86 Either the old or the new rule in § 85 is not limited to 
the forms of execution, but extends to every circumstance on 
which the validity of a will may depend, except, it is presumed, 
the testator’s capacity, which even under the new rule should 
certainly continue to be determined by his personal law at the 
time of his death. Thus, under the new rule, if the testator 
marries after changing his domicile, and his marriage would 
revoke his will by the law of his last domicile, but not by that 
under which he was domiciled at the time when he made his 
will, the will is not revoked. 

Be Beid (1866), L. R. 1 P. & M. 74, Wilde; Be Groos, [1904] P. 269, 
Gorell Barnes; and see Be Martin, and Westerman v. Schwab, quoted 
under § 80. 

§ 86a. And where the testator changes his domicile after 
making a will, and by the law of the new domicile his testa- 
mentary capacity is enlarged, so that he can dispose of all his 
personal property, a disposition q,f all his property with a 
reservation of the legitimate share io which the relations may be 
entitled at the time of death will pass the whole of the 
personalty. Re Groos, No. 2, [1915] 1 Ch. 572, Sargant. 

* This interpretation of section 3 is criticisifed by Baty {Polarized Law, p. 91). 
But it ^ould be unreasonable to hold that a will may be invalidated on a 
q^stion of form owing to a change of dimicile if its substance is not to be 
a^cted by such change. 



120 


PRIVATE INTERNATIONAL LAW. 


The question here was not one of construction of the will, in which case 
the law of the domicile at the time the will was made would have prevailed 
(see below, p. 151), but of capacity to dispose by will, which is determined 
by the personal law at death. 

§ 87. Every will and other testamentary instrument made 
within the United Kingdom by any British subject, whatever 
may be the domicile of such person at the time of making the 
same or at the time of his or her death, shall as regards personal 
estate be held to be well executed, and shall be admitted in 
England and Ireland to probate, and in Scotland to confirma- 
tion, if the same be executed according to the forms required by 
the laws for the time being in force in that part of the United 
Kingdom where the same is made.’' St. 24 & 25 Viet. c. 114, 
8. 2. This enactment, in the cases to which it applies, adds a 
third alternative, that of the locus actus, to those of the 
rule in § 85, with regard to the forms of execution, but not with 
regard to any other circumstance on which the validity of a will 
may depend. For the commencement of its operation see s. 5, 
quoted in § 85. 

§ 88. ‘‘ Every will and other testamentary instrument made 
out of the United Kingdom by a British subject, whatever may 
be the domicile of such person at the time of making the same 
or at the time of his or her death, shall as regards personal estate 
be held to be well executed for the purpose of being admitted 
in England and Ireland to probate, and in Scotland to con- 
firmation, if the same be made according to the forms required 
oither by the law of the place where the same was made, or by 
the law of the place where such person was domiciled when the 
«ame was made, or by the laws then in force in that part of her 
majesty’s dominions where he had his domicile of origin.” 
St. 24 & 25 Viet. c. 114, s. 1. This enactment, in the cases to 
which it applies, adds two alternatives, that of the lea: loci actus 
and that of the law existing in the domicile of origin at the date 
of the will, to those of the new rule in § 85, with regard to the 
forms of execution, but not with regard to any other circum- 
stance on which the validity of a will may depend. 

The enactments in §§ 87 and 88 were applied to the wills of naturalized 
'British subjects in Be Gaily (1876), 1 P. D. 438, Hannen (case of § 87), 
and Be Lacroix (1877),* 2 P. D. 94, Hannen (case of § 88). The former 
case however might have been decided on the new rule in § 85, and the 
latter on the same rule combined with that in § 89. The same enactments 
were not extended to the wills of alieps by the Naturalization Acf, 1870, 
8. 2: Bloxam v. Favre (1883), 8 P. D. 101, Hannen; affirmed (1884), 



SUCCESSION TO MOVABLES ON DEATH. 


121 


9 P. D. 130, Selborne, Coleridge, Cotton. Nor, semhUy by section 17 of the 
British Nationality Act of 1914, because the right is not expressly 
conferred, whilst the section of Lord Kingsdown’s Act expressly refers to 
British subjects. Nor do they apply to the wills of persons who have lost 
the British nationality which they had by birth : Be von Buseck (1881), 
6 P. D. 211, Hannen. For these persons, therefore, the form of will must 
still satisfy the law of the domicile, either at the time of the testator’s 
death, or at the time the will was made. 

§ 89. In interpreting § § 85, 87 and 88, the law of any foreign 
country by which a will may be sustained includes private inter- 
national law as received in that country, so that if a will would 
there be held valid because executed according to the forms of 
any other law, as for example that of the locus actm or of the 
testator^s political nationality, an execution according to those 
forms will be one according to the law of the domicile, though 
not in accordance with the forms of the domicile. 

See the cases quoted above, p. 39. In Collier v. Bivaz, Frere v. Frerey 
Bremer v. Freeman and Be Brown-Sequardy this interpretation was treated 
as applicable to the old rule in § 85, and in Be LacroiXy to § 88. 

§ 90. In all cases where alternatives are given by §§ 85, 87 
or 88, the court will have regard to the law of one country only 
at a time, and will not mix up the legal precepts of two countries. 

Pechell V. Hilderley (1869), L. R. 1 P. & M. 673, Penzance. 

8 91. Where a document was intended to operate in execution 
of a power to appoint by will, conferred on its author by some 
instrument itself operating under English law, it must be 
admitted to probate, or administration must be granted with the 
document annexed, in either of two cases, notwithstanding in 
each case that the author may have had no testamentary capacity 
otherwise than as donee of the power. 

The first case is that where the document complies with the 
forms which would be required for its validity as a will by the 
law, or any of the laws, which under the preceding § § would be 
applicable in the case of an ordinary testator. 

Barnes v. Vincent (1846), 6 Mo. P. C. 201, Bro\igham, Buccleugh, 
Cottenham, Campbell, Knight-Bruce. The concurrence of the privy 
councillors who heard the argument, and of Lyndhurst and Sugden, to 
whom the judgment had been submitted, is stated by Brougham at p. 218. 
No question of private international law arose in this case, but it was 
decided that the will of an English married woman, which satisfied English 
testamentary forms, should be admitted to probate without inquiring 
whether it also satisfied the particular formalities imposed by the power 
in execution of which it was made; and the date of the will prevented 
the decfbion being aided by the Wills Act, which now, as a rule of English 
la%, puts the general English testamentary forms in the place of all 



122 


PRIVATE INTERNATIONAL LAW. 


particular formalities imposed by powers on their execution by will. 
The principle of the decision was that probate must not be refused on the 
ground of the form of the document, in any case in which such form would 
entitle it to probate if its author were an ordinary testator ; and the 
bearing of the principle on private international law was not allowed by 
Lord Brougham to pass unnoticed. See p. 217. The international applica- 
tion arose in lyiluart v. Harkness (1866), 34 Beav. 324, Romilly, where 
the will of a married woman, made since the Wills Act under an English 
power, was not in English form, but was in good form by the law of her 
last domicile. It had been proved, apparently without objection, and was 
held to be a good execution of the power. But Lord Cranworth stated the 
inclination of his opinion to be opposed to this doctrine, in Dolphin v. 
Eohins (1869), 7 H. L. 419 ; where, however, Barnes v. Vincent does not 
seem to have been quoted. “ A will, in an instrument creating a power, 
whether general or special, covers any instrument recognized by the law of 
England as a will, though not executed according to the law of England ” 
(Be Wilkinson* s Settlement^ [1917] 1 Ch. 620, Sargant). There were dicta 
which suggested that the power, having regard to § 10 of the Wills Act, 
will not be held to have been well executed unless either the formalities 
prescribed by the power or those of the Wills Act are satisfied: Be Kir- 
wan's Trusts (1883), 26 Ch. D. 373, Kay; Hummel v. Hummel, [1898] 
1 Ch. 642, Kekewich. But these dicta have been doubted in a number of 
later cases, and may be deemed not to be valid. Where the will is good in 
form by the law of the last domicile, the principle of D'Huart v. Harkness 
will apply, not merely to the proceedings in the Court of Probate, but also 
so as to make the document a good execution of a simple power to appoint 
by will: Be Brice, Tomlin v. Latter, [1900] 1 Ch. 442, Stirling. It was 
formerly held that the will was valid as an execution only so far as it can 
be such without calling in the aid of the Wills Act, s. 27, which makes a 
general bequest a good execution of a general power : Be D'Este's Settle- 
ment Trusts, Boulter v. ITTJste, [1903] 1 Ch. 898, Buckley ; followed in 
Be Schole field, Schole field v. St. John, [1905] 2 Ch. 408, Kekewich, in 
which case, however, terms were agreed on, [1907] 1 Ch. 664. But if in such 
a case the aocument creating the power requires special formalities which 
have not been complied with, the court will aid the defective execution in 
favour of children of the apjx>intor : Be Walker, MacColl v. Bruce, [1908] 
1 Ch. 660, Joyce. This limitation, however, no longer holds. 

The tendency of the later decisions is to assist, wherever possible, the 
execution of the power by will. The principle which was laid down in the 
case of Be Simpson: Coutts Co. v. Church Missionary Society, [1916] 
1 Ch. 562, Neville, and was followed in Be W'ilkinson's Settlement, [1917] 
1 Ch. 620, Sargant, is that a gift which, according to the law of the 
testator’s domicile, amounts to a general bequest of personal property, 
operates as an exercise of a general power of appointment, unless a con- 
trary intent appears in the will. Moreover, when a power of disposition 
by will over property not belonging to the testator is unknown in the 
foreign law, “ the construction which would be applied to an English will 
must be applied to the construction of a foreign will valid in England so 
far as regards the power.” 

Accordingly, section 27 of the Wills Act, 1837, may be invoked for the 
purpose of making a general bequest in a will valid by the law of the testa- 
tor’s foreign domicile a good execution of a general power : Be LewaVs Settle- 
ment Trusts, [1918] 2 Ch. 391, Peterson. In that case the testatrix, who was 
an Englishwoman married to a Frenchman domiciled in France, had ml<ie 



SUCCESSION TO MOVABLES ON DEATH. 


123 


an unattested holograph will at the age of seventeen, appointing her husband 
her “ universal legatee.” She had a power of appointment under her 
marriage settlemertt, made in England and sanctioned under the Infants* 
Settlement Act 1855. According to the law of her domicile, the French 
law, the document was valid as a will ; but she was only competent to 
dispose by will of one-half of her property. The apjx)intinent of a 
universal legatee was held a valid execution of the power, by invoking 
8. 27 of the Wills Act to interpret the French will; but, inasmuch as by 
the French law the testatrix was competent to dispose of one-half only of 
her property, one-half of the fund subject to the power was disposed of by 
the wiU and one-half went as in default of appointment. The Court refused 
to follow the reasoning in Be D*Este (u. s.) and Be Schule field. 

§ 92. The second case is that whei’e the document complies 
with English testamentary forms, although it does not comply 
with any forms which under the preceding §§ would sustain its 
validity as the will of an ordinary testator. 

Tatnall v. Hankey (1838), 2 Mo. P. C. 342, Brougham. The report of 
this case was supplemented, and the case followed, in Be Alexander (1860), 
29 L. J. (N. S.) P. & M. 93, and 1 S. & T. 454, note, Cresswell ; contrary 
to the personal opinion of that learned judge, which he had previously 
expressed in Crookenden v. Fuller (1859), 1 S. & T. 441. Tatnall v. 
Hankey was again followed, also with dissent, in Be Hallyhurton (1866)^, 
L. R. 1 P & M. 90, Wilde, and may now be considered to be the law. It 
was approved in Murphy v. Deichlery [1909] A. C. 446, Loreburn, Ash- 
bourne, Atkinson, Shaw of Dunfermline. 

In cases falling under this § the English court grants administration 
limited to such property as the deceased had power to dispose of and did 
dispose of by the document : Be Huber, [1896] P. 209, Jeune (see [1899] 
P. 250) ; Be Tr^fond, [1899] P. 247, Jeune. Unless the grant can be 
enlarged with the consent of the parties interested : Be Vannini, [1901] 
P. 330, Jeune. 

§ 93. Where the document does not come within either of the 
above cases, or, coming within them, does not satisfy special 
forms prescribed by the power, it is not a good execution of the 
power. 

Be Daly (1858), 25 Beav. 456, Romilly ; Barretto v. Young, [1900] 2 Ch. 
339, Byrne. 

§ 94. That the document comes within either of the said 
cases must be established by its being proved in England. 

Be Vallance (1883), 24 Ch. D. 177, Pearson; explaining or correcting 
Be TootaVs Trusts (1883), 23 Ch. D. 532, Chitty. 

§ 94a. Where an English power of appointment is so executed 
as to •make the fund assets of the appointor, the appointor’s 
capacity for disposing of those assets will be measured by the law 



124 


PRIVATE INTERNATIONAL LAW. 


of his domicile at his death and not by the law of the settlor’s 
domicile. 

lie FrycCy Lawfmd v. Fryce^ [1911] 2 Ch. 286, Cozens-Hardy, Buckley 
and Kennedy, overruling Parker; and Be LewaVs Trusts (u. s.)* 

The capacity to dispose of a fund subject to a special power of appoint- 
ment conferred by a marriage settlement is, however, not measured by that 
of the appointor but by that of the original settlor (see p. 79, above). 

It will be understood that nothing in § § 80-94a applies to the 
validity of wills of English real estate. 

Personal estate, however, includes the proceeds of a settlement 
fund invested in land, but held on trust for sale. Re Lyne^s 
Settlement Trusts, [1919]*! Ch. 80, C. A., Swinfen Eady, Puke, 
Eve, reversing Peterson. Such an interest in English land there- 
fore will pass under a will made in France and good by the 
French law. 

What Personal Estate passes by the Grant of Probate or Adminis- 
tration, or must be accounted for by the English Executor 
or Administrator, 

In England and those other countries in which the succession 
to movable property on death is regulated by the method of 
English law explained on p. 105, every grant of probate or 
administration is held to carry such corporeal chattels of the 
deceased as either are at the date of the grant within the juris- 
diction of the court from which it issues, or afterwards come 
within that jurisdiction without having been previously reduced 
into possession by lawful authority since the death. Such 
authority would be that of an administrator under a grant issued 
by some other court, or that of an heir or universal legatee 
entitled without grant under the continental system explained on 
p. 106. The property in all goods falling within this description 
is vacant, and the jurisdiction in which they are found can 
confer such property on the executor whom it confirms or the 
administrator whom it appoints. But if the goods only come 
into the jurisdiction after they have been reduced into possession 
by lawful authority since the death, the property in them has 
not been vacant at any moment at which the domestic grant 
could operate on them; they must be recognized as being the 
goods of the foreign heir or legatee, executor or administrator. 
Let us say, of the foreign heir or administrator, taking the 
latter term, as is very commonly done, in an extended tsense, 
so as to include executors. If the goods, since the decease of tjie 



SUCCESSION TO MOVABLES ON DEATH. 


125 


testator or intestate, have been within a foreign jurisdiction in 
which, a grant has been made, or an heir entitled to their posses- 
sion exists, but the administrator under that grant or the heir 
has not reduced them into possession, that makes no difference : 
the property is regarded as vacant when they enter the domestic 
jurisdiction. Thus in a New York case, where there were stage- 
coaches and stage-horses belonging to a daily line running from 
one state to another. Chancellor Walworth said : “ If adminis- 
tration had been granted to different individuals in the two 
states, I think the property must have been considered as 
belonging to that administrator who first reduced it into posses- 
sion within the limits of his own state.” Orcutt v. OrmSy 1832, 
3 Paige 459, 465. And Story says : “ According to the common 
course of commercial business, ships and cargoes and the 
proceeds thereof, locally situate in a foreign country at the time 
of the death of the owner, always proceed on their voyages and 
return to the home port without any suspicion that all the parties 
concerned are not legally entitled so to act; and they are taken 
possession of and administered by the administrator of the 
forum domiciliiy with the constant j>ersuasion that he may not 
only rightfully do so, but that he is bound to administer them 
as part of the funds appropriately in his hands.” Conflict of 
Lawsy § 520. Hence : 

§ 95. The corporeal chattels of a deceased person belong to 
the heir or administrator who first reduces them into possession 
within the territory from the law or jurisdiction of which he 
derives his title or his grant. 

“ If property came to England after the death, would the foreign 
administration give a right to it?” Rolfe, In Whyte v. Bose (1841), 
3 Q. B. 506. “ Suppose, after a man’s death, his watch be brought to 

England by a third party, could such party, in answer to an action of 
trover by an English administrator, plead that the watch was in Ireland 
at the time of the death?” Parke, ib. These questions were evidently 
meant to be answered in the negative, and to refer to property not reduced 
into possession before it is brought to England. ” It seems to me that 
your argument goes too far and would show that no administration in 
England could give a right over goods anywhere out of England. A man 
may sue here in his own name, naming himself as executor or administrator 
under a foreign probate or grant; but does a man ever sue here in the 
character of executor or administrator under such a probate or grant ? ” 
Abinger, ib. p. 504. Here Lord Abinger appears to have contemplated 
property which had bfeen reduced into possession under a grant within the 
jurisdiction from which the grant issufKi. If England was that juris- 
diction, the English administrator would afterwards have a right over the 
goods Alt of England: if that jurisdiction was foreign, the goods would 
afterwards belong in England to the foreign administrator, who might sue 



126 


PRIVATE INTERNATIONAL LAW. 


for them in his own right, naming himself administrator under a foreign 
grant as a mere matter of description. Currie v. Bircham (1822), 1 Dow & 
Ry. 35, King’s Bench ; where it was held that an English administrator 
cannot recover from the agent in England of a Bombay administrator the 
proceeds, remitted to him by the latter, of effects of the intestate reduced 
into possession under the Bombay administration. It does not appear, and 
can have made no difference, whether the effects were corporeal chattels or 
choses in action. 

In the case of ships an argument in favour of an exception might be 
based on the incidence of the probate duty. By st. 27 & 28 Viet. c. 56, s. 4, 
probate duty was charged “ in respect of the value of any ship or share of 
a ship belonging to any deceased person which shall be registered at any 
port in the United Kingdom, notwithstanding such ship at the time of the 
death of the testator or intestate may have been at sea or elsewhere out of 
the United Kingdom.” 

§ 95a. With regard to debts belonging to the deceased, the 
jurisdiction in which it is necessary or possible to sue for them 
depends on considerations not connected with administration : 
the death of the creditor cannot aft'ect that question, except so 
far as he may have been entitled, and his heir or administrator 
may not bo entitled, to the benefit of some such exceptional 
legislation as that of Art. 14 of the Code Napoleon, which allows 
a Frenchman to sue in France on all obligations contracted 
towards him by foreigners. Ihit in whatever jurisdiction the 
circumstances of the case point out that a debt ought to be or 
may be sued for, the administrator who has obtained a grant in 
that jurisdiction, or the heir who is entitled under its law, and 
he only, can sue for it tlierein, or, if the debt is assignable, 
assign the right of suing for it therein : see § 63. 

§ 96. But to the rule in § 95a the debts due on negotiable 
instruments are an exception, because they can be sufficiently 
reduced into possession by means of the paper which represents 
them. They are in fact in the nature of corporeal chattels. 
Hence the negotiable instruments of a deceased person, and his 
bonds or certificates payable to bearer, l>elong to the heir or 
administrator who first obtains possession of them within the 
territory from the law or jurisdiction of which he derives his 
title or his grant. He can indorse them if they were payable to 
the deceased’s order, and he or his indorsee can sue on them in 
any other jurisdiction without any other grant. 

Att.‘Gen. v. Bouwens (1838), 4 M. & W. 171, Abinger, Parke, and ( ?). 
The point decided in this case was that such instruments, when found in 
England at the date of the death, we liable to probate duty ; and the class 
to which the decision referred was described by Lord Abinger, in delivering 
the judgment of the court, as that of instruments ” of a chattel fiature, 
capable of being transferred by acts done here, and sold for money herert” 



SUCCESSION TO MOVABLES ON DEATH. 


127 


The same rule applied in respect of liability to estate duty. IFinons v. 
Att.-Gen.y [1910] A. C. 27, Loreburn, Atkinson, Gorell, and Shaw of Dun- 
fermline. That an administrator who becomes lawfully possessed in one 
state of a negotiable note of the deceased need not take out administration 
in' the state where the debtor resides, in order to sue on it, is laid down by 
Story : Conflict of Laws, § 517. The point established by the decision in 
Whyte V. Bose was that the place where an instrument which is not 
negotiable is found at the death is of no importance to the question under 
what grant it ought to be sued on : (1842), Tindal, Abinger, Coltman, 
Maule, Parke, Alderson, Rolfe ; reversing Denman, Littledale, Patteson 
and Coleridge. The doctrine was applied to certificates of shares, not to 
bearer, but of which the possession is of practical value, by Sfer7i v. The 
Queen, [1896] 1 Q. B. 211, Wright and Kennedy (probate duty) ; Be 
Agnese, [1900] P. 60, Jeune (grant of probate) ; Be Clark, McKecknie v. 
Clark, [1904] 1 Ch. 294, Farwell (interpretation of bequest) ; and to 
colonial bonds to bearer though containing a charge on property in the 
colony, by Att 'Gen. v. Glendining, [1904] 92 L. T. 87, Phillimore (estate 
duty). Cf. Be Stcinkopf, [1922] W. N. 12, Russell, German bearer bonds, 
part of estate of person domiciled in England held not situate in Germany. 

§ 97. Judgment is another means of reducing debts into pos- 
session. Therefore when a foreign heir or administrator has 
obtained judgment abroad on a debt to the deceased, he may 
sue in England on such judgment, or prove on it in bankruptcy 
or any other administration of assets [concursus), without an 
English grant. 

Vanquelin v. Bouard (1863), 15 C. B. N. S. 341 ; first count ; Erie, 
Williams, Keating : Be Macnichol (1874), L. R. 19 Eq. 81, Malins. 

§ 98. If an administrator receives without suit payment of a 
debt due to the deceased, will his receipt be a suflRcient discharge 
to the debtor, supposing that the jurisdiction from which he 
holds his grant was not one in which the debt could have been 
recovered, and another administrator afterwards sues for the 
debt in the proper court for its recovery? On principle, it 
should not be a sufficient discharge . 

In Daniel v. Luker (1571), Dyer 305, Dalison 76, it was held that a 
release by one administrator was no answer to a suit in another jurisdic- 
tion, to th administrator in which the debt was thought more properly to 
belong ; but the question between the two administrators was thought to 
depend on the locality of the deed at the time of the death, a notion 
exploded by Whyte v. Bose, quoted under § 96. In Shaw v. Staughton 
(1670), 3 Keble 163, it seems to have been thought that the question 
whether even a recovery by one administrator was an answer to an action 
by another depended on the determination to which of the two the debt 
more properly belonged. 

Besides the property which linger the doctrine thus far 
develoj)ed passes primarily by an English grant, the wide extent 
which is given in this country to the liability of an administrator 



128 


PRIVATE INTERNATIONAL LAW. 


and to judicial administration of the effects of a deceased person 
may lead to the result that property is ultimately deemed to be 
comprised in such a grant, although it has been reduced into 
possession since the death under a foreign title or at least without 
any assistance from the English title. 

§ 99. If a foreign administrator sends or brings to England 
any personal assets of the deceased, for his administration of 
which he has not yet accounted in the jurisdiction from which 
he derives his title, and which he has not caused by any specific 
appropriation ^to lose their character as part of the deceased’s 
estate, a creditor or beneficiary may maintain an action here 
for their judicial administration, and an injunction and receiver 
will be granted in case of need to prevent their being removed 
out of the jurisdiction. But in accordance with § 63 an English 
administrator must be constituted and made a party to the 
action, the assets administered in which will be deemed to have 
passed by the grant to him. 

Lowe v. Fairlie (1817), 2 Mad. 101, Plumer ; Logan v. Fairlie (1825), 2 
S. & St. 284, Leach ; Sandilands v. Innes (1829), 3 Sim. 263, Shad well ; 
Bond v. Graham (1842), 1 Hare 482, Wigram ; Hervey v. Fitzpatrick, first 
motion (1854), Kay 421, Wood, receiver granted. 

In Anderson v. Cavnter (1833), 2 My. & K. 763, which was a suit by a 
creditor against the Indian executrix of the debtor’s Indian executor, who, 
it was charged, had possessed assets of the debtor, Leach held that the 
presence of an English administrator of that executor was unnecessary, 
saying that his estate could not be administered in the suit. But in Tyler 
V. Bell (1837), 2 My. & Cr. 89, 110, Lord Tottenham pointed out that this 
was irreconcilable with what the same judge had said in Logan v. Fairlie, 

In Arthvr v. Hughes (1841), 4 Beav. 506, Langdale, there had been such 
a specific appropriation as to take the case out of this §. The principle was 
thus stated by Wigram in Bond v. Grahain : “ If an executor or adminis- 
trator has so dealt with the fund that by reason of such dealing it has 
ceased to bear the character of a legacy or share of a residue, and has 
assumed the character of a trust fund in a sense different from that in 
which the executor or administrator held it — if it has been taken out of 
the estate of the testator and appropriated to or made the property of the 
cestui que trust — it may not be necessary that the cestui que trust should 
bring before the court the personal representative of the testator in a suit 
to recover that part of the estate.” 

§ 100. So also any personal liability for a breach of trust in 
dealing with any assets of the deceased, which under the 
ordinary rules governing the competence of the English court 
may be enforceable against a foreign administrator in this 
country, may be enforced by br in the presence of an English 
administrator of the deceased, the fruits of such action b^ng in 
fact an asset of the deceased recoverable here. ^ 



SUCCESSION TO MOVABLES ON DEATH. 


129 


Anderson v. Cannier ^ which as to this point is not impugned by Tyler v. 
Bell: see these cases referred to under the preceding §. Twyford v. I'rail 
(1834), 7 Sim. 92, Shadwell ; decree against estates of Hall and J. A. 
Simpson. The last case also shows that the English executor of a foreign 
executor is not executor of the original testator, as the English executor of 
an English executor is. 

§ 101. But the mere presence in England of a foreign 
administrator who is accountable in the jurisdiction from which 
he derives his title for assets received by him, but who has not 
so dealt with those assets as to make himself personally liable for 
a breach of trust, will not enable any one to maintain an action 
against him for judicial administration here, although for that 
purpose the plaintiff has procured an English grant. 

Jauncy v. Sealey (1686), 1 Vern. 397, Jeffreys; Hervey v. Fitzpatrick^ 
second motion (,1654), Kay 434, Wood. 

§ 102. And although a foreign heir who has accepted the suc- 
cession without benefit of inventory may probably be sued in 
England on the ])ersonal obligation he has thereby assumed 
towards the creditors of the deceased, and, if so, an English 
grant of administration is not necessary for that purpose, yet 
no action can be brought against him here for judicial adminis- 
tration, because his liability is not in respect of assets. 

Beayan v. Hastings (1856), 2 K. & J. 724, Wood. 

§ 103. If an English administrator, without obtaining a 
foreign grant of administration, succeeds in reducing assets of 
the deceased into possession abroad, he will be liable to account 
for them in a judicial administration in this country, or on an 
issue upon assets in answer to the action of a creditor indepen- 
dent of judicial administration, just as if they had been received 
by authority of the English grant. 

Dowdale's Case (1604), 6 Coke 46 h ; suh nom. Bichardson v. Dowdale, 
Cro. Ja. 66; Common Pleas, on an issue upon assets, Walmsley dissenting. 
Atkins V. Smith (1740), 2 Atk. 63, Hardwicke ; where it would seem from 
the obscure note that the doctrine was applied to a case of judicial adminis- 
tration. Story understands that the English executor who in DowdaWa 
Case was made liable for assets received by him in Ireland had received 
them under an Irish grant of administration, and accordingly treats that 
decision as irreconcilable with the modern ones : Conflict of Laws, § 614 a. 
If such were the fact, the decision would not be reconcilable with the 
doctrine of § 101, since it can scarcely be held that any difference ought to 
be made in the position of a person under a "foreign grant by the circum- 
stance of his holding an English grant as well : but I do not find the Irish 
grant meiftioned in either of the reports of Dowdale' a Case. Story con- 
sider! that an administrator who obtains assets of the deceased in a country 

W.I.L. 9 



130 


PRIVATE INTERNATIONAL LAW. 


where he has no grant will be liable in that country as executor de son 
tort: Conflict of Laws^ § 614. This may well be true, and yet he may 
be also liable in the country from which he derives his grant. 

In Stirling -Maxwell v. Cartwright (1879), 11 Ch. D. 622; James, Bag- 
gallay, Bramwell ; the Court of Appeal affirmed the decision of Hall (1878), 
9 Ch. D. 173, who had held that if an English probate or letters of adminis- 
tration are not expressly limited to the English assets, no such limitation 
will be introduced into a judgment for administration founded on them 
although the deceased was domiciled abroad, unless there has been a decree 
for judicial administration abroad, as to which case the judge reserved his 
opinion. James said: “ If anything had been done in Scotland, the court 
would have recognized the right of the Scotch court to deal with the matter. 
It is not for us to anticipate that there will be any such proceedings in 
Scotland.” In Orr Ewing v. Orr Ewing (1882), 22 Ch. D. 466, Jessel, 
Cotton and Bowen, reversing Manisty ; reversal affirmed (1883), sub nom, 
Ewing v. Orr Ewing^ 9 App. Ca. 34, Selborne, Blackburn and Watson; it 
was held that where an order for service in Scotland has been made on one 
who is executor both in Enj^land and in Scotland, no proceedings being then 
pending in Scotland, and he appears unconditionally, the only judgment 
that can be pronounced at the trial is the common one for administration 
of the whole estate. The same matter gave rise to the Scotch appeal, Ewing 
V. Orr Ewing (1886), 10 Ap. Ca. 453, Selborne, Blackburn, Watson, Fitz- 
gerald. In Sandilands v. Innes (1829), 3 Sim. 263 (see above, under § 99), 
Shad well said that the account of the assets brought to England would 
incidentally make it necessary to take an account of all the assets possessed 
under the foreign administration. These authorities can hardly be con- 
sidered as establishing either that there is no distinction between the case 
of an English administrator who has received foreign assets under a foreign 
grant and that of one who has received such assets without a foreign grant, 
or that the liability of a foreign administrator to account in England for 
the assets received under his foreign grant can depend on whether he has 
or has not an English grant also. 

Principal and Ancillary Administrations, and Questions arising 

in Administration prior to the Distribution of the Surplus. 

When the estate of a deceased person includes both personalty 
in England and property elsewhere, so that there are or may be 
concurrent administrations in different countries, that in the 
country of the deceased’s domicile is called the principal 
administration and the others are called ancillary. It has been 
seen at p. 105 that an English administration consists of two 
parts, first, realizing the personal estate of the deceased and 
paying his debts, and secondly, distributing the surplus among 
those who are entitled by will, or by law in case of intestacy. 
The first J)art belongs to an ancillary administration as well as 
to a principal one, for the English courts, maintaining the para- 
mount authority of the situs over the assets themselves as distinct 
from th^ beneficial interest in their clear surplus, a principle 
which we have already seen carried out in the necessity for an 



SUCCESSION TO MOVABLES ON DEATH. 


131 


English grant in order to confer the possession of the English 
assets, consistently make it their rule to allow creditors to seek 
their remedy in England against the English assets, notwith- 
standing that the administration in this country is ancillary. 

§ 104. An English grant of probate or administration renders 
the executor or administrator liable to account in an English 
court, to creditors of the deceased, for the assets received under 
it; so that even if the deceased was domiciled abroad, such 
executor or administrator cannot be required to hand over, and 
cannot safely hand over, any part of those assets to the heir or 
administrator of the domicile, until they have been cleared of 
debt. 

Freston v. Melville (1841), 8 Cl. & F. 1, Cottenham. 

But it is much less clear how far the second part of the duty 
of administration, the distribution of the surplus, is held to be 
incumbent on an English personal representative when the 
deceased died domiciled abroad. Since the law of the domicile, 
and the^ authority of the court of the domicile where it has been 
consulted, are admitted to govern the rights in the surplus 
(§§ 59, 60), much may be said for the expediency of requiring 
that all questions relating to such rights shall be brought before 
the court of the domicile. Even in the case of intestacy, the law 
of succession must be best known to the courts of the country 
where it is in force; still more where a will is concerned, than 
which no class of documents is more fertile in legal disputes, 
ought the courts of that country to be appealed to by the law 
of which it must be interpreted and the validity of its disposi- 
tions ascertained. But there may be special circumstances that 
make the court of another country better qualified to interpret 
the will (see Re Bonnefoi, p. 132). 

§ 106. Where no action for administration . is pending in 
England, and there is in the deceased ^s domicile either a personal 
representative in the English sense, charged with the diwstribu- 
tion of the property, or an heir or universal legatee holding the 
property for his own benefit subject to actions by particular 
legatees, an English executor or administrator who pays over 
to such person the surplus of the English assets after clearing 
the estate will be held in England to be discharged by such 
payment. ^ 

In, Fipmh V. Pipon (1744), Ambl* 26, liOrd Hardwicke refused to entertain 
a suit by persons claiming as next-of-kin the clear English’ assets of an 



132 


PRIVATE INTERNATIONAL LAW. 


intestate domiciled in Jersey, not merely because the general administrator 
was not before the court, but also saying “ the plaintiffs are wrong in 
coming into this court for an account of only part, for by the statute [of 
distributions] an account must be decreed of the whole ” ; and “ if I was 
to direct an account of the whole, the courts in Jersey would act contrary, 
which would be to involve people in great difficulties.” It is true the 
reporter makes Lord Hardwicke add, ” this case differs from where a 
specific part consists of chattels here in England ” ; but that dictum is not 
reconcilable with the rest of the judgment, and I suspect the real words 
were ” this case differs from a specibc legacy of chattels here in England.” 
In Fjnoliin v. Wylie (1862), 10 H. L. 1, it was laid down by Lord Westbury 
that where the domicile of the deceased was foreign, not only the English 
executors or administrators, but even the English court, supposing the 
estate here to be under judicial administration, ought to hand over the 
surplus of the English assets to the persons who are entrusted with the 
administration of the estate in the domicile, in order to be distributed by 
them among the persons entitled by the deceased’s will or by law. Lords 
Cranworth and Chelmsford thought otherwise, and the point did not call 
for decision. The doctrine stated in the § is covered by the principles laid 
down by Fry and Jessel in Fames v. Hacon (1880), 16 Ch. D. 407, Fry ; 
affirmed (1881), 18 Ch. D. 347, Jessel, Baggallay and Lush ; but the decision 
in that case rested on other grounds as well. 

§ 106. But where there is an action for administration in 
England, it is doubtful whether the court will insist on carrying 
that action out to its full completion, by distributing the surplus 
with such light as it can obtain on the law of the deceased^s 
foreign domicile, or will hand over the surplus to a representative 
of the deceased in the domicile. ^ 

In Weaiherhy v. St. Giorgio (1843), 2 Ha. 624, Wigram considered that 
as soon as the debts are paid the executor in the domicile is a mere trustee 
of the surplus for the parties beneficially interested, and that therefore to 
hand over the surplus to him would be contrary to the rule ” that if pro- 
perty is given to a trustee for certain cestui que trusts, the court will pay 
it to the cestui que trusts and not to the trustee ” ; and this was in a 
case where the testator had expressly directed his English executors to 
transmit the surplus to his Italian executors. In Meiklan v. Campbell 
(1857), 24 Beav. 100, the evident leaning of Romilly was towards distribut- 
ing the surplus himself, only adopting any proceedings in the courts of the 
domicile. On the same side are the opinions of Lords Cranworth and 
Chelmsford, cited under the preceding §. On the other side is the opinion 
of Lord Westbury there cited, and the argument to be drawn from the 
action of the English court where the domicile is English, for which see the 
next §. In Innes v. Mitchell (1867), 4 Dr. 141; 1 De G. & J. 423, the 
beneficial interest in the English personal estate of a testatrix domiciled in 
Scotland was in dispute, and there was a suit pending in Scotland in which 
the question might have been tried. Kindersley and Knight-Bruce agreed 
in ordering service of the bill on certain defendants in Scotland, in order 
that the litigation in England might proceed; but Turner doubted. 

In Be Bonne foif Surrey v. Perrin, [1912] P. 233, C. A., Cozens-Hardy, 
M.R., FarweU and Kennedy, L.JJ., reversing Evans, P., an ESglishman 
married an Italian woman, and left England and became domiciled in 



SUCCESSION TO MOVABLES ON DEATH, 


133 


Italy. He made no will, but signed a letter in England said to be a Holo- 
graph will according to Italian law. His sister sued in England, as next- 
of-kin, for letters of administration. Other persons claimed under the 
holograph document and commenced proceedings in Italy. It was held that 
(1) an English court had jurisdiction to make an administration order, 
and therefore to decide any question with regard to the assets in England ; 
and (2) that the question, being one of construction only of English words, 
should be decided by an English court. See too, Addenda^ Be Lorillard. 

§ 107. On the* other hand, if the deceased was domiciled in 
England where there is an action for administration, and the 
English executors or administrators do not suggest that in 
respect of assets received by them under foreign title or autho- 
rity the English court can give them no valid discharge as 
against creditors, an injunction will bo granted in England to 
restrain the prosecution of a suit abroad for the administration 
of the personal estate there situate. 

Hope v. Carnegie (1866), L. R. 1 Ch. Ap. 320, Knight-Bruce and Turner, 
affirming Stuart. The discussion was between beneficiaries only. Baillie 
V. Baillie (1867), L. R. 6 Eq. 175, Malins. The plaintiff in the foreign 
proceedings claimed to be interested in the surplus, and although it was 
admitted that an account was necessary before it could be known whether 
there was a surplus, still the executors did not suggest that a foreign dis- 
charge as against creditors was necessary for their protection, and one of 
them, on the contrary, was the party who sought the injunction. 

Of course, the § assumes that the person against whom the injunction is 
sought is subject to the English jurisdiction. “ The first question is 
whether there is any rule or principle of the court of chancery which, after 
a decree for administering a testator's assets, would induce it to interfere 
with a foreign creditor resident abroad, suing for his debt in the courts of 
his own country Certainly not. Over such a creditor the courts here can 
exercise no jurisdiction whatever. ... It must be observed that we are 
dealing with the case of a foreigner, or rather a foreign corporation, seeking 
no assistance from the courts of this country. If the appellants had come 
in under the decree, so as to pbtain payment partially from the English 
assets, a very different question would arise.*' Lord Cr an worth, in Carron 
Iron Company v. Maclaren (1856) 5 H. L. 441, 442. Brougham’s view was 
similar, and St. Leonards* only differed as to whether the corporation in 
question was foreign. This was followed in Be Boyse^ Crofton v. Crofton 
(1880), 15 Ch. D. 591, Malins. In Graham v. Maxwell (1849), 1 Mac. & 
Gor. 71, Cottenham affirming Shadwell, the point of the creditor’s being 
foreign, if he was so, was not considered, and he had come in before the 
master in the English suit. 

S 108. But if the persons who are in possession of the foreign 
assets of one who died domiciled in England should object to 
rely on the discharge which the English court can give them as 
against the creditors of the deceased, it may be doubted whether 
that cmirt would restrain by injunction foreign proceedings 
for administration, further than as such proceedings might be 



134 


PRIVATE INTERNATIONAL LAW. 


directed to the distribution of the surplus. To restrain them 
further would not be consistent with that view of the authority 
of the situs over the assets on which § 104 is based. 

§ 109. If the accounts of a foreign administrator have to be 
taken in the English court, through his submission or otherwise, 
he will be allowed such commission on his transactions under his 
foreign grant as would be allowed him in the jurisdiction from 
which it issued. 

The Indian commission of 6 per cent, was allowed in Chetham v. Audley 
(1798), 4 Ves. 72, Arden affirmed by Loughborough, and Cockerell v. Barber 
(1826), 1 Sim. 23, Leach. It was disallowed in Hovey v. Blakeman (1799), 
4 Ves. 696, Arden, on the facts as to the transactions; and in Freeman v. 
Fairlie (1817), 3 Mer. 24, Grant, because the will gave a legacy to the 
executor for his trouble, which it must have been considered would defeat 
his title to the commission even by Indian practice. 

§ 110. Every administrator, principal or ancillary, must apply 
the assets reduced into possession under his grant in paying all 
the debts of the deceased, whether contracted in the jurisdiction 
from which the grant issued or out of it, and whether owing to 
creditors domiciled or resident in that jurisdiction or out of it, 
ir that order of priority which according to the nature of the 
debts or of the assets is prescribed by the law of the jurisdiction 
from which the grant issued. 

This rule is an immediate comsequence of the maxim of private 
international law that the priorities of creditors in a concursus 
are determined by the lex fori or lex concursus^ which indeed is 
almost an inevitable maxim, for if two debts were contracted 
under different laws, and each by the law under which it was 
contracted would be prior to the other, how shall their order of 
priority be determined if not by the law of the forum where 
they meet? Mediately, the rule is a consequence of the autho- 
rity which English law attributes to the situs over the assets 
themselves, as distinct from the beneficial interest in the clear 
surplus of them; for it is by reason of that authority that 
English law first requires the assets to be possessed under a 
grant in the situs, and then establishes a concursus in order to 
clear from debt the assets so possessed before the law of the 
deceased’s domicile can affect their beneficial surplus. If the 
authority of the domicile or political nationajity were admitted 
to extend over the gross instead of over the net property left 
by the deceased, which is the general continental view, the 
succession would be opened, as the phrase is, in the coifntry of 
the domicile or political nationality, the concursus of creditors 



SUCCESSION TO MOVABLES ON DEATH. m 

would be there, and the law of that country would determine 
their order of priority, as on the continent it is generally held 
to do. In fact, in that system, it is not a concurstis against 
the assets but against the heir, although his liability may be 
limited by the benefit of inventory; and the heir is determined 
for all jurisdictions by the law of the deceased’s personal 
jurisdiction, in which the succession is opened. 

This § was cited with approval in lie Klcehcy Kannreuther v. GeiseU 
hrecht (1884), 28 Ch. D. 176, Pearson. The learned judge added: “No 
doubt, in a case in which French assets were distributed so as to give 
French creditors, as such, priority, in distributing the English assets the 
court would be astute to equalize the payments, and take care that no 
French creditors should come in and receive anything till the English 
creditors had been paid a proportionate amount. But subject to that, 
which is for the purpose of doing that which is equal and just to all the 
creditors, I know of no law under which the English creditors are to be 
preferred to foreigners.'’ See also the authorities quoted under the next §, 
and Be Doetsch, [1896] 2 Ch. 836, Homer : “ Speaking generally, English 
assets have to be distributed according to the English law — according to 
priorities recognized by courts in this country ; p. 839. 

§ 111. If, through the submission of a foreign administrator 
or otherwise, foreign assets are being judicially administered in 
England, the court will apply them as the foreign representative 
should have done, that is, will assign to the creditors as against 
any particular assets that order of priority which is prescribed 
by the law under the authority of which those assets were 
reduced into possession. 

In Hanson v. Walker (1829), 7 L. J. Ch. 135, Leach, the produce of 
foreign land belonging to a testator domiciled in England was applied in 
the order of priority among creditors prescribed by the lex situs. In Cook 
V. Gregson (1854), 2 Dr, 286, Kindersley, a creditor claiming on an Irish 
judgment was allowed priority over simple contract creditors as to property 
brought from Ireland, but as against the English property he ranked as a 
simple contract creditor, according to the rule which allows only that rank 
to foreign judgments, notwithstanding that the testator was domiciled in 
Ireland. On the contrary, in Wilson v. Dunsany (1854), 18 Beav. 293, 
Romilly, where also the testator was domiciled in Ireland, both the English 
and the Irish assets were applied on that ground in the Irish order of 
priority, a creditor on an English judgment being ranked against both as 
a simple contract creditor. This case w^as decided before Cook v. Gregson, 
but was not cited in it, and was cited with disapproval in Be Klcehe, 
Kannreuther v. Geiselhrecht (1884), 28 Ch. D. 175, Pearson. In Pardo v. 
Bingham (1868), L. R. 6 Eq. 485, Romilly is reported to have expressed 
the modified view that the law of the deceased's domicile would not deter- 
mine the priority bf creditors as aga^pist assets foreign to the domicile, 
except in favour of a creditor who was domiciled in the same country with 
the de&ased ; but he was not required to apply either this doctrine or his 
former one, the alleged domicile of the deceased out of England not being 



X36 


PRIVATE INTERNATIONAL LAW. 


proved. Story approves the doctrine which I have adopted in § 110, and 
says that it is established in the United States : Conflict of Laws^ 
§§ 524, 626. See too, Addenda^ Be Lortllard. 

See the decisions in favour of the lex loci concursus as the rule for 
priorities in bankruptcy : Ex parte Melhourn (1870), L. R. 6 Ch. Ap. 64, 
Mellish and J ames ; Thurhurn v. Steward (1871), L. R. 3 P. C. 478, 
Cairns. 

§ 112. The rules about death duties belong to this place, as 
presenting questions which arise in an administration prior to 
paying over the net surplus. 

The old death duties in England were of two kinds. One was 
the probate duty, in which term we may include that on letters 
of administration as well as that on grants of probate, further 
applied by the st. 24 & 25 Viet. e. 15, s. 4, to personalty disposed 
of by will under a general power of appointment. This might 
be considered as the price of the protection afforded by the 
government to movable weaKh, from which point of view it 
followed that the domicile of the deceased was irrelevant to it, 
but the situation of the property protected relevant. The other 
was the legacy duty, in which term we may include that on 
shares of residue of personalty; and as this was a toll taken by 
the government on the transmission of movable wealth from 
dead to living hands, it followed that the domicile of the person 
whose movable wealth was transmitted was relevant to it and 
the situation of the particulars composing that wealth irrelevant. 
In I85d there came the succession duty, which, like the legacy 
duty, was a toll on beneficial interests received, but, so far as it 
applied to realty in England on the death of an absolute owmer, 
was prevented by the English doctrines on our subject from 
having anything to do with domicile. So far as the succession 
duty applied to property not absolutely owned but settled, its 
incidence will be explained under § 116. Tjastly, for deaths 
occurring since 1st August, 1894, the probate duty has been 
abolished and an estate duty created, applying to all property 
which had been subject to probate duty, to all realty in England 
and other property subject to succession duty, and to all property 
situate out of the United Kingdom which passes on a death in 
such circumstances that under the law in force before 1894 
legacy or succession duty would have been payable in respect 
thereof, or would have been payable but for the relationship of 
the person to whom it passes. The effect of fhe last category 
is to add the domicile of the deceased as a principle of th% duty 
to the protection of property which is the principle of the other 



SUCCESSION TO MOVABLES ON DEATH. 


137 


categories, and the effect of the whole is to make the estate duty 
one on wealth as such, concurrent with the legacy and succession 
duties representing tolls on beneficial interests received, just as 
the probate and legacy duties ran concurrently on the personalty 
to which aloue they applied. 

The duty on probates and letters of administration was 
formerly jiayable, and estate duty is now payable, irrespective 
of the domicile of the deceased : 

On his corporeal chattels, negotiable instruments, and bonds 
or certificates payable to bearer, so' far as at the date of his 
death they were in England, or, if they were then on the high 
seas or in other jurisdictions, so far as they are afterwards first 
reduced into possession by the administrator under the grant; 

And on the debts due to the deceased otherwise than in respect 
of negotiable instruments or bonds or certificates payable to 
bearer, and on his shares in companies and other incorporeal 
chattels, so far as at the date of his death England was the 
proper jurisdiction in winch to recover them or otherwise reduce 
them into possession ; 

In other words, on tlie personal estate which passes primarily 
by the English grant, pursuant to §§ 63, 95, 90, and not on any 
other personal estate for which an English administrator may 
be accountable pursuant to § 103, or which may be recoverable 
by or in the presence of an English administrator pursuant to 
§§ 99 or 100. 

That probate duty is not payable on the proceeds of foreign property 
which the administrator could not have recovered or reduced into posses- 
sion by means of the grant, although having received them he may be 
accountable for them in England, was treated as certain by Alexander and 
Bay ley in deciding Be Ewin (1830), 1 Cr. & J. 151 ; 1 Tyr. 91, and was 
decided in Att.-Gcn. v. Dimond (1831), 1 Cr. & J. 356, Lyndhurst, Bayley, 
and ( ?). In both these cases foreign government stocks were in question. 
It was decided again by the Court of Exchequer, and by the House of 
Lords (Brougham) on appeal, in Att.-Oen, v. Hope (1834), 1 Cr. M. & R. 
630, 8 Bl. N. R 44, 2 Cl. & F. 84, in which case foreign government stocks, 
debts due from persons domiciled and resident abroad, and goods which at 
the time of the death were in foreign countries in the hands of agents for 
sale, were in question, but the duty had been paid without question on 
goods which at the time of the death were on the high seas. I think it may 
be assumed that the goods in the hands of agents for sale were sold by them 
and not sent home ag^ain, and that if there had been any goods in foreign 
jurisdictions at the time of the death which afterwards arrived in this 
country and were here reduced into pqi^session by the administrator, duty 
would have been payable on them as well as on those which were on the 
high sdlis at the time of the death : at least the case is no authority to the 
contrary. In Att,-Gen, v. Fratt (1874), L. R. 9 Ex. 140, Amphlett reserved 



138 


PEIVATE INTERNATIONAL LAW. 


his opinion as to the incidence of probate duty on property on board ship 
at the date of the death, but Kelly was clear in its favour, and there seems 
to be no reason for a doubt. As to ships on the high seas registered in the 
United Kingdom see st. 27 & 28 Viet. c. 66, s. 4, cited under § 95. 

Probate duty has been held to be incident on negotiable instruments 
found in England at the death : Att.-Oen. v. Bouwens and other cases 
cited under § 96. On the shares in railway companies incorporated within 
the jurisdiction, wherever their business may be carried on: Att.-Gen. v. 
Higgins (1867). 2 H. N. 339, Pollock, Martin, Watson; 'Fernandes* 
Fxecutor*s Case (1870), L. R. 6 Ch. Ap. 314, Giffard reversing same case 
(1869), RomiJly ; or in a company incorporated by royal charter with a head 
office in England, although its business was chiefly carried on in India; 
New York Breweries Company v. Att.-Gen.y [1899] A. C. 62, Halsbury, 
Watson, Shand, Davey and Ludlow, affirming Smith, Rigby and Collins, 
[1898] 1 Q. B. 205, who had reversed Wills and Grantham, [1897] 1 Q. B. 
738. On specialty debts where the deed was within the jurisdiction at the 
time of the death ; Commissioner of Stamps v. Hope^ [1891] A. C. 476, 
Field, on appeal from New South Wales: but without prejudice to the 
duty being also payable where the debt is one by simple contract ; Payne v. 
Bex, [1902] A. C. 552, Macnaghten ; and see Henty v. The Queen, [1896] 
A. C. 567, Watson. And on debts due from persons residing in England: 
Att.-Gen. v. Pratt (1874), L. R. 9 Ex. 140, Kelly, Pigott, Amphlett. But 
not on Indian government securities which at the death had not been con- 
verted into debts due from the East India Company in England, although 
the deceased had declared his option for such conversion : Pearse v. Pearse 
(1838), 9 Sim. 430, Shadwell. 

As to where the interest of a deceased partner is situate for probate, see 
Laidlay v. Lord Advocate (1890), 15 A. C. 468, Herschell, Watson, Mac- 
naghten ; Beaver v. Master in Equity of Supreme Court of Victoria, [1896] 
A. C. 261. Herschell ; followed, Stamp Duty Commissioners v. Salting, 
[1907] A. C. 449, Loreburn, Ashbourne, Macnaghten, Wilson, Wills. 

Where an estate not completely administered includes foreign assets, a 
share of the residue is situate as an asset in the domicile of the deceased : 
Lord Sudeley v. Att.-Gen., [1897] A. C. 11, Halsbury, Herschell, Mac- 
naghten, Shand and Davey, affirming Lopes and Kay (from whom Esher 
dissented) [1896] 1 Q. B. 354, who had reversed Russell of Killowen and 
Charles, [1896] 2 Q. B. 526; Be Smyth, Leach v. Leach, [1898] 1 Ch. 89, 
Romer; Att.-Gen. v. Johnson, [1907] 2 K. B. 886, Bray (estate duty). 

In Partington v. Att.-Gen. (1869), L. R. 4 E. & I. A. 100, administra- 
tions had been taken out to the estates of two persons, though by applying 
the doctrine of § 65 only one would have been necessary, as Lord Westbury 
pointed out. Westbury held that the duty on the unnecessary grant ought 
not to be exacted, but Hatherley, Colonsay, and Cairns held that whether 
that grant was unnecessary or not the duty must be paid on it, since it 
had been taken out. Chelmsford and Cairns considered it to have been 
necessary, but they cannot be cited* in opposition to the doctrine of § 66, 
the bearing of which on the case they do not seem to have had clearly in 
view. 

See Blackwood v. The Queen (1882), 8 Ap. Ca. 82, Jlobhouse ; a case on 
the construction of a statute of the colony of Victoria, imposing a probate 
duty to which all legatees were to contribute proportionally, instead of its 
being borne entirely by the residuary legatees as the English probate duty 
is borne. Ihe judicial committee held that this circumstance did Hot pre- 
vent the statute from being construed as imposing the duty only on property 



SUCCESSION TO MOVABLES ON DEATH, 


139 


passing by the grant, and therefore not on personalty out of Victoria. 
This case was followed in Woodruff v. Att,-Oen, for Ontario^ [1908] A. C. 
608, Bobertson, Atkinson, Collins and Wilson, where it was held that the 
province of Ontario had no power to impose taxation on property situate 
outside the province. And in Cotton v. The King, [1914] A. C. 176, P. C., 
Haldane, Atkinson, Mbulton, and Burland v. The King, [1921^ W. N. 344, 
P. C., Haldane, Buckmaster, Cave, Phillimore, Carson, where the same 
principle was upheld for a Quebec statute; but see The King v. Lovitt, 
[1912] A. C. 212, Haldane, Macnaghten, Shaw, Robson : with regard to a 
similar statute of the Province of New Brunswick. 

All property within the realm is now liable to estate duty whatever may 
be the domicile of the person on whose death the property passes. Con- 
sequently all property formerly liable to probate duty appears to be now 
liable to estate duty, except possibly certain classes of property actually 
situate abroad and belonging to persona domiciled abroad which by special 
statutes were deemed to be situate within the kingdom for the purposes of 
probate duty, such as ships registered within the kingdom under 27 & 28 
Viet. c. 66, s. 4 : Winans v. The King, [1908] 1 K. B. 1022, Cozens-Hardy, 
Fletcher-Moulton, Buckley, affirmed suh nom. Winans v. Att.-Gen., [1910] 
A, C. 27, Loreburn, Atkinson, Gorell, Shaw of Dunfermline ; Be Consuelo 
Duchess of Manchester, [1912] 1 Ch. 640, Swinfen Eady. 

§ 113. Where the deceased left assets in different jurisdic- 
tions, and foreign assets not liable to English probate duty 
reached the hands of the English administrator, the latter was 
nevertheless entitled to a return of duty corresponding to the 
whole amount of the debts paid by him ; and it seems that this 
should now apply to the estate duty. 

Beg. V. Commissioners of Stamps and Taxes (1849), 13 Jur. 624, 
Denman, Patteson, Coleridge. 

§ 113a. With regard to property which was not subject to 
probate duty but is now subject to estate duty, as being such 
that even previously it was subject to legacy or succession duty 
notwithstanding its being situate out of the United Kingdom 
because of the domicile of the deceased, the express words of 
the Finance Act, 1894, s. 2 (2), preclude any question being 
raised on the ground of such situation. 

In Lawson v. Commissioners of Inland Bevenue, [1896] 2 I. R. 418, 
Weekly Notes, 1896, p. 145, Palles, Andrews, Murphy, the question was 
raised, partly in consequence of the peculiarity of previous Irish legisla- 
tion, and the duty was held to apply. Tn Att.~Gen. v. Jewish Colonization 
Association, [1900] A. C. 123, Smith,< Collins and Stirling, affirming Rigby 
and Darling,, the estate duty was applied as of course when it was deter- 
mined that the succession duty applied. And also in Be Consuelo Duchess 
of Manchester, Duncannon (Viscount of) v, Manchester (Duke of), [1912] 
1 Ch. 640, Swinfen Eady, where the English executors of a testator domiciled 
in England were held liable, to the extent of assets in their hands, to pay 
estate auty payable on foreign personalty, though that personalty was 
expressly bequeathed to foreign executors and remained under their sole 



140 


PRIVATE INTERNATIONAL LAW. ' 


control. So, too, in Be Scott (No. 2), [1916] 2 Ch. 268, Cozens-Hardy, 
Phillimore, Sargant, afcming Neville, it was held that estate duty on 
chattels abroad specifically bequeathed was payable out of the residuary 
personal estate by the English executors, because all personal estate, 
wherever situate, of the testator domiciled in England passed to his 
executors, as such. Estate duty was payable on property situate abroad 
which passed on the death of the tenant for life, although legacy duty 
had been paid on the death of the settlor and was not payable again : 
Att.-Gen. v. Burns (1922), L. J., p. 38, Sankey. 

§ 114. The duty on legacies and shares of residue arising out 
of movable property is payable when and only when the last 
domicile of the deceased was in the United Kingdom, and is 
then payable on the entire amount of the deceased legacies 
and residue, whether produced or not from assets received under 
any British grant, and whatever may be the domicile of the 
legatees or persons interested in the residue. 

The old authorities did not make legacy duty depend on domicile, but on 
the estate being administered in England, including all the cases of §§ 63, 
96, 96, 99, 100, 103. Att.-Gen. v. Cockerell (1814), 1 Price 166; Thomson, 
Richards, and ( ?) : Att.-Gen. v. Beatson (1819), 7 Price 660; Court of 
Exchequer : Logan v. Fairlie (1826), 2 S. & St. 284, Leach. The domicile 
of the deceased was introduced as the determining fact in Be Ewin (1830), 
1 Cr. & J. 151, 1 Tyr. 91, Alexander, Bayley, Garrow, Vaughan. The 
political nationality of the deceased was taken as the determining fact in a 
case, however, where that criterion and domicile gave the same result : Be 
Bruce (1832), 2 Cr. & J. 436, Lyndhurst, Bayley. But in the same term 
the same court again took domicile as the determining fact, and this time 
in a case where political nationality would not have given the same result : 
Jackson v. Forhes (1832), 2 Cr. & J. 382, 2 Tyr. 364, Lyndhurst, Bayley, 
Vaughan, Bolland. Lord Brougham acted in the Court of Chancery on the 
certificate given by the Court of Exchequer in the last case, and this was 
affirmed by the House of Lords, suh nom. Att.-Gen. v. Forhes (1834), 8 Bl. 
N. R. 16, 2 Cl. & F. 48, Brougham, Plunkett ; but in the reasons given 
the old authorities were expressly saved, so as to leave it possible that 
the duty might be payable although the domicile was out of the United 
Kingdom, if the assets were administered in the United Kingdom previous 
to any such specific appropriation of them as is mentioned in § 99. In 
Logan v. Fairlie (1835), 1 My. & Cr. 59, Pepys and Bosanquet (a further 
decision on the case before Leach above cited, in which a different view 
of the facts was taken), and Arnold v. Arnold (1836), 2 My. & Cr. 266, 
Cottenham, the doctrine remained at the point where Att.-Gen. v. Forhes 
had left it. Finally, the doctrine expressed in the § was established by 
Thomson v. Advocate-General (1846), 12 Cl. & F. 1, 13 Sim. 153, 
Lyndhurst Brougham, Campbell ; Tindal delivering the unanimous opinion 
of the judges to the same effect. 

Legacy duty is payable on the interest of the deceased in foreign immov- 
ables subject to conversion into money as partnership property or by 
agreement : Forhes v. Steven (1870), L. R. 10 Eq. 178, J ames ; Be Stokes, 
Stokes V. Ducroz (1890), 62 L. T. 176, North. 

After the passing of the Succession Duty Act it was contended that that 
Act had imposed legacy duty under a different name on legacies and shares 



SUCCESSION TO MOVABLES ON DEATH. 


141 


of residue left by persons dying domiciled abroad, so far as realized out of 
assets administered in Great Britain. In Be Wallop (1864), 1 De G. J. & 
S. 666, Turner expressed an opinion in favour of this contention, which,, 
however, was not necessary to the decision : see under § 116. In Be Cap- 
devielle (1864), 2 H. & C. 986, Martin and Channell followed this opinion^ 
and Pollock was prepared to follow it if he had thought the case turned on 
the point ; but all evidently against their personal opinions, as well as that 
of Bramwell. The contention was ultimately repelled in Wallace v. Att.- 
Gen. and Jeves v. Shadwell (1865), L. R. 1 Ch. Ap. 1, Cranworth. See 
Harding v. Commissioners of Stamps for Queensland^ [1898] A. C. 769, 
Hobhouse, and Lambe v. Manuelj [1903] A. C. 68, Macnaghten. 

§ 115. An administrator under an English grant is liable to 
account to the crown for the legacy duty on the whole of the 
clear personal estate of the deceased, to the extent of the clear 
surplus of all such assets as he has received under any British 
grant. 

Att,-Gen. v. Napier (1851), 6 Exch. 217, Parke and Alderson. It will be 
observed as to this case that the Acts of Parliament imposing the legacy 
duty bind all British courts, though they do not impose the duty for all 
the British dominions. It would be a different thing to hold the adminis- 
trator liable for the duty to the extent of assets received by him under the 
grant of a politically foreign jurisdiction, in which he might be accountable 
for them, and which might ignore the English revenue laws. 

§ IIG. We now come to the succession duty when it is incident 
on settled property and not as arising on the death of an absolute 
owner of English real estate. By our system of settlements 
personal estate through the intervention of trustees, and real 
estate either with or without the intervention of trustees, are 
tied to go to a series of persons in succession one after another^ 
who may be called owners to the extent of their limited interests, 
beneficiary owners if there are trustees, full owners if there are 
not. It is from this limited ownership that absolute ownership 
is distinguished. Thus it continually happens that property, 
full or only beneficiary, is transmitted on the death of a limited 
owner and the simultaneous expiration of his ownership, the 
devolution not being determined by the will of the deceased 
owner, or by the operation of law as on his property, but by the 
terms of the settlement under which the property is held. And 
that settlement may be the will of some former absolute owner, 
a marriage contract, or a disposition inter vivos otherwise than 
on marriage. Such cases are analogous to the division of the 
property into the usufruct and the nuda proprietas so well 
known on the continent, although a commoner continental mode 
of sec^iring the enjoyment of property by a series of persons in 
succession was by giving to the first taker wh^it was nominally 



142 


PRIVATE INTERNATIONAL LAW. 


the absolute property, but charged with the duty of preserving 
it and passing it on to a third person, which was called a sub- 
stitution. Under an English settlement the first taker may be 
also the trustee, and then he has in the one character the 
terminable enjoyment of what in the other character he must 
also the trustee, and then he has in the one character the 
right to the enjoyment with the duty of transmission, which is 
the essential note of a substitution, does not occur under English 
law. Since, however, substitutions have been prohibited in 
many countries — as by the Code Napoleon, Art. 896 — authors 
and courts of justice have made efforts to uphold as usufruct and 
nuda 'proprietas many dispositions which would formerly have 
taken effect by way of substitution. Now the duties which have 
thus far been considered are those levied on the occasion of the 
death of an absolute owner, and we must now consider those 
which by the Succession Duty Act, passed in 1853, are imposed 
on the transmission of personal estate at the death of a limited 
owner whose ownership expires with his life. These fall within 
the present chapter, the subject of which is the succession to 
movables on death, and they may be conveniently noticed 
immediately after the legacy and old probate duties, although 
their relation in principle to each of the latter is rather one of 
contrast than of analogy. Even a contrast however is instructive. 

First then the succession duty has no analogy at all to the old 
probate duty. On the death of a limited owner the property 
has not to be collected under public authority : it is already 
massed together in the hands of the trustees, or possesses a 
visible- separate existence as real estate, though with the latter 
case we have not now to deal. Nor is there any question of 
clearing it from the debts of the deceased owner, for he could 
not burden it with debt beyond the duration of his own limited 
ownership. Secondly, the succession duty on movable property 
is, like the legacy duty, a toll taken by the government on trans- 
mission from a dead hand to living hands, but the wealth 
transmitted is not the wealth of the deceased — ^his interest in 
it is not transmitted but has terminated — and therefore his 
domicile would not appear to be relevant to its taxation. The 
successor derives his title not from him or from the operation of 
law as on his property, but from the original settlement. It 
might therefore have been reasonable to adopt as the ground of 
taxation either the domicile of the successor or the character 
of the settlement, and the act, as interpreted by the courts, has 



SUCCESSION TO MOVABLES ON DEATH. 


143 


done the latter. The duty attaches when the settlement is a 
British one, in the sense in which that term refers to the United 
Kingdom and not to other British countries. 

When by a will, a marriage contract, or any other disposition 
inter vivos ^ movable property has been placed in trust for a 
series of persons in the hands of trustees personally subject to 
the jurisdiction of a court in the United Kingdom, so that such 
court by reason of such subjection is the proper forum for 
deciding on claims to the successive enjoyment of the property, 
succession duty will be payable on the devolution of the enjoy- 
ment from one person to another irrespective of the domicile of 
either of them or of the settlor. It makes no difference whether 
the settlement (will, contract, or gift) itself completely deter- 
mines the line of devolution, or gives to any one the power of 
determining it, to be exercised in any manner. If the person to 
whom such a power is given (donee of a power of appointment — 
see § 91) is domiciled out of the United Kingdom and exercises 
the power by will, succession duty will nevertheless be payable 
on the devolution so determined, because it is still the case of 
a devolution under the settlement and not of a legacy under the 
will of the donee. If the settlement be made by the will of a 
person domiciled out of the United Kingdom, the fund, being a 
legacy left by such will, is not subject to legacy duty on being 
placed in the hands of the trustees, but succession duty will be 
payable on the subsequent devohitions of the enjoyment of it. 

Succession duty has been held to be payable in the following 
cases : — 

Notwithstanding that the devolution took place through the execution 
of a power by the will of a person domiciled abroad. Be Lovelace (1859), 

4 De G. and J. 340, Knight-Bruce and Turner ; Be Wallop (1864), 
1 De G. J. & S. 666, Knight-Bruce and Turner. 

Notwithstanding that the settlement was created by the will of a testator 
domiciled abroad. Be Smith (1864), 12 W. R. 933, Stuart; Be Badart 
(1870), L. R. 10 Eq. 288, Malins; Att.-Gen. v. Campbell (1872), L. R. 

5 E. <& I. A. 624, Hatherley, Chelmsford, Westbury, Colonsay ; though 
the devolution was to a party domiciled abroad. In Lyall v. Lyall (1872), 
L. R. 15 Eq. 1, second point, where a testator domiciled in New South 
Wales directed his colonial executors to transmit his residuary estate to 
trustees in England for investment, but no part of that estate had reached 
the hands of those trustees before a succession took place under the trusts 
declared of it by the testator, Romilly held that duty in respect of that 
succession was not payable on the estate which afterwards reached the 
hands of the trustees. There was therefore a clear distinction on whlcH 
he might have put the decision, but alter a long criticism of the judgment 
of thedSouse of Lords in Att.-Gen. v. Campbell, in connection with the 
first point in the case before him, all he said on the second point was: 



144 


PRIVATE INTERNATIONAL LAW. 


“ I hold that no duty is payable on those funds which constitute the 
residuary estate of the testator.*' 

Notwithstanding that the funds on which the duty is claimed reached 
the hands of the English trustees after the date when the succession took 
place, the right to them having however been vested in the trustees 
previous to that date. Lyall v. Lyall (1872), L. R. 15 Eq. 1, first pointy 
Romilly. But consider the second point in this case, cited in the last 
paragraph. 

Notwithstanding that the property vested in the English trustees consists 
of the stocks of foreign governments and shares in foreign companies. 
lie Ciyala (1878), 7 Ch. D. 361, Jessel; Att-Gen. v. Felce, [1894] 10 Times 
^ Law Reports, 337, Mathew and Cave; Ait. -Gen. v. Jewish Colonization 
Association, [1901] 1 K. B. 123, A. L. Smith, Collins and Stirling. And 
notwithstanding that tjie property consists of land situate abroad but 
subject to a trust for sale vested in the English trustees. Att.-Gen. v. 
Johnson, [1907] 2 K. B. 885, Bray. 

Notwithstanding that all the trustees are not personally subject to the 
jurisdiction of a court in the United Kingdom, so long as it is practically 
necessary for those who claim as beneficiaries to sue the trustees in the 
United Kingdom. lie Badart and Att.-Gen. v. Campbell, cited above. 
In lie (Jiyala one of the original trustees was an Italian, though at the 
time of the decision all the trustees were English. It may be noted here 
that income-tax on the other hand is not payable by trustees domiciled 
and resident in England in respect of dividends on shares in a foreign 
company which they hold on behalf of a person domiciled abroad, the 
dividends being paid direct to the beneficiary abroad. Williams v. 
Singer, [1921] 1 A. C. 66, H. L., and [1919] 2 K. B. 108, C. A., Swinfen 
Eady, Warrington, Scrutton, affirming Sankey. 

In several of the cases the judges refer to the settled money being in 
the British funds, or in some other way having a kind of local situation 
in the United Kingdom, as for example by the residence of the debtor 
from whom the trustees would have to recover it. But in no case has 
the succession duty been held to be incident on that ground where the 
trustees or one or more of them were not British, and the principle of 
Be Cigala, in which the duty was held to attach on the devolution of an 
interest in foreign funds held by British trustees, should apply to prevent 
its attaching on the devolution of an interest in British funds held by 
exclusively foreign trustees. In that case Sir G. Jessel said: “This is 
not real property, but personal property in the hands of English trustees, 
and you cannot get it from them except by an action in England. That 
is the true test ; in order to recover the property you must come to 
England." 

§ 117. Any duty which must be paid abroad on the assets of 
a person whose last domicile was in England, will only be paid 
out of his residue, if provision to that effect is made in the will, 
so that his particular legatees will not have to contribute to it. 
Otherwise it will be paid by the particular legatees on whom it ie 
imposed by the law of the country where the property is situate. 

Be Scott {No. 1), [1915] 1 Ch. 692, C. A., Cozens-Hardy, Philli- 
more, Joyce, affirming Warrington > J., where a testator domiciled in 
England bequeathed chattels abroad, " free of legacy duty," and by 



SUCCESSION TO MOVABLES ON DEATH. 


145 


the French law “ mutation ** duty was payable by the legatee on the 
chattels ; and it was held” that the executor was under no obligation to 
pay the French duty, because the words ‘ ‘ legacy duty were used in 
the strict sense. 

The court distinguished the case from two older decisions : Peter v. 
Stirling (1878) 10 Ch. D. 279, Malins ; Be Maurice^ Brown v. Maurice^ 
[1896J 75 L. T. 416, North, where the words of the will were explicit. 

Cf. too. Be Be SaumareZj [1912] 2 Ch. 622, Parker. When a testator 
domiciled in England bequeathed certain shares in a foreign company 
to his trustees on trust to sell and the trustees paid foreign succession 
duties, it was held that the duty should be borne by the proceeds of the 
shares sold and not out of the general estate. 

Since the beneficial interest in the surplus of the deceased’s 
personal property is governed by the law of his last domicile 
(§ 59), and therefore by one law no matter in how many juris- 
dictions the assets may be found, it might seem to be of no 
importance out of what assets any of the debts are paid. This 
however is not always so. Let us suppose that the deceased 
had immovable property in a country foreign to his domicile, and 
in which the succession to immovables is held to be governed by 
the leoj situs; and that a debt of the deceased is paid by the heir 
of that property, or by a devisee of it taking under a will in 
which no intention as to the incidence of the debt in question is 
expressed. Evidently it is only by the lex situs that a debt can 
be charged primarily on immovables in exoneration of the 
personalty. If therefore by the lex situs itself the heir or devisee 
has recourse against the personalty for the amount of the debt 
which he has paid, there is no conflict of laws, and it would 
seem to be clear that he can have his recourse in every jurisdiction 
in which he can find assets. And so it has been settled in 
England, after a dispute which it is not easy to understand. But 
if by the lex situs the debt was charged primarily on the immov- 
able, the peculiar succession which the heir or devisee enjoys 
under that law is limited by that law itself to so much of the 
immovable as remains after paying the debt. The only law to 
which he can appeal, because it is the only one by virtue of which 
he is at all either a beneficial successor or a transferee of the debt, 
does not enable him to stand against the general succession in the 
place of the creditor whom he has paid, and there can be no reason 
for giving him that recourse in any other jurisdiction. This also 
has been settled in England, and the result is that the right of 
recourse is in each case determined by the lex situs. Hence : 

§ 118. The right of the heir of foreign immovables, or of their 
devisee when no intention on the point is expressed by the will, 

10 


W.I.L. 



146 


PRIVATE INTERNATIONAL LAW. 


to have recourse against the personal estate in England for the 
amount of debts of the deceased which he has paid, is determined 
by the lex situs of the immovables. ' 

Recourse allowed where it was allowed by the lex situs. Bowaman v. 
Beeve (1721), Pre. Ch. 577, Macclesfield; apparently the same case as the 
Anonymous one in 9 Mod. 66, there dated as of 1723 : Winchelsea v. 
Oaretty (1838). 2 Keen 293, Langdale. In the former case the deceased was 
domiciled in the situs of the immovables, and in the latter in England. 

Recourse refused where it was refused by the lex situs (case of Scotch 
heritable bonds). Drummond v. Drummond (1799), 6 Bro. P. C. 601, 
2 Yes. and Be. 132; Elliott v. Minto (1821), 6 Madd, 16, Leach. In the 
former case the deceased was domiciled in England, but in the latter the 
domicile is not stated. 

See Be Hewitj Lawson v Duncan ^ [1891] 3 Ch. 668, Romer, where there 
were immovables in various jurisdictions, and the order in which they and 
the movables were to be applied in payment of debts of various kinds was 
determined mainly on the construction of the will. 

§ 119. The rate of interest with which an executor or adminis- 
trator will be charged on assets in his hands is not necessarily 
either that usually given in the forum, or that usually given in 
the domicile of the deceased, but will be that usually given in the 
country where the assets have been, supposing of course that 
there has been no improper removal of them from one country to 
another, or improper retention of them in any country. 

Malcolm v. Martin (1789), 3 Bro. Ch. 60, Arden ; Baymond v. Brodhelt 
(1800), 6 Ves. 199, Rosslyn ; Bourke v. Bicketts (1804), 10 Ves. 330, Grant. 
The last case shows that, as a consequence of this rule, where there are 
assets and executors in two or more countries, the interest which a legatee 
will get may depend on which country he chooses to sue in. 


Distribution of the Surplus in an Administration. 

The beneficial interests according to which the clear surplus 
of a deceased person’s estate is to be distributed are determined, 
whether in the case of testacy or in that of intestacy, by the law 
of his last domicile. This maxim was laid down in § 59, as being 
necessary to the understanding of much that had to follow, for 
instance the deference paid to the courts and law of the domicile 
with regard to the grant of probate or administration, and to the 
validity of wilU; and in the remainder of this chapter we have 
simply to follow out its consequences, being henceforth free from 
the complications which, before a clear surplus was realized, arose 
out of the authority over the assets themselves which is allowed 
in England to the situs. We may notice in passing a question 
raised by Lord Alvanley, in Somerville v. Somerville (1801), 



SUCCESSION TO MOVABLES ON DEATH. 


147 


6 Ves. 791 : what would be the case upon two contepiporary 
and e,qual domiciles, if ever there can be such a case?’’ It has 
remained a speculative one, so far as the experience of the 
English courts is concerned, but Lord Alvanley’s answer may Le 
given. “I think,” he proceeded, ‘‘such a case can hardly 
happen, but it is possible to suppose it. A man born no one 
knows where, or having had a domicile that he has completely 
abandoned, might acquire in the same or different countries two 
domiciles at the same instant, and occupy both under exactly the 
same circumstances, both country houses for instance, bought at 
the same time. It can hardly be said that of which he took 
possession first is to prevail. Then suppose he should die at one, 
shall the death have any effect ? I think not, even in that case ; 
and then ew necessitate the lex loci rei sitce must prevail, for the 
country in which the property is would not let it go out of that 
until they know by what rule it is to be distributed. If it was in 
this country, they would not give it until it was proved that he 
had a domicile somewhere.” Savigny on the other hand says: 
‘‘ On the death of a vagabond who had no domicile, the law of his 
origin determines; and if this too cannot be ascertained, the law 
of his last residence, that is, of the place where he died.”* 

§ 120. The clear surplus of an intestate’s personal estate is 
distributable among the persons, and in the shares, determined 
by the law of his last domicile. 

Fipon V. Fipon (1744), Ambl. 26, Hardwicke ; Thorne v. Watkins (1750), 
2 Ves. 36, Hardwicke. The old Scotch authorities on the subject, which 
appear to have fluctuated, will be found in Bruce v. Bruce (1790), 6 Bro. 
P. C. 566, and Balfour v. Scott (1793), 6 Bro. P. C. 650, the appeals in 
which cases settled the rule for Scotland in the same sense in which it 
existed for England. Lord Thurlow’s speech in Bruce v. Bruce will be 
found in another report, 2 Bos. & Pul. 229, note. 

§ 121. Hence if the intestate leaves immovables in a country 
foreign to his domicile, the law of which does not admit the appli- 
cation of the lex domicilii to the succession to immovables, but 
confers that succession on a peculiar heir, excluding him at the 
same time from a share in the movables except on condition of 
bringing into hotchpot or collating immovables, such heir may 
nevertheless, under the lex domicilii^ claim his share of the 
movables in both countries without collating the imnqiovfebles. 

Balfour v. Scott (1793), 6 Bro. P. 0. 660 ; a Scotch nppeaj. See aUb 
g 125 ; and see below § 126b. 


♦Syet. § 376, note (6); Guthrie 323. 




148 


PRIVATE INTERNATIONAL LAW. 


§ 121a. But hona vacantia situate in this country pass to the 
Crown, and do not follow the law of the last domicile. 

Be Barnetfs Trusts^ [1902] 1 Ch. 847, Kekewich. 

§ 1216. And property which forms the subject matter of a 
donatio mortis causa is subject to the law applicable to gifts 
inter riros and not to that applicable to testamentary disposi- 
tions, notwithstanding that the subject matter of the donatio 
was liable to the donor’s debts upon a deficiency of assets, and 
also subject to legacy and estate duty. 

Be Korvine's Trusts , [1921] 1 Ch. 363, Eve. 

§ 122. The operation of his will on the clear surplus of a 
testator’s movables is also determined, so far as concerns ques- 
tions other than those of construction, by the law of his last 
domicile. Hence if any of his dispositions are invalid by that 
law, whether as being in excess of the disposing power allowed 
by it or for any other reason, they will fail of effect, and the 
same law will determine the destination of the movables com- 
prised in them. Compare § 86. 

Conversely, if the law of the testator’s last domicile allows a larger 
freedom of disposition than the law of the domicile at the time the will 
was made, it is the former law which prevails : Be Groos {No. 2), [1915] 
1 Ch. 672 U.8., p. 119. 

The right of a widow or child to legitim, and consequently to defeat to 
that extent any contrary disposition made by the testator, depends on the 
law of the latter’s last domicile, and not on that of the situs of the 
personal estate. Hog. v. Lashley (1792), 6 Bro. P. C. 677, 3 Hagg. 
Eccl. 415, note ; House of Lords, on Scotch appeal. See also Thornton v. 
Curling (1824), 8 Sim. 310, Eldon ; Campbell v. Beaufoy (1859), Johns. 
320, Wood. When English immovable property is left on trust for sale, 
its disposition will be governed by the law of the testator’s domicile. 
Bf J)e NoaiUes^ [1916] 114 L. T. R. 1589, Eve, where real property in 
England was devised by a testator domiciled in France on trust for sale 
for the purpose of maintaining an orphanage ; and as the trusts could 
not be exactly carried out, the devise failed, the French law having no 
doctrine of cy-pres like the English. 

The validity of a condition in restraint of marriage attached to a 
legacy depends on the law of the testator’s last domicile. Ommaney v. 
Binghamy or Sir Charles Douglas's Case (1796), 3 Ves. 202, in Bempde v. 
Johnstone; 5 Ves. 767, in Somerville v. Somerville; 3 Hagg. Eccl. 414, 
note, 6 Bro. P. C. 650, in head note to Balfour v. Scott; Loughborough 
a^ Thurlow on a Scotch appeal. 

^xhe domicile of the testatrix being English, a legacy to a person who 
predeceased her lapsed under the English rule, though it would ^not have 
lapsed by the law of the country where, and in the technical language of 
which, the will was made. Anstruther v. Chalnier (1826), 2 Sim. 1, Leach. 



SUCCESSION TO MOVABLES ON DEATH. 


149 


The validity of a legacy bequeathed for charitable uses depends on the 
law of the domicile, so far as the personal estate is concerned : and if the 
testator leaves immovables in a country foreign to his domicile, the law of 
which does not admit the application of the lex domicilii to the succession 
to immovables, and invalidates a charitable legacy under the circumstances 
of the case, it depends on the law of the domicile whether such legacy will 
be payable in full so far as the personal estate admits, or will be invalid 
for the proportion which the testator’s property out of which it is not 
payable bears to that out of which it is payable. Macdonald v. Macdonald 
(1872), L. R. 14 Eq. 60, Bacon. 

The validity of a legacy bequeathed for superstitious uses also depends 
on the law of the testator’s domicile. Be Elliott ^ Elliott v. John^oriy [1891] 
39 W. R. 297, North. In Be Egan, [19181 L. J. News. 314, Swinfen 
Eady, M.R., Warrington, Duke, L.JJ., a bequest for Masses by a 
testator born in Ireland but domiciled in England was held to be void 
because of an English statute (1 Edw. VT. c. 14) declaring all bequests for 
superstitious uses invalid. 

Const met ion of Wills, 

The subject of construction may best be introduced by a quota- 
tion from Lord Lyndhurst’s speech in the Scotch appeal of 
Trotter v. Trotter, cited under § 125. ‘‘ It was stated at the 

bar/^ he said, “ and I see by the paiK‘rs it was also argued below, 
that in cases of this description it is not unreasonable that when 
any technical points arise in the construction of a will of this 
description, the court of session should resort to the opinion- of 
lawyers of the country where the will or instrument was executed, 
but that this only applies to technical expressions; that where a 
will is expressed in ordinary language, the judges of the court 
of Scotland are as competent to put a proper construction upon it 
as judges or lawyers of the country where the will was executed. 
But the judges below were not of that opinion; and it is impos- 
sible, as it appears to me, that such an opinion can be reasonably 
entertained. A will must be interpreted according to the law of 
the country where it was made, and where the party making the 
will has his domicile. There are certain rules of construction 
adopted in the courts, and the expressions which are made use of 
in a will and the language of a will have frequently reference to 
those rules of construction ; and it would be productive therefore 
of the most mischievous consequences and in many instances 
defeat the intention of the testator, if those rules were to be 
altogether disregarded, and the judges of a foreign court, which 
it may be considered in relation to the will, without reference 
to that knowledge which it is desirable to obtain of the law of ^e 
country in which the will was made, were to interpret the will 
according to their own rules of construction. That would also 



150 


PRIVATE INTERNATIONAL LAW. 


bo productive of another inconvenience, namely that the will 
might have a construction put upon it in the English courts 
difEerent from that which might be put upon it in the foreign 
country. It appears to me that there is no solid ground for the 
objection, but that where a will is executed in a foreign country 
by a person having his domicile in that country, with respect to 
that person’s property the will must be interpreted according to 
the law of the country where it is made. It must, if it comes 
into question in any proceeding, have the same interpretation put 
upon it as would be put upon it in any tribunal of the country 
where it was made. It appears to me therefore that the judges 
were perfectly right in directing the opinion to be taken of 
English lawyers of eminence with respect to the import and 
construction of this will according to the law of England.” 

Lord Lyndhurst here assumed that the will was made in the 
testator’s domicile. If it was made in a different country the 
English authorities are to the effect that the law of the domicile 
prevails. And formerly it was the Law of the testator’s last domi- 
cile that was meant. But now, through the provi,sion in Lord 
Kingsdown’s Act that the construction of a will shall not be 
altered by reason of any subsequent change of domicile of the 
person making the same — see § 85 — it has come to be the law of 
the testator’s domicile at the time of making his will which must 
be referred to for its construction. This I take to be a real 
improvement, and not to be inconsistent with the general 
authority of the last domicile of the deceased over the beneficial 
interest in the clear surphis of his estate. Interpretation being a 
question of fact, the law which decides on the validity of a 
bequest when it has been construed may well look beyond itself 
for aid in construing it. 

Further, the question of construction is not always easy to dis- 
tinguish from that of operation. Thus Anstruther v. Chalm^r, 
quoted under § 122, might be treated as turning on a question of 
construction, namely whether a gift to the representatives of the 
legatee, which would be valid by English law, ought not to be 
held as implied by a legacy bequeathed in the technical language 
of a law under which lapse would not occur through the decease 
of the legatee in the testator’s lifetime. And the clearer it is in 
any case that the question is one of construction as distinguished 
from operation, the* more open it is to the court to temper the 
general reference to the law of ihe domicile by reference to other 
considerations which the particular circumstances may suggest. 



SUCCESSION TO MOVABLES ON DEATH, 


151 


From all this the following rule appears to result, 

§ 123. When the English court is called on to construe a will 
of personal estate, and is not aided by any judgment in the 
testator’s last domicile, as to which see § 60, it will take as its 
guide the law of the country which was the testator’s domicile 
at the date of the will, giving effect to any stringent rules of 
construction which there exist, and, so far as no such rules exist 
there, having a reasonable regard to all the circumstances, includ- 
ing any habits or tendency of the courts of that country in the 
matter of interpretation which may be proved by the evidence of 
experts. But this rule will yield to an express or obvious inten- 
tion on the part of the testator. 

The currency in which a legacy is given must in general be interpreted 
to be that of the testator’s domicile, though the context of the will, or 
the situation of the funds on which the legacy is expressly charged, may 
make a difference: Saunders v. Brake (1742), 2 Atk. 466, Hardwicke; 
Pierson v. Garnet (1786), 2 Bro. Ch. 38, Kenyon, who spoke of the place 
where the will was made, but that was the same as the domicile ; Malcolm 
V. Martin (1789), 3 Bro. Ch. 50, Arden. And if a legacy given in the cur- 
rency of a foreign domicile has to be paid in England, so much English 
money must be paid here as if paid in the domicile would there produce the 
amount in the currency of that country : Cockerell v. Barber (1810), 16 
Ves. 461, Eldon ; Campbell v. Graham (1830), 1 Ru. and My. 453, Leach, 
with whom Brougham concurred in opinion, as he stated on the appeal 
to the House of Lords, sub nom. Campbell v. Sandford (1834), 2 Cl. & F. 
450. 

A will was construed by the law of the testator’s domicile, on the 
question whether a legacy given by it was in satisfaction of a debt under a 
foreign matrimonial contract ; Campbell v. Campbell (1866), L. R. 1 Eq. 
383, Wood. And on the question who were comprised in a gift to the 
next of kin of a legatee: Be Fergussonj [1902] 1 Ch. 483, Byrne. 
Cf. however, Be Bonne foi (u.s., p. 132), where a will was construed 
by the law of the testator’s nationality which was not the law of the 
domicile ; but the circumstances were peculiar. 

See a peculiar case of construction, not inconsistent with the doctrine 
of the present § : Bernal v. Bernal (1838), 3 M. & Cr. 659, Cottenham. 

A testator b^ueathing his “estate,” “effects,” or “property” in a 
given country prima facie intends to comprise debts due to him from 
persons residing in that country. Nisbett v. Murray (1799), 6 Ves. 149, 
Arden ; Arnold v. Arnold (1834), 2 My. & Ke. 366, Pepys ; Tyrone v. 
Waterford (1860), 1 D. F. J. 613, Knight Bruce, p. 628, and, less 
distinctly, Campbell and Turner; Gutj^rie v. Walrond (1883), 22 Ch. D. 
673, Fry. In Be Clark^ M*^Kecknie v. Clark ^ [1904] 1 Ch. 29^, Farwell, 
bonds were held to pass under a bluest of “ personal estate ” in the 
country where they were payable, although they were to bearer and were 
in another country, and shares to pass under a bequest of * * personal 
estate” in the country where the ce^ificates were and where they were 
transferable, although the company and its head office were foreign. See 
the cases on the incidence of probate, and now of estate duty, under § 112. 

All that can be collected from Bradford v. Young (1884), 2^ Ch. D. 666, 



162 


PRIVATE INTERNATIONAL LAW. 


Pearson ; (1885), 29 Ch. D. 617, Cotton, Lindley and Fry ; appears to be 
that technical terms of a law foreign to the testator’s domicile, occurring 
in a testamentai^y disposition of movables, may be construed according to 
the law in which they are technical if there is a sufficient indication 
of intention to that effect, but that the higher court was not disposed to 
be easily led to look beyond the law of the domicile. i 

For an example of a will being construed by another law than that of 
the testator’s domicile, in pursuance of an intention to that effect indicated 
in it, see Be Price, Tomlin v. Latter, [1900] 1 Ch. 442, Stirling) referred 
to under § 91 with regard to the execution of powers. And so too Re 
Simpson^ [1916] 1 Ch. 502, Neville; and Be LewaVs Trusts (above, 
p. 122). And for one in which it was held that there was no intention 
to oust a rule of interpretation existing in the law of the domicile, see 
Baring v. Ashburton (1886), 54 L. T. 463, Chitty. 

Where a will is in a foreign language and a copy of it is deposited in the 
probate registry, although probate is granted only of an English trans- 
lation which appears to be inaccurate, a court of construction may and 
must look at the original: L'Fit v. L'Batt (1719), 1 P. W. 626, Jekyll ; 
the report of which case is corrected in Be Cliff's Trusts, [1892] 2 Ch. 229, 
North. In the latter case doubt was expressed whether, if any party had 
insisted on it, an application must not first have been made to the probate 
division to correct the translation, but in the former case this was insisted 
on and the decision was against any such necessity. As to what Lord 
Cottenham said in Bernal v. Bernal (1838), 3 M. & C. 563, note, that 
“ the probate copy must be conclusively considered as the document upon 
which the court was to act,” in that case neither the original nor a copy 
of it was deposited in the registry. 


§ 124. Together with § 123 may have to be taken a qualifica- 
tion arising out of the maxim that the admissibility of evidence is 
governed by tlie Jex fori which had best be expressed in the words 
of Lord Brougham on a Scotch appeal. It by no means follows 
that where a sentence of a foreign court is offered in evidence in 
court, the probate for example of an English will, it should not be 
admitted; nor do I think it should be denied its natural and 
legitimate force. But that it must like all other instruments be 
received upon such proof as is required by the rules of evidence 
followed by the court before which it is tendered, I hold to be 
quite clear. It will follow that though a probate striking out 
part of a will would be received, and the court of session would 
have no right to notice the part struck out, for this would be 
reversing or at least disregarding the very sentence of the court 
of probate, yet the non-probate of a person’s will would not 
prevent the court from receiving and regarding that will, if its 
own rules of evidence did not shut it out. So too it is unneces- 
sary to decide here what would be the course in the Scotch courts 
in the case of an English will of personalty attevsted by one 
witness, after an act should have passed requiring two ” — as has 



SUC<?ESSION TO MOVABLES ON DEATH. 


153 


since happened. ‘‘ I think that though it might be admissible in 
evidence by the rules of evidence which would then govern, yet 
no effect could be given to its disposition because of the rules of 
English law requiring two witriesses, that being a requisition not 
of form, in order to make the paper evidence, but of substance, in 
order to protect testators on their dying beds.’’ 

This was applied, in the case cited, by holding that the Scotch court 
could look at a will made by a testator domiciled in England, which 
had not been admitted to probate in England because it had been revoked 
by a subsequent will there proved, for the purpose of aiding in the con- 
struction of a trust deed, or third will, which seems to have been operative 
in Scotland with regard to money in a Scotch bank : Yates v. Thomson 
(1835), 3 Cl. & F. 544. Since the law of England is remarkable for 
severity in excluding writings as evidence, it is not likely that the 
English court will be asked to look at a writing excluded by the lex 
domiciliiy even if Lord LyndhursCs doctrine that a will ought to “have 
the same interpretation put upon it as would be put upon it in any 
tribunal of the country where it was made,“ say rather “ where the 
testator was domiciled,” should not be thought inconsistent with Lord 
Brougham’s ruling in Yates v. Thomson^ and of superior authority. 
Cf. Be Seholefield, [1905] 2 Ch. 408, § 348. 

§ 125. If a testator leaves immovables situate in a country 
foreign to his domicile, and his will is inoperative as to them, 
but it is contended that by reason of an intention to devise them 
manifested in it the per^son who is heir to them by the lex situs 
is put to elect between them and money given him by the will, the 
question whether he is so put to elect, being one of the con- 
struction and operation of the will as affecting the disposition 
of the movable estate, is determined by the law of the testator’s 
domicile. 

Brodie v. Barry (1813), 2 V. & B. 127, Grant ; Trotter v. Trotter (1829), 
4 Bl. N. R. 602, 3 Wils. & Sh. 407, Lyndhurst ; Johnson v. Telford (1830), 
1 R. M. 244, Leach ; Dundas v. Dundas (1830), 2 D. & C. 349, 
Brougham; Allen v. An(^son (1846), 5 Ha. 163, Wigram ; Dewar v. 
Maitland (1866), L. R. 2 Eq. 834, Stuart; Baring v. Ashburton (1886), 
54 L. T. 463, Chitty. See also § 121. 

Where a testator domiciled in Scotland made two wills directing that the 
British will should be construed by Scotch law and that the Australian 
will should be construed by Australian law, and his widow elected to 
claim her jus relictae and terce against the Scotch will, it was held that 
she could not claim benefits under the Australian will, the two wills 
being treated as one for the purposes of election : Douglas-Menzies v. 
Umphelhyy [1908] A. C. 224, Macnaghten, Robertson, Atkinson, Collins 
and Wilson. 

§ 126a. It is immaterial whether the will is inoperative to 
dispose of the immovables situated in the foreign country because 



154 


PRIVATE INTERNATIONAL LAW. 


it is defective in form, or because the testator by the lex situs was 
incapable of disposing of his immovable property away from his 
legal heirs. In either case the legal heir to whom the testator 
has bequeathed in the same will personal property will be put to 
his election, if the last domicile of the testator was English. 

Be OgilviSf [1918] 1 Ch. 492, Younger. “It is against conscience 
that a foreign heir given a legacy l^y the same will should take and keep 
under protection of the foreign law land by the will destined for another, 
without making to that other out of his English legacy, so far as it will 
go, compensation for his disappointment, thus effectuating the testator’s 
whole intention. . . . The court will always take this course unless the 
heir’s legacy would, if applied in compensating the devisees of the land, 
be applied in a way for which the testator could not by the law of the 
domicile validly by will have applied it.” 

The English courts have, however, laid down an exception to this 
principle which can hardly be justified on any logical ground, but which 
is “ too well established to be disputed.” When the will by the law of the 
domicile is inoperative to dispose of immovables situated in Englandy the 
English heir-at-law is not put to his election, but will take his benefit under 
the will as well as his part as legal heir (Hearle v. Greenhanky 1 Ves. sen. 
298, followed in Be Be Virte ; Vaiani v. Buglioni de VirtSy [1915] 1 Ch. 
920, Joyce). The exception is said to be based on a special favour to the 
heirs-at-law of English land, but “ the distinction between the English 
heir-at-law and any other heir ii not satisfactory ” (per Younger, J., in 
Be Ogilvie, u.s., at p. 490). The reasoning by which the doctrine of 
election is supported, in order that the testator’s whole intention may be 
effectuated, applies equally to the case of a testator leaving immovable 
property in England as to one leaving such property out of England. 

125/^. Tho rule appears to be otherwise where the law of a 
foreign country prohibits a sy^stem of succession to immovable 
property, c./y., by devise to trustees on trust for the heirs. The 
person entitled to succeed to immovable property by the lex situs 
cannot be put to his election if he is also entitled to other land 
under the will. Brown v. Gregsony [1920] A. C. 866, H.L. (Hal- 
dane, Finlay, Dunedin, Moulton; Cave dissenting). A testator 
domiciled in Scotland devised land in the Argentine as well as 
land in Scotland on trust for his children. By the law of the 
Argentine no trust is recognized in respect of land, and the 
children succeeded to the land ah intestate. It was held that 
they were not put to their election between taking the shares of 
the foreign land and the benefits conferred on them by the will. 

It would be contrary to the comity for a foreign court to 
endeavour by its jurisdiction in personam to make the land of 
another country subject to a system of trusts which its law 
prohibits ’’ [per Finlay, p. 876). 

§ 126. In the English statute of distributions, and in a bequest 



SUCCESSION TO MOVABLES ON DEATH. 


155 


of personalty by a testator domiciled in England, the word 

child/ ^ whether qualified or not by the epithet “ legitimate,'’ 
includes a child who has been legitimated per subsequens matru 
monium in the circumstances deemed necessary in England for 
the recognition of such a legitimation, as to which see above, 
pp. 102, 103. 

Goodman v. Goodman (1862), 3 Giff. 643, Stuart (bequest) ; Be Goodman 
(1881), 17 Ch. D. 266, Cotton and James against Lush, reversing Jessel, 
(1880), 14 Ch. D. 619 (statute) ; Be Andros (1883), 24 Ch. D. 637, Kay 
(bequest). There is a contrary decision, Boyes v. Bedale (1863), 1 H. & M. 
798, Wood (bequest); but Cotton and James dissented from it in deciding 
Be Goodman, 

The same doctrine will no doubt be held equally to apply to 
the devise of English land. The principle is that in the will of 
an Englishman ‘‘child" must be interpreted according to 
English law, which recognizes legitimation by the appropriate 
foreign law, and this is independent of the peculiar rule that the 
heir ab intestato of English land must have been born in wedlock, 
as to which see below, § 178. 

So held in Be Grey's Trusts^ Grey v. Stamford, [1892] 3 Ch. 88, Stirling. 



( 166 ) 


CHAPTER VL 

Bankruptcy. 

The principal remaining case, after those connected with 
marriage and death, in which property is considered in special 
connection with a person is that of bankruptcy. In that term I 
include all the modes in which a concursus or competition of 
creditors is formed against the property of a living person, or of 
a firm or company having a legal personality, whether the 
technical name in the particular instance l>e bankruptcy, insol- 
vency, sequesi ration, veasio hononim^ winding up, or any other, 
arul w'hether the persons who administer the property for the 
creditors are technically called trustees, assignees, curators, 
liquidators, syndics or any thing else, all which names may be 
(‘(jnsidered as comprised when the term trustees is used. And 
in the present chapter those questions of private international law 
shall be discussed which arise out of the collection and distribu- 
tion of the debtor’s property in such competitions, leaving those 
whi(di concern his discharge, usually but not always connected 
wdth such competitions in national law, until we arrive at the 
modes of extinguishing obligations. 

We must note at the outset the existence of two currents of 
opinion or practice on the subject. One, which maintains the 
unity of bankruptcy, has always been the favourite of legal 
science. ‘‘As the bankruptcy,” said Savigny in 1849, “has in 
view an adjustment of the claims of a niimber of creditors, it is 
possible only at one place, namely at the domicile of the debtor, 
so that the special forum of the obligation is here displaced by 
the general personal forum. And since it is pecuniary 
interests that are concerned, there has not here been that tendency 
to replace domicile by nationality, as determining the seat of the 
general personal forum, which is displayed in matters relating to 
the person and family relations of an individual. Indeed in 
those countries in which the bankruptcy laws can be applied only 
to traders, it is not generally even the domicile but the principal 


*8yst. § S74, Outhrie 209. 



BANKRUPTCY : CONTINENT. 


167 


trade establishment which determines the forum of a bankruptcy. 
The other current sets in favour of separate bankruptcies for the 
collection and distribution of the debtor’s property in each juris- 
diction in which he may happen to possess any, and this current 
sets most strongly in legislation, which is apt to be influenced as 
well by the feeling of national distinctness and independence as 
by the desire of satisfying the needs of the creditors who claim 
the protection of the respective enacting authority. 

The management of a bankruptcy from the first point of view 
is explained by Savigny in the following passage, written with 
reference to the then state of Prussian law, of which he approves. 
“ By this law there is always only one bankruptcy, and that at 
the domicile of common debtor. The judge in bankruptcy 
procures by requisition the co-operation of the Prussian courts in 
whose territory parts of the estate are situated. If parts of the 
estate are abroad, then the judge has to inquire whether there are 
public treaties. If there are none, he must propose to the foreign 
judge to co-operate in the bankruptcy in Prussia, in the same way 
as has already been indicated in regard to Prussian courts. If 
this fails the curator has to watch the interest of the creditors in 
this country” [Prussia] “in the special bankruptcy abroad. 
All treaties concluded subsequently to this law rest on the prin- 
ciple that only one bankruptcy is to take place, and that as a 
rule at the domicile of the debtor. The goods of the common 
debtor situated in the other vstate must be sold, and the proceeds 
handed over to the court of bankruptcy. In tliis all the creditors 
must appear. The marshalling (ranking) of the creditors is 
determined for the purely personal claims according to the law 
of the forum, for all real rights according to the laws of the 
place where the thing is situated. There is a difference only in 
this respect, that by the modern treaties (since 1839) real rights 
in things situated out of the country of the bankruptcy can be 
insisted on also at the place where the thing is situated, before 
its surrender to the judge of the bankruptcy. If this is done by 
hypothecary creditors, the things hypothecated are to be sold 
there, the money paid to the creditors, and only the surplus if 
any is to be paid into the court of bankruptcy.”* 

There was no doubt a time when among the judges in different 
European provinces the custom was widely spread of assisting 
each other’s proceedings in bankruptcy as thus indicated by 


♦Savigny § 874, Guthrie 213. 




158 


PRIVATE INTERNATIONAL LAW. 


Savigny, except that there was always a great body of authority 
against allowing the operation of a foreign bankruptcy to extend 
to immovables, as Savigny, by no means alone in that matter, 
would make it do so far as concerns the satisfaction out of them 
of purely personal claims. But that system has waned under 
the influences which have been mentioned as leading to the 
second point of view, which we have now to illustrate. For that 
purpose we need not dwell on the Prussian law of 1865, which 
in the absence of treaty gave Prussian creditors a preference 
against the assets in Prussia, while still directing that the surplus 
of those assets after satisfying home claims should be trans- 
mitted, not to the foreign bankrupt, but to the trustees in his 
foreign bankruptcy. We may come at once to the bankrupt law 
of the German empire, that of 10th February, 1877, taking effect 
in 1879, which contains the following clauses. 

§ 4. Foreign creditors stand on the same footing as domestic ones. 

It may be determined by an order of the chancellor of the empire, with 
the consent of the federal council, that measures of retorsion shall be 
applied to persons belonging to foreign states and their assigns. 

§ 6. From the commencement of the bankruptcy [this may be prior to 
any judicial proceeding, and dates as in England from what we call the 
act of bankruptcy. — J. W.] the common debtor loses the power of adminis- 
tering and disposing of his estate belonging to the bankruptcy. 

The right of administration and disposition is exercised by an adminis- 
trator in bankruptcy. 

§ 39. Those assets which with regard to execution against them belong 
to the class of immovables are to be applied in separate satisfaction, so 
far as a real or special right to preferable satisfaction out of them exists. 

The laws of the empire and of its component territories determine what 
is comprised in the immovable estate, as well as the claims to be satisfied 
out of it and their order. 

§ 207. When a debtor whose foreign assets are affected by a bankruptcy 
possesses assets in the empire, execution may be had against the latter. 

Exceptions may be made to this rule by an order of the chancellor of 
the empire, with the consent of the federal council. 

§ 208. Process of bankruptcy may be applied to the assets possessed 
within the empire by a debtor who has no general personal forum within 
it [that is, who is not subject to German jurisdiction through political 
nationality or domicile. — J. W.] when he has in the empire an establish- 
ment for manufacture, commerce, or any other mode of earning, at or 
from which business is immediately concluded. 

The same is the case when a debtor who has no general personal forum 
within the empire works within it, whether as owner, usufructuary, or 
tenant, any property furnished with buildings for dwelling on and 
working it. 

The process can only be had in thij^t court in the district of which the 
establishment or the property is situate. 

When a bankruptcy has b^n commenced abroad, no proof of insolvency 
is necessary for commencing the process in the empire. 



BANKRUPTCY : CONTINENT. 


159 


Thus the preference of the home creditor, which marked the 
Prussian law of 1855, has disappeared, except by way of retor- 
sion; but a particular German bankruptcy is instituted on the 
ground of a business establishment without a general personal 
forum, and in the absence of any exercise by the imperial chan- 
cellor and federal council of the powers reserved to them, by 
which they can give effect to treaties, a foreign bankruptcy does 
not prevent execution being obtained in Germany by particular 
creditors. Thus the unity of bankruptcy is not admitted, and, 
as a consequence, extraterritorial effect on property is not allowed 
to bankruptcy. 

In France the practice of the courts as contrasted with scientific 
opinion, though the latter is much divided, may be summed up 
as adverse to the unity of bankruptcy, which nevertheless is the 
principle of treaties concluded with Switzerland in 1869, and 
with Belgium in 1899. But even the practice of the courts 
secures a considerable measure of effect to foreign bankruptcies 
by means of the view of the nature of an adjudication which is 
generally entertained on the continent. This is that it transfers 
no property of the debtor to the trustee or syndic, but is a judg- 
ment in favour of the creditors, operating abroad either by its 
own force as chose jugee or, when execution on it is required, 
by being declared executory as it is termed, or clothed with an 
exequatur, in the same manner as other foreign judgments. 
Subject to that condition, the trustee or syndic appointed by it 
will be in the same position as those acting under domestic 
adjudications, and, like the German administrator under § 5 of 
the law of 10th February, 1877, will as the representative of the 
creditors enjoy the administration of the bankrupt’s estate with- 
out the latter being disseised of the property in it, and will be 
empowered to bring on behalf of the creditors all the. actions 
which the bankrupt could have brought : French court of cassa- 
tion, 12th January, 1876. Having that position, the foreign 
trustee, so long as no separate domestic bankruptcy intervenes, 
can obtain any part of the bankrupt’s estate in spite of an 
attempt by a foreign creditor to attach it; but since Art. 14 of 
the Code Napoleon gives the French creditor an absolute right 
to sue his foreign debtor in France, an attachment by him must 
be allowed to proceed, yet again, since French law itself aims 
at the equal distribution of a baiikrupt’s estate, no other effect 
will be allowed it than that of a security for the dividends to 
which the French creditor may become entitled in the foreign 



160 


PRIVATE INTERNATIONAL LAW. 


bankruptcy ; cowt of appeal of Paris, 13th August, 1875. Even 
previous to the adjudication being declared executory the foreign 
trustee, at least if the fact of his being such is not disputed, 
can opi^ose whatever might prejudice his eventual rights : court 
of appeal of Paris, 7th March, 1878. And he may thus defeat an 
attachment, though he cannot without the exeqiiatur get an order 
for payment or delivery to himself : court of appeal of Milan, 
15th December, 1876. 

The English courts have always been unable to follow pre- 
cisely the continental jurisprudence in this matter, because our 
judges never co-operate with foreign judges in the manner 
referred to by Savigny in the passage above extracted, nor have 
we the process of declaring foreign judgments executory. It will 
be explained in a later chapter that a foreign judgment is never 
admitted to execution in England, but is sued on as a cause of 
action : consequently it is not possible for us to recognize a con- 
tinental adjudication of bankruptcy in the only character which 
it has in its own country, that of a judgment affecting the 
administration of the bankrupt’s estate but not disseising him of 
the property in it. Again, our system of bankruptcy has no root 
in the Eoman law as to the appointment of curators; it has not 
merely been modified but was founded by statute, and it operates 
by way of statutory assignment of the bankrupt’s property to 
the trustees; so that even were it possible for us to declare a 
continental adjudication executory, it would not run parallel 
with our own adjudications. There has however been no want 
of substantial liberality on our part, a foreign adjudication being 
allowed to operate in England as to movables through the fiction 
of its being an assignment in its own country, combined with 
the maxim mohilia sequuntur personam. Thus it has been 
classed among what in these islands more especially it is usual 
tg call universal assignments, and indeed much of the British 
learning on that class is to be found in the cases on bankruptcy. 
It was in a Scotch case on bankruptcy that Lord Meadowbank 
gave expression to the often quoted dictum, ‘‘ the legal assign- 
ment of a marriage operates without regard to territory all the 
world over.”* It may be remarked in passing that the notion 
of assignment is as applicable to the British system of winding 
up companies as it is to bankruptcies technically so called, for 
the estate of the company is impressed with a trust which the 

*In Royal Bank of Scotland v. Cuthhert (1818), 1 Eose 481, 17 F. C. 79, 
2 Buchanan 836. 




BANKRUPTCY : CONTINENT. 


161 


liquidator has to administer for the creditors, so that the bene- 
ficial interest in the estate is virtually assigned. It might even 
be contended on a similar ground that it is not quite a fiction to 
treat a foreign adjudication of bankruptcy as an assignment, but 
there is a difference between the cases, trusts and the beneficial 
interests to which they gave rise not being known on the con- 
tinent as here. The syndic in a continental bankruptcy has a 
duty, and power with which to perform it; but they do not say 
there that this is attended by any modification of the property 
in the things about which his duty is to be performed. 

An important consequence followed from the mode in which 
British lawyers were led to approach the subject. When a 
foreign bankruptcy received its effect through the friendly 
co-operation of the domestic judge, that co-operation might as 
well be accorded in what concerned immovables as in what con- 
cerned movables ; the only reason why it should not be so accorded 
lay in the stringency which old opinion on private international 
law attributed to the real statute. Again, when a foreign judg- 
ment is clothed \vith an eweqiiatnr, it will naturally affect 
immovables, as well as movables, subject to any real rights of 
security which creditors may have obtained in them. But when 
the efficacy of a foreign bankruptcy is held to depend on its being 
a universal assignment, and in its turn the efficacy of a universal 
assignment is held to depend on the maxim vwhilia sequuntur 
'personam, it needs no stringency of the real statute to exclude the 
operation of the bankruptcy on immovables; there is nothing to 
give it such an operation. Hence British lawyers seem never to 
have so much as entertained the question whether a foreign 
bankruptcy can operate on immovables. 

With regard to companies having legal personality, either the 
jurisdiction from the law of which they derive such personality, 
or that in which they have the principal seat of their operations, 
which is seinble their domicile, each furnishing a general forum 
against them, may each pronounce against them an adjudication 
which so long as it remains the only one should be satisfactory to 
the advocates of the unity of bankruptcy. In case of a conflict 
between those jurisdictions, that of the principal seat of 
operations is generally preferred on the continent, just as it is 
for the bankruptcy of an individual trader; although, if the 
bankruptcy of a company should Make its dissolution expedient, 
the law which gave it its personality is the only one that can 
withdraw that gift. In France companies having foreign legal 

11 


W.I.L. 



162 


PRIVATE INTERNATIONAL LAW. 


personality are continually made bankrupt, and that, as in the 
case of individual traders, even although they may have in the 
country only a secondary place of business. Examples are the 
cases of the CrMit Fonder Suisse, having its principal establish- 
ment in France, tribunal of commerce of the SdnCy 5th March, 
1874; a Belgian company for carrying on a foundry in France, 
court of appeal of Nancy, 8th May, 1875, the court at the same 
time refusing to grant an eo^eqimlur to a Belgian adjudication 
of bankru2:)tcy against the same company; and a Spanish com- 
pany for making railways in Spain, which had an office and a 
committee at Paris and had negotiated loans there, court of 
appeal of Fans, 17th July, 1877. And where Hoffmann, a 
London merchant with branch houses at Hamburg, Milan, and 
Paris, had been adjudicated bankrupt in England, he was 
declared bankrupt in France in spite of the opposition of the 
English trustee, who demanded in vain an e.requatur for the 
English adjudication ; court of appeal of Paris^ 7th March, 1878. 
But in the case of the same debtor the court of appeal of Milan, 
16th December, 1876, declared that it did not hesitate to adopt 
the principle of the universality of the bankruptcy in the domi- 
cile, and at the instance of the English trustee deprived a creditor 
of the fruits of an execution in Italy': see above, p. 160. The 
most interesting of these cases is perhaps that of the Crklit 
Fonder Suisse, the French decision in which was strongly 
grounded in the Franco-Swiss treaty of 1869, which provided 
that the bankruptcy of a Frenchman having his commercial 
establishment in Switzerland might be declared by the tribunal 
of his residence in Switzerland, and vice versa. The company 
had been declared bankrupt at Geneva, its domicile, two days' 
earlier than at Paris ; and this was upheld by the court of appeal 
of the Canton of Geneva, but finally reversed by the Swiss 
federal council, 21st January, 1875, on the ground that the treaty 
had the unity of bankruptcy for its object, and that therefore, 
though both bankruptcies were lawful under it, only the one in 
the country where the company had the principal focus of its 
operations ought to be maintained. The council added : ‘‘ but 
that bankruptcy will recognize the competence of the Genevese 
tribunals for all the actions founded on engagements contracted 
at Geneva by the said Credit Poncier Suisse.” M, Charles 
Brocher, president of the court of cassation of Geneva, considei^ 
the decision arrived at by the federal council to have been 
able and convenient, but not legal: Clunet, Journal dt^'^roit 



BANKRUPTCY; CONTINENT. 


163 


International Priv^, t. 2, p. 463. It must therefore be borne in 
mind that the liberal principles which have been noticed as being 
applied in France to foreign brankruptcies are there applied only 
when there is no concurrent French bankruptcy, and that the 
nationality or domicile of the debtor or company will not prevent 
the institution of a concurrent French bankruptcy. 

The working of concurrent bankruptcies gives rise to difficult 
questions much discussed by the old writers. Some local statutes 
provided for bankruptcies not founded on domicile, and there 
were not wanting those who defended them on the grounds that 
credit was not given to the person of a foreign merchant so much 
as to his* property, and that the strict rules of jurisdiction ought 
to be relaxed in favour of commerce. From the former argu- 
ment some even concluded that preference should be given against 
the local assets to the creditors whose debts had been contracted 
in the locality. The reader may refer for the controversy to 
tit. 2, part 1, c. 5, s. 16 of Rodenburg^s treatise De jure quod 
oritur e statvtorum diversitate. That author, agreeing with’ 
Burgimdus, decides in favour of the unity of bankruptcy even 
when the debtor has equal houses of business in different places, 
unless he is also domiciled at each — see above, p. 147, as to 
equality of domiciles — in any other case the order of priority of 
the creditors should be decided by the law of the domicile, and 
executions elsewhere should -not be allowed. But those old 
authorities are now quite overshadowed by the mass both of 
judgments and of theoretical literature which has been piled up, 
and much of which turns on points of procedure to which the 
English analogies are not close enough to make it worth while 
even to summarize the mass. 

§ 127. The bankruptcy law of England* may be applied to a 
debtor either on his own or on a creditor’s petition, leading in 
the first instance to a receiving order, after which, in the circum- 
stances appearing in the Bankruptcy Act, 1914, st. 4 & 5 Geo. 5, 
c. 59, the debtor may be adjudicated a bankrupt. In order to 
be subject to this process at the hands of a creditor, in addition 
to certain conditions having no international bearing and which 
do not restrict the application of the process to traders, a debtor 
must satisfy one or other of the following conditions. (1) He 
must be domiciled in England,” which means that he must have 
there such a full domicile as is r^uired for personal capacity or 
in testamentary cases. Or, (2), he must ordinarily reside or 

* The Statute of 1914 has replaced that pf 1883 referred to in earlier editions. 



164 


PRIVATE INTERNATIONAL LAW. 


have a dwelling-house or place of business in England; or, (3), he 
must within a year before the presentation of the petition have 
“ ordinarily resided or had a dwelling-house or place of business 
in England; or, (4), except in the case of a person domiciled in 
Scotland or Ireland or a firm or partnership having its principal 
place of business in Scotland or Ireland, he has carried on busi- 
ness in England, personally or by means of an agent or manager, 
or, (5) (except as aforesaid), is or within the said period ha^been 
a member of a firm or partnership of persons which has carried 
on business in England by means of a partner or partners, or an 
agent or manager.* Or again, (6), he may be a judgment debtor 
who might be committed under the Debtors Act, 1869, s. 5, in 
which case, instead of his being so committed, a receiving order 
may be made against him with the consent of the judgment 
creditor, and thereupon a(ljudi(‘ation may follow. t Further, if 
the proceeding in bankruptcy is introduced by a creditor's 
petition, that petition must be grounded on an act of bankruptcy 
eommitied by the debtor within three months before its 
presoniation. Under the Bankruptcy Act of 1883, it was held 
that an act of bankruptcy cannot be committed by a firm as 
such, but must be the personal act or default of the person to 
be made a bankrupt. Exp, Blaiiiy re Senvers (18T9), 12 Ch. D. 
522, James, Brett and (-otton ; quoted with approval by Lord 
Davey in Coolie v. Charles A. Vogeler Company y [1901] A. C. 
113. The provisions of s. 4 (1) d. of the now Act expressly 
reversed the principle laid down in these cases, which was stated 
as follows in Cooke v. Charles A, Vogeler Company y [1901] 
A. C. 102: ‘‘A foreigner, who has never been in this country 
and has himself personally done no act within the jurisdiction 
of the bankruptcy court of this country, cannot be made bank- 
rupt by reason of his having traded through an agent in this 
country, and having done an act in his own country which, if he 
had done it here, would undoubtedly be an act of bankruptcy.” 

In lie Vearsrm^ Yjx jxirte Pearson, [1892] 2 Q. B. 263, Esher (Brett), 
Fry and Lopes, it was held that the court cannot give leave to serve a 
bankruptcy notice on a foreigner out of the jurisdiction, but the term 
“ foreigner” is presumably to be understood with regard to domicile and 


* Bankruptcy Act, 1914. Art. 1 (6). 

f The debtor’s qualifications (1) to (6) for an English bankruptcy are laid 
down in the Bankruptcy Act, s. 4 (1), (2) being inferred from or comprised in (3). 
The qualification (6) appears in the same act, s. 107 (4), and it is not necessary 
for it that any of the other qualifications should exist : Re Clark, exp, Clark, 
[1898] 1 Q. B. 20, A. L. Smith, Rigby and Collins, followed in Re Hallman, 
exp. Ellis and Collier, [1909] 2 K. B, 480, Phillimore. 



BANKRUPTCY: ENGLAND: ADJUDICATION. 


166 


not to nationality. A bankruptcy notice may be served in England on a 
debtor who was out of England when it was issued, subject to the question 
what it may be worth: Be Clarhy Ex parte Beyer ^ Peacock d: Co,y Lim.y 
[1896] 2 Q. B. 476, Bindley, Lopes, Rigby. An order for substituted 
service of a bankruptcy notice or petition may be made if the court is 
satisfied that the debtor went out of the jurisdiction in order to avoid 
service : Be Urquharty Ex parte Urquhart (1890), 24 Q. B. D. 723, 
Esher, Fry, Lopes. 

If the debtor’s English domicile is relied on and disputed, the burden 
of proving it lies on the petitioning creditor : Ex parte Cuninvgham^ Be 
Mitchell (1884), 13 Q. B. D. 418, Baggallay, Cotton, Bindley; Be Barne 
(1886), 16 Q. B. D. 522, Esher, Bindley, Lopes. 

A dwelling-house abandoned as such is not within the Act, though it still 
belongs to the debtor : Be Noi denfelty [1896] 1 Q. B. 151, Esher, Lopes, 
Rigby. 

A petition by a creditor for the administration according to the law of 
bankruptcy of the estate of a deceased insolvent ought, if the debtor was 
not resident in England, to be presented to the high court of justice; Be 
Evans, Ex parte Evans, [1891] 1 Q. B. 143, Esher, Lopes, Bindley. 

Thus the Eng^lish system rejects the unity of bankruptcy. By 
granting bankruptcies in cases other than those of full domicile 
or principal trading establishmejit, it incurs the chance that 
English bankruptcies may be concurrent witli foreign ones based, 
on principles which it admits for itself. 

Where a debtor has carried on business as a member of an English firm 
and also as a member of a firm carrying on business abroad, and adjudica- 
tions have been made both in England and abroad, the court has ix)wer 
to sanction a scheme for a concurrent administration : In re F. Macfadyen 
So Co,, Ex parte V izianagarain Co., Lim., [1908] 1 K. B. 675, Bigham. 

§ 128. By the Bankruptcy Act, 1914, s. 6, the presentation 
of a bankruptcy jietitioii by a debtor is itself an act of bank- 
ruptcy; and “debtor’’ is defined in section 1 (2) to include 
any person, whether a British subject or not, who, at the 
time when any act of bankruptcy was done or sufl'ered by him, 
(a) was personally present in England; or (b) ordinarily resided 
or had a place of residence in England ; or (c) was carrying on 
business in England, personally, or by means of an agent or 
manager; or (d) was a member of a firm or partnership which 
carried on business in England. 

. This definition of debtor is somewhat wider than the class of 
debtor against whom a creditor can proceed, as laid down in 
section 4 (1) d . ; and a foreigner can be made a bankrupt in 
England on his own petition, provided only that he was present 
in England when the act of bankruptcy was done by him. 

§ 129. When the petitioner is a creditor it is immaterial 
where his debt was contracted, and whether he is domiciled, 



166 


PRIVATE INTERNATIONAL LAW. 


resides or trades in England ; and in any case it is immaterial 
whether the debtor is subject to bankruptcy by the law of his 
domicile, if that is not in England, and whether he is in England 
when the petition is presented. 

The ancient cases take a distinction between trading in and trading to 
England. One who had a house of business in England, or who was in 
the habit of trading personally there, though only on short visits to the 
country, was said to trade in England ; but one whose house of business 
was abroad, and who merely sent goods to England for sale and pur- 
chased goods there through an agent or by correspondence, was said to 
trade to England. At that time only traders were subject to the English 
bankrupt laws, and the act of bankruptcy could only be committed in 
England ; and the result of the decisions was that any one who traded 
either in or to England could be made bankrupt. Dodsworth v. Anderson 
(1681), T. Jones, 141, King’s Bench, j^ersonal trading in England on 
short visits ; Bird v. Sedgwick (1693), 1 Sal. 110, King's Bench, trading to 
England ; Ex parte Smith (1737), cited from P. C. Webb’s notes in Alex- 
ander V. Vaughanj Cowp. 399, &c. The last was also a case of trading to 
England, and Lord Hardwicke appears to have decided it reluctantly on the 
authority of Bird v. Sedgwick^ saying, “ if the act of bankruptcy had been 
committed abroad, to be sure no commission ought to go against him for 
that act. ’ ’ The wording of this is strange, and probably due to the reporter, 
for at that time no commission of bankruptcy could go against any one 
for an act committed abroad ; but the meaning clearly is that it was only 
by reason of the commission of the act of bankruptcy in England that the 
debtor who traded to England was subject to the bankrupt laws. Ex 
parte Williamson (1751), 2 Ves. Sen. 249; 1 Atk. 82, is another case of 
the bankruptcy of one who had traded to England, before the same judge. 
The trader, as also in Dodswmth v. Anderson, was domiciled in Ireland, 
where there were then no bankrupt laws, so that these cases established 
the immateriality of the debtor’s being subject to bankruptcy process by 
the law of his domicile. In the report in Atkyns Lord Hardwicke is made 
to mention, as an element, the debtor’s having carried on a trade in a 
kingdom l)elonging to the Crown of Great Britain ; but in, the report in 
Vesey he is more correctly made to say, “where a man residing in one 
part of the realm or in other countries contracts debts here.” In fact 
the debtor in Bird v. Sedgwick resided in Portugal. By “ contracting 
debts here ” it was only meant to refer to the debtor’s trading to England, 
not to limit the benefit of the English bankrupt laws, when his subjection 
to them was established, to creditors whose debts were contracted in Eng- 
land. All these cases were reviewed and recognized by Lord Mansfield in 
Alexander v. Vaughan (1776), Cowp. 398. In Allen v. Cannon (1821), 
4 B. & A. 418, Abbott and ( ?), it was decided that the habit of purchas- 
ing goods while on short visits in England was sufficient to constitute 
trading in England without ever selling there. 

After the cases above cited the English bankrupt laws were extended to 
non-traders, with some distinction between the things which were acts of 
bankruptcy when done by traders and those which were such when done by 
non-traders ; and certain things done abroad were made acts of bankruptcy, 
but none of them were among those which were such acts only when don© 
by traders. In this state of the law it was decided, in accordance with the 
principles expressed by Lord Hardwicke in Ex parte Smith, that no one 
who was neither domiciled in England nor traded personally in England 



BANKRUPTCY : ENGLAND : ADJUDICATION. 


167 


could be made bankrupt on anything done by him abroad ; also that any 
person whatever might be made bankrupt on a non-trader’s act of bank- 
ruptcy committed by him in England : Bx parte Crispin (1873), L. R. 

8 Ch. Ap. 374) Hellish and Selborne. In the same state of the law, Ex 
parte Pascal (1876), 1 Ch. D. 509, James, Mellish^and Baggallay, showed 
that a debtor’s summons might be served in England on any one however 
transiently there, as a foundation for an act of bankruptcy ; while that 
it could not be served out of England was shown by Ex parte O'Loghlen 
(1871), L. R, 6 Ch. App. 406, James and Hellish. 

The following cases are still applicable. The same circumstances which 
in the case of one resident in England, or having a house of business 
there, would lead to the conclusion that he had committed an act of bank- 
ruptcy by departing from that country or remaining out of it with intent 
to defeat or delay his creditors, may not lead to that conclusion in the 
case of any other person: Ex parte Crispin ^ as above; Ex parte Gutierrez 
(1879), 11 Ch. D. 298, Jessel, James and Bramwell ; Ex parte Brandon 
(1884), 25 Ch. D. 500, Selborne, Cotton and Fry. 

Ex parte CHspin further shows the immateriality of the debtor’s being 
in England when the petition for adjudication is presented; and the 
immateriality of the place where the petitioning creditor’s debt was con- 
tracted is shown by Ex paite Pascal, as above. 

§ 130. That bankruptcy proceedings against the same debtor 
are pending in another country is not a conclusive reason against, 
making an adjudication in England. The English court will 
adjudicate if it appears that to do so either is or may be for 
the interest of the creditors; but even after adjudication the 
proceedings may be stayed if it appears that they are useless, as 
for instance because all the assets are abroad and in course of 
distribution by a foreign, court. 

Adjudication granted on a petition which would overreach a prior Irish 
adjudication, and might therefore bring in more assets : Be McCulloch 
(1880), 14 Ch. D. 716,'' Bacon, affirmed by James, Cotton and Thesiger. 
Adjudication refused where there was a pending sequestration in Scot- 
land, and no debts contracted since its commencement, nor any assets in 
England: Be Bolinson (1883), 22 Ch. D. 816; Jessel, Baggallay, Lindley. 
As to staying the English proceedings, see what was said by James in 
Ex parte Pascal (1876), 1 Ch. D. 512, and in Be McCulloch, u.s., p. 723. 

It is no ground for staying proceedings in an English bankruptcy that 
there is a prior adjudication of bankruptcy against the same debtor iq a 
foreign country which is not that of his domicile; if the prior adjudica- 
tion had been in the domicile, queer e. Be Artoln Hermanos, Ex parte 
AndrS Chdle (1890), 24 Q. B. 640, Coleridge and Fry. 

§ 131. A company which derives its incorporation or other 
legal existence from the law of Ep.gland, or from British law 
as connected with England rather than with any other part of 
the empire, is subject to be wdhnd up in England wherever its. 
business may be; and if all its business is abroad, that may be 
an additional reason for winding it up. 



168 


PRIVATE INTERNATIONAL LAW. 


Be Madrid and Valencia Bailway Co. (1849), 3 De G. & S. 127, 
Knight-Bruce ; affirmed by Cottenham (1850), 2 M. & G. 169 : Be Factage 
PariaieUf Lim. (1864), 34 L. J. (N. S.) Ch. 140, Romilly : Be Peruvian 
Bailways Co., Lim. (1867), L. R. 2 Ch. Ap. 617, Cairns and Turner 
affirming Malins : Be General Company for the Prorriotion of Land 
Credit, Lim. (1870), L. R. 6 Ch. Ap. 363, Giffard ; affirmed sub nom. 
Princess of Beuss v. Bos (1871), L. R. 5 E. & I. A. 176, Hatherley, 
Colonsay, Cairns. The last case is the authority for the latter part of 
the §. Giffard and Hatherley appear to have considered that no business 
carried on abroad could be taken into account under the provision in the 
Companies Act, 1862, that a company may be wound up by the court 
when it “ does not commence its business within a year from its incor- 
poration, or suspends its business for the space of a whole year.’* But 
this would be going too far, as may be seen from the numerous wmpanies 
registered in England in order to work foreign undertakings. And 
where a company was registered in England in order to carry on business 
both there and abroad, its not having commenced business in England 
during the first year, while it had done so abwad, was held to be no 
reason for winding it up under that provision : Be Capital Five Insurance 
Association (1882), 21 Ch. D. 209, Chitty. In Princess of Beuss v. Bos, 
Cairns considered that, independently of the provision referred to, a com- 
})any which carried on and intended to carry on business only abroad 
was one which it was “ just and equitable should be wound up,” within 
the spirit of the same act. Malins in that case had refused to make an 
order for winding up, as a matter of discretion. I presume that business 
in Scotland or Ireland would satisfy whatever may be necessary under 
the Companies (Consolidation) Act, 1908, 8 Edw. 7. c. 69 ; and prevent 
the doctrine of the latter part of this § applying : see what was said by 
Jessel, alio intuitu, in Be International Pulp and Paper Co. (1876), 
3 Ch. D. 594. 

§ 132. A company which does not derive its incorporation 
from the law of the United Kingdom may he subjected to 
winding up proceedings in England if it has an office there, 
and has carried on businevss and has assets in England, though 
those proceedings cannot be carried vso far as to dissolve the 
company. - 

Section 268 of the Companies (Consolidation) Act, 1908. 

Be Commercial Bank of India (1868), L. R. 6 Eq. 517, Romilly; Be 
Matheson Brothers, Lim. (1884), 27 Ch. D. 225, Kay ; Be Commercial 
Bank of So^ith Australia (1886), 33 Ch. D. 174, Pearson and North; Be 
Mercantile Bank of Australia, [1892] 2 Ch. 204, North : Be Bnglish, 
Scottish, and Australian Chartered Bank, [1893] 3 Ch. 385, Vaughan 
Williams, affirmed by Lindley, Lopes, A. L, Smith; Be Federal Bank of 
Australia, [1893] W. N. 46, 77, 68 L. T. 728, 62 L. J. Ch. 561, Vaughan 
Williams, affirmed by Lindley, Bowen, Kay ; Be Queensland National 
Bank, [1893] W. N. 128, Vaughan Williams. The second, third and sixth 
cases show that the pending of winding-up proceedings in the company’s 
domicile is no objection to an ancillary winding-up here. 

If the company were incorporated by registration in Scotland or Ire- 
land, the Companies Act would make such respective part of the United 
Kingdom the forum for winding it up. 



WINDING UP COMPANIES IN ENGLAND. 


169 


§ 133. A winding up order cannot be made in England against 
a company incorporated abroad if it has no office in England, 
though it carries on business there by means of agents. 

Be Lloyd Generate Italiano (1885), 29 Ch. D. 219, Pearson. It was not 
necessary to consider this point in Be Union Bank of Calcvttn (1850), 3 
De G. & S. 253, Knight-Bruce, the winding-up order there being refused 
as a matter of discretion. 

§ 134. Curators, syndics, or others who under the law of a 
country where a debtor is domiciled, or, if the debtor has himself 
been a 'party to the proceedings, 'under the law of the country 
where he is resident, are entitled to administer his property on 
behalf of his creditors, are entitled as such to his chattels 
personal and choses in action in England. 

[Note • the words in italics have been added to the former statement of 
the rule in view of the three cases cited below, which have been decided 
since the last edition.] 

Solomons v. Boss (1764), 1 H. Bl. 131 note. Justice Bathurst sitting for 
Lord Chancellor Northington ; Joliet v. Deponthieu (1769), 1 H. Bl 
132 note, Camden. In Neal v. Cottingham (1764), 1 H. Bl. 132 note, 
Bowes, Lord Chancellor of Ireland, made a corresjKmding decision in 
favour of English assignees, with the approval of several of the Irish 
judges. In all these cases the titje of the curators or assignees came into 
conflict with that of an attaching creditor, judgment in the attachment 
suit not having been signed till after their ap]>ointm6Tit. During the 
argument in Folliott v. Ogden, 1 H. Bl. 132, Lord Loughborough said 
that he was counsel in Solomons v. Boss, “ which was decided solely on 
the principle that the assignment of the bankrupts’ effects to the curators 
of desolate estates in Holland was an assignment for a valuable 
consideration.” 

In Alivo^i V. Furnival (1834), 1 Cr. M. & R. 277, 4 Tyr. 751, Parke 
and ( ?), which was an action by French syndics for a debt due to their 
bankrupt, the title of the plaintiffs as mandatories without an assignment 
was recognized ; and although three had been ap]X)inted two were allowed 
to recover, on proof that they could sue in France without the third. 

The first English case in which the necessity of domicile as a foundation 
for the foreign title seems to have been considered is Be Blithman (1866), 
L. R. 2 Eq. 23, a contest between the assignee in a colonial insolvency 
and the executrix of the insolvent, where Romilly held that the title of 
the (prmer depended on whether the insolvent was domiciled in the colony. 
This was followed in Be Hayward, Hayward v. Hayward, [1897] 1 Ch. 
905, Kekewich, who cited this § with approval. But in Be VaMson 
(1873), L. R. 15 Eq. 383, James decided in .favour of the assignee against 
the debtor whatever might have been the domicile, because the latter had 
been declared insolvent on his own petition ; and this was followed in 
Be Lawson* s Trusts, [1896] 1 Ch. 175, North. In Be Anderson, [1911] 
1 K. B. 896, Phillimore decided that personal property in England passed 
to the assignee in a colonial bankru'^y which was prior in date to the 
English bankruptcy, although the debtor was domiciled in England, on 
the ground that the debtor was a party to the Colonial proceedings. The 
learned judge apparently treated the earlier doctrine as having been 



170 


PRIVATE INTERNATIONAL LAW. 


overruled by Be Davidson and lie Lawson's Trusts; but this part of the 
decision at least appears to be in direct conflict with Be BUthman and 
Be Hayward. His decision, however, was followed in Be Craig, [1916] 
86 L. J. Ch. 62, Eve, where it was held that a reversionary interest 
in a fund in court passed to the trustee in a colonial bankruptcy, though 
the debtor was not domiciled in the colony. The debtor had submitted 
himself to the colonial jurisdiction by presenting a petition. So, too, in 
Be Burke, 148 L. T. 176, Astbury, when the assignee was appointed in a 
foreign proceeding, he was held to be entitled to assets in England though 
the debtor was not domiciled in England. The debtor had presented a peti- 
tion to the foreign court asking for judicial liquidation under the foreign 
law. And this decision again was followed in Begerem v. Marsh, [1921] 
161 L. T. 264, Bailhache, where a Belgian trustee in bankruptcy was held 
entitled to all the assets of an Englishman domiciled in England who had 
been a partner in a firm in Belgium and declared insolvent with his 
partner, in Belgian proceedings The original decree had been made in the 
defendant’s absence ; but he was subsequently notified of it, and appeared 
unsuccessfully to contest its validity ; and this was held to be submission 
to the jurisdiction. The English practice, as laid down in these later 
cases, justifies the assertion of a principle that a commercial domicile is 
a sufficient basis for jurisdiction in bankruptcy. In Dulaney v. M^rry 
and Son, [1901] 1 K. B. 636, Channcll held that the title of the trustees 
of a Maryland deed of assignment for the benefit of creditors, 'who had 
l)een empowered by the court of that state to administer their trust under 
its authority, was superior to that of an execution creditor, relying on 
the doctrine mohilia sequuntur personam, the Deeds of Arrangement Act, 
1877 ,* under which the deed had not been registered, not applying to the 
case. 

The Scotch authorities had fluctuated with regard to the doctrine of 
§ 134, but the superior title of the assignees in the English bankruptcy of 
a person domiciled in England, to that conferred by an arrestment in 
Scotland not completed by decreet before the assignment to them, was 
established by the court of .session in Strother v. Bead (1803), 13 Fac. De. 
263. This was followed by Boyal Bank of Scotland v. Cuthhert, or v. 
Stein's assignees (1813), 17 Fac. De. 72, 1 Rose 462, in which the same 
court held that the bankruptcy in England of four partners having as such 
houses of business both in England and in Scotland, but of whom two were 
domiciled in England and two in Scotland, passed the movable estate of 
all in Scotland, so as to preclude a subsequent sequestration in the latter 
country from having any operation not only on the joint estate of the 
four, but even on the separate estate of the two whose domicile was 
Scotch, and who carried on a separate business in Scotland. Afterwards 
the House of Lords in a Scotch appeal ; Selkrig v. Davis (1814), 2 Rose 
291, 2 Dow 230, Eldon ; similarly held that an English bankruptcy was 
paramount to a subsequent Scotch sequestration, where the bankrupt was 
domiciled in Scotland but traded both in England and in Scotland. It 
is unfortunately difficult to discover the precise ground for the decision in 
Selkrig v. Davis, or for that part of the decision in Boyal Bank of Scotland 
V. Cuthhert vfith which Selkrig v. DavW' corresponded. It can hardly be 
doubted that in some way or othej^the ground was the imperial character 
of the legislation on which an English bankruptcy depended, and that 
these cases cannot be quoted as authorities for allowing Scotch movables, 


♦Now repealed and re-enacted by the Act of 1914. 




FOREIGN BANKRUPTCY : EFFECT IN ENGLAND. 


171 


or therefore English, to pass by a bankruptcy taking place neither in the 
United Kingdom nor in the debtor’s domicile. But since at that time it 
was agreed that’ the English bankrupt laws did not design to pass Scotch 
immovable property, their design to pass Scotch movables could not . be 
inferred from their power to do so; and if it was presumed that they 
designed to follow the maxim mohilia sequuniur personam^ that argument 
would not apply where the domicile was not English. For the rest, from 
Selkrig v. Davis and Strother v. Bead it further appears that the intima- 
tion of the assignment to the debtor, which by Scotch law is generally 
necessary in order to complete an assignee’s title to a debt, is not required 
in Scotland from persons deriving title to a debt under a foreign bank- 
ruptcy. 

Where the order of dates was this : 1. act of bankruptcy, to which the 
English commission related ; 2. application for sequestration, to which the 
Scotch award related; 3. English commission (now it would be adjudica- 
tion) of bankruptcy ; 4. Scotch award of sequestration : it was held by 
the House of Lords on a Scotch appeal that the sequestration was prior. 
Geddes v. Mowat (1824), 1 Gl. & J. 414, Gifford. 

§ 135. But where a particular form of conveyance is neces- 
sary, as in the case of money in the public funds, or in that of 
a legal chose in action only assignable pursuant to the J udicature 
Act, 1873, s. 25, sub-s, 6, the foreign law under which the 
curators, syndics or others are entitled cannot supply the want of 
such conveyance, though it binds the beneficial right. 

A Scotch sequestration, though under a British act of parliament, did 
not enable the trustee to sue for a legal chose ih action in his own ugime. 
Jeffery v. McTaggart (1817), 6 M. & S. 126, Ellenborough and Abbott. 

Thus also an English bankruptcy, passing immovable property in a 
colony where registration is necessary to complete the title, does not super- 
sede the necessity of such registration : per Jessel in Ex parte Rogers 
(1881), 16 Ch. D. 666. The bankrupt is compelled by section 22 (2), of 
the Bankruptcy Act, 1914, to aid in the realisation of his property, and can 
therefore be called on to register any transfer necessary. 

The words in the Bankruptcy Act, s. 1, that a debtor commits an 
ac of bankruptcy if, “ in England or elsewhere/* he makes a conveyance 
etc. of his property does not alter the old law that the conveyance must 
be intended to operate according to English law ; and, therefore, a convey- 
ance of property in England must be carried out according to English law, 
to be an act of bankruptcy. 

§ 136. A curator, syndic, or assignee in a foreign bankruptcy 
is not accountable in the English court merely because he is in 
England with funtls of the bankruptcy in his hands; nor will 
the English court interfere with him unless vt be shown that his 
absence from the country of the bankruptcy prevents redress 
being had there. 

Smith V. Moffatt (1866), L. R. 1 397, Wood. 

See as to the parallel cases concerning foreign administrators of the 
estates of deceased persons, §§ 99 — 101, above. 



172 


PRIVATE INTERNATIONAL LAW. 


§ 137. It was formerly the law that an English bankruptcy, 
or the winding up of a company incorporated in England, carried 
all the real or immovable property of the bankrupt or company 
in any part of the British dominions. This was expressly laid 
down in the Bankrupt Law (Wsolidation Act, 1849, s. 142, but 
that Act was repealed by the Bankruptcy Repeal and Insolvent 
Court Act, 1869; and under the Bankruptcy Act of 1883, s. 44, 
the doctrine rested on the word “ all ’’ as describing the property 
of the bankrupt dealt with by the vstatute. For such an inter- 
pretation there were two grounds besides the simple meaning 
of the word, one that the intention of Parliament was to be 
measured by the extent of its power, the other that a change in 
the law from that laid down by older legislation in pan materia 
must not be presumed without its distinct ex})ression. But 
notwithstanding the acquiescence with which the interpretation 
has generally been ref‘eived, cause for reflection has been given 
by what was said by Lord Hobhouse in delivering the judgment 
of the judicial committee (Lords Watson, Hobhouse and Morris, 
Sir R. (\)ucli and Lord Shand) in Callender, Syhes d* Co, v. 
(Udonial Serrefary of Layos and I)(irie,s and Williams v. Davies^ 
[1891] A. (\ 460, at p. 466. “ It is true that the laws of every 

country must prevail with respect to the land situated there. 
If the laws of a colony are su(‘h as would not admit of a transfer 
of land by mere vesting order or mere appointment of a trustee, 
questions may arise which must be settled according to the 
circumstances of each case. Such questions are specially likely 
to arise in those (‘olonies to which the imperial legislature has 
delegated the power of making laws for themselves, and in which 
laws have l)een made in reference to bankruptcy/’ This preg- 
nant remark, which equally applies to the interpretation of the 
general words in the Companies Acts, suggests that the change 
of language made by parliament in 1869 may have been intended 
to leave some latitude to the courts in dealing with the relations 
between the mother country and the more important colonies, 
which the then recent establishment of the Dominion of Canada 
presented from a novel point of view. In the Bankruptcy Act, 
1914, ‘‘property” is more distinctly defined to include “every 
description of property whether real or personal and whether 
situate in England or elsewhere” (s. 167). These words would 
appear to embrace in an English bankruptcy real property 
abroad. But the idea that land is subject to the local law in a 
peculiar measure is so deeply seated in the English system of 



ENGLISH BANKRUPTCY : EFFECT ABROAD. 


175 


private iiiternatioual law that it is difficult to suppose that the 
mother country, while establishing what have been called sister 
states, intended any longer to affect land' in them by her own 
legislation. Xo theory of the unity of bankruptcy could l>e cited 
in vsupport of such a suppodtion, because the unity of bankruptcy 
is not adopted by the English system. It would not be enough 
to say that where an English bajnkruptcy or winding up is later 
in date than a similar j)roceeding under the law of a sclf- 
governiiig colony, parliament cannot have intended to displace 
a disposition of the local immovables already made in or by the 
latter. It would seem scarcely enough to say that even where 
the English proceeding is the earlier or the only one, parliament 
cannot intend to withdraw land in such a colony from tlie future 
operation of laws which have been made ’’ in it in reference to 
bankruptcy: The probable intention of parliament cannot, 
surely, depend on whether a bankruptcy law has been made in 
a given colony, bui must turn on whether the colony is regarded 
as having attained tlie degree of separate existence to which 
English ideas attach tlie consequence that land in it shall not be 
affected by the law of another political unit.* Where that is 
the case, I now submit that the real or immovable property of 
the bankrupt or conqiany in the colony in question cannot be 
deemed to pass by an English bankruptcy or winding up, 
through the mere force of British legislation, though it may be 
brought under the proceeding through the view which the courts 
of the colony lake of its international effect. In the case of all 
other Bfitish dominions the local immovables will still be carried 
by the British legislation. 

Where immovables in a British colony or dependency are com- 
prised in an English bankruptcy or similar proceeding, the title 
to them must be completed in accordance with the local law. 
This w'ill often be applicable in the case of a winding up, since 
the Companies Act does not divest the company of the property 
in any of its assets, but impresses the whole of the assets with a 
trust for the creditors. 

§ lf38. An English bankruptcy, or the winding up of a com- 
pany incorporated in Engla-nd, carries all the personal or 
movable property of the bankrupt or company situate, or recover- 
able in any part of the British dominions. 

♦Dumoulin’s doctrine was that the law of the matrimonial domicile is extended 
to foreign immovables by tacit contract ^ so that the statement in the text is not 
affected by the decision of the second case of De Nicols v. Curlier in accordance 
with that doctrine. See above, p. 74. 



174 


PRIVATE INTERNATIONAL LAW. 


See "Ex parte Eobertson (1876), L. R. 20 Eq. 733, Bacon, in which a 
creditor domiciled *in Scotland was ordered to pay over to the trustees in 
an English liquidation a which after its commencement he had 

received from the liquidating debtor on account. The judge put it on 
the ground of the creditor's having proved for the residue of his debt, 
treating proof as a contract that the whole estate should be administered 
in the liquidation or bankruptcy. 

In Ee Oriental Inland Steam Company, Ex parte Scinde Eailway Com- 
pany (1874), L. R. 9 Ch. Ap. 557, James and Hellish affirming Malins, 
and Be International Pulp and Paper Company (1876), 3 Ch. D. 694, 
Jessel, creditors of a company in course of winding up in England were 
restrained; in the former case from attaching its property in India, and 
in the latter from suing the company in Ireland. If an Indian or Colonial 
company were subjected to a winding up process in England under the 
doctrine of § 132, it is difficult to suppose that either its movable or its 
immovable property situate out of England could be strictly considered as 
passing by such winding up, though it might very likely, for convenience, 
be administered in the English court as long as there was not a concurrent 
winding up in the company’s domicile. 

§ 139. But when a debtor to one who is a bankrupt in 
England has paid his debt since the eommen cement of the bank- 
ruptcy under process of law in any country, British or foreign, 
the trustees in the bankruptcy cannot make him pay it over 
again, though the creditor who compelled the payment by process 
of attachment may be accountable for it to the trustees. 

Le Chevalier v. Lynch (1779), 1 Doug. 170, Mansfield. 

§ 140. It was formerly held that a bankrupt in England 
cannot be compelled to make to the trustees an assignment of his 
immovable property outside the British dominions, or even of his 
movable property situate or recoverable in any country in which 
the title of the trustees to such property is not as fully recog- 
nized as in England. 

Ex parte Blakes (1787), Cox, 398, Thurlow, foreign debts; Eldon, in 
Selkrig v. Davis (1814), 2 Rose 311, 2 Dow 245, property both immovable 
and movable. And it would be improper to compel the bankrupt 
indirectly, by withholding his certificate till he had conveyed his foreign 
immovables : Parke, in Cockerell v. Dickens (1840), 3 Mo. P. C. 133. 

Section 22 of the Bankruptcy Act, 1914, however, provides 
that the debtor shall execute such conveyance deeds and instru- 
ments as may be reasonably required by the trustee. This would 
not, indeed, affect immovable property in a foreign country 
which by the lea: situs would not pass to the trustee in bank- 
ruptcy, but it would affect the assignment ’ of all movables. 
But now let us suppose that a creditor of one who is a bank- 
rupt in England has since the commencement of the bankruptcy 



ENGLISH BANKRUPTCY : EFFECT ABROAD. 


175 


obtained payment outside the British dominions, either out of 
immovable property, or out of movable property the title of the 
English trustees to which was either not put forward or was not 
recognized in the country where it was situate or recoverable. 
The doctrine applicable to srfch cases is laid down in the judgment 
of the privy council on an appeal from Calcutta with reference to 
an Indian insolvency, which was confessedly governed by the 
same principles as an English bankruptcy. ‘‘ If the real estate in 
Java did not pass by the assignment under 9 Geo. 4, c. 73, s. 9 ’’ 
“^the act for Indian, insolvencies — “ nor could in any w’^ay be got 
hold of and made available by the assignees for the payment of 
the general creditors^ any individual creditor who could obtain 
it by due course of law would have a right to hold it; and if he 
duly proved the debt due to him before he had been paid any 
part of the debt so proved by means of that estate, he would be 
entitled to receive the dividends under the' insolvent estate until 
he had been paid altogether twenty shillings in the pound, 
exactly in the same way as if a creditor had had a security on 
the real estate or personal credit of a third person. In this case 
he* could neither be compelled to refund the money obtained by 
means of the real estate or the dividends received on the debt, or 
be restrained from receiving those hereafter to become due. 
The principle is that one creditor vshall not take a part of the 
fund which otherwise would have been available for the payment 
of’all the creditors, and at the same time be allowed to come in 
'pcuri yassu with the other creditors for satisfaction out of the 
remainder of that fund : and this principle does not apply where 
that creditor obtains by his diligence something which did not 
and could not form a part of that fund.^' Cockerell v. Dickens 
(1840), 3 Mo. P. C. 132. This extract fully sets out the doctrine 
relating to a fund which even if not taken by the particular 
creditor would not have been available for the creditors gener- 
ally, but it was not necessary to state as fully the doctrine 
relating to a fund which might have been so available. The 
particular creditors were aliens resident out of the jurisdiction. 
They had not only obtained partial payment out of the insol- 
vent’s real estate in Java, but had also commenced proceedings, 
though they had not so far derived any fruits therefrom, against 
debtors to the insolvents at Bencoolen, another settlement in the 
Dutch East Indies^ The assignees at Calcutta, in accordance 
with what is said in the passage extracted, succeeded in stopping 
thoir dividends in the insolvfency there until they should 



176 


PRIVATE INTERNATIONAL LAW. 


abandon the proceedings at Bencoolen; but had the particular 
creditors been subject to the jurisdiction, and obtained fruits 
from the proceedings at Bencoolen, the question would have 
arisen whether the assignees might not have asked to have those 
fruits paid over, as forming part of the fund which might have 
been available for the general mass, and which therefore 
creditors who were themselves subject to the law governing the 
insolvency ought not to keep out of that mass. We have now to 
develop the doctrine thus introduced. 

§ 141. Any creditor, British or alien, may retain any pay- 
ment which he can obtain out of the non-British immovables of a 
bankrupt or company being wound up, and if it is only partial 
may receive dividends in the bankruptcy or winding up on the 
residue of his debt pari passu with the other creditors. 

Cocherell v. Bickfns (1840), 3 Mo. P. C 98, Parke. In Be Central 
Sugar Factmies of Brazil^ Fhtck^s Case^ [1894] 1 Ch 369, North, a creditor 
was restrained from proceeding further against th43 Brazilian immov- 
ables of an English company, where his doing so would have interfered 
with an advantageous sale of that property, but his right to be allowed the 
amount of his debt out of the proceeds of the sale was reserved for inquiry. 

The doctrine is thus broadly stated in the English authorities 
on the assumption that a foreign bankruptcy would in no country 
be allowed to operate on immovables : but since this is not quite 
the fact, the principle laid down in Cocl^erell v. Dickens should 
lead to the proposition being restricted to payment obtained out 
of immovables situate in countries where the English trustees 
would be unable to get the benefit of them. 

The doctrine of the § applies also to payment obtained abroad 
by a judgment in rem against movables. 

Minna Craig Steamship Company v. Chartered Mercantile Bank of 
India London and China^ [1897] 1 Q. B. 55, Collins. 

Coming to the general case of movables, let us suppose a 
country, not where the title to them of the trustees in an English 
bankruptcy is absolutely unrecognised, for there is perhaps no 
such country, but where it is postponed to that conferred by an 
execution or attachment subsequent to the bankruptcy. If a 
creditor obtains payment by such an execution or attachment, it 
may be said that he has taken a part of the fund which otherwise 
would have been available for the payment of all the creditors, 
because, if no one had intervened, the trustees could have 
successfully asserted their title to the movables against that of 
the bankrupt. It may be answered that other creditors might 



ENGLISH BANKRUPTCY : EFFECT ABROAD. 


177 


have intervened, whom the process of the English court could 
not have reached, and that therefore, if a creditor amenable to 
the jurisdiction is not allowed to retain the fruits of the pains 
which he may take in the country supposed, the movables in that 
country will be enjoyed by those creditors only who are not 
amenable to the jurisdiction. The sufficiency of the answer 
might depend on the existence and importance of creditors of the 
latter class in the particular instance, but the courts have not 
embarked in such an inquiry, and have rather proceeded on lines 
which may probably be described as in the next two § § . 

§ 142. A British creditor, or one domiciled in England, or one 
who in his character of creditor must be regarded as English 
because the debt is owed to a house of business in England of 
which he is a member, and who after the commencement of an 
English bankruptcy or winding up, and not by virtue of any 
charge prior to the bankruptcy or winding up or of a judgment 
in rem, obtains payment out of the bankrupt’s or company’s 
movables in a non-British country, must pay over the amount 
to the trustees in the bankruptcy or the liquidator, whether or 
not he seeks to receive dividends on the residue if any of his 
debt, whether or not the payment was obtained by legal pro- 
ceedings, and whether or not the title of the trustees or liquidator 
was asserted in such proceedings if any. And such a creditor 
will be restrained from .proceeding abroad to obtain such 
payment. 

Be South-Eastern of Portugal Bailway Co. (1869), 17 W. R. 982, Malins ; 
Be North Carolina Estate Co. (1889), 5 T. L. R. 328, Chitty ; and Be 
Belfast Shipowners' Co.^ [1894] 1 I. R. 321, Chatterton, affirmed by 
V alker, Palle«, Fitzgibbon ; are authorities for restraining a creditor as 
mentioned. 

§ 143. A creditor not being such as is described in the last §, 
who after the commencement of an English bankruptcy or wind- 
ing up, and not by virtue of any charge prior to the bankruptcy 
or winding up or of a judgment in rem, obtains payment out of 
the bankrupt’s or company’s movables in a non-British country, 
must account for such payment iPhe seeks to receive dividends 
on the residue if any of his debt, but may otherwise retain it; 
and this, whether or not the payment was obtained by legal pro- 
ceedings, and whether or not the title of the trustees or liquidator 
was asserted in such proceedings if any. 

The leading cases are Eunter v. Patti (1791), 4 T. R., 182, King’s Bench, 
judgment of court delivered by Kenyon; Sill v. Worsmck (1791), 1 H. Bl. 

12 


W.LL. 



178 


PRIVATE INTERNATIONAL LAW. 


665, Common Pleas, judgment of court delivered by Loughborough; and 
Philips V. Hunter (1795), 2 H. Bl. 402, Exchequer Chamber, Macdonald, 
Hotham, Perryn, Heath, Thompson and Rooke, against Eyre ; in all which 
the assignees in English bankruptcies recovered from creditors the 
amounts which they had obtained by attachments abroad. In Hunter v. 
PottSf where the attachment was in Rhode Island, and the assignees had 
not intervened nor was it proved how their title would have been regarded 
by the law of that state. Lord Kenyon adverted to the residence of the 
creditor in England and his knowledge of the bankruptcy at the time 
when he commenced the attachment suit, but mainly rested the judgment 
on the English domicile of the bankrupts. In Sill v. Worswick the attach- 
ment was in the British West Indies, so that the title of the assignees 
must have been regarded as superior had they intervened, and the case 
might have been put on the proposition expressed in § 138. In fact Lord 
Loughborough considered the English residence of the creditor, and his 
swearing in England, with knowledge of the bankruptcy, the affidavit by 
which the attachment suit was commenced, to be sufficient alone to decide the 
case. He went, however, more widely into the doctrine than he considered the 
circumstances to require, and after laying great stress on the bankrupt’s 
domicile he continued : “ I do not wish to have it uhderstood that it 
follows as a consequence from the opinion I am now giving, I rather think 
that the contrary would be the consequence of the reasoning I am now 
using, that a creditor in that country ” — not the colony but a supposed 
non-British country — “ not subject to the bankruptcy laws nor affected by 
them, obtaining payment of his debt and afterwards coming over to this 
country, would be liable to refund that debt. If he had recovered it in 
an adverse suit with the assignees, he would) clearly not be liable. But if 
the law of that country preferred him to the assignee, though I must suppose 
that determination wrong, yet I do not think that my holding a contrary 
opinion would revoke the determination of that country, however I might 
disapprove of the principle on which that law so decided.” In Philips 
V Hunter the attachment was made in Pennsylvania, and the assignees 
had not intervened, nor was it proved how their title would have been 
regarded. The majority of the court adverted in their judgments to the 
attaching creditor being a British subject though resident in America, 
and being a partner in a firm whose only house of business was in Eng- 
land, where also the other partners were resident, and where the debt 
of the bankrupts to the firm was contracted ; and they regarded all these 
circumstances as important. The pith of their opinions is contained in 
the following sentences. ” When the debt therefore was contracted, all 
the parties were as much subject to the bankrupt laws as to the other 
laws of England under which they lived . . . and it is on wise principles 
that sovereign states acknowledge and act according to the different civil 
relations which subsist between men in their own country.” I have ven- 
tured in framing the §§ to disregard the place of contracting the 
bankrupt’s debt, and the state of circumstances at the time of contracting 
it, for those, according to settled maxims of private international law, 
might affect the substance of an obligation but not the remedy for its 
breach. 

Lord Hardwicke" had already held that the assignees in an English 
bankruptcy had a superior title to that gained by arrestment in Scotland 
after the bankruptcy, a proposition which may be referred to § 138 : 
McIntosh V. Ogilvie (1748), 4 T. R. 193 note, where he prevented a 
creditor by a ne exeat from going to Scotland in order to make such arrest- 



ENGLISH BANKRUPTCY: EFFECT ABROAD. 


179 


ments; and Captain Wilson* s Case^ another stage in which is reported 
suh 7wm. Bichardson v. Bradshaw (1752), 1 Atk. 128, but in which Lord 
Loughborough’s account in Sill v. Worswickf 1 H. Bl. 692, shows that 
both Lord Hardwicke and the court of session held the assignment to be a 
superior title to the arrestment. Lord Mansfield however afterwards held 
at nisi pt'ius that a creditor resident in England could hold against the 
assignees in an English bankruptcy the fruits of an execution obtained 
by him after the bankruptcy at Gibraltar: Waring v. Knight (1766), 
Cooke’s Bank. Laws, 300. And the court of sessions fiuctuated as mentioned 
on p. 179 : so the whole subject was at sea till the decision of the three 
leading oases above reviewed. 

In Ex parte Dohree and Ex parte Le Mesurier (1803), 8 Ves. 82, Lord 
Eldon allowed the hour 'of the day to be inquired into, for the purpose of 
determining the priority between an English bankruptcy and attachments 
in Jersey. 

The doctrine of §§ 142 and 143 does not apply between 
English receivers for debenture-holders and unsecured creditors 
obtaining or seeking payment abroad. There is no equity in 
favour of the debenture-holders against the unsecured creditors. 

Be Maudslay^ Sons and Field, [1900] 1 Ch. 602, Cozens-Hardy. 

§ 144. Where the property of the same person, or of a 
partnership consisting of the same persons though under a 
different style, is being administered in bankruptcy both in 
England and abroad, a creditor who has received a dividend in 
the foreign bankruptcy can receive nothing in the English one 
until all the creditors have . been made equal, notwithstanding 
that he may have been entitled to priority by the law of the 
foreign bankruptcy. 

Ex parte Wilso7i (1872), L. R. 7 Ch. Ap. 490, James and Mellish ; Ex 
parte Banco de Portugal (1879), 11 Ch. D. 317, James, Baggallay and 
Bramwell ; affirmed suh nom. Banco de Portugal v. Waddell (1880), 6 
Ap. Ca. 161, Cairns, Selborne, Blackburn. It was said in Ex jMxrte 
Wilson that this case was the same in substance as that of a creditor 
obtaining payment abroad by execution after the commencement of the 
English bankruptcy ; but an English creditor who did so would be subject 
to the severer rule of § 142, and it does not appear that the creditors in 
Ex parte Wilson were not English. 

On the same principle, where a British ship which had been in collision 
was sold under the decree of a foreign court and the proceeds distributed, 
and a suit was brought in England fop the distribution of the amount 
paid by the owners under their personal liability, Gorell Barnes, J., 
provided for the claimants who had not appeared in the foreign proceed- 
ings being put on an equality with those who had done so : The Crathie, 
[1897] P. 178. And see the scheme approved by the court in Be P. 
Macfadyen Co., [1908] 1 K. B. 676, ^igham. 

§ 145. Where a person is a bankrupt in England, and his 
partners reside abroad, whether in or out of the British 



180 


PRIVATE INTERNATIONAL LAW. 


dominions, and are not bankrupt, any creditor, British or alien, 
may retain any payment which he can obtain from the firm 
abroad, and if such payment is only partial may receive divi- 
dends in the bankruptcy on the residue of his debt pari passu 
with the other creditors, 

^Brickwood v. Miller (1817), 3 Mer. 279, Grant. “ Equality of distri- 
bution,*' the judge said, § ** cannot possibly be attained." 

§ 146. Where one or more persons are bankrupt in England, 
and the property of a firm in which he or they are partners 
together with others is also under administration in bankruptcy 
abroad, whether in or out of the British dominions, the question 
whether a creditor who proves against the firm abroad can also 
prove against the partner or the smaller firm in England is to 
be decided according to the English rules as to double proof, 

JEx parte Chevalier de Mello Mafias, Be Vanzeller (1834), 1 M. & A. 
345, Brougham affirming court of review ; Ex parte Goldsmid (1866), 1 
D. J. 257, Knight-Bruoe and Turner, and 1867, Turner. Knight-Bruce's 
difference in the latter case was as to the English rules. 

§ 147. The law of the bankruptcy, that is of England, governs 
the mode in which the trustees in an English bankruptcy hold 
whatever foreign property of the bankrupt,^ movable or immov- 
able, they obtain. Therefore they hold it subject to all equities 
against the bankrupt which are not impeachable under the bank- 
rupt laws themselves, and if he had entered into a binding con- 
tract to give security on it there will be a good security as against 
the trustees, though the security has not been completed by the 
law of the place where the property is situate or recoverable. 

Ex parte Holthavisen (1874), L. R. 9 Ch. Ap. 722, James and Mellish. 

§ 148. The validity of a debt being established by the lex loci 
contractus or other relevant law, the order of priority in which 
it ranks in bankruptcy administration depends on the law of the 
bankruptcy, lex loci concursus or lex fori. 

Ex parte Melhourn (1870), L. R. 6 Ch. Ap. 64, Mellish and James; 
Thurburn v. Steward (1871), L. R. 3 P. C. 478, Cairns. 

§ 148a. But provisions of the lex loci concursus, by which the 

title of the trustee is made to relate back to some date prior to 
adjudication, cannot affect securities or priorities in respect of 
property situate or debts recoverable in another jurisdiction 



BANKRUPTCY: EQUITIES: PRIORITY. 


181 


obtained in accordance with the local law before the date of 
adjudication. 

Galbraith v. Grimshaw, [1910] A. C. 608, Lorebumj Macnaghten, 
Jamea of Hereford, Dunedin, affirming Farwell, Buckley, Kennedy, and 
overruling Ridley. 

The English doctrines which have thus been passed in review 
will be found to present much similarity to those prevalent in 
France. In each country the title of the bankruptcy trustees of 
the debtor's foreign domicile may be made available as para- 
mount to that of a particular creditor attempting to take by 
subsequent execution or attachment, and, in the absence of a 
domestic bankruptcy, as carrying the debtor's property in the 
respective country, though in England with an exception as to 
his real estate. But in each country it is a matter of daily 
occurrence to declare the bankruptcy of a debtor not domiciled in 
it, and in France the cases where this may be done are not 
limited by the condition that there shall be no bankruptcy 
pending in the domicile, though it would seem that in England 
such a proceeding would leave nothing but the English real 
estate for a subsequent English adjudication to operate on. 
Further from either than these systems are from each other, stand 
on the one side the German law permitting execution notwith- 
standing the declaration of a foreign bankruptcy, and on the 
other the efiPorts made in Italy to maintain the unity of bank- 
ruptcy as advocated by Burgundus, Bodenburg, and Savigny. 
It may be found surprising that the English system should have 
gone as far as it has in support of the authority of the domicile 
in this matter, when it is remembered that in the matter of suc- 
cession on death, in which the continental views were beyond all 
comparison more uniform in its favour, we have limited the 
authority of the domicile to the beneficial surplus of the personal 
estate, and in that part of the matter which alone resembled 
bankruptcy we have established separate administrations with 
differing priorities among the creditors of the succession. There 
were however two reasons : in bankruptcy the ecclesiastical courts 
were not present to lay hold of bona notabilia, and commercial 
convenience was present to plead in favour of unity of adminis- 
tration. Convenience will probably decide whether that unity 
should be advanced or restricted, or whether nothing should be 
done but to regulate within something like the extent which 
it has in this country. Regulation '^in any case it certainly 



182 


PRIVATE INTERNATIONAL LAW. 


wants, and the extreme divergence of the existing views on the 
subject must convince all that neither judicial decision nor 
isolated legislation is likely to afford a remedy, that in fact order 
can only be established by international treaties and national 
legislation to give effect to them. 



( 183 ) 


CHAPTEE VII. 

MOVABLES. 

We have now gone through marriage, death, and bankruptcy, 
the three principal cases in which the conception of a person’s 
fortune, or at. least the movable portion of it, as an entirety, and 
necessarily therefore as connected with his person, is forced on 
us by circumstances. We must now consider the rights enjoyed 
in individual articles of property, movable or immovable, and the 
title to those rights. The law as to individual movables, as well 
as that on entire movable fortunes, has been widely considered 
to depend on the person of their owner, on account of a general 
connection supposed to exist between them and him, independent 
of special circumstances. It therefore forms a convenient 
passage between the cases which we have hitherto examined and 
that of immovables, for which no such general connection has 
been asserted except by the more extreme advocates of the 
influence of nationality on private law. 

The general connection which has been supposed to exist be- 
tween movables and their owner has been expressed in the 
maxims nomina creditoris ossihus inhcrrentj^ and mobilia 
sequuntur personam. The former, on the face of it, contem- 
plates only debts, with regard to which, when we speak of the 
property in them, all that can be meant is the right of action for 
them, whether vested in the owner by their original creation or 
by their voluntary or involuntary assignment. Now such rights 
have always been considered to depend mainly on the lex loci 
contractus or solutionis, with perhaps some modification from the 
lex fori. Therefore such a maxim as nomina creditoris ossihus 
inherent can hardly have been intended to assert any connection 
between the species of property it deals with and the owner’s 
person, except for the purpose of those cases which suggested 
dealing with his fortune as an entirety. It amounts to no more 
than saying that in such cases, which are those of the so-called 
universal assignments, debts fall under the personal and not 
under the real statute ; and it cannot be quoted in support of any 



184 


PRIVATE INTERNATIONAL LAW. 


doctrine as to the law governing particular assignments of 
movables. 

The other maxim, however, mobilia seqimntur 'personam ^ cer- 
tainly may apply and has been intended to apply to corporeal 
chattels, and to assert that the transfer of property in them, 
individually and not as parts of an entirety, depends on the per- 
sonal law of the owner. “Some are of opinion,” says Story, 
“ that all laws which regard movables are real ; but at the same 
time they maintain that by a fiction of law all movables are 
supposed to be in the place of the domicile of the owner. Others 
are of opinion that such laws are personal, because movables have 
in contemplation of law no sitns^ and are attached to the person of 
the owner wherever he is ; and, being so adherent to his person, 
they are governed by the same laws which govern his person, that 
is, by the law of the place of his domicile ” (Conjiict of Laws, 
§ 377). Thus two different views as to the nature of laws and 
the ground of their international acceptance, each being com- 
pleted by its appropriate fiction, have been made to lead to the 
same result. That result was also arrived at by Lord Lough- 
borough in a third mode, treating the doctrine that movables 
follow the person not as assigning them a fictitious locality, 
either in the owner’s domicile or in the place where he may 
happen to be, but as denying to them all locality. “ It is a clear 
proposition,” he said, “ not only of the law of England but of 
every country in the world where law has the semblance of 
science, that }>ersonal property has no locality. The meaning of 
that is, not that personal property has no visible locality, but 
that it is subject to that law which governs the person of the 
owner. With respect to the disposition of it, with respect to the 
transmission of it either by succession or the act of the party, it 
follows the law of the person. The owner in any country may 
dispose of his personal property. If he dies, it i^ not the law of 
the country in which the property is but the law of the country 
of which he was a subject that will regulate the succession. For 
instance, if a foreigner having property in the funds here dies, 
that property is claimed according to the right of representation 
given by the law of his own country ” {Sill v. Worswich (1791), 
1 H. Bl. 690). The larger part of these remarks applies to the 
so-called universal assignments, and the case of succession 
furnished a very unapt parallel for any operation of the personal 
law on particular assignments,, since the English rules on that 
case, as we have seen, limit the authority of the personal law,to 



MOVABLES. 


185 


the beneficial surplus, and are strict in requiring that title to 
the movable items composing the succession shall be made in 
accordance with the law which governs in their situation. But 
in spite of this, it is plain that Lord Loughborough intended to 
assert the law of the person as the rule for the disposition of 
particular movables. 

A rule which has been reached by such various technical roads 
may be supposed to be dictated in reality by some strong sub- 
stantial motives. One ground on which the law of a person may 
claim to regulate his movable property was stated by the 
majority of the court in Philipps v. Hunter (1796) (2 H. Bl. 406). 
In the summary of their reasons which is given us, after noticing 
the claim of the lex situs founded on the protection which that 
law affords to the rights of ownership, they are made to observe 
that “ the country where the proprietor resides, in respect to 
another species of protection afforded to him and his property, 
has a right to regulate his conduct relating to that property. 
This protection, afforded to the property of a resident subject 
which is situated in a foreign country, is not imaginary but real. 
The executive power of this kingdom protects the trade of its 
subjects in foreign countries, facilitates the recovery of their 
debts, and if justice be delayed or denied the king by the inter- 
vention of his ambassadors demands and obtains redress.'' But 
the occasional protection thus afforded has only to be named, in 
comparison with the continual protection on which the enjoy- 
ment of property depends, to show how little it can weigh in 
determining the law to be applied. It is moreover a protection, 
not against the justice of the country to which the proprietor 
sends his ships or his merchandize, but against the possible 
failure of that justice, and therefore presupposes its course as the 
rule. 

Again, the doctrine that the law of the alienor should regulate 
the alienation of his movables appears to have been supported by 
a feeling thus expressed by Lord lEames : “ The will of a pro- 
prietor or of a creditor is a good title jure ge7itiu7n^ that ought 
to be effectual everywhere " {On'Equity, b. 3, c. 8, s. 4). But 
Lord Karnes, although he thus mentions proprietors as distinct 
from creditors, scsfrcely applies his view to more than the assign- 
ment of debts. And by the jus gentium he meant very much 
wha^ the Roman praetor meant, t selection of elements common 
to different national laws, so that the reason he gives does not 
follow the track which is followed in common by all doctrines of 



186 


PRIVATE INTERNATIONAL LAW. 


private international law, namely that of selecting a particular 
law and not common elements out of different laws. No doubt 
the interests of commerce require that great freedom of disposi- 
tion should be allowed to proprietors, and this consideration 
speaks in favour of the validity of an alienation made in the 
manner prescribed by the law of the alienor's domicile, but not 
less so in favour of the validity of one made in the manner pre- 
scribed by the law of the place of sale. Indeed, notwithstanding 
the fref][uent assertions of the lex domicilii as governing 
movable{4, it is the forms of the place of sale which have been 
most commonly employed, and on which even the jurists who 
assert the lex domicilii have practically laid the most stress. 
The point ofteii^st at issue is whether a title is fully created 
without delivery. the one hand, under the Code Napoleon, 
Art. 1138, the property is transferred by the contract of sale; 
and by the law of England, followed in many colonies and 
American States, the purchaser is only bound to take possession 
within a reasonable time, or, if the goods are at sea at the time 
of the sale, within a reasonable time after their arrival in port. 
If he complies with this condition, English law holds his title to 
be superior to that of subsequent purchasers or creditors who by 
greater diligence may have anticipated him in taking possession. 
On the other hand, the Prussian code of 1794 and that of 
Louisiana, with some other laws which are founded on the 
Roman, award the property to the one who first gains possession 
on a lawful title, without regarding the priority of the titles, or 
whether laches is imputable to the claimant who has been out- 
stripped. Again, a mortgage, by English law, is usually created 
in the form of a transfer of j)roj>erty, defeasible or redeemable on 
payment of the debt; but in most other laws mortgage is a 
proceeding quite different from the transfer of property. Hence 
it may not only be discussed whether, in countries where delivery 
i^ necessary to complete a sale, a foreign sale can be complete 
without delivery, but also whether, even if that be so, a foreign 
mortgage can give a good title without delivery through being 
in the form of a sale. Now Story says that to hold delivery to 
be necessary on a sale of chattels, because such is the law of the 
place where they may happen to be, “ would most materially 
impair the confidence which the commercial world have hitherto 
reposed in the universal validity of the title acquired under a 
bill of lading” (§ 394). But when bills of lading and dock^ 
warrants are regarded as negotiable representatives of the 



MOVABLES. 


187 


chattels to which they relate, the lejc situs is not waived in favour 
of the lex domicilii , but if it is waived at all, it is so in favour 
of the lex loci dcUis^ as governing the transfer of such instru- 
ments by indorsement or otherwise. 

On the whole, the arguments which have been used in support 
of the maxim mohilia sequuntur personam^ understood as regu- 
lating dealings with movables by the personal law of their owner, 
cannot be pronounced satisfactory : and the reader will be pre- 
pared to find that in the nineteenth century the current of 
authority, out of England, has set strongly towards the applica- 
tion of the lex situs to movables as well as to immovables, in all 
cases except those of the so-called universal assignments. How 
far the same may be said of the English authorities will be 
afterwards considered, but it will be convenient to introduce the 
foreign view by a quotation from Fcelix, on account of the very 
practical character of that writer. ‘‘We have seen,” says Fcelix 
— Traite du Droit International Priv^, § 62 — “ that the rule 
according to which movables are governed by the law of the 
domicile of the person to whom they belong rests on the intimate 
relation which exists between movables and the person of their 
owner, on a fiction of law which deems them to exist in the place 
of domicile of the latter. Thence it follows that that rule cannot 
be applied except to those circumstances or acts in which 
movables only appear as an accessory of the person, for example, 
to the case of succession ah intestato, to that of dispositions 
made by last will, or to that of such dispositions inter vivos as 
express or tacit marriage contracts. The rule does not apply to 
any case in which the movables have no intimate relation to the 
person of the owner, for example, when the property in movables 
is claimed and disputed, when the maxim that en fait de meuhles 
possession vaut tit re is invoked, when the question is about a 
right of pledge, a claim to preferential payment, process of 
execution, the inalienability of movables, their confiscation, 
escheat of a movable succession to the public treasury, or lastly 
a prohibition against exporting movables. In all these oases the 
law of the place where the movables are actually found must be 
applied, for the fiction which has been mentioned gives place to 
the fact {cesse par le fait). For example,” continues Fcelix in 
a note, “ a contract concluded abroad, by which the owner of a 
movable actually in France should grant a right of pledge over 
it (art. 2073 and following ones of the Code civil), would have 
no effect in France if the pledge had not been delivered to the 



188 


PRIVATE INTERNATIONAL LAW. 


creditor (art. 2076), although this condition might not be 
required by the law of the owner’s domicile.” Thus the dis- 
tinction is plainly drawn between the cases in which a man’s 
property is considered as an entirety, grouped round his person 
as a centre, and those in which the articles which compose it are 
separately considered. 

The doctrine of Savigny is similar. After stating that “ the 
capacity of a thing to become subject to private property is to be 
judged by the law of the place at which the thing is situated,” 
and that the same rule applies as to the admissibility or 
restriction of the acquisition by occupation of property in things 
of many kinds,” of which he gives as an example ‘Haws as to 
the royalty on amber and on many kinds of minerals,” he pro- 
ceeds thus. ‘‘ In the forms of alienation — i,e. of the voluntary 
transmission of property to another person — very different rules 
of law occur; and on the principle above considered we must 
apply the rule of law in force at the place where the thing is 
situated, without regard to the domicile of the one or of the 
other person, and without regard to the place where the contract 
is entered into. Thus, in Roman law, alienation depends on the 
delivery of the thing; in the Prussian law likewise on delivery. 
In the French law, on the contrary, the transfer of the property 
is effected by the mere contract. ... If a Parisian sells his 
furniture situated in Berlin to a Parisian in Paris, the property 
is transferred only by tradition; but if, conversely, a Berliner 
sells his goods situated in Paris to a Berliner in Berlin, the mere 
contract transfers the property. ... It will suffice to bring this 
rule into operation if the continuance of the things at a place 
should be only transient and very short; for in every case the 
transfer of the property depends on a momentary act, and there- 
fore fills no long space of time. It will be different in the excep- 
tional cases in which the present situation of the things is so 
indeterminate that the persons acting cannot be held to have any 
certain knowledge of it. In such cases we shall have to regard 
as the place where the thing is situated that at which it is 
destined first to remain, which will often be the domicile of the 
present owner, the seller. ... The acquisition of property by 
prescription is essentially different from the acquisition by 
tradition, in being effected not by a momentary fact but by one 
extending over a longer period of time. In regard to immovable 
things, the application of the law of the place where the thing 
is situated is quite undisputed. On the contrary, opinions are 



MOVABLES. 


m 


very much divided in respect to the prescription of movables. 
But here the question is specially important, because the laws of 
difEerent countries vary exceedingly. The Roman law requires 
possession for three years, the Prussian for ten. The French 
requires no continued possession, but excludes with the very 
beginning of it the vindication of the former owner,* with an 
exception in the case of lost and stolen things, the protection of 
which however ceases with the expiry of three years. By this 
last rule the French law, in its practical results, approximates 
to the Roman. It is here precisely that the application of the 
le:e rei sitce appears especially certain, from the circumstance 
that the foundation of all prescription is continuing possession,* 
but possession, as being essentially a relation of facts, is, with 
even less doubt than any real right, to he judged by the lex rei 
sitoR. A question may still arise where the situation of the 
movable things, during the period of prescription, has been 
within different territories. There can be no doubt that all these 
periods of possession must be added together. The term of the 
prescription however, and the complete acquisition of the pro- 
perty, must be judged by the law of the place at which the thing 
is last found, because it is only at the expiry of the whole period 
that the change of property takes place; before, it has only been 
in preparation. When property has been acquired by prescrip- 
tion according to this law, it must be recognized in every other 
country, although the law of that country should require a longer 
period. ’’t 

The doctrine of Foelix and Savigny is also that of J)oth the 
supreme and the state courts in the United States, as appears 
from their decisions mentioned by Wharton {Conflict of Laws, 
1872), who sums up thus. We may therefore hold it to be law 
in the United States that an assignment made in one state of 
personal property situated in another, such property not being 
in transit or following the owner’s person, passes no title to such 
property as against attaching creditors of the assignor, such 
creditors being domiciled in the latter state, when such assign- 
ment is invalid by its laws: ” § 353, The exception of property 
in transit or following the owner’s person is not to be found in 
the cases cited by Wharton, 'but has been introduced by him in 
imitation of the exception which we* have seen admitted by 

Savigny,, where the present situation of the things is so indeter- 

: ^ — « a — — 

* En fait de menbles, la possesaion vant titre, God. Nap., AriK 2279. 
t Syat. § 367, Guthrie, 188— Ml. 



190 


PRIVATE INTERNATIONAL LAW. 


minate that the persons acting cannot be held to have any certain 
knowledge of it.^' Neither do the American judges seem to 
lay any stress on the domicile of the attaching creditor, though 
in the reasons which they give for adopting the lex situs for 
movables the protection of the citizens of their own states holds 
a prominent place. The leading authority is the Louisiana one 
of Olivier v. Townes (1824, 2 Martin, N. S., 92), in which 
Mr. Justice Porter delivered the opinion of the court. ‘‘We 
have presented,’’ he said, “the case of a creditor attaching pro- 
perty of his debtor before it was transferred by sale and 
delivery,” this being a remedy to which a creditor would in that 
statu of facts be clearly entitled by Louisiana law. “ But,” 
continued the judge, “ the position assumed in the present case 
is that by the laws of all civilized countries the alienation of 
movable property must be determined according to the laws, rules 
and regulations in force where the owner’s domicile is situated : 
hence it is insisted that as by the law existing in the state where 
the vendor lived no delivery was necessary to complete the sale, 
it must be considered as comjdete here, and that it is a violation 
of the principle just referred to to apply to the contract rules 
which are peculiar to our jurisprudence, and different from those 
contemplated by the parties to the contract. We readily yield 
an assent to the general doctrine for which the appellee contends. 
He has supported it by a variety of authorities drawn from 
different systems of jurisprudence. But some of those very 
books furnish also the exception on which we think this case 
must be decided, namely that ‘ when those laws clash and inter- 
fere with the rights of the citizens of the countries where the 
parties to the contract seek to enforce it, as one or other of them 
must give way, those prevailing where the relief is sought must 
have the preference.’ Such 4s the language of the English book 
to which we have been referred.” It is unfortunate that the 
court did not rather deny the general doctrine contended for by 
the appellee. In doing so they would have been in harmony 
with the main current of legal opinion in the world, and their 
decision in favour of the atta-ching creditor would probably not 
have excited the antagonism which has been expressed to it in 
England and by Story. But it had little chance of escaping 
that antagonism when under the name of an exception it took 
away almost all p6ssible application from the rule which it 
nominally admitted, and this avowedly for the convenience of 
the citizena of Louisiana. Yet the judgment is not without a 



MOVABLES. 


191 


trace of the true distinction between the cases, as those of succes- 
sion, in which property is grouped round the person of its owner, 
and those, as of alienation or of special claims against it, in 
which it is considered independently of its owner. After noticing 
that “ personal property must be distributed according to the 
law of the state where the testator dies,^’ the learned judge 
added, “ but so far as it concerns creditors it is governed by the 
law of the country where the property is situated. If an 
Englishman or Frenchman dies abroad and leaves effects here, 
we regulate the order in which his debts are paid by our juris- 
prudence, not that of his domicile.’’ 

It will be found that the weight of later English authority 
is in favour of the doctrine of Fcelix, Savigny, and the United 
States courts; but before examining the cases from which that 
conclusion may be drawn, another law or supjmsed law must be 
mentioned which in the case of one class of movables, ships, has 
sometimes been regarded as paramount to all those yet con- 
sidered, lex situs, lex doTmcilh, and lex loci contractus or loci 
actus. This is the general law maritime, on which the following 
case may be cited as a leading one. 

“ A ship belonging to a British owner at Liverpool, having been taken 
by alleged pirates, and recaptured by one of her majesty’s ships of war 
after her master had been killed, was placed in charge of a master of the 
royal navy to bring to Liverpool, Having suffered considerable damage, 
he put into the island of Fayal, and petitioned the director of the customs 
for an official survey. Three were made. The rejwrt was to the effect 
that the ship could be repaired for about £300. The master being dis- 
satisfied obtained a private survey, which resulted in a report that the 
ship was unseaworthy and should be condemned. The director of the 
customs then, on the petition of the master, decreed the sale of the ship 
by public auction, and gave official notice thereof according to the custom 
of the place. She was purchased by a Portuguese merchant, who immedi- 
ately repaired her and sent her with a cargo to Bristol, where she was 
arrested by the original owner in a cause of possession. Held, 1. The 
master had the authority of an ordinary master, and no more. 2. The 
validity of the sale must be tried by the law maritime. 3. By the law 
maritime, as well as by the law of England, the sale of a ship by a master, 
though hmid fide, can be justified only by urgent necessity. 4. With 
respect to shij>s, the lex loci contractus cannot prevail if opposed to the 
law maritime. 6. The circumstances of the case do not show an urgent 
necessity for the sale ; and 6. The sale was invalid, and the ship must be 
restored to the original owner with costs.” [Marginal note, verbatim.] 
The Segredo, otherwise Eliza Cornish (1863), Spinks, Eccl. & Adm. 36, 
Lushington. 

The law which Dr. Lushington thus thought himself bound 
to apply is described by him as follows. First, it strikes me 



192 


PRIVATE INTERNATIONAL LAW. 


that the law which I must seek to administer, if I am able to 
discover it, is the law maritime: a law which has been often 
adverted to by Lord Stowell and by others whose lights I seek 
to guide me, but which has been defined by none. Perhaps it 
is not possible to define it with great accuracy, because the law 
of almost every foreign country in some part differs from that of 
other foreign countries. Still it is an expression in common use, 
and I apprehend it is intended to convey the meaning that it is 
the law which generally is practised by maritime nations 
(u.s., p. 45). And the learned judge proceeded to distinguish 
it from the respective laws of England and of the island of 
Fayal. Further on, he referred to it as ‘‘the present maritime 
law of the civilized world ’’ (u.s., p. 56). The learned judge 
then asked himself whether he could adopt the law of Fayal “ on 
the principle of the lex loci contractus^ In what way,’^ said 
he, “ does the lex loci contractus in the case of a sale of a ship 
entitle itself to be so admitted? If such general proposition 
could be entertained, the law relative to the sale of ships would 
be a law varying with the law of each individual country where- 
ever the sale happened to take place; in fact there would be no 
general maritime law at all, but a law to be inquired into in 
every case where the transfer took place in a foreign country. 
I should have one law to look for at Fayal, another in our own 
colonies, another in Demerara, another in Trinidad, another in 
French colonies, another in England. Now I know of no right 
which the purchaser of a ship in a foreign country, such ship 
not belonging to a subject of that country, has to call for the 
interposition of the lex loci contractus, save indeed in one case 
only, where the title is derived from the decree of a competent 
court administering the law in its own jurisdiction, and by its 
decree conferring a title. Now had the ship been purchased 
under the decree. of a court of admiralty, directing her to be 
sold in a case within its jurisdiction, or the law of a court 
resembling our own court of exchequer, I should have hesitated 
long before I disputed that title (?7. <S., p. 57). 

After enlarging on the last point. Dr, Lushington concluded 
his argument on it thus: “I wish it to be understood that in 
the event of a title being given by an admiralty c‘ourt having 
jurisdiction, or a court of common law, I do not preclude myself 
from considering that to be a valuable title. Again, I should 
consider this : supposing a vessel was sold by decree of the com- 
missioners, or the court of exchequer, for forfeiture, that I 



LAW MARITIME. 


1Q3 


should hold a good title, if such a case should occur. Supposing 
a vessel sold in a foreign country under the law prevailing in 
cases of insolvency or bankruptcy, I should hold that also to be 
a good sale. But I wish it to be understood that I go on the 
ground that nothing short of that appears capable of justifying 
a sale and making a good title.’’ And after expre.ssing liis 
consent to the principle “that the lejc loci contractus generally 
governs the validity of every contract,” he referred for certain 
exceptions to a note of Mr. Brodie in his edition of Lord Stair’s 
Institutes. “ There appear to me,” vsaid Lushington, “ accord- 
ing to his,” Brodie’s, “judgment, several reasons why the lea) 
loci contractus is not always applicable. He says this: ‘A dis- 
tinction is ever to be attended to between the case of a party 
casually entering a foreign country and that of one who resides 
in it, and the distinction is particularly strong in regard to an 
individual who, as master, has the charge of a vessel in a foreign 
port.’ Then he states he is under these circumstances likely to 
be ignorant of the law of the •country, and not to be too 
tenaciously bound. Then there is another distinction, and that 
by far the most important. ‘ The contract,’ says Mr. Brodie, ‘ in 
such cases is made with the ship-master, who acts as the implied 
mandatory of the owner; and the effect of the transaction must 
greatly, depend on the extent of his authority. Now it is true 
that as a person who has been appointed to an office must be 
presumed to be invested with the usual j)owers, so restrictions 
upon the ordinaiy authority will not be effectual against another 
party who has not been apprized of them; yet it will be observed 
that since it is the duty of those who deal with an agent to make 
themselves acquainted with the extent of his powers, whether 
expressed or fairly implied from his office, so the presumed 
mandate here must be measured either by some general principle 
of maritime law, or by the law of the country to which the ship 
belongs. Such a general principle of maritime law would of 
itself, though in a different way, tend in my apprehension to 
exclude the lex loci; but there is no such universally received 
principle, and the more positive exclusion of the principle of 
the lex loci is the consequence ; ’ and then he goes on to state 
what the English law of hypothecation is, and how we should 
apply it ” (u.s., pp. 58, 69). 

The opinions expressed by Dr. Lushington in the case of the 
Segredo may therefore be sumined up as follows. (1) A decree 
in rem of a court of admiralty or of common law, or a sale made 

13 


W.I.L. 



X04 


PRIVATE INTERNATIONAL LAW. 


in a bankruptcy, binds the title to a ship as well as to any other 
movable, the jurisdiction of the court of bankruptcy, or of the 
court decreeing in rem, being of course assumed to be established. 

(2) The authority of an agent to sell or hypothecate a ship cannot 
be derived from the lex situs or lex loci contractus, but may be 
derived not only from his instructions, or from the law of the 
country to which the ship belongs, but also from the law mari- 
time, contrary to Mr. Brodie’s opinion, who held that no such 
law can be appealed to, as none is universally received. 

(3) Except in the cases mentioned under (1), to which the learAed 
judge would no doubt have been ready to add that of a sale 
under the authority of a court of probate or administration, a 
sale under public authority in the situs leaves it still necessary 
to examine the authority of the person who assumes to sell. 
The other parts of these propositions will have to be further 
considered in due place, but with regard to the notion of a 
general maritime law as actually in vigour for any purpose, the 
opinion of Mr. Brodie may gt once be accepted. If the idea 
were admitted, the actual determination of such a law would 
encounter the difficulty which theologians have found in apply- 
ing the maxim quod sem'per, quod ubique, quod ah omnibus. 
In fact, however, the conception which has almost universally 
been formed of private international law is that of choosing in 
each case between different national laws, not that of setting 
up a body of doctrine in the form of a law but without any 
national legal sanction. When ‘‘ the general law maritime, as 
it is administered in England by courts of admiralty,’^ is men- 
tioned, those terms must be taken to describe a certain part of 
the law of England, not derived from any specially English 
custom or legislation, but which, so far back as it can be traced 
in our law, possessed legal sanction over all or most of those 
tracts which were included within the horizon of our early 
lawyers. The general maritime law as administered in 
England, or to avoid periphrasis the law of England — said 
Justice Willes, delivering the judgment of the court of appeal 
in Lloyd v. Guibert (L. R., 1 Q. B. 125).* The subject will 
be further discussed in the chapter on torts, with reference to 
collisions at sea. 

Coming now to the doctrines received in England on the effect 
of different judgments and laws on the property in movables, 

* The law maritime, or admiralty law, is the same in Scotland as in England : 
Currie v. McKnight, [1897] A. C. 97, Halsbury, Watson, Herschell, Morris, Shand. 



MOVABLES : JUDGMENTS IN BEM, 


195 


the earlier editions began with that of judgments in rewi, 
because' it then appeared to be better settled than was the case 
with questions about the effect of laws which in the particular 
instance have not been embodied in any such judgment, not that 
the authority of a judgment in rem appeared to rest on any 
principle not involved in that of a law. The practical identifi- 
cation of the two classes of questions, as both resting on the 
disposing power of the sovereignty of the situs, has since received 
further support; but the order of treatment has not been varied, 
as well because judgments and laws are equally direct applica- 
tions of sovereignty as because of the interest which attaches to 
the historical development of the English doctrines. 

§ 149. The property in a movable will be held in England to 
be such as the judgment in rem of a court within the jurisdiction 
of which the movable was situate has decided it to be. The 
distinctive mark of a judgment in rem on a movable is that it 
disposes of the thing itself, and not merely of the interests 
which any parties have in it. It is immaterial whether the 
judgment does this (1) by vesting the property at once in a party 
as against all the world, as a condemnation in a revenue cause 
vests the property in the crown, or the sentence of a court of 
admiralty in a matter of prize vests the property in the captors ; 
or (2) by decreeing or confirming the sale of the movable in 
satisfaction of a money demand which it adjudges to have been 
a lien on the thing itself, and not merely on the interests of any 
parties in it; or (3) by decreeing or confirming the sale of the 
movable by way of administration, in matters of bankruptcy or 
succession on death. The second case is easily distinguished 
from that of a sale under execution, in which only the interest 
of the debtor is intended to be disposed of ; and the characteristic 
of the third case is that the court claims to act on one of the 
so-called universal assignments, and therefore to conclude even 
those who may not accept the permission to come in and take the 
benefit of the proceedings. 

The leading authority is Castrique v. Tmrie (1860), 8 C. B. (N. S.) 1, 
Erie, Williams, Willes, Keating; reversed (18M), 8 C. B. (N. S.) 405, 
Cockburn, Wightman, Channell, ^ill, Blackburn, Martin, Bramwell; 
reversal affirmed (1870), L. R. 4 E. & I. A. 414, Hatherley, Chelmsford, 
'Colonsay, in accordance with the opinion of Blackburn, Bramwell, Mellor, 
Brett and Cleasby, and of Keating, who departed from his previous 
opinion in deference to the judgment on appeal in Cammell v. Sewell, 
The decided Jn 1868, 3 H. & N. 617, by Pollock, 

^Jjaffin and t!hann'^lf>and affirmed in 1860, 6 H. & N. 728, by Cockburn, 
Wightman, Williams, Crompton and Keating, Byles dissentient. The 



196 


PRIVATE INTERNATIONAL LAW. 


definition given in the § of a judgment in rem on a movable is in accord- 
ance with all the judicial opinions in Castrique v. Imrie^ except that the 
French judgment there in question was held by Williams, Willes and 
Keating not to be in rem^ merely from their taking a different view as to 
the facts of the French proceedings. The third case of judgments in rem 
mentioned in the § was noticed, so far as concerns sales in bankruptcies, 
by Lushington in The Setfredo: see above, pp. 191 — 194. In Cammell v. 
Sewell the question was about the right gained to some deals, the cargo 
of a vessel wrecked on the coast of Norway, by purchase at a sale in that 
country held under the authority of the captain, and confirmed in the 
same country in a suit brought by the agent of the underwriters to have 
the deals delivered up in specie. The case was decided in the lower court 
on the ground of this Norwegian judgment, Martin, on behalf of Pollock 
and Channell as well as of himself, describing it as being in the nature 
of one in rem on account of the prayer for si>ecific delivery ; but the 
circumstance that the underwriters, plaintiffs in England, were privy to 
it was dwelt on as an element in its oonclusiveness, notwithstanding that 
a judgment in rem is conclusive against all the world. On the appeal a 
dealer view was taken of the nature of judgments, and the decision in 
favour of the purchaser was put on the ground of tlie sale being a good 
transfer by the law of Norway, which was the situs of the deals. Black- 
burn, delivering the opinion of the judges in Castrique v. Imrie^ said : 
“We may observe that the words as to an action being in rem or in 
personam j and the common statement that the one is binding on third 
persons and the other not, are apt to be used by English lawyers without 
attaching any very definite meaning to those phrases. We apprehend the 
true principle to be that indicated in the last few words quoted from 
Story. We think the 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 “ (L. R., 4 E. & I. A. 429). These words are valuable as 
expressing the principle on which the international validity of a judg- 
ment in rem rests, as well as the condition for such validity, namely that 
the movable shall have been within the territorial jurisdiction of the court 
pronouncing it. 

In Simpson v. Fogo ( (I860), 1 J. & H. 18 ; (1863), 1 H. & M. 195; 
Wood) a New Orleans judgment came under consideration in peculiar 
circumstances. A British ship, belonging to Liverpool, was mortgaged in 
English form to a Liverpool bank, while she was at sea, and therefore 
when there was no lex situs to compete with the law of the owners’ domi- 
cile as to the sufficiency of the mortgage. Afterwards unsecured creditors 
of the mortgagors attached her at New Orleans, where delivery is neces- 
sary to perfect a real right in a movable, and she was sold under decree 
in the suit so commenced, the mortgagee intervening and ineffectually 
claiming possession. The mortgagee, whose debt exceeded the value of the 
ship, sued the purchaser in England, whither she had been brought, and 
recovered her ; the purchaser however being allowed a lien for what, in 
the distribution of the proceeds of sale at New Orleans, had been paid to 
certain creditors who had a real right under th^ law of that place by 
virtue of which they might have arrested the ship. It was admitted by 
the vice-chancellor that had the ship been S(dd in a suit commenced by 



MOVABLES: LEX SITUS. 


197 


their arresting it, the property would have passed * 1 H. & M. 248. Full 
justice was therefore done to the real rights conferred by the lex situs^ 
or recognized by the court of the situs. The sale under decree in an 
attachment suit passed only the debh^r’s interest in the movable, and 
whatever controversy might be raised as to its validity against the mort- 
gagee on the ground of his intervention, it at least had no validity against 
him on the footing of a judgment in rem. See Blackburn’s remarks in 
Castrique v. Imrie^ L. R. 4 E. & I. A. 436. 

We now come to the effect of laws indej^endent of their embodi- 
ment in judgments in rem. Having seen Lord Blackburn 
tracing the respect due to such judgments to the sovereign 
authority of the state within which the movable is situate, we 
shall be prepared to find an equal respect paid to the will of the 
same authority when manifested in the simpler form of a law. 

' § 150. Questions as to the transfer or acquisition of property 

in corporeal movables, or of any less extensive real rights in 
them, as pledge or lien, are generally to be decided by the lex 
situs. 

If the question refers to a ship which was at sea at the moment 
of the alleged transfer or acquisition, it must be decided by the 
personal law of the owner, that is, of the person from or against 
whom the transfer or acquisition is alleged to have taken place : 
that law will operate either as the lex situs ^ on the ground of 
the fiction which makes ships a part of the territory ascertained 
by their flag, or in its own character of the personal law, in 
obedience to which alone the owner can lose his right when no 
lex situs is applicable against him. It would however be 
pedantic to apply the general doctrine so as to bring in the law 
of a casual and temporary situs, not contemplated by either 
party in the dealing under consideration, as in the case of goods 
which at the moment of the dealing may be on board a ship of 
a third country, or temporarily warehoused in a port of a third 
country. See Savigny as to this : above, p. 188. 

“ A delivery by the consignor of goods on board a ship chartered by the 
consignee is a delivery to him, and the consignor cannot afterwards stop 
them in transitv. But where the delivery was made on board such a ship 
in Russia, and by a law of that country the owner of the goods, in case 
of the bankruptcy of the vendee, may sue out process to retake his goods 
on board a ship &c. and retain them till payment; and the owners, 
hearing of the insolvency of the vendee, applied to the captain on board 
of whose ship the goods had been delivered to sign the bill of lading to 
their order, which he complied with without the necessity of suing out 
process: Held that this was a substantial compliance with such law, and 
that the captain on his arrival hbre was bound to deliver the goods to the 
order of the vendors, and not to the assignees of the vendee who had 
become bankrupt.” Inglis v. Usherwood (1801), 1 East 615, Kenyon, 



198. 


PRIVATE INTERNATIONAL LAW. 


Grose, Lawrence, Le Blanc. Kenyon and Lawrence spoke of “ the trans- 
action ” being in Russia, which might have referred to the contract of 
sale; but Grose said “ the delivery here was made in Russia,” thus bearing 
out the reference to that point in the marginal note which I have copied 
verhatim. No judge alluded to the vendor’s domicile. It appears there- 
fore that the question, at what moment the property in the goods was 
indefeasibly transferred, was decided on the lex situs. 

“ The captain of a ship has no authority to sell the cargo, except in 
cases of absolute necessity ; and therefore, where in the course of a voyage 
from India the ship was wrecked off the Cape of Good Hope, and some 
indigo which was part of the cargo was saved, and the same was there 
sold by public auction, by the authority of the captain acting bond fide 
according to the best of his judgment for the benefit of all persons con- 
cerned, but the jury found there was no absolute necessity for the sale: 
Held that the purchaser at the sale acquired no title, and the indigo 
having been sent to this country, the original owners were entitled to 
recover its value.” Freeman v. East India Comjxiny (1822), 5 B. & Aid. 
617, Abbott, Bayley, Holroyd, Best. Best said, speaking of the purchaser’s 
knowledge of the circumstances, ” Supposing the law of Holland,” which 
was in force at the Cape, “to be, as it is stated to be, the same as the law 
of England, this knowledge will prevent the purchaser protecting himself 
under a sale in market overt.” On this Mr. Justice Crompton remarked 
in Camrnell v. Hewell^ “ In the case of Freeman v. The Bast India Com- 
pany the court of king’s bench appear to have assented to the proposition 
that the Dutch law as to market overt might have had the effect of 
passing the property in such case, if the circumstance of the knowledge of 
the transaction had not taken the case out of the provisions of such law 
6 H. & N. 745. 

Camrnell v. Sewell has already been noticed above, p. 195. In the court 
below. Pollock said, although his opinion in that respect was not adopted 
as the ground of the judgment: “ If personal property is disposed of in a 
manner binding according to the law of the country where it is, that dis- 
position is binding everywhere.” 3 H. & N. 138. On the appeal Crompton, 
delivering the opinion of all the court except Byles, said: “ Many cases 
were mentioned in the course of the argument, and more might be 
collected, in which it might seem hard that the goods of foreigners should 
be dealt with according to the laws of our own or of other countries. 
Amongst others our law as to the seizure of a foreigner’s goods for rent 
due from a tenant, or as to the title gained in them, if stolen, by a sale 
in market overt, might appear harsh. But we cannot think that the 
goods of foreigners would be protected against such laws, or that if the 
property once passed by virtue of them it would again be changed by being 
taken by the new owner into the foreigner’s own country.” He then 
quoted with approval Pollock’s dictum in the court below, and added; 
“ We do not think that it makes any difference that the goods were wrecked, 
and not intended to be sent to the country where they were sold. We do 
not think that the goods which were wrecked here would on that account 
be less liable to our laws as to market overt, or as to the landlord’s right 
of distress, because the owner did not foresee that they would come to 
England.” Byjes did not dissent on the ground of the owner’s lex 
domicilii, but because the ” alleged law of Norway ” seemed to him to be 
“of an alarming nature,” “ ai^d at variance with the general maritime 
law of the world, at least as understood in this country.” Oockburn added 
to his concurrence in Crompton’s judgment a remark which, as to the last 



MOVABLES : LEX SITUS. 


a99 


mentioned law, placed him on the side of Brodie as against Lushington : 
** The law of nations cannot determine the question, for the ‘international 
law is by no means uniform as to the powers of a master, as abundantly 
appeared from the various codes which were brought to our notice during 
the argument.” 5 H. & N. 744, 6, 7, 60. Pollock’s dictum was quoted 
with approval by Bramwell in Castrique v. Imrie, 8 C. B. (N. S.) 430; 
and Blackburn, delivering to the House of Lords the opinion of the judges 
in the same case, adverted to it thus. ” In the case of Cammell v. Sewelly 
a more general principle was laid down, namely, that ‘ if personal pro- 
perty is disposed of in a manner binding according to the law of the 
country where it is, that disposition is binding everywhere. ’ This we think 
as a general rule is correct, though no doubt it may be open to exceptions 
and qualifications; and it may very well be said that the rule commonly 
expressed by English lawyers, that a judgment in rem is binding every- 
where, is in truth but a branch of that more general principle.” . L. R. 
4 E. & I. A. 429. 

In Clydesdale Banky Lim, v. Schroeder Co., [1913] 2 K. B. 1, Bray, 
it was held that money paid under the compulsion of process of the court 
in a foreign country was not recoverable subsequently by a suit in Eng- 
land on the ground that the payment was made by duress. The money 
was paid under protest to release a ship from arrest by process, and the 
foreign process in rem could not be questioned here. When a donatio mortis 
causd valid by the English law was made by a foreign subject of pro- 
perty in England, the title of the donee was maintained against the 
claim of the persons who were the heirs of the donor and who urged that 
the validity of the gift must be judged by the law of the donor’s domicile. 
Be Korvine*s Trusts^ [1921] 1 Ch. 343, Eve. 

In Coote V. decks (1872), L. R, 13 Eq. 597, Bacon, it was held that the 
English Bills of Sale Act does not apply to a bill of sale of goods in Scot- 
land, given in England by an English debtor to an English creditor. 
And this was followed as to goods in Ireland in Brookes v. Harrison 
(1880), 6 L. R. If. 86, Morris and Harrison. 

In Liverpool Marine Credit Company v. Hunter (1867), L. R. 4 Eq. 62, 
Wood ; affirmed^ (1868), L. R. 3 Ch. Ap. 479, Chelmsford ; it was decided 
that domiciled Englishmen will not be restrained from attaching ships at 
New Orleans because justice will not be done there to domiciled English 
mortgagees, and that bonds given by such mortgagees at New Orleans for 
the purpose* of obtaining the release of the ships may be sued on in Eng- 
land. It must be observed that according to the allegations made in this 
case and in Simpson v. Fogo (above, p. 196), the courts at New Orleans 
go so far beyond the doctrine mentioned above, pp. 190, 191, as to disregard 
transfers and pledges of movables made without delivery, although com- 
plete before the arrival of the movables in Louisiana. For the present 
purpose, attention must be drawn to Wood’s expression in respect to 
foreign statute law, ” however harsh and arbitrary it may be,” though 
he ” was particularly anxious to draw a distinction between judicial pro- 
cedure and the statute law of a foreign state: ” L. R. 4 Eq. 68. Also to 
Chelmsford’s reassertion of the old doctrine of Loughborough, in these 
terms: “ The transfer of personal property must be regulated by the law 
of the owner’s domicile^ and if valid by that law ought to be so regarded 
by the courts of every other country where it is brought into question : ” 
L. R. 3 Ch. Ap. 4821 It already^^fseemed impossible, in the face of the 
other authorities here collected, to accept this rule further than it has 
been admitted in framing § 150; and the § has since been supported by 



200 


PRIVATE INTERNATIONAL LAW. 


City Bank v. Barrow (1880), 6 Ap. Ca. 664, Selborne, Hatherley, Black- 
burn, Watson. Lord Blackburn said: “ The pledge upon which the defen- 
dants claim was made in Canada in respect of goods then in Canada. I 
take it therefore that there is no doubt that the validity of the pledge 
depends upon the Canadian law.” Lindley, as judge of first instance in 
this case, all the judges in the court of appeal, and all the noble lords 
went on the law of Canada as they respectively understood it to be, 
although the owners of the pledged goods were an English house; thus 
disregarding the law of the owner’s domicile. In Inglis v. Robertson ^ 
[1898] A. C. 616, Halsbury, Watson, Herschell, Macnaghten and Morris, 
Scotch law was held to determine the validity of a pledge of goods in 
Scotland by a domiciled Englishman. 

But the question whether a pledgee may redeliver the goods to the 
pledgor for a limited purpose without thereby losing his rights under the 
contract of pledge, those parties having a common domicile in a country 
different from the situs of the goods, was considered to be determinable by 
the law of that domicile as belonging to the transaction between them 
(Herschell), as affecting title to property admittedly belonging to one or 
other of them (Watson) : North-Western Bank v. Roynter^ [1895] A. C. 66. 

Similarly the decree of a foreign government disposing of movable pro- 
perty within its territory will be held to be binding in the English courts, 
provided the foreign government has received recognition as a sovereign 
authority ; and the courts here will not enquire whether the decree is con- 
fiscatory or contrary to principles of natural justice. 

Comjxxny for Woodwork A. M. Luther v. J. Sagor A) Co., [1921] 1 
K, B. 456, 474, Bankes, Scrutton, reversing Roche, but only on the question 
whether the Soviet Government of Russia had been recognized by the 
British Government. 

Similar decisions have been given by the American courts recently in 
cases arising out of the Mexican Revolutions. Oefjen v. (^entral Leather 
Co.j [1917] 246 U. S. 297; Ricaud v. American Metal Co., Ih., 304. 

§ 151. A distinction may now be noticed which was not 
adverted to in The Segredo (above, p. 191), and possibly may 
not have arisen on the facts of that case, the law of Fayal having 
been very imperfectly proved in it. A law by which the owners 
are not bound cannot confer an authority on an agent as against 
them; but notwithstanding this the Jew situs may, if it pleases, 
confer a title on the ])urchaser or pledgee of a movable by reason 
of the agent’s acts. The question of an agent\s authority belongs 
to the law of contract ; the question of a ])urchaser\s or pledgee’s 
title belongs to the law of property, and must be ultimately 
decided by the law which governs property, although that law 
may make the authority of the selling or pledging agent, as 
determined on principles applicable to contract, an element in 
its decision. 

' In Cammell v. Sewell, Crompton, delivering the opinion of all the court 
except Byles on the appeal, said : ” The conclusion which we draw from 
the evidence is that by the law of Norway, the captain, under circum- 
stances such as existed in this case, could not, as between himself and his 



MOVABLES : INCORPOREAL RIGHTS. 


201 


owners or the owners of the cargo, justify the sale, but that he remained 
liable to them for a sale not justified under the circumst^inces ; whilst on 
the other hand an innocent purchaser would have a good title to the pro- 
perty bought by him from the agent of the ownei's. It does not appear 
to us that there is anything so barbarous or monstrous in this state of the 
law that we can say that it should not be recognized by us. Our own 
law as to market overt is analogous; and though it is ‘aid that much 
mischief would be done by u[)holding sales of this nature, not justified by 
the necessities of the case, it may well be that the mischief would be 
greater if the vendee were only to have a title in cases where the master 
was strictly justified in selling as between himself and the owners. If 
that were so, purchasers, who can seldom know the facts of the case, would 
not be inclined to give the value, and on proper and lawful sales by the 
master the property would be in great danger of being sacrificed.” 
6 H. & N. 743. 

When a foreign ship is sold under such circumstances that the purchaser 
does not get a good title independent of a personal equity against the 
vendor, the lex loci contractus must determine whether the foreign owner 
has so acted as to prevent his disputing the purchaser’s title. Hooper v. 
Oumm, M'Lellan v. Gumm (1867), L. R. 2 Ch. Ap. 282, Chelmsford and 
Turner, in the latter case affirming Wood, in the former reversing him on 
the question of fact. A foreign master of a ship can bind the owners of 
the vessel by a contract of indemnity given to the English owners of cargo 
in England : The Luna, [1920] P. 22, Hill. 

The title to certificates of American railroad shares, those certificates 
being in England and the title to them depending on dealings in England, 
must be decided by English law ; but the consequences of the title to the 
certificates, with regard to the title to the shares, must be decided by 
American law. Williams v. Colonial Bank, Williams v. London Chartered 
Bank of Australia (1888), 38 Ch. D. 388, Cotton, Lindley, and Bowen, 
agreeing so far with Kekewich ; (1890), 15 Ap. Ca. 267, Halsbury, Watson, 
and IJerschell, Bramwell and Morris agreeing in the judgment but silent 
on the choice of law. 

§ 152. The forum for the recovery of a debt presents much 
analogy with the situs of a corporeal movable, and notice to the 
debtor of the assignment of a debt presents much analogy with 
the delivery of a corporeal movable to the transferee of it. As 
there are laws by which delivery is not necessary to complete the 
transfer of a corporeal movable, so there are laws, like that of 
England, by which, although the debtor will be discharged if he 
pays the assignor of a debt before receiving notice of the assign- 
ment, and although the assignee, suing for the debt before such 
notice has been given, perhaps in a certain form, may have to 
use the name of the assignor and be exposed to any defence which 
would be good against the latter, yet the transfer will be so far 
complete by assignment without notice that notice pendente lite 
will prevent the debt from ^ being recovered by a posteriof 
assignee or attaching creditor. And as there are laws by which 
delivery is necessary to complete the transfer of a corporeal 



202 


PRIVATE INTERNATIONAL LAW. 


movable, so there are laws, like that of Scotland, by which the 
assignment of a debt without notice to the debtor is so ineffectual 
that notice pendente lite comes too late. Consequently opinions 
analogous to those on the law which should govern the transfer 
of a corporeal movable have been entertained on the law which 
should govern that of a debt. Lord Karnes (see above, p. 185) 
and Story {Conflict of Lawsy § 397) held that the assignment 
of a debt, complete without notice by the law of the creditor’s 
domicile, must be held complete everywhere ; but it is established 
in England that the assignee who has acquired a good title by 
the law of the forum for the recovery of the debt must prevail. 

This is the effect of Re Queensland Mercantile and Agency (7o., Ex parte 
Australasian Investment Co., Ex parte Union Bank of Australiay [1891] 

1 Ch. 636, North ; affirmed, [1892] 1 Ch. 219, Lindley, Bowen, Fry. 

The assignment of a reversionary interest in an English trust fund 
having been notified to the trustees before an earlier assignment of the 
same interest had been notified to them, the former prevails notwith- 
standing that the earlier one was made in the assignor’s domicile, by the 
law of which notice to the trustees was unnecessary to complete it : Kelly 
V. Selwyn^ [1905] 2 Ch. 117, Warrington. The ratio decidendi was “ the 
law of the court which is administering the fund ” (p. 122), which is 
equivalent to “ the law of the forum for the recovery of the debt ” men- 
tioned in the text. 

Where a right is claimed by way of real privilege or lien on a 
chose in action, it seems clear that its existence must depend 
on the law of the forum for the recovery of that chose in action. 

A citizen of the United States shipped at San Francisco as second mate' 
on board an American ship bound for England, and became master during 
the voyage by reason of successive deaths. On his proceeding in the court 
of admiralty against the freight for wages due to him, it was held that 
his claim was governed by the lex fori and not by the lex loci contractus 
of his engagement as mate, and that the former was to be found in the 
Merchant Shipping Act and not in the law maritime as previously admin- 
istered in England. The Milford (1868), Swabey 362, Lushington. The 
same great lawyer expressed his adherence to that judgment in The 
Jonathan Goodhue (1869), Swabey 526; but Phillimore, in The Halley 
(1867), L. R. 2 A. & E. 12, remarked : ** I must say that the reasoning 
of the learned judge which led to the decisions in these cases was never 
satisfactory to my mind, and I am glad to learn that in a more recent case 
mentioned to me by Mr. Clarkson the learned judge expressed himself 
willing to reconsider the principle of these decisions.” The opinion of 
Lushington must, however, be deemed to have remained such as he ex- 
pressed it, and to have been in favour of the lex fori as deciding on the 
existence of ,an incorporeal real right. It is true that he based it on the 
rule ” that the remedy must be according to the law of the forum in which 
it is sought : ” Swabey 366. But that rule, in its other and more familiar 
applications, refers to the fona of the remedy, or at the utmost to its 
existence depending on lawk of procedure, whidi statutes of limita- 



MOVABLES: BRITISH SHIPS. 


m 


tion are generally considered in England to fte, not to its existence as 
depending on that of a right. To apply the rule in the manner in question 
in The Milford was really to attribute to the forum for an incorporeal 
real right a legal weight corresponding to that of the situs for corporeal 
movables. The Milford was followed in The Tagus, [1903] P. 44, W, 
Phillimore, who noticed, but did not adopt, the argument to the contrary 
from the Merchant Shipping Act, 1894, s. 266. 

In a case where the assignment of an English policy of life insurance to 
the wife of the assignor wa.s not permitted by the law of the place of 
assignment, where both the assignor and assignee were domiciled, it was 
held to be void in England: Lee v. Ahdy (1886), 17 Q. -B. D. Day 
and Wills. See Lord Herschell’s opinion in North’ Wester7i Bank v. 
Poynter, quoted on p. 200. When a judgment of a foreign court grant- 
ing maintenance to an illegitimate posthumous child was sued on in Eng- 
land, it was held that it was not enforceable against assets in England, 
because the cause of action was not recognized in England. The judgment 
was in personam so far as regarded the assignment of the maintenance ; and 
the lex situs did not recognize any legal liability in the defendant. Be 
Maca/rtney, [1921] 1 Ch. 522, Astbury. 

A garnishee order was refused in case of a debt properly recoverable 
abroad, on the ground that payment under the order would not liave been 
recognized in the foreign country : Martin v. Model, [1906] 2 K. B. 26, 
Vaughan Williams and Stirling overruling Sutton. 

The doctrine that a restraint on anticipation annexed to the gift of pro- 
perty by an English settlement is valid whatever may be the personal law 
of the wife (Peillon v. Brooking (1858), 26 Beav. 218, Romilly), taken in' 
connection with the test of a settlement being English (§ 115^ p, 141), is 
an example of the property in movables being governed by the lex situs, or 
what is equivalent thereto in the case of incorporeal rights. 

But for the purpose of a duty charged on it a debt^is property 
in the situs of a security held for it, although the debtor be 
domiciled and the debt be recoverable elsewhere ; only the value 
of such property, as depending on that of the security, piay be 
less than the amount of the debt, and, if collateral securities are 
held elsewhere, it may be right to take them into account in 
valuing the property for the purpose of the duty. 

Walsh V. The Queen, [1894] A. C. 144, Watson, Herschell, Hobhouse, 
Macnaghten, Shand, Couch. 

§ 153. The rule that the lea^ situs governs the property in 
movables, as developed in the preceding part of this chapter, 
applies in general to the beneficial interest as well as to the legal 
property; but in cases falling under the so-called universal 
assignments the personal law may bind the beneficial interest 
while the lea situs must be complied with as to the legal 
property, as in the case of § ^135. The English rules as to 
succession on death present a third variety, the personal law 
not being allowed to govern even the entire beneficial interest 



204 


PRIVATE INTERNATIONAL LAW. 


in the movables, but only that in the surplus remaining after 
the payment of, the debts of the {deceased. 

We now pass to questions concerning the international 
character of special classes of movables. 

§ 154. A British ship is British territory so long as she is 
sailing on the high seas, or in a foreign tidal river below all 
bridges, although in the latter case, if she is a private ship, 
the state to which the river belongs may have concurrent 
jurisdiction. If she belongs to an English port, the law 
applicable in consequence of her being British territory is that 
of England. 

Beg. v. Lopez (1868), 1 D. & B. 525; Beg. v. Sattler (1858), 1 D. & B. 
639; decided together by Campbell, Cockburn, Pollock, Coleridge, Wight- 
man, Erie, Williams, Martin, Crompton, Crowder, Willes, Watson, 
Channell and Byles. The Queen v. Anderson (1868), L. R. 1 C. C. R. 161, 
Bovill, Channell, Byles, Blackburn, Lush. These were cases of crimes 
committed on board British ships, and in the last case the ship was sailing 
in a foreign tidal river. The statement in the § is equally true although 
the ship is moored to a quay in a foreign river ; and not only her crew but 
all persons coming on board of her in any manner are subject to British 
criminal jurisdiction: The Queen v. Carr (1882), 10 Q. B. D. 76, Cole- 
ridge, Pollock, Lopes, Stephen, Watkin Williams. 

Marshall v. Murgatroyd (1870), L. R. 6 Q. B. 31, Blackburn ^nd Lush ; 
order of affiliation under English law, against the putative father of a 
child born at sea on board a British ship belonging to Liverpool, sustained. 

See the American case of United States v. Hamilton (1816), 1 Mason, 
152, Story. “ The admiralty,** that eminent judge said, “ has never held 
that the waters of havens where the tide ebbs and flows are properly the 
high seas, unless those waters are without low-water mark. The common 
law has attempted a still more narrow construction of the terms.*’ 

An Italian ship being brought into an English port as a derelict, effect 
was given to a charge to which she was already subject by Italian law for 
the expenses incurred by the Italian Government in sending the crew 
home: The Livietta (1883), 8 P. D. 209, Hannen. 

8 I54a. Negotiable instruments are within §§ 149 and 150. 
Their transfer will affect the beneficial rights in the choses in 
action secured by them in accordance with the law of their sitvs 
at the time of the transfer. 

Alcock V. Smithy [1892] 1 Ch. 238, Romer, affirmed by Lindley, Lopes, 
Kay: Emhiricos v. Anglo- Australian Bonfc, [1904] 2 K. B. 870, Walton; 
affirmed, [1906] 1 K. B. 677, Vaughan Williams, Romer, Stirling. 

Securities are liable to stamp duty as “ marketable securities of a 
foreign company made or issued in the United Kingdom ** if they become 
marketable by being certified after their arrival in the United Kingdom : 
Baring v. Commissioners of Inland Bevewue^ [1898] 1 Q. B. 78, A. L. 
Smith, Rigby and Collins affirming Wright and Ridley; affirmed, suh 
nom. Lord Bevelstoke v. dc., [1898] A. C. 565, Halsbury, Macnaghten, 
Morris, and Shand. 



MOVABLES: BRITISH SHIPS. 


205 


§ 1546. A patent or a share in one, or a licence to use a 
patent, is not property situate in the country where the patent 
rights exist — at least, within the meaning of a revenue law. 

Smelting Company of Australia v. Commissioners of Inland Revenue, 
[1896] 2 Q. B. 179, Pollock, Bruce concurring on another ground ; 
affirmed, [1897] 1 Q. B. 175, Esher, tiopes, Rigby. 

But in Bey v. Lecouturier, [1908] 2 Ch. 715 ; affirmed, [1910] A. C. 262, 
the trademark of a foreign association in England was held not to pass 
under the law of the country in which the association was domiciled, 
confiscating the property, because a foreign penal law has no effect in 
England. 

But the goodwill of a business, with the benefit of certain con- 
tracts as ancillary thereto, is within the meaning of revenue laws 
property situate in the country where the business premises are. 

Muller dr Co.*s Margarine Limited v. Commissioners of Inland Revenue, 
[1900] 1 Q. B. 310, A. L. Smith, Collins and Vaughan Williams, reversing 
Day and Lawrence ; affirmed, [1901] A. C. 217, Macnaghten, Davey, James, 
Brampton, Robertson and Lindley, Halsbury dissenting. 

And shares in a company registered in England for the 
purpose of acquiring a business carried on abroad, are property 
situate in England within the meaning of revenue laws. 

Commissioners of Inland Revenue v. Maple dr (’o. (Paris), Limited, 
[1908] A. C. 22, Macnaghten, Ashbourne, James of Hereford, Atkinson, 
reversing Moulton and Farwell (Collins dissenting on another p<jint) who 
upheld Walton. 

A personal obligation, however, is not within the meaning of 
revenue laws property in the fomm for enforcing it. 

Danuhian Sugar Factories v. Commissioners of Inland Revenue, [1901] 
1 Q. B. 245, A. L. Smith, Collins and Stirling, reversing Ridley and 
Darling. 

Book debts included in the assets of a business are a peisonal obligation 
for this purpose, and are therefore not property locally situate in the 
forum for enforcing them, and are subject to English duty, payable on the 
sale in England of foreign business. Velasquez, Limited v. Commissio7iers 
of Inland Revenue, [1914] 3 K. B. 458, Cozens-Hardy, M.R., Pick- 
ford, L.J., Swinfen-Eady, L.J., affirming Scrutton, J. 

§ 164c. Receivers of foreign property, movable or immovable, 
are often appointed by the English court, but until their 
authority has been established fn accordance with the local law 
no one hot a party to the English suit, not even though he is 
a British subject, becomes guilty of contempt of court by taking 
proceedings abroad calculated to interfere with the possession 
of such receivers. 

Be Maudslay, Sons dr Field, [1900] 1 Ch. 602, Cozens-Hardy. 



206 


PRIVATE INTERNATIONAL LAW. 


§ 155. Although a foreign sovereign or state is certainly 
entitled to protection in England for civil rights, whether of 
property or of obligation, and whether, in the case of a sovereign, 
they belong to him in his private or in his public character, 
it is doubtful how far a foreign sovereign or state is entitled to 
protection in England for political rights, even though pecuniary 
profit may be derivable fram them. In other words, it is 
doubtful whether a political right can be considered in England 
as a chattel or movable, on the ground that pecuniary profit 
may be derived from it. In Emperor of Austria v. Day and 
Kossuth, 1861, 2 Giff. 628, Stuart; 3 D. F. J. 217, Campbell, 
Knight-Bruce and Turner; this question arose on the Emperor’s 
seeking an injunction to restrain the infringement of his 
exclusive right of issuing paper currency to circulate within his 
dominions. Stuart granted the injunction as in support of a 
right, without thinking it necessary to found it on the pecuniary 
value of that right, but all the judges on the appeal differed 
from him as to this. Campbell and Knight-Bruce sustained 
the injunction on the ground of the pecuniary value of the 
right to the plaintiff. Turner thought it not sustainable on 
that ground, but sustained it on the ground of “ the injury to 
the subjects of the plaintiff by the introduction of a spurious 
circulation.’’ Lord Campbell noticed as follows another kind 
of political rights productive of pecuniary profit, which will 
meet us again when considering the international validity of 
contracts. A more specious objection was rested on the class 
of cases in which it has been held that we take no notice of 
the ‘ revenue laws ’ of foreign countries, so that an injunction 
would certainly be refused to a foreign sovereign who should 
apply for one to prevent the smuggling of English manufactures 
into his dominions to the grievous loss of his fisc. But although* 
from the comity nf nations the rule has been to pay respect to 
the laws of foreign countries, yet, for the general benefit of 
free trade, ‘ revenue laws ’ have always been made the excep- 
tion: and this may be an example of an exception proving the 
rule” (U.S., p. 241). 



( 207 ) 


CHAPTER VIII 

IMMOVABLES. 

Even the Italian code, which is the most advanced statutory 
embodiment of the principle of nationality as applied to private 
international law, and declares (Preliminary Article 7) that 
“ movables are subject to the law of the proprietor’s nation, 
except so far as the law of the country where they are found 
may contain contrary dispositions,” adds that “immovables are 
subject to the laws of the place where they are situate.” And 
it has already been noticed, p. 9, that the principle of the lea 
situs, or of the real statute, was eagerly seized on in England 
in its application to land, and received there its utmost* develop- 
ment in that respect. Accordingly, in stating the English* 
doctrines on the subject of immovables, we shall merely have to 
expand that principle into a series of propositions supported by 
authorities among which there is little conflict. What doubt 
there is turns more on the question of jurisdiction than of law. 
The principle of the forum situs, in its application to the land 
itself, is incontrovertible. Since only the authorities that exist 
on the spot can employ force to give possession or take it away, 
it would be idle for any foreign jurisdiction to make a direct 
attempt to determine the possession of land, or even the property 
in it, which would be unmeaning if disconnected from all imme- 
diate or future right to possession. But an indirect attempt 
may be made by a foreign jurisdiction to determine the posses- 
sion or the property in land, by compelling* one who is personally 
subject to its authority to employ those possessory or proprietary 
rights which he possesses in the forum situs in such a manner as 
to give effect to a determination which in itself would be nuga- 
tory. The reasonable principle Appears to be that this should not 
be attempted on the mere gro\ind of the personal jurisdiction, 
bi^t only when something has been done by which the personal 
jurisdiction is called into action on the ground of obligation 
which properly belongs to it, $&id the determination as to the 
foreign land is necessarily incident to the determination which 



208 


PRIVATE INTERNATIONAL LAW. 


has to be made about the obligation. But it will be easily seen 
that in the application of this principle there may be some 
amount of delicacy; and then there are the cases which arise 
when the immovable right in question is not one to the property 
or possession of the land itself. 

§ 156. All questions concerning the property in immovables, 
including the forms of conveying them, are decided by the lex 
situs. See above, p. 10, as to the rejection in England of the 
lex loci actus for the form of conveyance. 

The necessity of a seal to the conveyance of an immovable right depends 
on the lex situs: Adams v. Clutterhuck (1883), 10 Q. B. D. 403, Cave. 


§ 157. Interests in land which are limited in duration, 
whether for terms of years, for life, or otherwise; interests in 
land which are limited in their nature, as legal (c.r jure 
Quiritlum — Gains) or beneficial (m bonis — Gains); servitudes, 
charges, liens, and all other dismemberments of the property in 
land; are immovables as well as the land itself. 

§ 158. Money substituted for an immovable by the lex situs 
is subject to the same rights as the immovable, but, when an 
immovable is sold under a disposition made by the owner or in 
consequence of a dealing with it by the owner, the rights to 
which it was subject as an immovable do not affect its proceeds 
unless kept alive against them by the will of parties or by the 
lex situs. 

The first part of the § is illustrated by the fact that the compensation 
awarded under the Act for the abolition of slavery was subject to the same 
rights to which the slaves were subject. See Forbes v. Adams (1839), 9 
Sim. 462, Shadwell. In lie James Bea, Bea v. Rea, [1902] 1 I. R. 451, 
Porter, an intestate had died domiciled in Ireland without issue, leaving 
a widow and an estate of more than £1,000 value, including land in 
Victoria (Australia), by the law of which country the widow in those 
circumstances is entitled to a charge of £1,000 on the estate and the 
residue is divisible between the widow and the next of kin. The Victorian 
administrator sold the land and remitted the proceeds to the widow, who 
was the administratrix in Ireland. That she was entitled to the £1,000 
out of the proceeds of the Victorian land, subject to debts but before a 
division of the general estate, followed from the doctrine of the first part 
of the § ; but it was held that the proceeds of the Victorian land, subject 
to the £1,000, fell into the general estate, for the payment of the debts out 
of it and, subject thereto, for the purpose of the charge of £500 given to 
the widow by the British Intestates Act, 1890. The widow might no doubt 
have claimed her moiety of the proceeds of the Victorian land, subject to 
debts and to the £1,000, had it b^n her interest to do so, but she could not 
claim the £500 without allowing it to be levied out of the whole of the 
property which the British Parliament intended to be subject to it. 



IMMOVABLES : SECURITIES. 


209 


The second part of the § is illustrated by the sale of a foreign immovable 
for the purpose of winding up a partnership or under a trust for sale in a 
will. L^acy duty is then payable out of the proceeds : Forbes v. Steven, 
Mackenzie v. Forbes (1870), L. R. 10 Eq. 178, James ; Be Stokes, Stokes 
V. Ducroz (1890), 62 L, T. 176, North. And the order of succession to the 
proceeds is governed by the English trust and not by the law of succession 
of the situs: Be Piercy, Whitwham v. Piercy, [1896] 1 Ch. 83, North. 

A beneficial interest under a settlement, by which real estate in England 
was held on trust to sell and to divide the proceeds of sale, has been held 
to be personal property, and therefore to pass by a will in foreign form, 
which was a valid will for personal property according to Lord Kings- 
down^s Act. Be Lyne's Settlement Trusts, [1919] 1 Ch. 80, Swinfen 
Eady, M.R., Duke, L.J., Eve, J., reversing Peterson. 

But where a testator domiciled in Scotland had a general power of 
appointment over the proceeds of sale of Irish land, which was settled on 
trust for sale, and by a will executed in Scotland, which was invalid by 
Scotch law, but valid according to the Wills Act, gave the residue of his 
property to his wife, it was held that the disposition was good, because 
the interest in the proceeds of sale was land, and the disposition was 
good by the lex situs. Murray v. Champernowne, [1901] 2 I. R. 232. 
It is doubtful whether this decision is consistent with that in the case of 
Be Lyne's Trusts. But the will might have been held good under Lord 
Kingsdown’s Act, and therefore effective to pass the property supj>osing 
it was deemed to be personalty. The point, however, was not considered 
by the court, and the actual decision that land on trust for sale passes as 
land is of doubtful validity. 

These three §§ contain the general English doctiino on the 
subject of the law which must govern immovables. The applica- 
tions which are made of that doctrine in England to particular 
questions will be presented in separate §§, on account of their 
variety and importance. 

§ 159. A rent charge issuing out of land in England is an 
immovable, and when a British statute makes it liable to legacy 
duty as personal estate it is liable to such duty notwithstanding 
that the deceased owner was domiciled abroad, and the movables 
left by him are consequently not liable to such duty. 

Chat field v. Berchtoldt (1872), L. R. 7 Ch. Ap. 192, James and Mellish, 
reversing Bacon (1871), L. R. 12 Eq. 464. 

§ 160. When security is given on immovables for a debt which 
is also personally due, the situs of the immovables decides 
whether the debt is to be considered an immovable, that is, as an 
alienation of so much of the value of the immovables on which 
it is secured, or as a mere debt with collateral security. 

In a case of a mortgage debt secured on land in Canada Swinfen Eady 
cited this § with approval ([1910] 2*Ch. p. 341) ; and the Court of Appeal 
(Cozens-Hardy and Farw^, Moulton doubting on grounds which he did 
not disclose) decided that the mortgage was an immovable ; Be Hoyles, Bow 

14 


W.I.L. 



210 


PRIVATE INTERNATIONAL LAW. 


V. Jagg^ [1911] 1 Ch. 179 : but the lex situs which was applied was 
treated as being the same as English law, in which case the division of 
property into movable and immovable has no operation : ub. sup. at p. 185, 
Farwell. 

The case was i)resented by a Scotch hbritable bond, in which the debt, 
though personally due as well as secured on the land, descended to the 
creditor’s heir of immovables, and the debtor’s heir of immovables could 
not claim exoneration out of the debtor’s movables. Hence : where the 
creditor was domiciled in England, and made a will which was ineffectual 
to pass Scotch immovables, the debt descended to his Scotch heir : 
Johnstone v. Baker (1817), 4 Madd. 474 note, Grant; Jerningham v. 
Herbert (1829), 4 Russ. 388, Tam. 103, Leach; Allen v. Anderson (1846), 
6 Ha. 163, Wigram. And where the debtor was domiciled in England, 
his Scotch heir was still unable to claim exoneration out of his personal 
estate: Drummond v. Drummond (1799), House of Lords on Scotch appeal, 
Robertson on Person aT Succession, p. 209; Elliott v. Minto (1821), 6 Madd. 
16, Leach. See above, § 118. 

But now, by st. 31 A 32 Viet. c. 101, s. 117, Scotch heritable securities 
are movable as regards the succeasion of the creditor, subject to certain 
exceptions. 

§ 161. Only if a se})arato sociirity be taken in another country 
for the same debt, tJie last § will not ap[)ly, because the lf,r situs 
of the immovable security will be unable to affect the entire 
character of the debt. 

Where an English security was taken for a debt secured by a Scotch 
heritable bond, the debt passed to the creditor’s legatee, notwithstanding 
that the will was ineffectual to pass Scotch immovables : Buccleugh v. 
Hoare (1819), 4 Madd, 467, Leach, who exercised his personal jurisdiction 
over the creditor’s Scotch heir by declaring him a trustee for the legatee ; 
Oust V. daring (1864), 18 Beav. 383, Romilly. 

§ 162. No law as to the inode of satisfying debts and legacies 
whicli may prevail in the country where the estate of a deceased 
person is being administered, not even if he was domiciled there, 
can throw on his immovables a heavier burden in respect of his 
debts or legacies than is thrown on them by the lex situs. 

Hamson v. Harrison (1872), Selborne, James and Mellish, and (1873), 
Selborne and Mellish, reversing Romilly (1872), whose attention had not 
been called to the f>oint ; L. R. 8 Ch. Ap. 342. In Be Hewit^ Lawson v. 
Duncan^ [1891] 3 Ch. 668, Romer, charitable legacies could not be paid 
out of English land, although the testator desired that his affairs should be 
administered according to Scotch law, which differentiated the case from 
Harrison v. HarHson as to the rest of the administration. 

§ 163. If a contract is void by the lex loci contractus, an 
immovable security given for it will be void also, notwithstand- 
ing that the contract would not have been void by the lex situs 
of the security. 

Bichards v. Goold (1827), 1 Molloy 22, Hart. 



IMMOVABLES : TERMS OF YEARS, ETC. 


211 


§ 164. 'Terms of years in land, though personal estate by the 
English or other personal law of their owner, are recognized in 
England as being immovables for the purposes of private inter- 
national law and governed by the lex situs. 

The Thellusson Act applies to a disposition of leaseholds for years in 
England by a testator domiciled in Ireland : Freke v. Carhevy (1873),. L. R. 
16 Eq. 461, Selborne. The succession to leaseholds for years in Ireland, 
on the death of an owner domiciled in Italy, depends on the law of Ireland, 
and administration will be granted accordingly : lie Gentili (1875), Ir. 
L. R. 9 Eq. 541, Allen. Similarly where the situs was the Transvaal : Be 
MoseSj Moses v. Valentine, [1908] 2 Ch. 235, Swinfen Eady. 

The Mortmain Act applies to leaseholds for years in England, and the 
property or amount of which the charitable application is defeated by it 
goes to the next-of-kin by the law of England. Duncan v. Lawson (1889), 
41 Ch. D. 394, Kay. 

But when the executor of one who died domiciled in Scotland has been 
confirmed in England, he will have the powers of an English ext^utor as 
to English leaseholds : Hood v. Lord Barrington (1868), L. R. 6 Eq. 218, 
Romilly. 

§ 165. All questions concerning a restraint on the alienation 
or disposition of immovables are to be decided by the lex situs; 
whether the restraint be general or sjiecial, and, if special, 
whether directed against alienation or disposition in certain 
modes, as by will, or in favour of certain persons, as between 
husband and wife, or for certain purposes, as charitable pur- 
poses; and whether the restraint be total, or limited to a certain 
proportion of the value. 

The Mortmain Act applies in restraint of the disposition of English land, 
even though the charitable purjiose is to be executed abroad : Curtis v. 
Hutton (1808), 14 Ves. 537, Grant. The same Act, being part of the law 
of Canada, applies to money secured by mortgage of land in Canada : Be 
Hmjles, Bow v. Jaggy [1911] 1 Ch. 179, Cozens-Hardy, Moulton (doubting) 
and Farwell, affirming Swinfen Eady. 

It may here be mentioned, though not falling strictly under the §, that, 
in administering the estate of a testator domiciled in Scotland, the English 
court refused to give effect to a bequest of personalty tending to bring 
English land under a charitable trust contrary to the Mortmain Act : 
Att.-Gen. v. Mill (1827), 3 Russ. 328, Lyndhurst; affirmed (1831), 2 D. & 
Cl, 393, Lyndhurst. But the Privy Council has since held, I submit 
rightly, that a colonial testator can effectually give money for the purpose 
of bringing English land under a charitable trust; and they argued that 
in Att.-Gen. v. Mill the testator was not regarded as domiciled in Scotland, 
contrary to the language of the reports and of Lord St. Leonards (Law of 
Property^ p. 419), who was a counsel in the case : Mayor of Canterbury v. 
Wyhurny [1895] A. C. 89, judgment of himself and Selborne, Watson, 
Macnaghten, Morris, Shand and Qouch, delivered by Ivord Hobhonse. 

In a more recent case, however, a charge of charitable legacies on 
debentures in an Australian company, which possessed certain leasehold 
property in England, was held to be invalid, because the leasehold interest 



212 


PRIVATE INTERNATIONAL LAW. 


under the English Mortmain Act could not be bequeathed for charity. 
The Australian law, which was the law of the testator's domicile, permitt^ 
a charge on land by will for charitable objects, but the letter of the law 
in the lex situs invalidated the whole bequest because of the scintilla of 
real property interest. Be Dawson^ [1916] 1 Ch. 626, C. A. ; Cozens- 
Hardy, M.R., Phillimore, Joyce. 

Foreign immovables are regarded by the English court as pure personalty, 
for the purposes of the Mortmain Act : Beaumont v. Oliviera (1868), L. R. 
6 Eq. 534, Stuart; (1869), L. R. 4 Ch. App. 309, Selwyn and Giftard. 

In connection with the case last cited it may be mentioned that at a time 
when English real estate was not in all cases subject to the payment of the 
debts of its deceased owner, it was said of a foreign immovable: “Note 
also in this ease that though it be an inheritance, yet, being in a foreign 
country, it is looked upon as a chattel to pay debts and a testamentary 
thing.” Noell v. Bohinson (1681), 2 Ventris 358, Nottingham. 

In a more recent case this doctrine has not been followed for the purpose 
of paying legacies ; it was held that a testamentary charge of legacies on a 
fund of land and chattels in the Argentine did not put the land and chattels 
on equal terms for the payment of the legacies, but made the land an 
auxiliary fund only : Smith v. Smith, [1913] 2 Ch. 217, Eve. The judge 
extended to foreign land the doctrine applicable to English land. 

§ 165a. The capacity of a person to contract with regard to 
immovables is governed by the lex situs. 

V 

A contract made in England by a married woman domiciled in England 
relating to land abroad will not be enforced if by the lex situs of the land 
such a contract by a married woman is void : Bank of Africa Limited v. 
Cohen, [1909] 2 Ch. 129, Buckley, Kennedy, Cozens-Hardy, affirming Eve. 

§ 1656. As regards the interpretation of a contract relating 
to land, however, the proper law of the contract and not neces- 
sarily the lex situs prevails. British South Africa Company v. 
De Beers Consolidated Mines, Ltd. ([1910] 2 Ch. 502; see later, 
p. 217). 

§ 166. No guardian, curator, committee of the estate, or 
assignee in bankruptcy, either appointed by a foreign jurisdic- 
tion or holding the office by virtue of a foreign law, has any 
authority with regard to the English real estate of his minor, 
lunatic or bankrupt. 

The proceeds of land belonging to a Chilian lunatic, sold under the 
Partition Act, 1868, were not payable to his Chilian curator ad hona: 
Grimwood v. Bartels (1877), 46 L. J. (N. S.) Ch. 788, HaU. 

A Victorian Insolvent Act gave authority to order the insolvent to convey 
his real estate out of the colony for the benefit of his creditors. No applica- 
tion for such an order having been made during the life of the insolvent, 
the title to his English real estate was unaffected. Waite v. Bingley 
(1882), 21 Ch. D. 674, Hall. 

§ 167. Where the law of the matrimonial domicile provides 
for unity of the matrimonial property, or where there is an 



IMMOVABLES: TERMS OF YEARS, ETC. 


213 


express contract to that eflEect, the lex situs will not govern the 
rights of either consort in English real estate belonging to 
them. See De Nicols' v. Curlier ([1900] 2 Ch. 410; u.s. 
pp. 74 — 75). But in other eases the English law alone will 
apply to English real estate of the spouses, whether acquired 
before or during marriage. 

§ 168. English real estate descends on intestacy according to 
English law, whatever may have been the personal law of the 
intestate. See §§ 178, 179. 

§ 169. No limited interest, charge, or other dismemberment 
of the property in English land can be created ; nor any English 
immovable, including a term of years, conveyed mter vivos ; nor 
any En^isli real estate devised by will; except in the form 
required by English law for such respective purpose. 

The Tiand Transfer Act, 1897, makes the executor or adminis- 
trator a real representative, on whom all English ‘‘ real estate, 
vested in any person without a right in any other person to take 
by survivorship, shall on his death, notwithstanding any testa- 
mentary disposition, devolve.’^ Such representative will have 
to administer the real estate for the payment of debts and 
legacies, and, subject to that, will hold it in trust ‘‘for the 
persons by law beneficially entitled thereto.’^ The Wills Act 
of course remains the lex situs determining the form of a will 
that shall govern the beneficial interest in English freeholds: 
the legal estate of the representative will have been, as it were, 
intercalated. 

As to the transmission on death of terms of years in English 
land, the legal estate in them passes by, and only by, the 
probate or grant of administration, so that every question as 
to the forms necessary for the transmission of such legal estate 
has been answered in explaining the conditions necessary for 
obtaining probate or a grant of administration. It is only with 
the transmission of the beneficial interest that we now have to 
do, and the form of will necessary for that purpose, according 
to English views of private international law, must depend on 
the lex situs. Here, however, we encounter a difficulty arising 
out of the fact that English leaseholds possess the two characters 
of immovables and personal property, to the former of which a 
proper lex situs belongs and should be independent of all 
personal considerations, while^the English rules for the trans- 
mission of leaseholds on death belong to them in the latter 
character and are consequently mixed up with personal con- 



214 


PRIVATE INTERNATIONAL LAW. 


siderations. The Wills Act, the old law of wills before that 
Act, and the Statute of Distributions have always had an 
application based on domicile, and there is in fact no such 
situs in the matter as there is for English freeholds. A 
solution as little arbitrary as is possible in the situation is to 
take either the Wills Act simply, or such a combination as the 
Wills Act and Lord Kingsdown’s Act together may furnish in 
the given circumstances, as the lex situs for the form of a 
will of English leaseholds, and the Statute of Distributions as 
the lex situs for the beneficial interest in them in case of 
intestacy. The last has been done; see Duncan v. Lawson, 
quoted under § 104. But the cases as to the other selection 
must be examined. 

In Ve Fogasserias v. Duport (1881), 11 L. R. Ir. 123, Warren, 
the Statute of Wills was taken as the test which the form of a will of 
Irish leaseholds (the question for which is the same as for English) must 
satisfy for the jjur;K)ses of private international law, and, this being 
satisfied, administration with the will annexed, limited to chattels real in 
Ireland, was granted in order that the will might operate on the beneficial 
interest in them. The testator was a French subject domiciled in France, 
and his will was not in the form of his domicile either at the date when 
it was made or at his death, so that it had no claim to probate or grant of 
administration except under private international law, and Lord Kings- 
down’s Act, which could give it no help, was not mentioned as entering into 
the test. In Pepin v. Bmyere, [1900] 2 Ch. 504, Kekewich ; affirmed, 
[1902] 1 Ch. 24, Vaughan Williams, Romer, Cozens-Hardy ; the will was 
in the fonn of the testator’s domicile at his death, and letters of 
administration with it annexed had been granted without the necessity of 
any help from Lord Kingsdown’s Act. Since it did not satisfy the Wills 
Act, again mentioned simply as the test, the beneficial interest in the 
English leaseholds becjfueathed by it went to the next-of-kin. Conversely, 
the will of an Englishman, domiciled in Chili, which was good according 
to Chilian law, was held valid to pass English real estate when it was 
signed and attested in sucli way as to be a good execution according to the 
Wills Act : lie Nicholls, Hunter v. Nicholls, [1921] 2 Ch. 112, Eve. 

In Be Grnssi, Stuhhcrfield v. Crassi, [1905] 1 Ch. 584, Buckley, the 
testator, a British subject, had made his will not in the form of the Wills 
Act but in that of the place where it was made, and it was admitted to 
probate under Lord Kingsdown’s Act, s. 1. It was held to pass the beneficial 
interest in English leaseholds, on the ground that “ the section says, in 
effect, that the will shall be valid for the purpose of being admitted to 
probate, and will then take its place and be effectual for such purposes 
following on probate as the law of England allows.” That reason is 
scarcely consistent with Pepin v, BniyPre, where administration with the 
will annexed, which is equivalent to probate, was not held to carry the 
consequences attributed to probate by the learned judge. But his decision 
may be upheld, consistently with both Pepin v. Bruyere and the Irish 
case, if we take the lex situs to.be the combination which the Wills Act and 
Lord Kingsdown’s Act together furnish in the given circumstances. That 
reference to what the law of England would do in the circumstances is not 



IMMOVABLES: EQUITIES. 


215 


further removed from a true lex situs^ and in my judgment not less reason- 
able, than the reference to what the law of England does in the case of a 
person dying domiciled in England, which is involved in taking the Wills 
Act simply as the test of form for a will of English leaseholds. 

English real estate only passed by a will with three witnesses, when 
that was the English form for the purpose, although the will was made 
beyond sea : Coppin v. Coppin (1726), 2 P. W. 291, King. 

See also Adams v. Clutterhuckf quoted under § 156. 

§ 170. No general rule can be laid down for the ronstrurtion 
of contracts, wills, or other dispositions concerning immovables. 
A stringent rule of construction existing by the le.r situs of 
the immovables concerned will of course prevent any instrument 
from affecting the immovables except in accordance with it, but, 
otherwise, a reasonable regard must be had to all the circum- 
stances, including the Iocais contractus or actns^ and the national 
character or domicile of the parties, tCvStator, or other dispoiier. 

Where a Scofchmari by will, in Scotch form, devised Scotch and English 
immovables to his son “ and the heirs male of his body,” it was held 
that the words created an estate tail in the English jiroperty, though they 
were not apt to create it over the Scotch property. The stringent rule of 
construction in the English lex situs prevailed, and the incidents of an 
estate in English land must be determined by that law ; Ite Miller ^ [1914] 
1 Ch. 511, Warrington. But in Studd v. Cook, 8 Ajip. Cas. 671, 
Selborne, Watson, Fitzgerald, when a testator domiciled in England left 
land both in England and Scotland by a will in English form, it was held 
that the whole will must be construed according to English law, and a 
life estate only was created in the Scotch as well as the English immov- 
ables. 

The following cases have arisen, where not otherwise men- 
tioned, as to the currency or place of payment intended, or 
the rate of interest due, where a will or settlement has charged 
money on land situate in a country different from that in which 
the will or settlement was made, or in which the testator or 
settlor was domiciled. 

Thipps V. Anglesea (1721), 1 P. W. 696, 5 Vin. Abr. 209, Parker ; Wallis 
V. Brightmell (1722), 2 P. W. 88, Macclesfield ; lAtnsdowne v. Lansdowne 
(1820), 2 Bl. 60, Eldon and Redesdale. In all these cases the decision was 
in favour of the currency of the testator’s or settlor’s domicile, but the 
payment to be in the situs of the land charged. In Holmes v. Holmes 
(1830), 1 Ru. & My. 660, Leach^ the testator was domiciled at the date of 
his will in the same country in which the land he charged with an 
annuity was situate, and the decision was in favour of the then currency 
of that country, though both that currency and his domicile were changed 
before his death. Where money was charged on land in Ireland by a 
marriage settlement made in England, the parties also being apparently 
either English or Scotch, it waa4ield that in the absence of expression in 
the settlement to the contrary the Irish rate of interest must be allowed : 

‘ Balfour v. Cooper (1883), 23 Ch. D. 472, Baggallay and Lindley ; cited 



216 


PRIVATE INTERNATIONAL LAW. 


with approval by Cozens-Hardy, L.J., in Be Drax, Savile v. Praaj, [1903] 
i Ch. at p. 796. 

The following cases have arisen on the question whether 
slaves, live stock, and other movables necessary to the enjoy- 
ment of an estate passed by a devise in which the testator only 
mentioned the estate; and it was held that they did so, con- 
formably to the understanding prevailing in the country where 
the estate was situate. 

Lushmgton v. Sewell (1827), 1 Sim. 436, Hart; Stewart v. Garnett 
(1830), 3 Sim. 398, Shadwell. In the latter case the testator was domiciled 
in the country where the estate was situate, but not so in the former. 

§ 171. The term of prescription with regard to the property 
in immovables depends on the lex sitvs. 

Beckford v. Wade (1805), 17 Ves. 87, judgment of Privy Council 
delivered by Grant : no exception in favour of absentees, even though they 
have never been in the situs^ unless express. In Be Beat (1869), L. R. 7 
Eq. 302, James, money arising from the sale of land in India, and in 
Fitt V. Bacre (1876), 3 Ch. D. 295, Ha]l, rents and profits of land in 
Jamaica happened to be administrable in the English court, and claims on 
them were determined according to the law of prescription of the situs 
whence they had been produced. 

§ 172. A proprietor of foreign immovables, or person 
interested in such, may be compelled by the English court, if 
it has personal jurisdiction over him, to dispose of his property 
or interest in them so as to give effect to any obligation relating 
to them which arises from, or as from, his own contract or tort; 
and that obligation will not be measured by the lex situs of 
the foreign immovables to which it relates, but in accordance 
with the rules of private international law on obligations arising 
from, or as from, contract or tort. If indeed the law of the 
country where the land is situate should not permit, or not 
enable, the defendant to do what the court might otherwise 
think it right to decree, it would be useless and unjust to direct 
him to do the act; but when there is no such impediment the 
courts of this country, in the exercise of their jurisdiction over 
contracts made here, or in administering equities between parties 
residing here, act upon their own rules, and are not influenced 
by any consideration of what the effect of such contracts might 
be in the country where the lands are situate, or of the manner 
in which the courts of such countries might deal with such 
equities.’’ 

The quotation in the § is from Lord Cottenham’s judgment in Ex parte 
Bollard (1840), Mont. & Ch. 239 (p. 260), 4 Deacon 27 ; in which case a 



IMMOVABLES: EQUITIES. 


217 


contract for security on land in Scotland, in the form called in England an 
equitable mortgage, was enforced against the debtor^s assign^ in bank- 
ruptcy, as representing his person, although ineffectual in itself by Scotch 
law. But note what was said by Lord Macnaghten in Concha v. Conehat 
[1892] A. C. at p. 675 : “ There is perhaps some danger of doing injustice 
if the strict rules which the English Court of Chancery has applied to 
dealings with trust property are applied to a case between foreigners under 
foreign law, whose relations are not exactly those of trustee and cestui que 
trust.** 

Arglasse v. Muschamp (1682), 1 Vern. 76, Nottingham ; bill to be 
relieved of a charge on plaintiff’s land in Ireland obtained by fraud. 
Angus v. Angus (1737), West’s cases U^mp. Hardwicke, Hardwicke ; bill for 
possession of land in Scotland, on ground of fraud. Venn v. Baltimore 
(1750), 1 Ves. Sen. 444, Hardwicke; specific performance of agreement for 
settlement of boundaries in the American colonies. Cranstown v. John- 
ston (1796), 3 Ves. 170, Arden ; Jackson v. Petrie (1804), 10 Ves. 164, 
Eldon; White v. Hall (1806), 12 Ves. 321, Erskine; bills against creditors 
charged with fraud in obtaining judicial sales, in the forum situs, of 
estates in the West Indies. In the first case, Sir R. P. Arden made the 
decree declaring the defendant a trustee of the estate he had acquired, 
“ without saying that this sale would have been set aside either in law or 
equity there,” that is, in the forum situs ; and added, ” I will lay down the 
rule as broad as this : this court will not permit him to avail himself of 
the law of any other country to do what would be gross injustice:” 3 Ves. 
183. Good V. Cood (1863), 9 Jur. (N. S.) 1335, Rom illy ; a proprietor 'of 
land in Chili decreed a trustee, and to do all things necessary for giving 
effect to a contract of sale which the Chilian courts had adjudged not to 
exist, and enjoined from further proceedings in those courts. Mercantile 
Investment and General Trust Company v. Biver Plate Trust Loan and 
Agency Company, [1892] 2 Ch. 303, North ; suit entertained where the 
defendant company had taken foreign land subject to an equity created by 
its predecessor in title. Buder v. Amsterdam^ch Trustees Kantoor, [1902] 
2 Uh. 132, Byrne; equitable charge on land in Brazil. British South 
Africa Company v. Be Beers Consolidated Mines Limited, [1910] 2 Ch. 
502, Cozens-Hardy, Farwell and Kennedy affirming Swinfen Eady (over- 
ruled on the English law, S. C., [1912] A. C. 62) ; the English doctrine of 
a clog on the equity of redemption applied to a charge given in England 
relating to land abroad. Following this decision, an order for execution 
of a legal mortgage by executors in England was made in a case where the 
testator, by English deed, had charged his share in immovable property 
abroad, to secure repayment of a loan, and had covenanted to execute a 
mortgage when called on. The law of the foreign country did not treat the 
charge as a valid encumbrance, but the contract was to be construed by 
English law, and the death of one of the parties could not operate to 
change the law by which it was construed : Be Smith, [1916] 2 Ch. 206, 
Eve. So too, where an English agreement for the sale of land in France pro- 
vided that the vendor’s title should be accepted without requisition, and, if 
desired, the property should remain registered in the vendor’s name, and in 
that case the vendor should execute a declaration of trust for the purchaser, 
it was held that, though by French law no conveyance was necessary, 
something remained to be done bv English law, and therefore, the court 
could not entertain an action the balance of the purchase money: 
Ealford v. Clarke, [1915] 66 L. T. 68, Shearman. In Black Point Syndi- 
cate V. Eastern Concessions Limited, [1898] 79 L. T. 668, Stirling, J., 



218 


PRIVATE INTERNATIONAL LAW. 


said that if there be a jurisdiction to enforce a covenant for quiet enjoy- 
ment of foreign land, it ought to be exercised with the greatest caution. 

To this § belong also actions against the trustees of settlements or other 
deeds, to carry the trusts into execution, where foreign immovables are 
included in them. In such cases, as well as in all others under the § where 
it may be necessary, receivers will be appointed over the foreign immov- 
ables : Harrison v. Gurney (1821), 2 Jac. & W. 563, Eldon; Clarke v. 
Ormonde (1821), Jac. 116, 121, Eldon. In Harrisan v. Gurney the trustees, 
after decree in England, were restrained from j^rcxieeding in the forum 
situs for the execution of the same trusts. Where a testatrix domiciled in 
Scotland devised immovables in Scotland on certain trusts, the English 
court held that application must be made to the Scotch Court of Session to 
authorise a sale of the trust property: Ite Georges^ [1921] W. N. 41, 
Sargant. Where j^ersons had contracted in New York concerning mineral 
rights in Ecuador, and it was stipulated in the contract that the agreement 
should be considered to be made and executed in London, the court held 
it had jurisdiction, though the defendant had, subsequently to the issue of 
English writ, commenced proceedings in New York about the contract : 
Bntish Controlled Oilfields TAmited v. Stagg, [1921] W. N. 319, Sargant. 

In , Tenney v. Mackintosh (1886), 33 Ch. D. 595, North, leave was given 
to serve a writ out of the jurisdiction on one of several defendants in 
whom the legal estate of lands in Trinidad was vested, the beneficial 
interest in which lands was bound even by the law of Trinidad by a 
creditors’ deed which it was sought to enforce, the other defendants resid- 
ing in England. 

The fpllowing c-ases illustrate the latter part of this §. A covenant in 
an English marriage settlement to settle after-acquired property was not 
enforced so far as it related to land in Jersey, where by the lex situs a 
conveyance to the trustees without adequate pecuniary consideration would 
have been void; lie Cearse's Settle rnentf Pearse v. Pearse^ [1909] 1 Ch. 
304, Eve, and Bonk of Aftiea Lim. v. Cohen, [1909] 2 Cli. 129, cited under 
§ 165a. 

§ 17f3. But where the relief which mi^ht affect the foreign 
immovables is not sought on any ground falling under the last §, 
the English court will decline to make its mere personal juris- 
diction over the defendant a ground for determining the right 
either to the projierty or the possession of foreign immovables, 
but may perhaps assume to determine such right on the ground 
of movable property being mixed up in the same proceedings. 

An action will not lie in England for the partition of foreign land : 
Carteret v. Petty (1676), 2 Sw. 323, note, 2 Ch. Ca. 214, Finch. Or to try 
the validity of a will of foreign land : Pike v. Hoare (1763), 2 Eden, 182, 
Henley. Or to establish a charge on foreign land on the ground of the 
proprietor having acquired it with notice of a contract or attempted dis- 
position in which he was neither party nor privy : Norris v. Chamhres 
(1861), 29 Beav. 246, Rt^milly; affirmed (1861), 3 D. F. <& J. 583, Camp- 
bell. Or to make one who has sold foreign land to which the plaintiff 
claims title a trustee of the purchase-money for the plaintiff : Be Haw- 
fhorne, Graham v. Massey (1883)^ 23 Ch. D. 743, Kay. Or for a declaration 
of the title to foreign lands, or of the right to their possession : Companhia 
de Moi^amhique v. British South 'Africa Co., [1892] 2 Q. B. 358, judg- 



IMMOVABLES: REDEMPTION, FORECLOSURE. 


219 


ment of Lawrance and Wright delivered by Wright, and point abandoned 
on the appeal. Descftamps v. Miller^ [1908] 1 Ch. 866, Parker. Prima 
facie f an injunction cannot be obtained against proceedings in the forum 
situs with regard to immovables : Moor v. Anglo-Italian Bank (1879), 10 
Ch. D. 681, Jessel. And see Norton v. Florence Land and Public Works 
Co., under § 175. 

But the doctrine of this § does not seem at one time to have been firmly 
held. No ground but that of the personal jurisdiction appears for the 
decrees in Archer v. Preston, cited with approval by Nottingham in 
Arglasse v. MxLschamp (1682), 1 Vern. 77; Kildare v. Eustace (1686), 
1 Vern. 419, Jeffreys, Beddingfield and Atkins; and Lord Anglesey's Case, 
mentioned by Hardwicke as a decree of Kis own settling lioundaries in 
Ireland, in Penn v. Baltimore, 1 Ves. Sen. 454. Something may have been 
due in these decrees to the suiJerior authority which the English courts 
then exercised over Ireland, to lands in which they all related ; but in Foster 
v. Vassall (1747), 3 Atk. 589, Hardwicke put the colonies on the same 
footing as Ireland ; and Nottingham had decided Carteret v. Petty, which 
also relafbd to land in Ireland. The rejx^rt of Boherdeau v. Bous (1738), 
1 Atk. 643, Hardwicke, is scarcely intelligible except as to the point men- 
tioned under § 176. 

With regard to the last clause of the § in Bunhury v. Bunhury (1839), 
1 Beav. 318, Langdale affirmed by Cottenham, the defendants were taking 
proceedings in Demerara to establish there a claim to a certain interest in 
land there, contending that the land had been brought by the lejr situs 
into community between husband and wife. The plaintiff sought that a 
settlement and will made by the husband, which if the defendants were 
right could only affect his interest in the land, should be carried into 
execution with regard both to the land as a whole and to some movable 
property. And they succeeded in getting the defendants restrained from 
prosecuting any proceedings in Demerara. In Hope v. Carnegie (1886), 
L. R. 1 Ch. Ap. 320, Turner affirming Stuart, and Knight-Bruce dissent- 
ing, where also both movables and foreign immovables were involved (see 
above, § 107), the proceedings as to the latter in the forum situs were 
restrained, because it was not proved that they could be carried on as to 
the latter alone. ^ 

In Tulloch v. Hartley (1841), 1 Y. & C., C. C. 114, Knight-Bruce, a 
decree appears to have been made for payment of legacies and annuities out 
of land in Jamaica, and that for that purpose the boundaries of the 
testatrix’s estates in Jamaica might be ascertained, and if necessary 
settled by commissioners appointed by the English court of chancery. 

See also Grey v. Manitoba and North-Western Bailway Co. of Canada, 
[1897] A. C. 254, Judicial Committee, and Be Clinton, Clinton v. Clinton, 
[1903] W. N. 20, Joyce, where the English court exercised jurisdiction 
over so much real property belonging to a partnership in a colony as was 
subject to a trust made by a deceased partner, but not over such part as 
devolved directly on testator’s heir. 

§ 174. The redemption or foreclosure of mortgages of foreign 
lands deserves separate notice. The fact that a debt is secured 
by such a mortgage can be no objection to taking the accounts 
between a debtor and creditor, and decreeing payment by the 
former of the balance found due from him, in any court having 
personal jurisdiction over him. Nor would it be inconsistent 



220 


PRIVATE INTERNATIONAL LAW. 


with § 173 that on. payment by the debtor of the amount found 
due from him, the creditor should be decreed, by any court 
having personal jurisdiction over him, to reconvey the land or 
otherwise clear it of the mortgage. But that foreclosure should 
be decreed on the debtor’s failure to pay would appear to be 
contrary to § 173, and it can hardly be supposed that the forum 
ntus of the security would allow any authority to such a decree, 
if by the lea: situs the mortgage was still redeemable, and pro- 
ceedings were taken to redeem it. Nevertheless, the practice in 
England is to decree foreclosure of mortgages of foreign lands. 

Toller V. Carteret (1705), 2 Vern. 494, Wright; Faget v. Ede (1874), 
L. R. 18 Eq. 118, Bacon. 

A bill for the redemption of a mortgage of foreign land has 
not only been entertained, but an injunction granted in support 
of it against a proceeding to foreclose the mortgage in the forum 
situs, on the ground that the accounts could be more conveniently 
and satisfactorily taken in England. 

Beckford v. Kemhle (1822), 1 S. & St. 7, Leach. 

And Sir L. Shadwell expressed the opinion that, on a bill for 
redeeming a mortgage of foreign land, the lex situs should be 
applied. 

In Bent v. Young (1838), 9 Sim. 180, at p. 190. 

This seems to be generally correct, for otherwise the bare 
personal jurisdiction might take from the defendant immovable 
property indefensibly vested in him by the lex situs, which 
would be contrary to § 173: see § 175. But that reason would 
not apply, and Shadwell would probably not have expressed the 
same opinion, where the defendant was bound by some special 
contract, not merely an incident to the security, so as to bring 
§ 172 into play. 

§ 175. Where a proprietor of foreign immovables, or person 
interested in such, is not under any obligation relating to them 
from, or as from, his own contract or tort, and yet the juris- 
diction is entertained, it must be determined according to the 
lex situs whether he is bound to give effect out of his property 
or interest to any contract relating to them, or attempted 
disposition of them, of or by third parties,* on the ground of his 
having acquired his juropferty or interest with notice of such 
contract or attempted disposition, or on any other ground. 



IMMOVABLES: VARIOUS QUESTIONS. 


221 


In Martin v. Martin, Bell v. Martin (1831)\ 2 Ru. & My. 607, Leach, 
a contract on marriage; in Waterhouee v. Stansfield (1861), 0 Ha, 234, 
and (1862), 10 Ha. 264, Turner, a contract for security ; and in Kicks v. 
Fowell (18^), L. R. 4 Uh. Ap. 741, Hatherley aflarming Qiffard, an un- 
registered conveyance; were held to be not enforceable against third 
parties, because not enforceable against them by the lex situs^ And in 
Norton v. Florence Land and Public Works Co. (1877), 7 Ch. D. '332, 
Jessel, it was not only held that the question whether a contract for 
security on foreign land was enforceable against third parties depended 
on the lex situs, but also that the. pendency of a suit in the situs in which 
the question might be determined was a conclusive objection to entertain- 
ing the claim. 

In Nelson v. Bridport (1846), 8 Beav. 647, Langdale, an attempt had 
been made to dispose of foreign immovables by will in a line of settlement, 
through the device of charging the successor named by the will with a 
trust. He was compellable to execute the trust as far as was possible con- 
sistently with the lex situs, being bound quasi ex contractu by his accept- 
ance of the succession ; but having done so, and having thereby acquired 
a limited interest which by a change in the lex situs was made an absolute 
one, he was not compellable to employ that absolute interest in executing 
the trusts any further, but might retain it for himself. 

§ 176. Where a money demand is made in a court having 
personal jurisdiction over the defendant, it is no objection to the 
demand that it is in any way connected with foreign immovables. 

Carteret v. Petty (1676), 2 Sw. 323 note, 2 Ch. Ca. 214, Finch; account 
of waste between tenants in common of Irish land. Boberdeau v. Bous 
(1738), 1 Atk. 543, Hardwicke ; account of rents and profits between tenants 
in common of land in St. Christopher’s. Bayley v. Eduxirds (1784), 
Thurlow, stated in another case of the same name, 3 Sw. 703 ; account of 
produce of land in Jamaica during possession under a will. Batthyany 
V. Walford (1886), 33 Ch. D. 624, North ; successor in an Austro- 
Hungarian fidei-oommiss allowed to rank against predecessor’s estate in 
an administration action for what he should establish in Austria-Hungary 
to be his claim on the balance of the deteriorations and improvements. 

But this rule does not apply where the demand is a tax or rate or in 
the nature of such : Municipal Council of Sydney v. Bull, [1909] 1 K. B. 
7, Grantham. If the remarks of the judge in this case can be taken as 
supporting the second ground mentioned in the head-note, viz., that an 
action would not lie against a defendant in England when money was 
charged on foreign immovables, they are, it is submitted, inconsistent with 
the authorities cited above. 

Lastly, some points which rather belong to English law in the 
special sense than to private international law, even as forming 
a part of English law, may be conveniently mentioned in this 
chapter, 

§ 177, The British sover^^ign or government must be deemed 
to be present in every part of the British empire, so that the 
fact of the sovereign or of a department of government being a 



222 


PRIVATE INTERNATIONAL LAW. 


necessary party cannot* found jurisdiction in England for a suit 
concerning land in any other part of the empire. 

Be Holmes (1861), 2 J. & H. 527, Wood; Beiner v. Salisbury (1876), 
2 Ch. D. 378, Malins. 

§ 178. In order that one may inherit English real estate, he 
must both be legitimate in accordance with the doctrines of 
private international law with regard to legitimacy, as to which 
see above, pp. 99 — 104, and have been born after an actual 
marriage between his parents, as distinguished from a marriage 
antedated by a presumption or fiction of law; that is, he must 
not have been legitimated iier suhseqvens inatrimoniurriy even in 
a country where such legitimation proceeds on a presumptive or 
fictitious antedating of the marriage. 

Birtwhistle v. Vardill (1826), 5 B. & C. 438, Abbott, Bayley, Holroyd, 
Littledale ; (1830), 2 Cl. & F. 571, 9 Bl. N. R. 32; opinion of judges to 
same effect delivered to House of Lords by Alexander : (1835), 2 Cl. & F. 
582, 9 Bl. (N. S.) 70; opinion of Brougham delivered to the effect that the 
status of legitimacy is sufficient, Lyndhurst and Denman reserving their 
opinions,, and apjieal ordered to be further argued before the judges: 
(1839), 7 Cl. & F. 895, opinion of Tindal, Vaughan, Bosanquet, Patteson, 
Williams, Coleridge, Coltman, Maule, Parke and Gurney delivered to 
House of Lords by Tindal, to effect of § : (1840), 7 Cl. & F. 940, judgment 
of House of Lords affirming decision moved by Cottenham, Brougham not 
opposing though not satisfied. In connection with this great case it will 
be useful to read the Scotch appeal of Fenton v. Livingstone (1859), 3 
Macq. 497, Brougham, Cranworth, Wensleydale, Chelmsford. 

The doctrine is limited to intestacy . see above, p. 155. 

The doctrine of § 178 has often been represented as an 
application of the maxim that the lex situs governs immovables. 
By virtue of that maxim, it is said, he who will inherit English 
land must prove himself heir by the law of England in the 
special sense, and therefore legitimate by the law of England 
in the special sense, which law knows nothing of legitimation 
'per svhsequens inatrivionium. Were succession to personal 
estate in question, he need only prove himself legitimate by 
the law of England in the larger sense, which, by virtue of 
the maxim mohilia sequuntur personam, refers legitimacy when 
movables are concerned to the personal law, and so in that case 
adopts as a part of itself the legitimation per suhsequens matri- 
monium which the personal law confers. This is very plausible, 
but on examination two serious difficulties will be found in it. 
First, as already pointed out on p. 99, it is thinking in a circle 
to refer legitimacy to the personal law, since a decision on the 
legitimacy of the individual is often necessary in order to 



ENGLISH LAND, LEGITIMACY. 


223 


ascertain his natioiui! character or doiuicile, on which his 
personal law depends. The question of legitimacty always turns 
on the legal appreciation of various facts, and what alone private 
international law gives or can give is an appropriate rule for 
the legal appreciation of each of those facts separately. Next, 
if it be laid down that when immovable property is under 
consideration legitimacy is to be referred to the lex situs^ it 
follows for the same reason that this can have no other meaning 
than that all the various facts on which it depends are in that 
case to be appreciated by the lex .situs. But then we are led 
far beyond the question of birth before or after achial marriage. 
The validity of a marriage even preceding the birth is a necessary 
element of legitimacy, and this in its turn may depend on the 
validity of a divorce from an earlier marriage; so we are obliged 
to ask, where can we stop in applying the lex situs? Thus 
the plausible theory which has been mentioned turns out to 
be unsatisfactory in its application both to personal and to real 
estate. Lord Brougham was deeply impressed with the impossi- 
bility of stopping at any given point in the application of the 
lex situs to the circumstances on which legitimacy depends, and 
urged it strongly in Btrtwhistle v. Vardill as a reason for 
requiring no other quality of legitimacy in an English heir of 
real estate than that which forms a part of his purely personal 
status. 

The truth appears to be that there neither is, nor with any 
convenience can there be, any such thing as legitimacy by the 
lex sitvs or by any one other law ; that what private international 
law gives is, and unless excessive difficulties are raised must only 
be, a personal status of legitimacy, depending on the total result 
obtained by appreciating each fact in the case according to the 
law appropriate to it. And that therefore it is a misleading 
contrast, when the question is put as between determining 
legitimacy by this or that law; that the true contrast is between 
accepting and rejecting the personal status of legitimacy as 
sufficient when the inheritance of English land is in dispute. 
Birtwhistle v. Vardill should therefore be considered as being 
what the judges seem to have considered it as mainly being, 
a decision that a special rule of English law requires birth after 
marriage as an additional condition for such inheritance. In 
this it is most likely that they were historically accurate, and 
it is remarkable that d’Argentre gives a general character to a 
very similar rule. Nullus 'prince'ps, says he, legitimat 'personam 



224 


PRIVATE INTERNATIONAL LAW. 


ad succedendum in bona alterius territorii : Comm, in Patrias 
Britonnm Leges, art. 218, gl. 6, No. 20. The rule is not the 
same, for the canon law on legitimation was too widely received 
for a rule intended to meet a conflict of laws arising out of its 
rejection to be framed in such general terms. The context 
shows that d’Argentre was thinking of the effect of a foreign 
judicial sentence of legitimacy, but the case is sufiBciently 
analogous. Supposing, however, that the feudists of all 
countries were agreed that either a foreign sentence of legiti- 
macy, or a foreign legitimaiion not arising from any law 
equally existing in the sitits, should not entitle any one to 
succeed to immovables, this, notwithstanding the agreement, 
would from its nature be only a rule of the special law of 
each country, and not a rule for choosing between different 
special laws, or therefore a rule of private international law as 
we understand it. 

The view of the subject here taken furnishes the answer to 
a question which has been raised in the Laxo Quarterly Review, 
vol. 5, p. 442. If terms of years in English land are to be 
treated as immovables for the purposes of private international 
law (above, § 164), must not legitimacy for the purpose of 
succession to them be determined by the leor situs, and will 
this be consistent with the rule that for succession to English 
personalty a child is legitimate who has been legitimated per 
sxibsequens matrimonium in the country of which the law is held 
to govern such legitimation (above, § 126) P The answer is that 
even in the case of English real estate the legitimacy of the 
heir is not referred to the lex situs in the sense intended in 
the question, but the inheritance is subject to a rule of English 
law which does not exist for terms of years, so that the latter 
will go to the legitimated next of kin without violating the 
rule in § 164. 

§ 179. A person who by virtue of § 178 is unable to inherit 
English real estate is also incapable of transmitting English 
real estate by inheritance except to his own issue. 

Be Don (1867), 4 Drew. 194, Kindersley. 



( 225 ) 


CHAPTER IX. 

GENERAL NOTIONS ON JURISDICTION. 

In the course by which, commencing with Chapter III, we 
have hitherto travelled through the English doctrines on private 
international law, we have first considered the status of persons, 
then the cases which bring prominently forward the conception 
of various rights of property and obligation as forming a group 
with the person of their owner as its centre, and lastly rights 
of property themselves. In other words, we have covered the 
proper ground of what in the ancient nomenclature of the science 
are called the personal and real statutes, and we must presently 
enter on the subject of obligation. Now a statute which disposes 
of a man’s personal condition by reason of his conduct or that 
of others, as by declaring him married or legitimate by reason of 
his or his parents’ having gone through a certain ceremony, 
or which disposes of things, including incorporeal rights, on 
the occasion of such acts or omissions as those which constitute 
testacy, intestacy, or conveyance, is essentially different from a 
statute which imposes a duty on the ground of contract or tort. 
In the former cases, a condition or a thing is disposed of, and 
although active duties may arise out of the condition, the duty 
which arises in relation to the thing is merely the negative one 
of not disturbing the enjoyment of its property by the person in 
whose favour the law has disposed of it. In the latter case, there 
is nothing to be disposed of, but the active duty of giving, doing 
or furnishing — dare, facere, frcestare — is imposed on the party. 
The laws which deal with the former cases proceed on the ground 
of an authority in relation to the condition or the thing, as being 
physically within the territorial limits of the laws, or as being 
connected by widely received traditions or conventions with the 
regions respectively circumscribed by those limits. The laws 
which deal with the latter case proceed on the ground of an 
authority over the agent, including in that term the party who 
is guilty of an omission to act. Qut where authority over an 
agent is concerned, law and jurisdiction are but two aspects of it. 

16 


W.I.L. 



226 


PRIVATE INTERNATIONAL LAW. 


We have seen, 17, that international rules of law were often 
deduced from international rules of jurisdiction by force of the 
maxim si ibi forum y ergo et jus. The justification of that pro-, 
ceeding may be put as follows. First, tradition, convention, or 
the necessity of the ease, points out the jurisdiction in which a 
determination ought most properly to be had, or can only be had 
effectively ; secondly, the persons who are concerned in the deter- 
mination have not, in general, any reason for claiming that that 
jurisdiction should follow any law but its own; thirdly, if the 
matter arises incidentally in another jurisdiction, the certainty 
which is so important in law requires that it shall be deter- 
mined as it would be determined in what may be called the 
primary jurisdiction. This statement suits all the cases, but 
the second link may be put more strongly in the case of an 
obligation than in that of a condition or a thing. In the case 
of an obligation, the matter about which a determination is 
sought has no existence independent of the law of that which is 
the primary jurisdiction for enforcing it. That conclusion is 
involved in the jurisdiction being the primary one. If the 
authority to which the defendant is rightfully subject under the 
circumstances does not consider him to be liable, he is not liable, 
and there is no more in the case. Of course this must be taken 
with the qualification that rules for the choice of law on questions 
of obligation may still survive through the force of tradition, 
although the rules of jurisdiction out of which they arose may 
have become obsolete, or that such rules of law may have been 
adopted in countries which never adopted the rules of jurisdiction 
out of which they arose. Such consequences flow naturally from 
the recognition of a juridical community of nations, but do not 
affect the principles on which such a community is based. And 
the qualifications, no less than the doctrine which they qualify, 
prove the necessity that before eJitering on the rules for the 
choice of a law with regard to obligations, the student should be 
introduced to the history of the doctrines which have prevailed 
in Europe about jurisdiction. In that part of the sketch which 
concerns the Roman system, I shall follow the authority of 
Savigny, in the eighth volume of his great work on the modern 
Roman law. 

In the empire of Justinian, obligations of whatever nature or 
wherever contracted might be put in suit in the forum reiy the 
personal forum of the defendant. This was, for an Italian, 
either that of the civitas or respuhlica of whicli he was a 



JURISDICmON IN ROMAN LAW. 


227 


municeps or that of the place in which he was domiciled. For 
the whole of Italy was divided into civitates having original 
jurisdiction, of one of which every Italian was a member by 
municipal citizenship, which involved subjection to the jurisdic- 
tion of that community — forum originis — although he might be 
domiciled in another such civitas or in a province, and if he were 
so was subject also to the jurisdiction of his domicile. In prin- 
ciple, the plaintiff had his choice whether to sue in the forum 
originis or the fonnv domicilii of the defendant, but it is likely 
that by some express provision, now lost, he was pi'ecluded from 
choosing the former except when the defendant was to be found 
in the territory to which he belonged by on go. Even however 
if this was not so, the plaintiff must generally have preferred the 
forum domicilii, for his own convenience. 

But since the provinces, being subject to the imperial 
governors, did not contain civitates with original jurisdiction, at 
least until in late times something of the kind arose in the 
authority of the defensores, a provincial had no other personal 
forum than his domicile, except so far as he had a forum originis 
at Rome, through the edict of Caracalla which extended the 
Roman citizenship to all the free subjects of the empire. The 
Roman citizenship had long before been enjoyed by all Italians, 
through the lex Julia, so that for such of them as did not belong 
immediately to Rome, but primarily to some other Italian 
resjnihlica, there existed two citizenships, besides a domicile 
possibly different from either. As to these Italians, and the 
provincials after the edict of Caracalla, express texts of the 
Corpus J uris show that they could not be sued at Rome in virtue 
of their citizenship unless actually there, and even then with 
many exceptions, known collectively as the fns domum revocandi; 
which is the ground for presuming, as above mentioned, that a 
similar protection existed against all drawing of defendants to 
answer out of their domicile on the ground of citizenship. 

Besides the forum rei, the Roman law allowed to the plaintiff 
the option of suing in the proper jurisdiction of the obligation, 
for which forum contractus and rei gestce are modern terms 
applied more widely than to tKe particular cases they would seem 
to indicate. ‘‘This jurisdiction,” says Savigny, “is to be held 
as founded in the following cases : — 


*Civis is only used of a Roman citizen, in opposition to latinus and peregrinus; 
but murUceps is used of every municipal citizen, whether of a municipium or of a 
colonia, either bfing a rtspuhlica. A colonia however is not included in munieiptum. 




228 


PRIVATE INTERNATIONAL LAW. 


‘‘I. At the place which is specially fixed for the fulfilment of 
the obligation by the intention of the parties, whether it be so 
fixed by the verbal indication of some place or other, as in the 
famous law contraxisse unmqwisque in eo loco intelligitur in quo 
ut solveret se ohligavit — Dig. 44, 7, 21 — “or because the act 
which is to be brought about by the obligation can possibly be 
performed only at a single place,’’ as in a contract for the sale 
or lea^e of land or houses, which implies the delivery of 
possession. 

“ II. Failing the appointment of a place of fulfilment, this 
jurisdiction may be founded by the fact that the obligation arises 
out of the debtor’s course of business, which is fixed at a 
particular place.”* Examples: The tutela over persons not §ui 
juris i and every kind of ciiratela. The management of another 
person’s affairs : whether of all his affairs, by a general agency 
or attorneyship, or of a certain class of them, as of a manufacture 
or commercial undertaking: and whether in consequence of a 
contract — operw locatoc, or mandatuvi not having for its object a 
single transient affair ; or quasi ex contractu, as proceeding from 
the will of one party only — negotiorum gestio, also'*" when not 
having a single transient affair for its subject. Lastly, one’s 
own regular banking and commission business — argentaria. In 
many cases falling under this second head the jurisdiction 
founded on the transaction of affairs coincides with that founded 
on the domicile, but they may be distinct. 

III. The jurisdiction is also fixed by the place where the 
obligation arises, if that coincides with the domicile of the 
debtor.” That is, the jurisdiction is then founded on two 
grounds, and if through the debtor’s removing or dying the domi- 
cile of his heir or his own new domicile becomes the forum on 
one of those grounds, he or his heir must still submit to the 
jurisdiction of the old forum on the other ground. 

‘‘ IV. The place where the obligation arises can also found 
jurisdiction even if it be away from the domicile of the debtor, if 
the circumstances create an expectation that its fulfilment shall 
also be at the same place.” 

Such an expectation is created by one who establishes away 
from his domicile a commercial business of some duration, and in 


Guthrie. It would be not less accurate, and would suit many of the examples 
better, to say, as I formerly translated it : The jurisdiction can be founded on 
the circumstance that the obligation arises from the transaction by the defendant 
of affairs connected with a determinate spoil.* 




FOBUM CONTBACTUS IN ROMAN LAW. 


229 


daing so makes arrangements from which it may be inferred that 
he will deliver the goods which he there sells in the same place. 
He thus subjects himself to the special forum of the obligation 
at the place where the contract is entered into. This is laid 
down minutely by TJlpian, and that, while warning against the 
unconditional assumption of jurisdiction merely because a con- 
tract is concluded at any place. He justifies this warning by 
mentioning the case of a person who enters into a contract while 
on a journey, and of whom it certainly will not be asserted that 
he subjects himself to jurisdiction at the place of the contract.* 

‘‘ But such a trading relation is to be regarded only as an 
example, not as the exclusive condition, of a forum of the 
obligation. For if contracts are concluded during a residence 
away from the domicile, it is necessary to deduce from the sub- 
stance of them what notions as to their fulfilment the parties 
may probably have entertained. If therefore a public officer 
in consequence of his official duties, or a deputy to a legisla- 
tive assembly, stays for months at the same place and there 
contracts debts connected with his daily subsistence, there is no 
doubt as to the establishment of the special forum of the obligti- 
tion. So likewise if -debts are contracted for similar purposes 
during a residence at a watering-place. If on the contrary, 
during such a residence at baths or a Watering-place, contracts 
as to mercantile affairs are entered into of which the further 
development can be expected only at the domicile, such a juris- 
diction at the place where the contract is entered into must 
be denied. As all here depends on the prdbable purpose of the 
parties, a very short residence may in some circumstances suffice 
to found that jurisdiction. It will be held to exist as against 
a traveller who refuses to pay his reckoning in a tavern, since in 
such matters immediate payment is the universal practice, and 
may therefore be expected by every one. Thus everything 
depends on the relation in which the nature and length of the 
residence stand to the substance of the obligation.” 

‘‘ V. If none of these conditions exists, the forum of the obli- 
gation is at the domicile of the debtor.” Examples: Contracts 
made by persons travelling, so far as they do not fall under IV. 
The action for restitution of the dos, which must be brought at 


♦The reference is to Dig. 5, 1, § 2. Durissimum est quotquot locis quts 

navigam tel iter faciene delatue eat, tot loots ee defendi. At at quo conatitit, nbn 
dioo jure domteilii, eed iahernulamt pergulantt hofreum, armarium, offlcinam 
eonduxit, ibique diatraxit, egii, defendere ae eo loci debebit. 



230 


PRIVATE INTERNATIONAL LAW. 


the husband’s domicile, and not at the place where the dotal 
contract was concluded. The case of a manufacturer who sends 
round an agent to get orders, for the contract is then fulfilled 
at the seat of the manufacture by despatching the article, as is 
shown by the fact that from that moment the Roman law put the 
aricle at the risk of the buyer, although the property, requiring 
delivery for its transfer, did not pass till the arrival of the article 
at its. destination. 

“ All these cases, however various they appear, and however 
accidental their connection may seem, yet admit of being reduced 
to a common principle. It is always the place of fulfilment that 
determines the jurisdiction, either that expressly fixed (No. I), 
or that which depends upon a tacit expectation (Nos. II — ^V). 
In both cases a voluntary submission of the defendant to this 
jurisdiction is to be assumed, unless an express declaration to the 
contrary excludes it.”* 

“ The special jurisdiction founded by a delict is unknown to 
the earlier Roman law, and first arose under the empire. It 
then found such general acceptance that it was afterwards, even 
in positive enactments, placed in the same rank as the forum 
domicilii^ contractus^ rei sitce. It would be a mistake however to 
regard this forum as merely a particular form of the forum of 
the obligation, of the so-called forum contractus. For the forum 
delicti does not arise by a presumptive voluntary subjection, and 
therefore the limitations above laid down for the foruni of the 
obligation do not hold good in respect to this. To found this 
jurisdiction neither domicile nor any other external accessory 
circumstance is necessary, but it arises from the commission of 
the delict itself, even at ap accidental and temporary residence. 
This jurisdiction is thus of a very peculiar character, since it is 
established not by voluntary but by necessary subjection, which 
however is an immediate conseqxience of the violation of right of 
which the delinquent has been guilty. The jurisdiction of the 
delict is moreover just as little exclusive as that of the contract, 
but the plaintiff has always his choice between this special one 
and the general jurisdiction founded on the domicile of the 
debtor. . . . 

‘‘ The question has been raised whether the forum of the 
obligation extends merely to those actions which arise out of the 


* From I., on p. 228, to this point, all is taken or abridged from Savigny, Syst. 
d. bent. R6m. rechts, § 370. <The passages within inverted commas are as in 
Guthrie’s translation, pp. 160 — 164. 




FOBVM CONTBACTUS IN ROMAN LAW. 231 

natural development of thfe obligation, and therefore lead to its 
fulfilment, or also to those which have the opposite direction, 
seeking the dissolution of the obligation, or to reverse that which 
has already taken place towards its fulfilment. As a general 
rule, and first and more limited application of this jurisdiction 
can alone be admitted. The second and more extensive applica- 
tion can occur only exceptionally, ajul in the smaller number of 
cases in which the dissolution of the obligation has a common 
origin with its beginning, as when the dissolution of an obliga- 
tion created by contract is derived from a collateral contract 
added to it. . . . 

‘‘ The jurisdiction of the obligation can be made effective only 
if the debtor is either present in its territory or possesses property 
there, in which last case the decree against him will be enforced 
by missio in 'possessionem. By the older Roman law this alterna- 
tive condition is unquestionable. By the terms of a law of 
Justinian we might regard it as abolished. But this law is 
expressed so generally and indefinitely, and mixes up the various 
jurisdictions so indiscriminately, that the intention to change 
the former law cannot with any certainty be inferred. Hence 
too a decretal has paid no regard to it, but adheres to the older 
Roman law, even to the very phrases. The preponderance of 
modern practice ’ ’ — Savigny is not speaking of the practice under 
modern codes or other legislation," but of that under Roman law 
where still received — the preponderance of modern practice has 
followed this opinion, so that the jurisdiction of the obligation 
cannot be made effectual against an absent person by the mere 
requisition of a foreign court. It is not to be denied that by this 
restrictive condition the forum of the obligation loses a great deal 
of its importance.^’* 

Of the opinions opposed to the above system of Savigny, that 
which has been most influential in practice is the one, commonly 
diffused in the middle ages, that the place of contracting an 
obligation — locus celebrati contractus, or uhi verba proferuntur — 
and not that destined for its fulfilment, for the most part deter- 
mined the special jurisdiction in Roman law. In support of that 
view some words of Ulpian’s were cited : proinde et si merces 
vendidit certo loci, vel disposuit, vel comparavit, vide^ur, nisi 
alio loci ut defenderet convenit, ibidem se defendere. Dig. 5, 
1, 19, § 2. But this is only the commencement of the passage in 


Savigny, Syst. § 371, Guthrie 171 — 174. 




232 


PRIVATE INTERNATIONAL LAW. 


the course of which TJlpian warns the reader against the uncon- 
ditional interpretation of those words, and more fully develops 
his thought as quoted above, p. 229. Another citation made 
with a similar purpose was a fragment of the work of Gains on 
the edictum 'provinciale : At uhi quisque contraxerit. Contract 
turn autem non utique eo loco intelligitur quo negotium gestum 
sit, sed quo solvendn est pecunia. Dig. 42, 5, 3. The latter part 
of this fragment is identical in effect with the law contraxisse, 
quoted above, p. 228, and it must be taken as a commentary 
explaining the former part, at uhi quisque contraxerit. But the 
whole came to serve the opinion in favour of the locus celebrati 
contractus through treating the former part as laying down a 
rule, and the latter part, with the law contraxisse, as merely 
providing an exception to that rule in the case of an express 
contract to pay money in a certain spot, locus solutionis. The 
general Prussian law of civil procedure was drawn up in accord- 
ance with these ideas, and laid down that the forum contractus 
was at the place, when there was any such, determined by the 
contract for its fulfilment; if there was none so determined, 
then at the place where the contract acquired its binding force : 
part 1, tit. 2, § 149. The opinion however has gained ground 
that the place of fulfilment, whether determined by the contract 
or only to be inferred from the nature of the case, furnishes the 
true forum of the obligation; and the law of civil procedure 
enacted in 1876 for the German empire establishes it without 
distinction as the proper alternative to the foruwj rei : § 29. 

There was on the continent one great exception to the Roifian 
system. The forum contractus, whether loci celebrati co^itractus 
or loci solutionis, was not received in France during the middle 
ages. The seigneurs had patrimonial rights of administering 
justice, and in the royal courts the emoluments of justice were 
considered as forming for the judges a kind of property, on 
account of the venality of their offices. Consequently the trial 
in the defendant’s domicile, being less the right of the defendant 
than of the judge, could not be waived by the former, either 
through his submission when sued elsewhere or through his 
previous consent in contracting; and both the seigneurs and the 
royal courts were authorized to reclaim their justiciables, even 
when the tribunal seised of the cause was incompetent on the 
ground of domicile alone, being by Roman principles competent 
in respect of the matter. ' The disregard of the interest of the 
jM^es which was thus shown was covered by a maxim of 



FOBUM CONTBACTUS IN MIDDLE AGES. 


233 


decorous sound, that since jurisdiction belongs to public law 
individuals cannot defeat it.^ It was only by the ordinance of 
commerce of 1673 that a forum contractus was introduced, and 
then only in actions within the attributions of the juges et 
consuls^ the plaintiff being allowed his choice between the domi- 
cile of the debtor, the place where the promise was made and the 
goods supplied, and that where the payment was to be made: 
tit. 12, art. 17. Art. 420 of the modern code of civil procedure, 
which applies only to the tribunals of commerce, is substantially 
a re-enactment of the article of 1673 ; but in those matters which 
in France are called civil the forum contractus is still unrecog- 
nized by legislation, except so far as an indirect recognition may 
be found in the power of a party to an act to elect, by a clause of 
the act, a domicile for all proceedings relating to it in a place 
other than his true domicile: Code Nap., art. 111. On the other 
hand, the Code Napoleon, art. 14, authorizes Frenchmen to sue 
foreigners in France, even though not residing there, and even 
on obligations contracted abroad; thus introducing the novel 
conception of a personal forum of the plaintiff, on the ground 
that a citizen is entitled to demand justice of his state. 

In consequence of the state of things in France with regard to 
the forum contractus^ Boullenois points out that the maxim 
of the lex loci contractus did not there possess that which else- 
where was its chief base, and, instead of admitting it as a rule, 
he prefers to consider separately the motives of decision for 
each of the oases usually included under it. It has already been 
noticed — above, p. 18 — that a tendency existed among the 
greater French lawyers to regard a custom less as a law than as a 
clue to the intention of the parties, and to allow the custom of 
the situs to be ousted by the custom of the domicile introduced 
by the presuiried intention. Very naturally, in the circum- 
stances which have now been mentioned, the custom of the 
domicile tended to prevail also over that of the place of contract. 
Thus the Digest says, si fundus venierit, ex consuetudine ejus 
regionis in qua negotium gestvm est yro evictione ca/veri o'portet : 
21, 2, 6. This was generally understood of the custom of the 
place of sale, but Dumoulin^denied the ajfplication of the rule to 
a vendor and purchaser of one country who happen to contract in 
another, and considered that the custom of their common domi- 
cile, as being that of whichi^they were both aware and which 


♦Henrioa de Pansey, de TAutorit^^ Jadiciaire en France, 8me Edition, t. 1, 
pp. 870, 871 




234 


PRIVATE INTERNATIONAL LAW. 


neither can have intended tacitly to reject, should determine the 
vendor \s obligation in the matter.* 

Passing now to our own side of the channel, we find ourselves 
in the midst of quite a diiferent state of things. At the com- 
mencement of legal memory the superior courts already pos- 
sessed an original jurisdiction coextensive with the realm : there 
were no such loia’ jurKdictions within England as could require 
any rules by which to distinguish, on the ground of domicile, 
place of contract or otherwise, the cases which fell under one of 
them from those which belonged to another. There was indeed 
room for such considerations in determining what causes the one 
national or royal jurisdiction would entertain, as contrasted with 
those which it would hold to belong only to foreign courts, but 
certain very peculiar doctrines prevented their being much 
attended to. At common law, it was necessary that the writ by 
which the action was commenced should be served on the defen- 
dant personally and within the realm : hence, if the defendant 
was out of the realm, there were no means of obtaining a judg- 
ment against him on the ground of his domicile or allegiance 
being English. On the other hand, if the writ was personally 
served within the realm, a judgment could be obtained against 
the defendant even though his domicile and permanent allegi- 
ance were foreign, probably because the temporary allegiance 
which even a passing stranger was deemed to owe was regarded 
as a sufficient foundation for the forinn rei. Thus domicile, a 
subject of such importance in the eyes of the Roman, and on the 
continent of the medieeval lawyer, had no place at all within the 
purview of the English common lawyer, nor was it taken into 
account when the procesvses of distringas and outlawry were 
applied against defendants on whom personal service could not 
be effected. And when the writ of subpoena was invented, and 
the jurisdiction of the court of chancery based on its service 
within the realm, although the service was allowed to be made 
either personally or by producing the writ at the defendant’s 
dwelling-house to vsome one whose duty it would be to communi- 
cate the fact to him, it not being necessary in the latter case that 
the defendant should be within the realm at the time, yet it was 
not required that such dwelling-house should be his domicile. 
Thus a suit in chancery was free from the necessity of personal 
service, which had been found so inconvenient inunctions at law, 

* See Boultenois, Traits de la personnalit^ et de la rdalitd des Lois, t. 2, p. 456 
et ssQ. 



COMPETENCE IN ENGLAND. 


23S 


but the conceptioa of domicile was as far from being entertained 
as before, either to restrict the power of proceeding against 
persons casually present or having a dwelling-house in England, 
or to found a power of proceeding against persons domiciled in 
England but neither present nor having a dwelling-house there. 

Not every action however, for which the writ could be served 
within the realm, could be tried in England. At common law 
there were rules of venue, that is, of the locality from which a 
jury ought to be summoned to try a question of fact; and these 
rules, though perhaps devised for no other purpose than to portion 
out the business as to which the competence of the superior 
courts was undisputed, reacted on that competence by limiting 
it to actions for which a venue could be assigned. The 
classification of personal actions was into local and transitory. 
The former were those, such as trespasses to land, of which the 
causes could not have occurred elsewhere than where they did 
occur. The venue for actions of this class was the county (in- 
cluding of course the city of London, though not originally a 
county) in which the cause occurred : hence for local actions it 
was necessary, besides personal service on the defendant within 
the realm, that the cause should have occurred in England. 
Transitory actions were those of which it was said that the cause 
might have occurred anywhere, as a personal injury or a breach 
of promise, and for these the venue was said to be arbitrary, that 
is, the plaintiff might lay the venue in any county he pleased. 
The real place of occurrence therefore might have been abroad, 
quite as well as in a different county from that in which the venue 
was laid, and, if the writ was personally served in England, there 
was no further condition to satisfy. In chancery as there was 
no jury there was no venue, and no formal requisite the necessity 
of complying with which might resj;rain the competence as to 
suits even connected with land ; and to this cause it may be attri- 
buted that at one time the court was far from holding firmly the 
doctrine expressed in § 173, that its mere personal jurisdiction 
over the defendant ought not to be made a ground for deter- 
mining the right to' the property or possession of foreign 
immovables. See above, pp. 218, 219. 

Legal principle applied spontaneously by the courts appears to 
have modified the original English rules of competence in two 
ways only. One was the, ^establishment in chancery of the 
doctrine just referred to : the other was a rule laid down by 
Mansfield at common law, but never quite established, that to 



236 


PRIVATE INTERNATIONAL LAW. 


prevent a failure of justice a person might be compelled to 
answer for a local cause of action arising abroad.* But the 
competence both of the court of chancery and of the courts of 
common law, with regard to matters and defendants in some way 
connected with the realm, was extended by statute, or by orders 
made under statutory authority, at various times from the reign 
of George the second downwards. To trace the steps of this 
development would be out of place here, because it was not con- 
connected with the growth or reception of the mexims of private 
international law. The ideas which governed it were not very 
similar to those which on the continent produced the rules of 
jurisdiction which in their turn gave birth to rules of law; and, 
had those ideas been different, the statutory development of 
jurisdiction in England did not begin till the maxims of private 
international law had to a large extent been imported. English 
notions on jurisdiction were in the main unsuitable, and the 
small portion of them which was not unsuitable came too late, 
for framing in this country rules of law out of rules of jurisdic- 
tion by virtue of the principle si ibi forum ergo et jus. The 
general notions on jurisdiction which have been surveyed in the 
present chapter will illustrate that process as it took place on the 
continent, and give an insight into the meaning and scope of the 
rules of law which resulted from it, a meaning and scope which 
often clings to them as adopted in England, though it did not 
arise and indeed could not have arisen here. 


♦See Lord Mansfield’s judgment in Mastyn v. Fabrigas (1776), Cowp. 161, 
and the note beginning on p. 265, below. 



( 237 ) 


CHAPTER X. 

JURISDICTION IN ENGLAND, AND EXTERRITORIALITY. 

Indeed, while the detailed history of jurisdiction in England 
belongs only to the antiquities of English law and not to the 
subject of this book, because unconnected with the growth or 
reception of the maxims of private international law, there is 
another reason why even the present state of jurisdiction in 
England may seem to have little concern with my subject. It is 
very common for the courts of a country to entertain actions 
under circumstances in which they would not admit that the 
jurisdiction was sufficiently founded to entitle the judgment of 
a foreign court, pronounced under similar circumstances, to be 
recognized as internationally binding. For example, the per- 
sonal forum of the plaintiff introduced by Art. 14 of the Code 
Napoleon — see above, p. 233 — and copied in other countries whose 
legislation is based on that code, is not even in France considered 
to possess any international validity, and no authority is allowed 
there to a judgment pronounced in one of those other countries 
on the ground of it. Hence the true question for private inter- 
national law in the matter of jurisdiction is not what actions are 
entertained by the courts of a given country, but in what cases 
those courts will recognize foreign judgments, which with regard 
to English practice will be considered in another chapter. The 
former question is as much one of natiojual law in a special sense 
as is the question whether the law of any country contains 
peculiar provisions about aliens. It has however interest 
enough in connection with our subject to make it worth while to 
present here the leading rules of jurisdiction, such as they exist 
in England under the Rules of the Supreme Court 1883 as 
amended from time to time. 

§ 180. Nothing in the acts and orders regulating the Supreme 
Court of Judicature restrains that court from entertaining any 
action in which the writ has been personally served on the defen- 
dant within the realm, and it must be, considered to inherit all 
the power of entertaining such actions which was possessed by 
the superior courts of common law and equity. On the other 



238 


PRIVATE INTERNATIONAL LAW. 


hand, its power of entertaining them has been set free from the 
restraint of local venue by the provision in R. S. C., 1917, 
replacing R. S. C., 1883, Order XXXVI., that the order made in 
the summons for directions shall direct where the cause is to be 
heard. 

But the personal jurisdiction which the English court claims 
by virtue of the service of the writ within the realm will be 
restrained in its exercise by the doctrine^, of § 173. That 
doctrine, which was gradually elaborated in the court of chan- 
cery, is now acknowledged by the Supreme Court, as will be seen 
from the authorities cited under the § referred to. 

And the English court will decline to exercise such jurisdiction 
in cases where to do so would be unjust to the parties or would 
amount to an abuse of the process of the court. 

If, for instance, a person should be induced by fraud to come within 
the jurisdiction for the concealed purpose of serving him with a writ. 
Watkins v. North American Land and Timber Co.y Lim., [1904] 20 T. R. 
534, Davey, James of Hereford, Robertson. 

Where one of four defendants was resident in England and the chief 
defendant, a company registered in Scotland, was served with the writ at 
a branch office in England, and the plaintiff was resident in Scotland and 
the cause of action arose in Scotland, the action was stayed. Logan v. 
Bank of Scotland (No. 2), [1906] 1 K. B. 141, Gorell Barnes, Collins and 
Romer. Where the plaintiff was temporarily resident in England and 
the defendant was personally served with the writ while in England for 
a short holiday, and the cause of action arose in India, the action was 
dismissed. Egbert v. Shorty [1907] 2 Ch. 205, Warrington. In a somewhat 
similar case the action was stayed: in Be Norton* s Settlement ^ Norton v. 
Norton^ [1908] 1 Ch. 471, Vaughan Williams, Farwell and Kennedy. 

The acceptance of service conferring the jurisdiction of the court does 
not necessarily make it the duty of the court to decide the case. “ The 
sphere of jurisdiction and the sphere of right . . . are not coterminous.” 
John Bussell dc Co. v. CayzeCj Irvine & Oo., [1916] 2 A. C. 298, Haldane, 
Sumner, Parmoor, Wrenbury, at p. 302. And where it would be inequit- 
able to exercise its legal jurisdiction, the court will refrain. 

§ 181. ‘‘ (1) No service of writ shall be required when the 
defendant by his solicitor undertakes in writing to accept service 
and enters an appearance, (2) When service is required, the 
writ shall wherever it is practicable be served in the manner in 
which personal service is now made, but if it be made to appear 
to the court or a judge that the plaintiff is from any cause unable 
to effect prompt personal service, the court or judge may make 
such order for substituted or other service, or for the substitu- 
tion for service of notice by advertisement or otherwise, as may 
seem just.*’ Order IX of 1883, rules 1 and 2. Order LXVII, 
rule 6, is of similar effect to Order IX, rule 2. 



PERSONAL AND OTHER SERVICE. 


239 


The language of Order IX, rule 2, requires some explanation. 
In § § 182, 183, 184, we shall see peculiar modes of service given 
in certain cases of actions# against partners and for recovery of 
land and in admiralty actions in rem. The name “ sul>stituted 
service ’’ however is not used for these, which are regarded as 
exceptions to the maxim of requiring personal service on defen- 
dants, but for the modes of service allowed in cases where that 
maxim is supposed to apply but real j^ersonal service is imprac- 
ticable.; such as by letter, by service at the defendant’s late 
dwelling-house, with or without advertisement, by service on 
some one else thought likely to inform the defendant, and so 
forth. The cases to which the maxim of requiring personal 
service on a defendant is supposed to apply, and in which there- 
fore the occasion for substituted service may arise, are, so far as 
persons are concerned : 

(1) Those of all persons within the jurisdiction, in cases not 
falling under § § 182, 183, or 184. 

Cook V. Dey (1876), 2 Ch. D. 218, Hall. An officer on board a king’s 
ship on the high seas is within the jurisdiction : ^engrove v. Parks ^ [1891] 
1 Q. B. 651, Cave and Charles affirming Denman. 

During the Great War leave was given to make substituted service of 
notice of writ on agents of enemy aliens who were carrying on business in 
England. Porter v. Freudenherg^ [1916] 1 K. B. 857. 

(2) Those of all British subjects out of the jurisdiction, in 
cases not falling Under §§ 182, 183, or 184, but where service 
out of the jurisdiction is allowed under § 186. 

Bramwell, in Great Australian Gold Mining Co. v. Martin (1877), 
5 Ch. D. 17. 

(3) Those of foreigners within the British dominions though 
not within the jurisdiction. 

Substitution of notice for service is used in order to bring the 
writ to the knowledge of a foreign defendant out of the British 
dominions, in cases not falling under §§ 182, 183, or 184, but 
falling under § 186. Service of the writ, instead of notice of the 
writ, on a foreigner out of the British dominions is a nullity and 
not an irregularity. 

Westman v. Aktieholaget Ekmans Mekaniska Snickarefahrik (1876), 1 
Ex. D. 237, Kelly, Bramwell, Amphlett, decided on the rules of 1876 : 
Padley v. Camphausen (1878), 10 Ch. D. 660, Jessel, Baggallay and 
Thesiger affirming Hall : Hewitson v. Fahre (1888), 21 Q. B. D. 6, Field 
and Wills. An order giving leave to issue concurrently a writ and serve 
it by posting a copy to an address within the jurisdiction was held bad on 
the face qf it because it directed service of the writ on a foreigner out of 



240 


PRIVATE INTERNATIONAL LAW. 


the dominions. Kemp v. Necchi, W. N. [1913] 62, Farwell and Kennedy 
reversing Rowlatt. 

Where service is not necessary, but notice of a proceeding ought to be 
given to a foreigner out of the jurisdiction, that which is in form a 
service cannot be supported as a notice : Be La Compagnie Ginirale d*Eaux 
Minirales et de Bains de Mer, [1891] 3 Ch. 451, Stirling. Where a writ 
is issued in the form for service in England but the writ cannot be pro- 
perly served in England, not only the service but the whole writ is bad : 
Sedgwick v. Yedras Mining Co. (1886), 35 W. R. 780, Huddleston and 
A. L. Smith. But where the writ is issued for service out of the jurisdic- 
tion, it may be served within the jurisdiction : Fonrd v. Shephard (1885), 
34 W. R. 63, Day and Smith. And where a concurrent writ has been 
issued for service out of the jurisdiction, an order may be made for sub- 
stituted service at several places some of which are within the jurisdiction. 
Western Suburban and Notting Hill Permanent Building Society v. 
Bucklige, [1905] 2 Ch. 472, Swinfen Eady. 

A foreigner may appoint an agent to receive service for him within the 
jurisdiction : Montgomery v. Liebenthaly [1898] 1 Q. B. 487, A. L. Smith, 
Chitty and Collins affirming Phillimore. 

So far as matters are concerned, the cases in which personal 
service or notice substituted for service can be allowed out of the 
jurisdiction are enumerated below in §§ 186, 187, and perhaps 
188; the competence of the court as to defendants out of the 
jurisdiction cannot be extended beyond these cases and those 
which may fall under § § 182, 183 or 184, by the aid of the rules 
as to substituted service. 

Field V. Bennett (1886), 56 L. J. Q. B. 89, Coleridge and Denman; 
approved in De Bernales v. New York Herald (cited below on p. 242). 

See, too, Gibson <fc Co. v. GibsoUf [1913] 3 K. B. 379, Atkin (below, 
§ 321). 

The jurisdiction of the court may be extended by the sub- 
mission of foreigners to its jurisdiction. 

Where the foreign owners of a ship, against which proceedings in rem 
were being taken, entered an appearance, they became personally liable to 
pay the amount of the judgment : The (Jemma, [1899] P. 285, A. L. Smith 
and Vaughan Williams. The Dupleixy [1912] P. 8, Evans. A foreigner 
residing abroad and suing in England through an agent cannot be ordered 
to give discovery, but the court can stay the action until such discovery 
is given : Willis d; Co. v. Baddeleyy [1892] 2 Q. B. 324, Esher, Bowen and 
A. L. Smith. A foreign defendant may enter an appearance under protest. 
He should obtain leave to enter a conditional appearance, and must then 
apply to set aside the writ within the time fixed by the court. For the 
practice in such a case, see Bonnell v. Preston, [1908] W. N. 155, Moulton 
and Farwell ; Mayer v. Claretie (1890); 7 T. R. 40, Mathew and Grantham, 
where the writ was set aside after a defence had been delivered under 
protest. The time fixed for the application to set aside the writ m|iy be 
extended ; Keymer v. Beddy^ [1912] I K. B. 216, Moulton and Farwell. 



PERSONAL AND OTHER SERVICE. 


241 


Lastly, personal service, service under §§ 182, 183, or 184, 
substituted service, and notice substituted for service have all 
the same effect. 

§ 182. ‘‘ (1) Any two or more persons claiming or being liable 
as copartners and carrying on business within the jurisdiction 
may sue or be sued in the name of the respective firms, if any, 
of which such persons were copartners at the time of the accruing 
of the cause of action. (3) Where persons are sued as partners 
in the name of their firm under rule 1, the writ shall be served 
either upon any one or more of the partners, or at the principal 
place within the jurisdiction of the business of the partnership, 
upon any person having at the time of service the control or 
management of the partnership business there; and, subject to 
these rules, such service shall be deemed good service upon the 
firm so sued, whether any of the members thereof are out of the 
jurisdiction or not, and no leave to issue a writ against them 
shall be necessary. (11) Any person carrying on business within 
the jurisdiction in a name or style other than his own name may 
be sued in such name or style as if it were a firm name; and, so 
far as the nature of the case will permit, all rules relating to 
proceedings against firms shall apply.’’ Order XLVIIIa of 
June 1891, part of rules 1 and 3 and rule 11, replacing Order IX 
of 1883, rules 6 and 7. 

If the partnership has been dissolved to the knowledge of the plaintiff, 
the writ must be served on every person within the jurisdiction sought to 
be nitade liable : ih. rule 3, and every person served must be informed by 
notice in writing whether he is sued as a partner or as a person having 
control of the business : ih. rule 4. 

Partners domiciled and resident abroad, carrying on business only 
abroad and being foreigners, cannot be sued under these rules, although a 
partnership may be a separate person by the foreign law : nor could they 
be so sued under the old rules 6 or 7 : Bussell v. Camhefori (1889), 23 
Q. B. D. 626, Cotton, Fry and Lopes, overruling 0*Neil v. Clason (1876), 
46 L. J. Q. B. 191, Coleridge and Pollock affirming Cleasby, which was 
decided on the equivalent rule of 1876, and overruling Pollexfen v. Sihson 
(1886), 16 Q. B. D. 792, Mathew and Smith; but any partner who is 
within the jurisdiction may be sued as an individual, all the other partners 
being named separately in the writ. Western National Bank of City of 
New York v. Perez, Triana Co., [1891] 1 Q. B. 304, Lindley and Bowen 
outvoting Esher and reversing Pollock and Day; Indigo Co, v. Ogilvy, 
[1891] 2 Ch. 31, North, and on appeal Lindley and Kay ; Grant v. Ander- 
son, [1892] 1 Q. B. 108, Esher and Kay affirming Coleridge and Wright; 
BLeineman <fb Co. v. Hale db Co., [1891] 2 Q. B. 83, Esher and Kay re- 
versing Cave and Charles; Dobson v. Festi, Basini <fc Co., [1891] 2 Q. B. 
92, Lindley, Xiopes and Kay affirriing Cave and Grantham. Service of 
notice of a writ out of the jurisdiction upon a foreign partnership in the 
name of the firm was held bad, though" by the foreign law the firm was a 

16 


- W.I.L. 



242 


PRIVATE INTERNATIONAL LAW. 


separate entity and could be properly sued in its firm name. Von Hellefeld 
V. Bichnitzer, [1914] 1 Ch. 748, Buckley, PhiUimore, Astbury. 

Under rule 1 a firm carrying on business within the jurisdiction may be 
sued in the firm name without leave, though all the partners are foreigners 
resident abroad : Worcester City and County Banking Co. v. Firhank, 
Pauling dc Co.j [1894] 1 Q. B. 784, Mathew and Collins partially affirmed 
by Esher, Lopes and Davey ; Lysaght Lim. v. Clark d* Co., [1891] 1 Q. B. 
662, Cave and Grantham. A foreign firm employing an agent in London 
to procure orders on commission does not carry on business within the 
jurisdiction within the meaning of this rule Grant v. Anderson (cited 
above). Okura d* Co. v. Forshacka, d-c., [1914] 1 K. B. 716, Buckley and 
PhiUimore affirming Ridley. 

Rule 11 does not apply to a foreigner resident abroad who carries on 
business within the jurisdiction in a name other than his own name. St. 
Oohain, Chauwy and Cirey Co. v. Hoyernuinn*s Agency, [1893] 2 Q. B. 
96, Esher and A. L. Smith ; Be Bernales v. New York Herald, [1893] 2 
Q. B. 97, note. Esher, Lindley and A. L. Smith affirming Lopes and 
Coleridge, who had affirmed Kennedy ; and Maciver v. G. and J. Burns, 
[1895] 2 Ch. 630, Lindley, Lopes and Rigby. 

182^/. A rxile was issued in 1920, allowing service on an 
agent residing in the jurisdiction and carrying on business on 
behalf of a principal outside the jurisdiction. 

“ Where a contract has been entered into within the jurisdic- 
tion by or through an agent residing or carrying on business 
within the jurisdiction on behalf of a principal residing or carry- 
ing on business out of the jurisdiction, a writ of summons in an 
action relating to or arising out of such contract may by leave of 
the court or a judge given before the determination of such 
agent ^s authority or of his business relations with the principal 
be served on such agent. Notice of the order giving such leave 
and a copy thereof and of the writ of summons shall forthwith 
be sent by prepaid registered post letter to the defendant or 
defendants at his or their address out of the jurisdiction. Pro- 
vided that nothing in this rule shall invalidate or affect any 
other mode of service in force at the time this rule comes into 
operation.’’ 

In a note issued by the Supreme Court explaining the new rule, it is 
pointed out : — 

The power of serving an agent given by this rule is one that must be 
exercised with great caution. It was not at all intended by the rule to 
do away with service out of the jurisdiction in ordinary cases. The power 
to make an order under the rule is discretionary, and except under excep- 
tional circumstances it ought not to be exercised in cases where there is 
no difficulty in getting an order for and effecting service out of the juris- 
diction in the ordinary way. An order should not be made under the rule 
merely because the defendant has contracted by or through an agent in 
this country. The application for an order under the rule should in each 
case be supported by an affidavit going fully into the circumstances relating 



PECULIAR MODES OF SERVICE. 


243 


to the making of the contract and the difficulties that exist in effecting 
service out of the jurisdiction in the ordinary way. 

§ 183. ‘‘ Service of a writ of summons in an action to recover 
land may, in case of vacant possession, when it cannot otherwise 
be effected, be made by posting a copy of the writ upon the door 
of the dwellinghouse or other conspicuous part of the property.’* 
Order IX of 1883, rule 9. 

§ 184. ‘‘ (12) In admiralty actions in rem, service of a writ 
of summons or warrant against ship freight or cargo on board 
is to be effected by nailing or affixing the original writ or 
warrant for a short time on the mainmast or on the single mast 
of the vessel, and on taking off the process leaving a true copy 
of it nailed or affixed in its place. (13) If the cargo has been 
landed or transhipped, service of the writ of summons or warrant 
to arrest the cargo and freight shall be effected by placing the 
writ or warrant for a short time on the cargo, and on taking 
off the process by leaving a true copy upon it. (14) If the cargo 
be in the custody of a person who will not permit access to 
it, service of the writ or warrant may be made upon the 
custodian.” Order IX. of 1883, rules 12, 13, 14. 

The court has jurisdiction to pronounce judgment, though the ship has 
been clandestinely removed out of the jurisdiction after service under this 
rule. The Nautik^ [1896] P. 121, Bruce; And see The Lady Blessingtorif 
34 L. J. Ad. 73, 

Where the cargo has been sold by arrangement between the parties, the 
person in possession of the proceeds of sale cannot be served under this 
rule, the owners being out of the jurisdiction : The Fornjotf [1907] 24 
T. R. 26, Bucknill. 

A warrant cannot issue against the freight except by arrest of the ship 
and cargo. The Kaleteriy [1914] T. L. R. 672, Evans, P. 

§ 185. In connection with the last § it may be observed 
that in actions by seamen, foreign or British, against foreign 
vessels, though the competence of the British court of admiralty 
is excluded by the terms of their service, that competence is not 
thereby ousted, but the court will exercise a discretion as to 
entertaining the action. It is necessary however before enter- 
taining it that notice be giyen to the representative of the 
government of the vesseUs country. 

• 

The Goluhchick (1840), 1 W. Rob. 143, Lushington : The Nina (1867), 
L. R. 2 A. & E. 44, Phillimore ; L. R. 2 P. C. 38, Romilly : The 
Leon XIII. y 8 P. D. 121, (1882) P^iillimore, (1883) Brett and Bowen. 

In The Annette and Doray [1919 J'P. 106, Hill, the English court accepted 
jurisdiction in a suit for possession of vessels between foreigners, the repre- 
sentative of the foreign state to which they belonged having requested the 



244 


PRIVATE INTERNATIONAL LAW. 


court’s intervention. The provisional government of North Russia claimed 
the vessels to be in the service of the government and thereby immune 
from arrest : but that government was not formally recognised by the 
powers, and the plea was not accepted. 

§ 186. ‘‘1. Service out of the jurisdiction of a writ of 
summons or notice of a writ of summons may be allowed by 
the court or a judge whenever : 

(a) The whole subject-matter of the action is land situate 
within the jurisdiction (with or without rents or profits) ; or 
the perpetuation of testimony relating to land within the juris- 
diction; or 

(h) Any act, deed, will, contract, obligation or liability, 
affecting land or hereditaments situate within the jurisdiction, 
is sought to be construed rectified set aside or enforced in the 
action; or 

“ (c) Any relief is sought against any person domiciled or 
ordinarily resident within the jurisdiction; or 

(d) The action is for the administration of the personal 
estate of any deceased person who at the time of his death was 
domiciled within the jurisdiction, or for the execution^ (as to 
property situate within the jurisdiction) of the trusts of any 
written instrument, of which the person to be served is a trustee, 
which ought to be executed according to the law of England ; or 
“ (e) The action is one brought against a defendant not 
domiciled or ordinarily resident in Scotland to enforce, rescind, 
dissolve, annul or otherwise affect a contract or to recover 
damages or other relief for or in respect of the breach of a 
contract (i.) made within the jurisdiction, or (ii.) made by 
or through an agent trading or residing within the jurisdiction 
on behalf of a principal trading or residing out of the juris- 
diction, or (iii.) by its terms or by implication to be governed 
by English law, or is one brought against a defendant not 
domiciled or ordinarily resident in Scotland or Ireland, in 
respect of a breach committed within the jurisdiction of a 
contract wherever made, even though auch breach was preceded 
or accompanied by a breach out of the jurisdiction which 
rendered impossible the performance of the part of the contract 
which ought to have been performed within the jurisdiction.^’ 
Br. S. C., June, 1921, annulling sub-rule (e) of Order XI. 
rule 1. 

(ee) The action is founded on a tort committed within the 
jurisdiction ” (R. S. C., 1920). 



SERVICE OUT OF JURISDICTION. 


246 


‘‘ (/) Any injunction is sought as to anything to be done 
within the jurisdiction, or any nuisance within the jurisdiction 
is sought to be prevented or removed, whether damages are dr 
are not also sought in respect thereof; or 

“ Any person out of the jurisdiction is a necessary or 
proper party to an action properly brought against some other 
person duly served within the jurisdiction; or 

{h) The action is by a mortgagee or mortgagor in relation 
to a mortgage of personal property situate within the jurisdic- 
tion and seeks relief of the nature or kind following, that is 
to say, sale, foreclostire, delivery of possession by the mort- 
gagor, redemption, reconveyance, delivery of possession by the 
mortgagee ; but does not seek (unless and except so far as 
permissible under sub-head (e) of this rule) any personal 
judgment or order for payment of any moneys due under the 
mortgage.’^ 

In this sub-head the expression personal property situate within the 
jurisdiction means personal property which, on the death of the owner 
thereof intestate, would form subject-matter for the grant of letters of 
administration to his estate out of the Principal Probate Registry ; the 
expression mortgage means a mortgage charge or lien of any description ; 
the expression mortgagee means a party for the time being entitled to or 
interested in a mortgage ; and the expression mortgagor means a party for 
the time being entitled to or interested in property subject to a mortgage. 
(R. S. C., August, 1916.) 

‘‘ 2. Where leave is asked from the court or a judge to serve a 
writ under the last preceding rule in Scotland o-r in Ireland, if 
it shall appear to the court or judge that there may be a con- 
current remedy in Scotland or Ireland (as the case may be), 
the court or judge shall have regard to the comparative cost 
and convenience of proceeding in England or in the place of 
residence of the defendant or person sought to be served, and 
particularly in cases of small demands to the powers and 
jurisdiction, under the statutes establishing or regulating them, 
of the Sheriffs' courts or Small Debts courts in Scotland, and 
of the Civil Bill courts in Ireland respectively. 

“ 2a. Notwithstanding anything contained in rule 1 of this 
wder, the parties to any contract may agree (a) that the High 
Court of Justice shall have jurisdiction to entertain any action in 
respect of such contract, and, moreover or in the alternative, 
(fe) that service of any writ of summons in any such action 
may be effected at any place within or out of the jurisdiction 
on any party or on any person on behalf of the party or in 



246 


PRIVATE INTERNATIONAL LAW, 


any manner specified or indicated in such contract. Service 
of any such writ of summons at the place (if any) or on the 
party or on the person (if any) or in the manner (if any) 
specified or indicated in the contract shall be deemed to be 
good and ^ective service wherever the parties are resident, and 
if no place or mode or person be so specified or indicated, service 
out of the jurisdiction of such writ may be ordered ” (R. S. C., 
1920). 

‘‘3. In probate actions service of a writ of summons or notice 
of a writ of summons may by leave of the court or a judge be 
allowed out of the jurisdiction. 

‘‘4. Every application for leave to serve such writ or notice 
on a defendant out of the jurisdiction shall be supported by 
aflSdavit or other evidence, stating that in the belief of the 
deponent the plaintiff has a good cause of action, and showing 
in what place or country such defendant is or probably may 
be found, and whether such defendant is a British subject or 
not, and the grounds upon which the application is made : and 
no such leave shall be granted unless it shall be made sufficiently 
to appear to the court or judge that the case is a proper one 
for service out of the jurisdiction under this order. 

‘‘5. Any order giving leave to effect such service or give 
such notice shall limit a time after such service or notice within 
which such defendant is to enter an appearance, such time to 
depend on the place or country where or within which the 
writ is to be served or the notice given. 

‘‘ 6. When the defendant is neither a British subject nor in 
British dominions, notice of the writ and not the writ itself is 
to be served upon him. 

‘‘7. Where leave is given under rules 1 and 6 of this order 
to serve notice of a writ of summons out of the jurisdiction, 
such notice shall subject to rule 8 of this order be served in 
the manner in which writs of summons are served. 

‘‘ 8. Where leave is given to serve notice of a writ of summons 
in any foreign country to which this rule may by order of the 
Lord Chancellor from time to time be applied, the following 
procedure shall be adopted : — • 

“ (1) The notice to be served shall be sealed with the se&l of 
the Supreme Court for use out of the jurisdiction, and shall 
be transmitted to His Majesty’s Principal Secretary of State for 
Foreign Affairs by the President of the Division, together with 
a copy thereof translated into the language of the country in 



SERVICE OUT OF JURISDICTION. 


247 


which service is to be effected, and with a request for the further 
transmission of the same to the government of the country in 
which leave to serve notice of the writ has been given, &b. 

‘‘ 8a. Service out of the jurisdiction may be allowed by the 
court or a judge of the. following processes or of notice thereof, 
that is to say : — 

“ (a) Originating summonses under Order LIVa. or Order LY. 
rule 3 or 4 in any case where if the proceedings were commenced 
by writ of summons they would be within rule 1 of this order. 

(6) Any originating summons, petition, notice of motion 
or other originating proceeding (i.) in relation to any infant or 
lunatic or person of unsound mind, or (ii.) under any statute, 

. . . or (iii.) under any rule of court or practice, whereunder 
proceedings can be commenced otherwise than by writ of 
summons. 

‘‘ (c) Without prejudice to the generality of the last fore- 
going sub-head any summons, order or notice in any interpleader 
proceedings or for the appointment of an arbitrator or umpire or 
to remit, set aside or enforce an award in an arbitration held 
or to be held within the jurisdiction. ^ 

(d) Any summons, order or notice in any proceedings duly 
instituted, whether by writ of summons or other such originating 
process as aforesaid. 

‘‘ Rules 2, 4, 5, 6, 7 and 8 of this order shall apply mutatis 
mutandis to such service. 

Nothing herein contained shall in any way prejudice or 
affect any practice or power of the court under which, when 
lands, funds, choses in action, rights or property within the 
jurisdiction are sought to be dealt with or affected, the court 
may, without affecting to exercise jurisdiction over any person 
out of the jurisdiction, cause such person to be informed of the 
nature or existence of the proceedings with a view to such 
persons having an opportunity of claiming, opposing or otherwise 
intervening.” 

Rule 9 provides the procedure for giving effect to letters of 
request from foreign tribunals for service of process on persons 
in England. 

Rule 10 authorises orders for substituted service under rule 9. 

This is Order XI, of 1883 as amended by the rules of July, 
1903, August, 1909, March^ 1911, May, 1912, August, 1916, 
July, 1920, and July, 1921. The following cases relating to its 
different heads have been decided. 



248 


PRIVATE INTERNATIONAL LAW. 


Rule 1. Where a case falls only in part under this rule, unconditional 
appearance is a submission to the jurisdiction as to the whole claim: 
Manitoba and North-West Land Corporation v. Allan ^ [1893] 3 Ch. 432, 
North. 

1 (a). An action for expenses caused by excessive use of the public road 
held not to be within this sub-section or sub-section (c). Clare County 
Council V. Wilson, [1913] 2 I. R. 89. 

1 (6). An action for slander of title to land is not within this head: 
Casey v. Arnott (1876), 2 C. P. D. 24, Grove and Denman ; decided on the 
rules of 1875. Nor is an action for rent : Agnew v. Usher (1884), 14 
Q. B. D. 78, Coleridge, Mathew and Smith. In Wilson*s Practice of the 
Supreme Court, 7th ed., p. 161, it is said that the court of appeal ajffirmed 
this decision on the ground that the plaintiff had not shown that the 
defendants were assignees of the lease. An action to recover compensation 
for tenant right according to the custom of the country is within this 
head : Kaye v. Sutherland (1887), 20 Q. B. D. 147, Stephen and Charles. 
An action on a breach of covenant to repair contained in a lease is within 
this head : T abseil v. H alien, [1892] 1 Q. B. 321, Coleridge and Collins ; 
and see Att.-Gen. v. Drapers* Co., [1894] 1 I. R. 185, where service in 
England was allowed by the Irish courts for a breach of trust as to lands 
in Ireland. 

1 (c). As to the domicile or residence of corporations, see below, in the 
chapter on Corporations and Public Institutions. 

The residence of an ambassador’s wife at the embassy is not a residence 
within the jurisdiction under this rule. Ghikis v. Musurus, [1909] 26 
T. R. 225, Parker. 

1 (d). The existence of such property within the jurisdiction is a con- 
dition precedent to service under this head : Winter v. Winter, [1894] 
1 Ch. 421, Stirling. For a curious case where the county court rule was 
wider than this rule and difficulties consequently arose on a transfer of 
the case to the High Court, see Wood v. Middleton, [1897] 1 Ch. 161. 

1 (e). It is not necessary that performance within the jurisdiction be 
expressly stipulated, but it must result from the contract: Bell dc Co. v. 
Antwerp, London and Brazil Line, [1891] 1 Q. B. 103, Esher and Kay 
affirming Cave and Day. On a contract for the transfer of shares, it was 
held that the obligation to such performance resulted from the duty of 
delivering the deed of transfer to the transferee, who was resident within 
the jurisdiction : BeyiuMs v. Coleman (1887), 36 Ch. D, 453, Kay affirmed 
by Cotton and Bowen. On a contract by a foreign company to employ the 
plaintiffs as their sole representatives in England it was held that the 
contract imported an obligation to refrain from interference within the 
jurisdiction with the agency : Mutzenhecher v. La Aseguradora Espaflola, 
[1906] 1 K. B. 264, Collins and Gorell Barnes. On a contract for machinery 
to be erected out of the jurisdiction by plaintiffs resident within it, it was 
held that the order applied because the defendants were bound to send or 
bring the price to the plaintiffs : Bohey v. Sncefell Mining Co. (1887), 
20 Q. B. D. 152, Stephen and Charles; Thompson v. Palmer, [1893] 2 
Q. B. 80, Esher, Lopes and A. L. Smith. Similarly on a consignment of 
goods to be sold in Germany : Bein v. Stein, [1892] 1 Q% 763, Lindley 
aWKay affirming Cave and Vaughan Williams. Similarly, on a contract 
for sale of champagne by the defendants qut of the jurisdiction as agenia 
of the plaintiffs domiciled in England : Charles Duval <h Co . , Lim. v. 
Gans, [1904] 2 K. B. 685, Btirling and Mathew. In Drexel v. Drexel, 
[1916] 1 Ch. 267, at p. 2M, Nevile, it was held that j^9-payi9f!iiti of a 



SERVICE OUT OF JURISDICTION. 


240 


^para tion allowance to a wile resident, in ETngland was a breach within 
tne j urisdiction, though no place of payment was mentioned in the deed. 
Prior to the issue of the rule in 1921 amending the previous rule, it was 
held in the House of Lords that where the essential breach of a contract 
made in England took place out of the jurisdiction, the fact that there 
was a consequential failur:e to carry out the terms of the contract iri Eng- 
land did not give a basis of jurisdiction to the English court. Johnson v. 
Taylor Bros., [1920] A. C, 144, Birkenhead, C., Haldane, Dunedin, Atkin- 
son and Buckmaster, overruling Bankes, Warrington and Scrutton, L.JJ. 
The contract was to ship iron from Sweden to England over a period of 
years, and the essential breach was failure to ship the goods ; the inci- 
dental failure to deliver the shipping documents in England was not 
sufficient to found jurisdiction under the old rule. But the tendency of 
the British rule-making authority has been continually to enlarge the 
jurisdiction in contract of the English courts over foreign persons entering 
into engagements to be performed in England and to derogate from the 
rule actor seqvitur forum rei where there is any basis for so doing. It 
is notable that the case of Johnson v. Taylor was distinguished in a later 
appeal to the Privy Council: Hemshryck v. TFm. L\fall Shipping Co., 
[1921] A. C. 698, when it was held that the repudiation by the buyer under 
a contract for sale of ships to be delivered within the jurisdiction, but to 
be paid for outside the jurisdiction, was a real and substantial breach 
which justified an order for service outside the jurisdiction. The wording 
of the later rule dispels any doubts. 

An action to enforce payment on a contract of salvage of a ship on the 
coast of England is not within this head, if the place of payment is abroad : 
The Eider, [1893] P. 119, Jeune, Esher, Lindley and Bowen. Nor if the pay- 
ment was not bound to be made in cash within the jurisdiction : Comber v. 
Leyland, [1898] A. C. 524, Halsbury, Herschell, Macnaghten, Morris and 
Shand overruling Esher, A. L. Smith and Rigby. Nor on a sale of goods 
under a c.i.f. contract to be shipped from a place not within the jurisdic- 
ticm : Crozier, Stephens do Co. v. Auerbach, [1908] 2 K. B. 161, Vaughan 
Williams and Farwell overruling Bigham and Barrow v. Myers, 
4 T. R. 441, Manisty and Mathew. But in Biddell Bros. v. Horst dh Co., 
[1912] A. C. 18, it was held that in a c.i.f. contract between a foreign 
vendor and English purchaser, the place of performance is England unless 
there are special items in the contract showing a contrary intention, and 
a claim for the non-delivery of the shipping documents may be made in 
England. When a judge is in doubt whether there has been a breach of 
contract within the jurisdiction, he may make an order for service out of 
the jurisdiction, at the same time imposing on the plaintiff the condition 
of recovering at the trial only the amount as to which it shall appear thfft 
service out of the jurisdiction was proper: Thomas v. Hamilton (1886), 
17 Q. B. D. 592, Day affirmed by Esher, Bowen and Fry. The dismissal 
of a London correspondent of a foreign newspaper by a letter written 
abroad is not a breach within the jurisdiction under this head : Holland 
V. Bennett. [1902] 1 K. B. 867, Vaughan Williams and Mathew. 

Prior to the addition of sub-section (h) it was held that an action for fore- 
cj oture of a mortgage was not an action on a contract undeFlhls^ headT : 
Deutsche^ NaitonaT Bank v. Paul, [1898] 1 Ch. 283, Stirling; nor 
action to enforce a charging order against shares in an English company : 
Kolehmann v. Meurice, [1909] 1 K. B. 534, Vaughan Williams, 
Stirling affirming Joyce. The conditions in the new form of the order on 
which a writ may be served are disjunctive; and, therefore, when the 



250 


PRIVATE INTERNATIONAL LAW. 


contract was made within the jurisdiction, there is power to order service 
out of the jurisdiction though it was not to be governed by English law. 
Wanshrough Paper Co, v. Laughlandy [1920] W. N. 344, Bankes, Scrutton 
and Atkin. Conversely, when a contract was made in New York between 
a Canadian company, with an office in London, and a foreign subject, and it 
was expressly stipulated that it should be considered “ to be duly made and 
executed in London,” it was held by its terms to be governed by English 
law, and therefore leave to serve the writ out of the jurisdiction was 
rightly ordered. British Controlled Oilfields, Lim. v. Stagg, [1921] W. N. 
319, Sargant. 

There is no power under this head to order service out of the jurisdiction 
on a defendant domiciled or ordinarily resident in Scotland or Ireland; 
tho express exception in rule 1 (e) is not reduced by rule 2 to a discre- 
tionary exception : Lenders v. Anderson (1883), 12 Q. B. D. 50, Grove and 
Huddleston, Field agreeing, and see Channel Coalin Co. v. Boss, [1907] 
1 K. B. 145, Alverstone and Darling ; a similar case under the county court 
rules. And substituted service cannot be resorted to in such a case : 
Hilhjard v. Smith (1887), 36 W. R. 7, Smith and Charles. An express 
agreement that the writ may be served on an agent in England is valid : 
Montgomery Jones rf- Co. v. Liehenthal (t* Co., [1898] 1 Q. B. 487. But 
an agreement that the writ may be served on the defendant in Scotland is 
void: British Wagon Co., Lim. v. Gray, [1896] 1 Q. B. 35, Esher, Lopes 
and Kay. It is doubtful, however, whether this ruling would apply now 
in view of the express terms of the new rule 2 (a). 

1 (/). See Tozier v. Hawkins (1885), 15 Q. B. D. 660, Coleridge and 
Cave ; ib. 680, Brett, Baggallay and Bowen ; and, for a case of infringe- 
ment of a patent in England by foreigners abroad, Chemische Fahrik 
vormals Sandoz in Basel v. Badische Anilin und Soda Fahrik, [1904] 20 
T. R. 552, Macnaghten, Davey, James and Robertson, affirming Collins, 
Romer and Cozens-Hardy, who affirmed Joyce. Apparently service under 
this head would not be allowed if it were shown that there were not, an(^ 
were never likely to be, any means of enforcing the injunction in England. 
See J)e Bernales v. New York Herald, [1893] 2 Q. B. 97 (note), Lopes and 
Coleridge, at p. 98 ; where leave was refused also on the ground that the 
claim for an injunction was not made bond fide, but was added for the 
purpose of bringing the case within this head. The court has a discretion : 
Be Ve Penny, Be Penny v. Christie, [1891] 2 Ch. 63, Chitty. Leave was 
refused in the case of an alleged libel published in a Scotch newspaper, only 
a few copies of which were sold in England ; Watson & Sons v. Daily 
Becord {Glasgcnv) Lim., [1907] 1 K. B. 853, Collins and Cozens-Hardy 
overruling A. T. Lawrence. Leave was allowed by the Irish courts in an 
action against a company out of the jurisdiction, for an injunction to 
restrain the company from publishing in Ireland an advertisement con- 
taining pictures of the plaintiff, said to be libellous. The mischief 
complained of was resented locally, and the remedy must be made effective 
locally: Dunlop Bubber Co., Lim. v. Dunlop, [1921] 1 A. C. 367, H, L., 
Birkenhead, Moulton, Atkinson, Buckmaster, affirming Irish Court of 
Appeal. The service was hpheld in a bona fide case; Alexander Co., 
Lim. V. Valentine & Sons [1907] Lim., [1908] 26 T. R. 29, Buckley 
and Kennedy. As to what is a ** thing to be done within the jurisdiction ” 
see The Badische Anilin und Soda Fahrik v. Ba^el Chemical Works, 
Bindschedler, [1898] A. C. 200, Halsbury, Herschell, Macnaghten and 
Davey. 

An English court has no jurisdiction to grant an injunction restraining 



SERVICE OUT OF JURISDICTION. 


251 


an Englishman from violating the rights accorded to another Englishman 
in a foreign country by the laws of that country: ** Morocco Bound'' 
Syndicate, Lint. v. Harris, [1896] 1 Ch. 534, Kekewich. 

1 (g). The person within the jurisdiction must be served before an order 
for service out of the jurisdiction is made under this head : Lightowler v. 
Lightowler (1884), W. N. 1884, p. 8, Butt; Yorkshire Tannery v. Eglinton 
Chemical Co. (1884), 54 L. J. Ch. 81, Pearson ; and TasseU v. Itallen 
above under 1 (b). A party may be proper under this head without being 
necessary, and, subject .to the discretion of the court, he will be so 
whenver, if within the jurisdiction, he could have been made a party under 
Order XVI. of 1883 : Massey v. Haynes (1888), 21 Q. B. D. 330, Wills and 
Grantham affirmed by Esher, Lindley and Lopes. See The Elton, [1891] 
P. 265, Jeune. Thanemore Steamship Co. v. Thompson (1885), 62 L. T. 
552. The test is, “ Supposing both the defendant firms were resident 
within the jurisdiction, would they both have been joined in the action ?*’ ; 
Witted V. Galbraith, [1893] 1 Q. B. 677, Lindley and Kay reversing 
Hawkins and Coleridge, followed in Boss v. Eason, [1911] 2 I. R. 469, 
Walker, Palles, Gibson and Boyd. Oesterreichische Export v. British 
Indemnity Co., [1914] 2 K. B. 747, Kennedy and Swinfen Eady, L.JJ., 
affirming Coleridge, J., where there were two underwriters on a policy, one 
in England and one in Scotland, and it was held that the Scotch company 
were proper parties in the action. The action against both defendants 
must be substantially the same : Collins v. North British Mercantile Insur- 
ance Co., Pratt V. The Co., [1904] 3 Ch. 228, Kekewich. The fact that 
the cause of action arose out of the jurisdiction is immaterial : The Due 
d'Aumale, [1903] 18, Gorell Barnes; and Deutsche Nafioiial Bank v. 

Paul, [1898] 1 Ch./283, Stirling. 

See the orders made under this head in support of an action for enforcing 
a creditors* deed relating to foreign land: Jenney v. Mackintosh, above, 
p. 218, and in support of an action to enforce an equitable charge over 
foreign land : Duder v. Amsterdamsch Trustees Kantoor, [1902] 2 Ch. 
132,, Byrnej and where a person out of the jurisdiction supplied goods to 
a dealer in Ireland, which infringed Irish patent rights : Joynt v. 
McCrum, [1899] 1 I. R. 217 ; and in support of an action for the adminis- 
tration of the estate of a person domiciled abroad but who left assets in 
England: Be Lane, Lane v. Bohin (1886), 56 L. T. (N. S.) 149, Pearson; 
and see McCheane v. Gyles, below, p. 253. This rule has been held to 
apply where the plaintiff has an alternative claim against either the person 
within the jurisdiction or the person out of the jurisdiction: Witted v. 
Galbraith, [1893] 1 Q. B. 431 (but see the same case, at p. 677). The 
court has a discretion which should be exercised with great care ; The 
Hagen, [1908] P. 189, Alverstone, Farwell and Kennedy overruling 
Bargrave Deane, where an order giving leave to serve the owner of .a 
foreign ship was discharged on the ground that the collision took place 
abroad and proceedings were commenced without undue delay by the 
foreign owners in the local courts. 

The discretion should not be exercised in a case where plaintiQs in England 
brought an action against two companies out of the jurisdiction. They 
had shipped goods in a vessel owned by a company domiciled in Scotland, 
and the vessel having been requisitioned, the cargo was loaded on another 
ship without their knowledge or consent, which ship was sunk. The first 
defendant consented to the j uriiidiction of the English court, and the 
plaintiffs then asked leave to serve writ on second defendants out of the 
juffsdidtion. The consent of the first defendant could not affect the 



252 


PRIVATE INTERNATIONAL LAW. 


rights of the other, and the action was not properly brought he;re 
against the first defendant : Bv^sell v. Cayzer, [1916] A. G. 298, see tabove, 
p. 238. This discretion is not limited by Order XI, rule 2 : Lopez v. 
Chavarriy [1901] W. N. 116, Farwell. This rule applies to actions on tort : 
Croft V. Kingy [1893] 1 Q. B. 419, Day and Collins, and Williams v. Cart- 
wrighty [1896] 1 Q. B. 142, Lopes and Rigby, Esher dissenting. 

2. The discretion enjoined by this rule only applies to cases which do not 
fall within the exception in rule 1 (c) : it does not limit that exception : 
Lenders v. AndersoUy cited above under rule 1 (e) ; it does not apply to 
service within the jurisdiction : Logan v. Bank of Scotlandy [1904] 2 
K. B. at p. 600. 

The following cases illustrate the mode in which the discretion enjoined 
by this rule will be exercised. Cresswell v. Parker (1879), 11 Ch. D. 601, 
J ames, Baggallay and Bramwell reversing Malins ; Karris v. Fleming 
(1879), 13 Ch. D. 208, Hall : two cases on the analogous discretion in the 
rules of 1876. Harvey v. Dougherty (1887), 66 L. T. (N. S.) 322, Kay; 
Marshall v. Marshall (1888), 38 Ch. D. 330, Cotton and Fry affirming 
North ; Be Burland's Trademarky Burland v. Broxburn Oil Co, (1889), 
41 Ch. D. 642, Chitty ; Kinahan v. Kinahan (1890), 46 Ch. D. 78, 
Kekewich ; Be De Penny y [1891] 2 Ch. 63, Chitty ; Witted v. Galhraithy 
above. The comparative cost and convenience is that of all parties : 
Williams v. Cartwright, [1895] 1 Q. B. 142, at p. 148, Lopes and Rigby ; 
and see Joynt v. McCrum, [1899] 1 I. R. 217, above. 

Sufficiency of evidence discussed in Chemische Fabrik normals Sandoz in 
Basel V. Badische Anilin und Soda Fabriky [1904] 20 Times Law Reports, 
662, cited under r. 1 (/). 

8. This rule does not apply to service on a British subject in the 
countries to which it applies. It was applied to the German empire by 
an order of the Lord Chancellor dated 4th July 1904, but the order was 
cancelled in November, 1914, and special directions were issued. See Annual 
Practice, 1922, p. 107 — to Russia by order dated 2l8t March 1906, to 
France, Spain and Belgium by order dated 2nd August 1910, to Portugal 
by order of 22nd March, 1912, to Japan by order of April, 1912, and 
Greece, 25th November, 1917. Until this rule is so applied the old practice 
continues. 

8a. This new rule, issued in July 1920, enlarges the powers of the court 
to grant leave for service out of the jurisdiction of other judicial proceed- 
ings besides a writ or notice of a writ. It thus includes within the scope 
of Order XI an originating summons or any other summons notice or 
order. But the circumstances which justify the court in granting leave 
for service out of the jurisdiction of a writ or notice of writ under rule 1 
must still be shown before leave will be granted in respect of any summons, 
order or notice under rule 8a. The latter portion of the rule applies the 
provisions of rule 8 to any summons order or notice which is to be served 
on a foreigner in any of the countries to which rule 8 applies. In Be 
Aktiebolaget Bobertsfors and La SocUU Anonyme des Papeteries de VAa, 
[1910] 2 K. B. 727, Alverstone, Pickford, Coleridge. 

Under the old rule it was held that service of an originating summons 
could not be ordered on a party in Scotland, because that rule provided 
that service should be on a person in a foreign country, and Scotland 
was not a foreign country. Be Campbell, [1920] 1 Ch. 36, Eve. 
But the words in the present^ rule are wider and would appear to cover 
service of any summons on a British subject resident anywhere out of the 
jurisdiction. 



SERVICE OUT OF JURISDICTION. 


255 


§ 187. “ Where a defendant claims to be entitled to contri- 
bution or indemnity over against any person not a party to the 
action, he may, by leave of the court or a judge, issue a notice, 
hereinafter called the third party notice, to that effect, stamped 
with the seal with which writs of summons are sealed. A copy 
of such notice shall be filed with the proper officer and served 
on such person according to the rules relating to the service of 
writs of summons.’’ Order XVI of 1883, rule 48. 

It seems that wherever the action is one falling under Order XI (above 
§ 186), service out of the jurisdiction of a third party notice may be 
allowed in it, subject to the exceptions with regard to Scotland and Ireland 
contained in that order : Buhout v. Macpherson (1889), 23 Q. B. D. 340, 
Smith and Day. But the right to indemnity entitling the defendant to 
issue a third party notice must be under a contract to indemnify ; Speller 
V. Bristol Steam Navigation Co, (1884), 13 Q. B. D. 96, Brett, ]^wen 
and Fry. 

But a third party notice cannot be served under the combined effect of 
this rule and Order XI, rule 1 (gf), unless one of the proposed third parties 
has been served with the notice within the jurisdiction : McCheane v. 
Gyles, [1902] 1 Ch. 287, Vaughan Williams, Romer and Cozens- Hardy. 

§ 187<z. ‘‘ The court or a judge may at any stage in the pro- 
ceedings, either upon or without the application of either party, 
and on such terms as may appear to the court or a judge to be 
just, order . . . that the names of any parties, whether plaintiffs 
or defendants, who ought to have been joined, or whose presence 
before tKe court may be necessary in order to enable the court 
effectually and completely to adjudicate upon and settle all the 
questions involved in the cause or matter, be added.” Order XVI 
of 1883, rule 11. 

The court has a discretion under this rule, and has refused to require a 
plaintiff to add a defendant where the proposed defendant was a foreigner 
out of the jurisdiction : Wilson Sons rfc Co. v. Balcarres Brook Steamship 
Co.y [1893] 1 Q. B. 422, Esher, Bowen and A. L. Smith. 

§ 188. Service out of the jurisdiction, whether of a writ or of 
notice of a writ or of any other proceeding, can now be made 
only under the rules set out in § § 186 and 187 ; no earlier or 
other practice is applicable. See however the exceptions to this 
statement which may perhaps result from the cases cited below. 

That the court would have been competent so far as the res was con- 
cerned, if the ship could have been arrested within the jurisdiction, is na 
reason for allowing service out of the jurisdiction ; Be Smith (1876), 1 
P. D. 300, Phillimore ; The Vivar (1876), 2 P. D. 29, Phillimore affirmed by 
James, Baggallay and Bramwell; Karris v. Owners of Franconia (J877), 
2 C. P. D. 173, Coleridge, Grove ind Denman. 

Service out of the jurisdiction cannot be ordered because a fact which 
occurred out of the jurisdiction has caused damage within the jurisdiction ; 



264 


PRIVATE INTERNATIONAL LAW. 


Shearman v. Findlay (1883), 32 W. R 122, Grove and Mathew ; case of a 
libel published out of the jurisdiction. 

Prcxjeedings relating to funds in court have been ordered to be served out 
of the jurisdiction on persons alleged to be or to claim to be interested in 
them, on the ground of necessity: Colls v. Bohins (1886), 65 L. T. (N. S.) 
479, Kay ; Be Buddiman's Trusts (1887), 31 Sol. J. 271, Stirling ; Be 
Gordon* s Settlement Trusts^ [1887] W. N., p. 192, Chitty ; Be Baron 
Liehkfs Cocoa dr., WorhSy [1888] W. N., 120, North. But in Be Jellardy 
[1888] W. N., pp. 184, 186, where North declined to act on the authority 
uf Be Gordon* s Settlement Trusts, Cotton, Fry and Lopes found a way out 
of the difficulty wiihoAt deciding the point. 

Although notice of motion to expunge an English trademark could not be 
served abroad, the court has made the order in the absence of the registered 
proprietor who was abroad and to whom actual notice had been given ; 
Be King d: Co.*s Trademark, [1892] 2 Ch. 462, Lindley, Bowen and Kay 
affirming Kekewich ; and see La Comjxignie G^n^rale d*Eaux Minirales et de 
Bains de Mer, [1891] 3 Ch. 461, Stirling. 

Under the Workmen’s Comjiensation Act, 1897 (60 & 61 Viet. c. 37, 
2nd schedule, clauses 9 and 14), where the parties are resident within 
different parts of the United Kingdom, the court of the district within 
which the accident hapi>ened has jurisdiction, and proceedings may be 
served in other parts of the United Kingdom by registered letter: Bex v. 
Owen, [1902] 2 K. B. 436, Alverstone, Darling and Channell. 

§ 189. The rules of 1883 do not “ affect the procedure or 
practice ’’ in certain matters, of which the only one that is 
important for our subject is described as ‘‘ proceedings for divorce 
or other matrimonial causes.’’ Order LX VIII of 1883, rule 1. 
These continue to be governed by the earlier practice. 

Service of the petition can be effected on a co-respondtent out of the 
jurisdiction without leave and independently of his domicile or nationality. 
Bayment v. Bayment and Stuart, [1910] P. 271, Evans. The rules as to 
service in a suit for restitution of conjugal rights, made by the President 
of the Division in 1914, are set out above at p. 92. 

In Truhner v. Ti'uhner and Cristiani (1889), 15 P. D. 24, Butt, a citation 
was allowed to be served on a foreign co-respondent abroad by inclosing it 
in a registered letter addressed to him, it being proved that service on him 
of foreign process by a person at the spot would have given him a right of 
action by the law of the country where he was living. 

Similar service was allowed on a co-respondent in Portugal, it being 
proved that letters of request from England to Portugal would be 
ineffectual : Wray v. Wray and B* Almeida, [1901] P. 132, Gorell Barnes ; 
and also in Stumpel v. Stumpel and Zeppel, [1901] 70 L. J. P. 6, Jeune. 
As to disi>ensing with service of the petition on a foreigner abroad against 
whom allegations of adultery are made, see Boger v. Boger, [1908] P. 300, 
Bargrave Deane. Bush v. Bush and Pimenta, [19131, above p. 89. 

Note on Actions for Trespass to Foreign Soil, 

In the case of the M. Moxham, commenced in the Court of Admiralty 
but heard in the Supreme Court after the fusion, a British ship had 
damaged by collision a pier on the coast of Spain, and the parties had 
entered into^n agreement that the dispute thence arising should be tried 



TRESPASS TO FOREIGN SOIL. 


255 


in England; Lord Justice James observed that, but for such agreement, 

“ very grave difficulties indeed might have arisen as to the jurisdiction of 
this court to entertain any action or proceedings whatever with respect to 
injury done to foreign soil (1876), 1 P. D. 109. We have seen in § 180 
that nothing in the acts and orders regulating the Supreme Court is 
opposed to such an action, when the writ is served in England : on the 
other hand there is nothing in those acts or orders that expressly gives the 
jurisdiction, and the question whether it exists must therefore be decided 
on a consideration of the powers of the courts from which the Supreme 
Court inherits. 

In Skinner v. Ea^f India Co. (1665), cited to Lord Mansfield in 
Mostyn v. Fahrigas (1774), Cowp. 161, at p. 168, the king in council pro- 
pounded to the judges the question “whether Mr. Skinner,’’ who claimed 
in respect of damage done in foreign and uncivilized regions, “could have 
a full relief in any ordinary court of law.’’ And they answered “ that his 
majesty’s ordinary courts of justice at Westminster can give relief for 
taking away and spoiling his ship, goods and papers, and assaulting and 
wounding his person, notwithstanding the same was done beyond the seas. 
But that as to the detaining and possessing of the house and islands in the 
case mentioned, he is not relievable in any ordinary court of justice.’’ 
Lord Mansfield, however (p. 180), mentioned a previous action before him- 
self against Captain Gambier, for pulling down houses in British though 
uncivilized regions, in which an objection founded on the same citation was 
made, but a case was produced in which Lord Chief Justice Eyre had over- 
ruled the objection; continuing, “and I overruled the objection upon this 
principle, namely that the reparation here was personal and for damages, 
and that otherwise there would be a failure of justice; for it was uix)n the 
coast of Nova Scotia, where there were no regular courts of judicature, 
but if there had been Captain Gambier might never go there again ; and 
therefore the reason of locality in such an action in England did not hold. 
I quoted a case of an injury of that sort in the East Indies, where even in 
a court of equiiy Lord Hardwicke had directed satisfaction to be made in 
damages.’’ In British South Africa Co. v. Companhia de MoQamhique, 
[1893] A. C. 602, at p. 633, Lord Halsbury identified the case before 
Eyre, C.J., with Shilling v. Farmer [1738], 1 Strange 646, and pointed 
out that Lord Mansfield’s account of it was erroneous, Eyre having rejected 
the evidence about trespass to a house in the East Indies and only admitted 
that about trespass there to the person. It would seem then that in the 
opinion of Mansfield, though not of Eyre, a local action for a cause arising 
abroad was admissible ; always, I imagine, supposing that the defendant 
was either a British subject or resident in England, for otherwise the 
reason would fail, since he might be sued in his own country. 

But in Voulson v. Matthews (1792), 4 T. R. 503, which was an action for 
expelling the plaintiff from his dwelling-house in Canada, Kenyon and 
Buller decided against the plaintiff solely on the ground of the distinction 
between transitory and local actions, the wisdom or policy of which Buller 
said it was too late to question. Apd the Ix>rd8 in the British South Africa 
Co.^s case held that such decision was not founded merely on the technical 
difficulty about a local venue. See especially Herschell, at p. 621. That 
case has finally decided that English courts have no jurisdiction to enter- 
tain actions to recover damages for trespass to land situate abroad : Com- 
panhia de Mozambique v. British South Africa Co., [1893] A. C. 602, Her- 
schell, Halsbury, Macnaghten and Morris, overruling Fry and Lopes— 
[1892] 2 Q. B. 358 — and supporting Esher, who dissented in the Court of 
Appeal, Lawrance and Wright. 



256 


PRIVATE INTERNATIONAL LAW. 


E territoriality. 

But to the foregoing rules, which determine the actions that 
will be entertained by the English court, there is a class of 
exceptions that it especially belongs to our subject to notice, 
because they are not only directly connected with international 
law, but are also admitted in all countries on similar principles 
and with the same or nearly the same limits. These are the 
exceptions made in favour of states, of sovereigns, and of 
ambassadors or other persons charged with diplomatic missions. 
They are grounded on the independence and dignity of the states 
or sovereigns and of the diplomatists who represent them, and 
on the necessity of preventing the public business the latter have 
to transact from being impeded by the annoyance and loss of 
time which lawsuits would occasion; and any violation of the 
immunities which they create would be regarded as a high breach 
of public international law. In former times they were carried 
to an extravagant extent. An ambassador’s residence was in 
most countries an asylum even from criminal justice, and some- 
times large franchises were enjoyed by the quarter of the city in 
w’hich it stood. A fiction, the practical scope of which must not 
be extended beyond what there is positive authority for in each 
matter, treated such a residence, and that which a sovereign 
might occupy while abroad, as forming part of the ambassador’s 
or of such sovereign’s country, and therefore as being without 
the territory in which it lay in fact. And the name of exterri- 
toriality, derived from that fiction, has become attached to the 
whole class of exceptions from rules of jurisdiction now in 
question. 

From a general point of view it may be said that so far as a 
state, or a person within the exception of exterritoriality, is 
liable to be sued at all, there is no forum rei gestce^ and the 
forum rei is to be found within the state itself, or in the proper 
country of the person. But the exception of exterritoriality 
does not extend to the forum rei sitce^ for no country can be 
expected to renounce the determination of the property in its 
soil. The doctrines established in England are as follows. 

§ 190. Foreign states, and those persons in them who are 
called sovereigns, whether their title be emperor, king, grand- 
duke, or any other, and whether their power in their states be 
absolute or limited, oanhot be sued in England on their obliga- 
tions, whether ex contractu^ quasi ex corUractu, or ex delicto: 



EXTERRITORIALITY : SOVEREIGNS. 


267 


Except that possibly a maritime lien may be enforced in an 
action in rem against a ship belonging to a foreign sovereign in 
his private character and employed exclusively in commerce.^ 
There may not be the same objection to suing a foreign sove- 
reign in that manner, , and in a matter unconnected with his 
public character, which tljere would be to serving on him a writ 
or notice of a writ.t 

Maritime liens are not enforceable against foreign ships of war : The 
Constitution (1879), 4 F. D, 39, Phillimore — a case of salvage, and the 
immunity extended to a cargo with the care and protection of which the 
foreign government stated that it had charged itself for public purposes. 

In the case of The Charkieh (1873), L. R. 4 A. & E. 69, which was a 
claim for damage against a ship belonging to the khedive of Egypt and 
employed in commerce, Sir R. Phillimore decided in favour of the plaintiffs 
on the grounds that the khedive was neither sovereign nor semi-sovereign, 
and that even a sovereign would not have enjoyed immunity under the 
circumstances. In the case of The Farlement Behje (1879), 4 P. D. 129, 
which was a claim for damage against a public Belgian ship, the same 
judge decided in favour of the plaintiffs on the ground that she was 
mainly employed in commerce. But this was reversed by James, Baggallay 
and Brett, who held that they were precluded from enquiring into the 
facts of her employment by the declaration of the king of the Belgians that 
she was in his possession as sovereign and was a public vessel of the State : 
(1880), 6 P. D. 197. The judgment discusses and condemns the notion that 
only ships of war, and not all public ships, are exempt from foreign 
jurisdiction. This was followed in The Jassy, [1906] P. 270, Gorell 
Barnes. The rule received a wide extension during the European war, 
1914 — 1918, when a large part of the mercantile marine was requisitioned 
by governments for transporting munitions, &c., and there was what 
Scrutton, L.J., called “ a fashion of nationalization.” Vessels so 
requisitioned were held to enjoy the immunity of public ships, though not 
employed exclusively for purposes of war. The Porto Alexandre, [1920] 
P. 30, C. A., Bankes, L.J., Warrington, L.J., Scrutton, L.J., affirming 
Hill. A contrary view taken by the great American judge, Marshall, 
in V.S. Bank v. Planters Bank, (1824), 9 Wheaton 904, was not followed. 
See too The Broadmayne, [1916] P. 64, Evans, affirmed by Swinfen Eady, 
Pickford, Bankes ; The Messicano, [1916] 32 T. L. R. 619, Evans ; The 
Annette and I)oia, [1919] P. 105, Hill; The Gagara, [1919] P. 95, Hill. 

Vessels chartered or requisitioned by a government only enjoy immunity 
from arrest while they are subject to the charter or the requisition ; and 
proceedings in rem may proceed against them, so that the judgment may 
be enforced as soon as the charter or requisition is terminated : The 
Broadmayne (u.s.). ' See also, The Tervckete, Addenda, p. xxvii. 

The extension of the privileges of public ships to vessels employed by 
the state for commercial purposes appears to be unjustifiable in principle; 
and it is noteworthy that a clause has been included in the Treaties of 
Peace signed at the conclusion of the Great War, providing that if the late 

* The wording of previous editions that probably a lien may be enforced, has 
been changed to one more cautious in view of recent decisions which carry a step 
further the immunity from process o^^government ships. 

fSee an article on the whole subject by A. D. McNair in the British Yesar- 
Book of International Law, 1921-92. 


W.I.L. 


17 



268 


PRIVATE INTERNATIONAL LAW. 


enemy governments engage in international trade they shall not in respect 
thereof have or be deemed to have any rights, privileges or immunities of 
sovereignty (see Article 281 of the Treaty of Versailles, Article 368 of the 
Treaty of Sevres). Presumably the International Court of Justice would 
'hold that the same rules should be applied to vessels of the Allied States 
engaged in comm.ercial voyages; and the Articles may be regarded as the 
introduction of an international rule limiting the immunity of public ships. 

The court will take judicial cognizance of the nature and extent of the 
sovereignty of a foreign prince or state: Mighell v. Sultan of Johorey 
[1894] 1 Q. B. 149, cited under § 192; Foster v. Globe Syndicate, Limited, 
[1900] 1 Ch. 811, Farwell. Recognition of a new state or a government or a 
sovereign need not be absolute, but may be provisional ; when certified 
by the British government, it is conclusive upon the court, which will not 
examine for itself the official acts and conduct of the state or sovereign so 
recognized: The Gogara and The Annette and Dora (u.s.). 

The rules as to substituted service cannot be wrested so as to make a 
British colonial government suable in England : Slonian v. Governor and 
Government of New Zealand (1876), 1 C. P. D. 563, James, Hellish, Bag- 
gallay. 

A ship owned by the Canadian government is for this purpose owned by 
the crown ; Young v. S.S. Scotia, [1903] A. C. 501, Halsbury, Macnaghten, 
Shand, Davey, Robertson, Lindley and Wilson. 

A foreign ruling prince in India cannot be made a co-respondent in a 
suit for divorce. Statham v. Statham and the Gaekwar of Baroda, [1912] 
P. 92, Bargrave Deane. 

§ 191. To the rule laid down in § 190 an exception appears 
to have existed in the case of a foreign sovereign who was also 
a British subject. The Duke of Cumberland having become 
king of Hanover in 1837, an ineffectual attempt was made to sue 
him* in this country for what was held both in the court of 
chancery and in the House of Lords to be an act of state. But 
Lord Langdale said I am of opinion that his majesty the king 
of Hanover is and ought to be exempt from all liability of being 
sued in the courts of this country for any acts done by him as 
king of Hanover, or in his character of sovereign prince, but 
that, being a subject of the queen, he is and ought to be liable 
to be sued in the courts of this country in respect of any acts and 
transactions done by him, or in which he may have been engaged, 
as such subject ’’ : Duke of Brunswick v. King of Hanover, 1844, 
6 Beav. 57. On the appeal in the same case Lord Brougham 
remarked ‘‘ it is not at all necessary to say that supposing a 
foreign sovereign, being also a naturalized subject in this 
country, had a landed estate in this country, and entered into 
any transactions respecting it, as a contract of sale or mortgage ; 
it is not necessary to say that a court of equity in this country 
might not compel him specifically to perform his contract : 
1848, 2 H. of L. 24. And Lord Campbell added, ^^if he,’’ the 



EXTERRITORIALITY : SOVEREIGNS. 


259 


king-duke, had been a trustee of a marriage settlement while 
he resided within this realm, and had become liable in the execu- 
tion of the trust which he had undertaken and which he was not 
properly executing, I am by no means prepared to say that the 
court of chancery would* not have had jurisdiction over him ” : 
i6., p. 25. But it is now scarcely possible that a foreign sove- 
reign should be also a British subject, for if a British subject 
accepted a foreign throne he would surely by such acceptance 
‘‘ voluntarily become naturalized ” in the state of which he was 
sovereign, and thereby lose his British nationality in pursuance 
of the British Nationality Act, 1914, s. 13. Nor could a foreign 
sovereign satisfy the conditions necessary for being naturalized 
in this country without a special act of ])arliameut, which he 
could have no motive for seeking, since if he desired to hold land 
'in England he could now do so as an alien. If a foreign sove- 
reign received a conveyance of land in England, and entered 
into possession of it, it cannot be imagined that a plaintiff, 
claiming such land by a superior title, would be unable to obtain 
judgment and delivery in England; or that a mortgagee of 
English land could not have his usual remedies in England 
because the mortgagor wds a foreign sovereign. The exception 
of exterritoriality, as above remarked, does not apply to the 
forum rei sit(v; and the court would probably request the Foreign 
Office to give the sovereign such information by diplomatic 
means as would be equivalent to serving notice of the writ under 
Order XI of 1883, rule 1 (a) or 1 (b). But however it may have 
been formerly, in the case of a sovereign holding English land 
as a natural-born or naturalized British subject, it is clear that 
a foreign sovereign holding such land as an alien could not be 
compelled by an English court specifically to perform a contract 
for the sale or mortgage of it. 

§ 192. But a foreign state or person entitled to the privilege 
of exterritoriality, bringing an action in England, will be bound 
as a private corporation or person would be bound to do complete 
justice to the defendant with regard to the matters comprised 
in the action, and will be subject to all cross actions, counter- 
claims, defences and steps of procedure which as between private 
parties would be competent to the defendant for the purpose 
either of obtaining such complete justice or of defending himself 
against the plaintiff’s claim, It was the old maxim of the 
court of chancery that he. who seeks equity must do equity ; and 
Paulus says qui non cogitur in aliquo loco judicium pati, si ipse 



260 


PRIVATE INTERNATIONAL LAW. 


ibi agat, cogitur excipere actiones et ad eujidem judicem mitti. 

Dig. 5, 1, 22. 

In Hullet V. King of Spain (1828), 1 D. & Cl. 169, Redesdale and Lynd- 
hurst affirming the latter, it was decided that a foreign sovereign might suf 
in a court of equity. It had been objected that '‘by no possibility can 
process be issued with effect, or equity done, or a decree enforced against 
him ” ; but Lyndhurst said, “ when he sues here as a plaintiff the court 
has complete control over him, and may hold him to all proper terms.’* 
A cross bill was then filed, and it was decided that the king must answer 
it personally on oath : King of Spain v. Hullet (1833), 1 CL & F. 333, 
Plunket, Wynford and Brougham affirming the latter. In BothschUd v. 
Queen of Portugal (1839), 3 Y. & C. Exch. 594, Alderson, a bill of discovery, 
against a foreign sovereign was allowed in a court of equity, in aid of the 
defence to an action by her at law. In Colombian Government v. Both- 
schild (1826), 1 Sim. 94, it was held by Leach that a foreign republic must 
sue in chancery in the name of an official on whom process could be served 
on the part of the defendant, and who could be called on to answer a cross 
bill. But it was afterwards established that a republic recognized by the 
British Government might sue in its own name, and the court would take" 
care that proper means of discovery were afforded : see Prioleau v. United 
States of America (1866), L. R. 2 Eq. 659, Wf>od; United States of 
America v. Wagner (1867), L. R. 2 Ch. Ap. 682, Chelmsford, Turner and 
Cairns reversing Wood, L R 3 Eq. 724; BepuhUc of Liberia v. Imperial 
Bank (1873), L. R. 16 Eq. 179, Malins; Bepublic of Peru v. Weguelin 
(1876), L. R. 20 Eq. 140, Hall ; Bepublic of Costa Bica v. Krlanger (1875), 
1 Ch. D. 171, James, Mellish and Blackburn reversing Malins. A foreign 
government plaintiff ordered to give security for costs: Bepublic of Costa 
Bica V. Erlanger (1876), 3 Ch. D. 62, James, Mellish and Baggallay agree- 
ing so far with Malins. A foreign sovereign as plaintiff in an action for 
damage by collision ordered to give security for damages to a defendant 
bringing a counterclaim, it being impossible to arrest the plaintiff’s ship 
as security : The Newhattle (1886), 10 P. D. 33, Brett, Cotton and Lindley 
affirming Butt. 

That an independent action could not be brought against a foreign 
sovereign is no reason for admitting a counterclaim, which could not be 
tacked to an action by a private plaintiff : South African Bepublic v. La 
Compagnie Franco-Beige du Chemin de Fer du Nord, [1897] 2 Ch. 487, 
Lindley, Ludlow and Chi tty affirming North ; or which is not necessary 
for doing justice on his cause of action : same parties, [1898] 1 Ch. 190, 
North. Submission to the jurisdiction by a foreign sovereign must be 
made after action brought, and cannot be implied from previous conduct : 
Mighell v. Sultan of J oh ore, [1894] 1 Q. B. 149, Wills and Lawrance 
affirmed by Esher, Lopes and Kay. A protected sovereign is a sovereign 
within the rule: ib. at p. 162. So also is a reigning prince in India: 
Stathnm v. S fathom and Gaekwar of Baroda, [1912] P. 62 ; see above, 

p. 268. 

The court will take judicial cognizance whether a foreign state, .suing 
in its own name, is recognized by the British Gk)vernment : City of Berne 
V. Bank of England (1804), 9 Vee. 347, Eldon. The recognition of a state 
or sovereign is normally proved by a certificate from the Foreign 06oe. In 
several cases which came before the English courts after the Russian 
empire was in 1918 broken up into various states, the courts accorded 
the privileges of sovereignty to provisional governments which had been 
recognized, however provisionally, by the Foreign Office. Thus in iiie case 



EXTERRITORIALITY : FOREIGN SOVEREIGNS PLAINTIFFS. 261 


of The GagarUf the court refused jurisdiction over a vessel which was 
claimed by the Esthonian National Council, on a statement by a repre- 
sentative of the Crown that ** His Majesty’s Government has, for the 
time being, provisionally and with all necessary reservations as to the 
future, recognized the Esthonian National Council as a de facto inde- 
pendent body. ” . , 

Similarly the Court of Appeal in the case of A. 0. Luther v. James 
Sagor S Co,, [1921] 1 K. B. 466, 474, held that it could not enter- 
tain jurisdiction over a stock of wood in England, claimed by the 
Russian Soviet Gk>vernment, on a certificate of the Foreign Office being 
given that the Soviet Administration was recognized as being in possession 
of the powers of a sovereign in Russia. Roche, J., had decided the case in 
the opposite sense, because at the time the action was heard before him 
the Soviet administration was not recognized ; and he held that if a foreign 
government or sovereignty is not recognized by His Majesty’s Government, 
the courts of this country cannot, or at least ought not to, recognize such 
government or its sovereignty. Between the hearing in first instance and 
on appeal a commercial agreement was made between His Majesty’s 
Government and the Soviet Government which implied official recognition, 
and led the Court of Appeal to reverse the earlier judgment. 

Passing now beyond questions of procedure, the liability of a foreign state 
or sovereign suing in England, to respect all just defences and to do com- 
plete justice to the defendant with regard to the matters comprised in 
the action, is illustrated by United States of America v. Prioleau (1866), 
2 H. & M. 569, Wood; United States of America v. Macrae (1867), L. R. 
4 Eq. 327, Wood, partly reversed by Chelmsford, L. R. 3 Ch. Ap. 79. A 
government which has succeeded to another must respect all defences which 
would have been good against that other : Bepuhlic of Peru v. Dreyfus 
(1888), 38 Ch. D. 348, Kay. But a conquering state is not subject to all the 
liabilities of the conquered state ; West Band Gold Mining Co. v. Bex, 
[1906] 2 K. B, 391. 

A contract entered into with a minister of a foreign state may be sued 
upon by his successor in office, if such was the apparent meaning of the 
contract: Yzquierdo v, Clydebank Engineering and Shipbuilding Co., 
[1902] A. C. 624, Halsbury, Macnaghten, Brampton, Robertson, Lindley. 
Same parties, [1^6] A. C. 6. 

If the foreign state or person entitled to the privilege of exterritoriality 
has obtained final judgment in his or its action, the doctrine of this § 
does not allow what would then be an independent action to be brought 
against it : Strousberg v. Bepublic of Costa Bica (1880), 29 W. R. 126, 
Jessel, James, Lush. James said: **if anything has arisen or been dis- 
covered since the judgment was obtained which would make it inequitable 
for the plaintiff to enforce his judgment, the defendant’s proper course 
according to my opinion would be to apply in that action, and not in any 
fresh action, for the exercise of that jurisdiction which every court always 
does exercise over its own judgments, to stay any further proceedings upon 
that judgment on the ground that it is not equitable that proceeding^ 
should be taken upon it.” 

The Japanese Government, plaintiff in the British Consular Court, could 
not be compelled to submit to a cross claim, though the facts which were 
alleged to give rise to one might b| relied upon as a defence to his claim ; 
but the decision would have been" the same if a private Japanese person 
had been plaintiff, on account of the limited jurisdiction of the court. 
Imperial Japanese Government v. P. and 0, Steam Navigation Co., [1805] 



262 


PRIVATE INTERNATIONAL LAW. 


A. C. 644, Herschell, Watson, Hobhouse, Macnaghten, Shand, Davey and 
Couch. 

§ 193. In connection with the rule laid down in § 190, a 
doctrine must be mentioned which may be best introduced by 
quoting the words of Lord Langdale with reference to the court 
of chancery. “ There have been cases in which, this court being 
called upon to distribute a fund in which some foreign sovereign 
or state may have had an interest, it has been thought expedient 
and proper in order to a due distribution of the fund to make 
such sovereign or state a party. The effect has been to make 
the suit perfect as to parties, but, as to the sovereign or state 
made a defendant in cases of that kind, the effect has not been 
to compel or attempt to compel such sovereign or state to come 
in and submit to judgment in the ordinary course, but to give 
the sovereign an opportunity to come in to claim his right or 
establish his interest in the subject matter of the suit. Coming 
in to make his claim, he would, by doing so, submit himself 
to the jurisdiction of the court in that matter; refusing to come 
in, he might perhaps be precluded from establishing any claim 
to the same interest in another form. So where a defendant in 
this country is called upon to account for some matter in respect 
of which he has acted as agent for a foreign sovereign, the suit 
would not be })erfect as to parties unless the foreign sovereign 
were formally a defendant, and by making him a party an 
opportunity is afforded him of defending himself instead of 
leaving the defence to his agent, and he may come in if he 
pleases. In such a case, if he refuses to come in, he may 
perhaps be held bound by the decision against his agent.’* 
Duhe of Brnnswich v. King of Hanover , 1844, 6 Beav. 39. 

So far as this doctrine is sound, it applies now to the Supreme 
Court; and it certainly is sound as to the first portion, which 
deals with cases where the court is called on to distribute a 
fund. The second portion, however, which deals with cases 
where persons have acted as agents for foreign sovereigns, ought 
to have been expressed in a more guarded manner. If the 
plaintiff can establish a right in the nature of property or 
hypothecation to the money or things which the agent holds 
in his hands within the realm, the matter falls under the same 
principle as the class of cases in which a court has to distribute 
a fund. There is in fact a fund within the jurisdiction, the 
rights in which the court cannot refuse to declare and carry 
into effect, without a denial of justice similar in kind to that 



EXTERRITORIALITY : PROPERTY IN ENGLAND. 


263 


which would take place if the court refused to deliver laud to 
one claiming it by a title superior to that of a foreign sov^eigh, 
or to foreclose a mortgage of laud against a foreign sovereign. 
And there would be this further circumstance in favour of 
exercising the jurisdiction, that it would be unnecessary to sue 
the foreign sovereign, because the movables could be reached 
through the agent, who would be protected against his principal 
by the judgment. But if the plaintiff only claimelby virtue 
of an obligation alleged to exist on the part of tlie foreign 
sovereign or state, he can no more pursue that claim indirectly 
through the agent than he could do so directly ; and he is 
defeated by the refusal or omission of the foreign sovereign 
or state to appear and consent to be bound. 

Attempts were made in the following cases to apply the latter part of 
Lord Langdale’s doctrine, as quoted in § 193; but in none of them was 
relief ultimately obtained, it being held in all that no right in the nature 
of property or hy2K)thecation to the money or things in the agent’s hands 
had been established. Smith v. Weguelin (1869), L. R. 8 Eq. 198, 
Romilly : Larivivre v. Morgan^ decided in favour of the plaintiff by Malins 
and on appeal by Hatherley (1872), L. R. 7 Ch. Ap. 560, but reversed on 
further appeal (1875), L. R. 7 E. & I. A. 423, by Cairns, O’Hagan and 
Chelmsford . Twycross v. Dreyfus (1877), 5 Ch. D. 605, Hall affirmed by 
Jessel and James. In Gladstone v. Musurus Bey (1862), 1 H. & M. 495, 
Wood, the plaintiffs obtained an interim injunction against the Bank of 
England as stakeholders, but the case is not traceable further. In Glad- 
stone V. Ottoman Bank (1863), 1 H. & M. 505, Wwd, the jdaintiffs did not 
rely on any right to money or things in England, but attempted in vain to 
restrain the Ottoman Bank from enjoying in Turkey the benefit of an act 
of state of the Turkish sultan, which they alleged was in violation of their 
rights. They must have equally failed, as the judge pointed out, if they 
had made a similar complaint of a British act of parliament. In Strous- 
herg v. Itepuhlic of Costa Bica (1880), 29 W. R. 125, Jessel and James 
repeated Lord Langdale’s doctrine as to funds in the hands of persons 
within the jurisdiction, but not further. 

In Vavasseur v. Krupp (1878), 9 Ch. D. 361 (Jessel affirmed by James, 
Brett and Cotton), a foreign sovereign was allowed to remove certain shells, 
which were his property, out of the country, notwithstanding that the 
plaintiff claimed to have them destroyed in protection of his patent, 
infringed by the sovereign’s agent. 

§ 194. “ All writs and processes that shall at any time 
hereafter be sued forth or prosecuted, whereby the person of any 
ambassador or other public, minister of any foreign prince or 
state, authorized and received as such by her majesty her heirs 
or successors, or the domestic or domestic servant of any such 
ambassador or other public minister, may be arrested or 
imprisoned, or his or their goods or chattels may be distrained 
seized or attached, shall be deemed and adjudged to be utterly 



264 


PRIVATE INTERNATIONAL LAW. 


null and void to all intents constructions and purpToses what- 
soever.’" St. 7 Anne, c. 12, s. 3. 

‘‘ Provided and be it declared that no merchant or other trader 
whatsoever within the description of any of the statutes against 
bankrupts, who hath or shall put himself into the service of 
any such ambassador or public minister, shall have or take any 
manner of benefit by this act.” Ib., s. 5. 

This is the statute passed in consequence of the Russian 
ambassador having been taken from his coach and imprisoned by 
a private suitor, and its third section, above quoted, has always 
been deemed to be merely declaratory of the common law. So 
far indeed as concerns an ambassador or public minister himself, 
the immunity extends further than is expressed in that section. 
Not only is his person privileged from arrest, and his goods or 
chattels from seizure, but he cannot be sued at all, even for the 
purpose of obtaining against him a judgment which may be 
enforced by execution after he has ceased to be entitled to the 
privilege. 

Mafjdalena Steam Navigation ComjHin'ij v. Martin (1859), 2 E. <&; E. 94, 
Campbell, Wightman, Erie, Crompton. The privilege belongs to a recalled 
ambassador remaining a reasonable time in the country to wind up his 
official business. Where an ex-minister had disappeared for more than 
six months after his mission had been brought to an end, it was held 
that there could be no question of his privilege subsisting : Suarez v. 
Suarez, [1918] 1 Ch. 176, C. A., Swinfen Eady, Warrington and 
Scrutton, L.JJ. The statute of limitations does not run until the 
ex-ambassador can be effectually served, and the power of service out of 
the jurisdiction does not affect any question relating to the statute: 
Musurus Bey v. Gadhan, [1894] 2 Q. B. 362, A. L. Smith and Davey 
affirming Wright and Lawrance. 

Nor can he be made a defendant as represenfing his sovereign 
or state, with the view of giving him an opportunity to appear 
and defend the rights of such sovereign or state when they may 
be adjudicated on pursuant to Lo£d Langdale’s doctrine quoted 
in § 193. 

Gladstone v. Musurus Bey^ (1862), 1 H. & M. 496, Wood. 

Nor, when a foreign sovereign or state is made a defendant 
in such a case as last mentioned, can the writ be served on 
the ambassador or minister as a means of bringing it to the 
knowledge of such sovereign or Mate. 

Stewart v. Bank of England, [1876] W. N., p. 263, Jessel. 

If the ambassador or 'minister has submitted to the juris- 
diction, he may be too late in applying to have his name struck 



EXTERRITORIALITY ; AMBASSADORS. 


265 


out or the proceedings against him stayed, especially if he is 
being sued jointly with others: but even then the statute will 
have to be respected as to the execution of any judgment 
against him, so long as he holds his office. 

Taylor v. Best (1854), 14 C. B. 487, Jervis and Maule; Suarez v. Suarez 
(No. 1), [1917] 2 Ch. 131, Eve. 

But if he has expressly waived his diplomatic privileges and submitted to 
the jurisdiction, execution may issue against him subsequently when his 
diplomatic appointment has terminated, notwithstanding that he 
endeavours then to set up the privilege as a defence to the execution pro- 
ceedings: Suarez v. Suarez (No. 2), [1918] 1 Ch. 176, C. A., Swinfen Eady, 
Warrington and Scrutton, L.JJ. 

The privilege can be waived by a diplomatic agent with the 
consent of his government or sovereign or official superior ; 
and when a minister expressly waives his privilege it will be 
assumed that he has such consent, because the sovereign cannot 
be asked to authorize the act of his accredited representative. 
But the waiver must be express and unambiguous. 

Bolivia Exploration Syndicate^ [T914] 1 Ch. 139, Astbury. 

So far as concerns the servants mentioned in the statute, the 
following quotations illustrate the principles of decision : — 

“ To constitute a person domestic servant it is not essential to show that 
he resides in the house, but if you had shown that this party was a 
chorister, and in such a situation that the Bavarian ambassador required 
his attendance from time to time in order to assist in the performance of 
the religious service of the embassy, I should consider that he was on this 
ground entitled to some of the privil^es of a domestic servant” : Bay ley, 
in Fisher v. Begrez (1832), 1 C. & M. 117, at p. 124. Bolland spoke to the 
same effect, adding, what no doubt Bay ley also meant, ” if such person 
attends at the chapel ” : ib., p. 127. ” Although he says that he is liable 

to be called on at any time he does not show that he has ever actually been 
called upon by the ambassador to perform any services ” : Bayley, in 
Fisher v. Begrez (1833), 2 C. & M. 240, at p. 243. In Poitier v. Croza 
(1749), 1 W. Bl. 48, the alleged service to the Sardinian envoy was not 
proved. 

The servant may live in a separate and suitable house, his goods in which 
will be privileged ; but where he kept a lodging-house, his goods in it were 
liable to be distrained for poor rates: Novella v. Toogood (1823), 1 B. & C. 
654, Abbott, Bayley and Holroyd. 

By the term domestic,’’ iii^ich is distinguished in the statute 
from “domestic servant,” any person belonging to the family 
or suite of the ambassador or minister must be understood. 
And it is the doctrine of public international lawyers, though 
no occasion for applying it seems yet to have arisen in England, 
that the privilege accorded to the family suite and servants is 
that of the ambassador or minister, who may waive it for them. 



266 


PRIVATE INTERNATIONAL LAW. 


unless indeed they have not been appointed by him but by his 
sovereign or state, but who cannot waive his own privilege, 
because it concerns the dignity of his government and the 
convenient transaction of its affairs. 

The privilege applied to secretaries and attaches : Hopkins v. He Bohech 
(1789), 3 T. R. 79, Kenyon, Ashhurst and Grose; Tarkinson v. Potter 
(1885), 16 Q. B. D. 152, Mathew and Wills. 

Where an ambassador, minister, or member 'of an embassy or 
legation is a subject of the country to which the mission is 
accredited, he enjoys the privilege of exterritoriality so far as 
the government receiving the mission has not expressly excluded 
it in its reception of the person in question. 

Macartney v. (kirhuH (1890), 24 Q. B. D. 368, Mathew. 

A British subject who has obtained an appointment as member of a 
legation for the sake of protection against his creditors, and whose appoint- 
ment has not been recognized by the British Government, will enjoy no 
protection : Be Cloete, Hx parte Cloete^ [1891] 65 L. T. 102, Esher, Lopes 
and Kay. 

« 

§ 195. (consuls and their family and servants are not entitled 
to the benefit of § 194. But it must be remembered that in 
Eastern countries consuls have a diplomatic character. 

BarhuiVs Case (1737), Forrester^s Cases temp. Talbot, 281, Talbot. See 
also Vlvash v. Becker (1814), 3 M. & S. 284, Ellenborougb and ( ?), wheie 
to the question whether a consul is entitled to diplomatic immunities there 
was added the question whether, if so, such immunities extend to subjects 
of the state in which they are appointed to act. 

As to the jurisdiction of consular courts see Imperial Japanese Govern- 
orient v. P. d 0. Navigation Co.y [1895] A. C. 644, where it was held that 
the British Consular Court in Japan had no jurisdiction in a counter- 
claim brought by a British defendant against a Japanese plaintiff, the 
cognizance of such causes belonging to the Japanese courts. 



( 267 ) 


CHAPTER XL 

TOUTS. 

When damages are claimed in respect of what is alleged to 
be a tortious £tct or omission, the selection of a law by which to 
decide is .free from all question about the voluntary submissioJi 
of the parties to the law of any country, such as arises in cases of 
contract, because fliere has been no dealing in which the parties 
have concurred. Another contention may be made, suggested by 
or imitated from what takes place in contract, namely, that the 
defendant has voluntarily submitted himself to the law of the 
country in which he has acted or omitted to act, either by 
the very act or omission, or if he does not belong to that country 
by having entered it. But such reasoning would prove too 
much, for it would equally cut all the knots of private inter- 
national law by referring every question to the special laws of 
the country where the fact which gave rise to it occurred. The 
truth is that by entering a country ar acting in it you submit 
yourself to its special laws only so far as legal science selects 
them as the rule of decision in each case. Or more truly still, 
you give to its special laws the opportunity of working on you 
to that extent. The operation of the law depends on the con- 
ditions, and where the conditions exist the law operates as well 
on its born subjects as on those who have brought themselves 
under it. The international law of torts may therefore best be 
considered independently of the ideas suggested by contract, 
and previously to that part of the subject. 

Starting from the fact that according to the general notions 
on jurisdiction the fortim delicti and the forum rei are equally 
competent in cases of tort, we have to inquire which of them 
is the primary jurisdiction; i\ot in the historical sense, in which 
we have seen on p. 230 that the forum rei is the older, but in 
the sense of being the more appropriate, and therefore of not 
being obliged to take any law but its own into consideration. 
(See p. 226.) The forum dedicti appears to be entitled to that 
rank, because the injured person may fairly desire the quickest 
and easiest redress without having to follow the wrongdoer to 



'268 


PRIVATE INTERNATIONAL LAW. 


his own country; also because one of the main objects of law 
is to maintain the peace within a given territory, and therefore 
to afford judicial redress for such conduct as in the absence of 
it would tend to provoke a breach of the peace. But if the 
plaintiff choose the forvm rei^ can he claim that the decision 
there shall be the same as it would have been in the forum 
delicti? It will probably be found that to secure certainty is 
the leading motive for following in other jurisdictions the law 
which would have been applied in the primary one; but this 
means certainty in the mutual dealings of men, and the motive 
has little application to the case of a tort where necessarily 
there huvS been no such dealing. A law which gives damages 
for a wrong must proceed on grounds of justice or public 
expediency, and if the personal law of the defendant refuses 
damages which the lex loci delicti commissi would give, the 
former, in adopting the latter, would receive a shock that may 
well be thought to outweigh in importance the disappointment 
which a refusal would cause to the plaintiff, even supposing 
that he has not had an opportunity of suing the defendant with 
effect where the act complained of was done. On the other 
hand, if the personal law of the defendant would give damages 
for w'hat the lex loci delicti commissi regards as a justifiable 
act, the defendant may plead that if his act disturbed the 
social order of any country it was that of the country where it 
was committed, the law of which therefore is the best authority 
on the subject. 

This reasoning tends to the conclusion, which we shall see 
has been adopted in England, that the lex fori and lex loci 
delicti commissi must concur in order that an act or an omission 
may be deemed tortious. On the continent there is no general 
agreement. Savigny maintains the exclusive authority of the 
lex foriy “ both positively and negatively, that is, for and 
against the application of a law which recognizes an obligation 
arising out of a delict.” * His reason is that all laws relating 
to delicts have such a close connection with public order as to 
be entitled to the benefit of what I have called the reservation 
in favour of a stringent domestic policy : above, p. 51 . 
M. Charles Brocher, on the contrary, maintains the authority 
of the lex loci delicti commissi in terms which would appear to 
be exclusive, were it not that he goes on to claim for the judge 


♦Syst. § 374, Guthrie 264. 




TORTS. 


269 


the right of taking considerations of public order into account ; 
and the result at which he would practically arrive would 
probably not be very different from that which prevails in 
England.* 

§ 196. No act can be treated in England as a wrong on the 
part of any defendant in whom it is not a wrong by the law of 
the country where it was done, whether that law did not regard 
him as a wrongdoer at the time, or whether he has since been 
enabled to justify it in that country by the enactment of an 
indemnity. 

For civil purposes the second case put in the §, which carries the first 
with it a fortiori, was decided in an action for damages against a late 
governor of Jamaica^ whose proceedings in time of insurrection had been 
covered by a colonial act of indemnity : Fhillips v, Eyre (1869), L. R. 4 
Q. B. 226, Cockburn, Lush, Hayes ; affirmed (1870), L.* R. 6 Q. B. 1, Kelly, 
Martin, Channell, Pigott, Cleasby, Willes, Brett. Oockburn, delivering the 
judgment of the court below, said : “It appears to us dear that where by 
the law of another country an act complained of is lawful, such act, though 
it would have been wrongful by our law if committed here, cannot be made 
the ground of an action in an English court “ : u. s., p. 239. And Willes, 
delivering the judgment of the Appeal Court, said: “The act must not 
have been justifiable by the law of the place where it was done “ : u.a., 
p. 29. In Eart v. von Gumpach (1873), L. R. 4 P. C. 439, Montague 
Smith, an action for damages incurred by an alleged libel in China, which 
failed because there was a sufficient defence by English law, the question 
was noticed and reserved, whether proof that the communication was privi- 
leged by the law of China would have been a sufficient defence (pp. 464, 6), 
We must conclude that it would have been so. In The M. Moxham (1876), 
1 P. D. 107, James, Mellish, Baggallay ; reversing Phillimore (1876), ib. 43 ; 
a British ship by negligent sailing damaged a pier on the coast of Spain, 
and it was said that by Spanish law the master and mariners were liable 
but not the ship or her owners. It was held that if that were so the latter 
would not be liable in England. “ Whatever is a justification in the place 
where the thing is done ought to be a justification where the cause is tried, “ 
had already been said incidentally by Lord Mansfield in Mostyn v. 
Fahrigas (1776), Cowp. 176. “ In their lordships* opinion the general 

principle of criminal jurisprudence is that the quality of the act done 
depends on the law of the place where it is done ’* : Mellish, delivering the 
judgment of the Privy Council in Att.-Gen, of Hong Kong v. Kwok-aSing 
(1873), L. R. 6 P. C. 199. That damages cannot be recovered in the locus 
delicti commissi is immaterial if the act was wrongful there : Machado v. 
Fontes, [1897] 2 Q. B. 231, Lopes and Rigby. Where a man, domiciled in 
Quebec, while travelling on a railway in* Ontario, was killed by the negli- 
gence of the railway company*s servants, and his widow sued the company in 
Quebec for damages under the Civil Code of Quebec, it was held that, as 
there was neither civil nor criminal liability in the company according to the 
law of Ontario, the locus delicti, no action could be mahitained in Quebec : 
Caaiadian Pacific Bailway Co. v. Parent, P. C., [1917] A. C. 196, Haldane, 
Dunedin, Parker, Parmoor, Wrenbury. 


•Nouveau Traitd de Droit International Priv4, p. 315. 



270 


PRIVATE INTERNATIONAL LAW. 


A justification of an act under the sovereign authority of the place where 
it was committed is equivalent to its justification by the law of that 
country : Bohree v. Najrier (1836), 2 Bing. N. C. 781, Tindal and ( ?) ; 
Begirui v. Lesley (1860), Bell C. C. 220, Erie, Wightman, Williams, 
Watson, Hill; Carr v. Frneis Times d* Co., [1902] A. C. 176, Halsbury, 
Macnaghten, Shand, Brampton, Lindley, reversing A. L. Smith, Vaughan 
Williams and Romer, who had reversed Grantham. 

^ 197. Neither can any act be? treated as wrong in England 
which is not such in the defendant by the principles of English 
law, notwithstanding that the defendant is liable by the law of 
the country where the act was done. But the English court 
admits the proof of foreign law ... as one of the facts upon 
which the existence of the tort, or the right to damages, may 
depend ” — “ as in the case of a collision on an ordinary road in 
a foreign country, wheie the rule of the road in force at the 
place of collision may be a necessary ingredient in the deter- 
mination of the question by whose fault or negligence the alleged 
tort was committed and it then applies and enforces its own 
law so far as it is apj)licable to the case thus established.” 

The jxassages which in the § are placed between inverted commas are 
taken from the judgment of the court in The Halley (1868), L. R. 2 P. C. 
193, Selwyn (pp. 203, 4). It was there held that the compulsory employ- 
ment of a pilot was a sufficient answer on the part of the shipowner to a 
claim for damages occasioned by a collision which, through the pilot's 
fault, took place in the territorial waters of a country by the law of which 
compulsory pilotage furnishes no such defence : reversing Phillimore (1867), 
L. R. 2 A. & E. 3. But this does not apply where the captain is com- 
pelled to take a pilot, but not to give up the navigation of the ship to him : 
The (hiy Mannering (1882), 7 P. D. 132, Coleridge and Cotton, affirming 
Phillimore, 7 P. D. 62; The Agnes Otto (1887), 12 P. D. 66, Butt; The 
Prins Hendrik, [1899] P. 177, Gorell Bames.* 

See Batthyany v. Walford (1886), 33 Ch. D. 624, North — quoted above 
under § 176— in which it was treated as an element of the decision that the 
liability of the successor for waste was sanctioned in principle by the 
English law in analogous oases. 

§ 198. But the last § must be understood without prejudice 
to this, that an act may be treated as a wrong in England which 
is not such in the defendant by English law otherwise than as 
adopting some rule of public international law. 

In The Nostra Signora de los Dolores (1813), Dodson 290, Scott, a part 
owner of a ])rivateer was held liable for her acts, although by English law 
in the narrower sense he would not have been so liable because his name did 
not appear in her register. 


♦The law in England has been changed on this matter by the Pilotage Act, 
1918, but the principle remains the same. 



TORTS. 


271 


§ 199. If an act is not justifiable by the law of the country 
where it was done, and damages can be recovered for it con- 
sistently with the principles of English law, it is no answer to a 
civil action in England that by the lex loci delicti commissi civil 
proceedings are not allowed to, be taken for the act in question 
unless criminal proceedings accompany or have preceded them, 
for this is a matter which relates to the form of the remedy and 
is therefore governed by ihe lex fori. 

Scott v. Seijmour (1862), 1 H. & C. 219, Pollock, Martin, Wilde; affirmed 
by Wightman, Williams, Crompton, Willes, Blackburn. 

§ 200. But what if an act be not justifiable by the law of the 
country where it was done, and yet damages are not recoverable 
for it at all by that law, although the i)rincip]es of English law 
would grant themP This question is not likely to arise in 
criminal cases where real pecuniary damage is done, because the 
law of England is not more liberal than other laws in granting 
civil remedies as well as criminal ones for such wrongs. But 
there are countries, as France, in which no damages are allowed 
to be claimed on the ground of illicit intercourse, the invcstiga-r 
tion which would arise being thought hurtful to public morality; 
and there are probably countries in which redress of a penal 
nature, but not by way of damages, may be obtained for slight 
assaults or other personal injuries not resulting in real pecuniary 
loss. 

The question was suggested by the pleadings in Scott v. Scymo^iVy but 
was not properly raised by them, and the i>oint was consequently discussed 
there but not decided. Wightman thought that an action would lie in this 
country by one British subject against another for an assault committed 
where the redress that could be obtained wa.s only i^nal and not by way of 
damages, but Williams was not prepared to assent. Blackburn doubted 
whether in such circumstances no damages would be “ recoverable for an 
assault however violent,” but was ” disposed to think that the fact of the 
parties being British subjects would make no difference.” (1862), 1 H. & 
C. 234, 5, 7. Lord Mansfield said in Mostyn v. Fahrigcbs : ” If two persons 
fight in France, and both happening to be casually here one should bring 
an action of assault against the other, it might be a doubt whether such an 
action could be maintained here, because, though it is not a criminal 
prosecution, it must be laid to be against the peace of the king ; but the 
breach of the peace is merely local, though the trespass against the person 
is transitory. Therefore, without giving any opinion, it might perhaps be 
triable only where both parties at the time were subjects. . . . Can it be 
doubted that actions may be maintained here not only upon contracts, which 
follow the persons, but for injuries done by subject to subject?” (1776), 
Oowp. 176, 179. In a case in which the English Court would entertain an 
action for divorce by the husband, it can scarcely be supposed that the 
co-respondent could escape paying damages on the ground that the adultery 



272 


PRIVATE INTERNATIONAL LAW. 


was committed iii a country where they are not recoverable for it, if at least 
it was committed at a time when the English domicile on which the juris- 
diction for divorce is founded (above, §§ 44, 45, 50) already existed. Such 
adultery would be an injury to a conjugal relation deemed to be entitled to 
protection in the English Court. But then the damages in respect of it, 
being merely an incident in the proceeding for divorce, could scarcely be 
drawn into precedent in support of a recovety in an independent action for 
an injury done abroad. It is probably the better opinion that no such 
independent action would lie where damages were not granted by the lex 
loci delicti commissi whether the parties were British subjects or not, there 
being no family relation that could claim the protection of English law, 
and no civil right acquired by the plaintiff in the primary jurisdiction. 
See however Machado v. Fcmies^ [1897] 2 Q. B. 231, Lopes and Rigby ; and 
see liayment v. Bayment and Stuart ^ [1910] P. at p. 286, Evans, and 
rhiUips V. Batho, [1913] 3 K. B. 25, where Scrutton, J., was of opinion 
that an independent action in England would have lain against an 
English co-respondent in a divorce suit tried in India. The Indian Court 
had, in fact, awarded damages against the co-respondent in absence; and 
the dictum was therefore only made obiter. 

§ 200a. The Fatal Accidents Acts 1846 and 1864 apply for 
the benefit of the representa lives of a deceased foreigner, at all 
events against a British wrongdoer. 

Bavidsson v. Rill^ [1901] 2 K. B. 606, Kennedy and Phillimore, dissent- 
ing from Adam v. British and Foreign Steamship Company ^ [1898] 2 Q. B. 
430, Darling, and agreeing with The Explorer (1870), L. R. 3 A. & E. 289, 
Sir R. Phillimore. This was followed in a Scotch case, Convery v. Lanark- 
shire Tramways Company j [1905] 8 Sess. Cas. 5th series, Dunedin, Adam, 
M‘Laren, Kinnear, on the grourud that if a claim is recognized both by the 
lex fori and by the lex loci delicti commissi, it is immaterial that it is not 
recognized by the |>ersonal law of the plaintiff. A foreign subject, however, 
is not entitled against a foreign employer to the benefit of the Workmen’s 
Compensation Act on account of an accident happening in England or 
English territorial waters : Panagotis v. Pontiac, [1912] 1 K. B. 74, 
Cozens-Hardy, Moulton, Farwell, L.JJ. 

§ 201. So far as the doctrines stated or considered in the 
previous § § do not interfere, an action for tort may be brought 
and an injunction granted even against a foreigner who is in 
England. 

Caldwell v. Vanvlissengen (1851), 9 Hare 416, Turner. 

A provision has in modern times been widely adopted in 
different countries by which, in collisions at sea, the liability of 
shipowners for damage done by their ships without their actual 
fault or privity is limited to the value of the ship and freight. 
After some enactments applicable only to particular cases,, this 
limitation was first fully adopted in the United Kingdom by the 
st. 53 Geo. 3, c. 159, s. 1, which did not name any class of ships 
or owners, so that its effect as to foreign ships and owners was 



COLLISIONS AT SEA. 


273 


left to legal reasoning; but after our legislation had remained 
in that state for about half a century the Merchant Shipping 
Amendment Act 1862, s, 54, expressly limited the liability of 

the owners of any ship, whether British or foreign,’’ to a 
certain pecuniary amount per ton of her tonnage.* English 
courts will therefore in future have little occasion to reason out 
the measure of the liability of foreign shipowners on legal prin- 
ciple, but in a treatise on Private International Law the question 
of principle cannot be ignored. The general law maritinie, with 
which wp had to make acquaintance in considering the property 
in movables (above, pp. 194 — 196), being the aggregate of those 
maritime rules which at a remote period w’ere prevalent in most 
European countries, of course knew nothing of such a limitation 
as is here referred to, for at that period shipowners were liable 
without limit by the laws of their respective countries. What 
view then will be taken by those who are iiii the habit of appeal- 
ing to “ the general law maritime as it is administered in 
England ” ? The subject had best be introduced by the case of 
The Carl Johan, in which the measure of damage- where the 
laws of the colliding ships are difPerent had to be considered by 
Lord Stowell. 

The Carl Johan (1821), Stowell, is not reported, but is cited in The Dundee^ 
1 Hagg, Adm, 113, and in The GirolanWy 3 Hagg. Adm. 186. It was a 
case of collision between a British and a Swedish ship, the latter being at 
fault, and the limitation of the owner’s liability did not exist by Swedish 
law but had been recently established in British law by the 63 Geo. 3. It 
was therefore almost a matter of course that the Swede could not defend 
himself by the British statute, which was neither his personal law nor the 
lex loci delicti commissi. Lord Stowell is stated to have held “ that the new 
rule introduced by the 52 [read 53] Geo. 3 was one of domestic policy, and 
that with reference to foreign vessels it only applied in cases where the 
advantages and disadvantages of such a rule were common to them and to 
British vessels ; that if all states adopted the same rule there would be no 
difficulty, but that no such general mutuality was alleged ; that if the law 
of Sweden adopted such a rule it would apply to both countries, but that 
Sweden could not claim the protection of that statute without affording a 
similar protection to British subjects in similar cases ” : 3 Hagg. Adm. 
187, from Dr. Arnold’s notes. It will be observed that in the above Lord 
Stowell, speaking with reference to the actual state of British law, says 
that Swedish owners would enjoy the benefit of a similar limitation if it 
existed by their law. He does not expressly say that if there were no 
limitation by British law, Swedish owners would yet enjoy the benefit of 
one existing by their law ; but he is stated to have held that the statute 


* This rule of the English statute is modified by the later rules of the 
Merchant Shipping Act, 1894, and also by the provisions of the Maritime 
Conventions Act, 1911, applying the International Conventions about collisions 
at sea; but the principle is not affected. 


W.I.L. 


18 



274 


PRIVATE INTERNATIONAL LAW. 


** was a law as to British ships, but not as to foreign ships nor for foreign 
owners (1 Hagg. Adm. 113), on which footing it is not easy to see how 
its presence or absence could make any difference to the liability of a 
Swedish owner. There remains to be considered what we have seen that 
Lord Stowell said about mutuality, and on the whole his position was pro- 
bably this, that the presence or absence of a British statute could make no 
difference to Swedish liability, but that if a country jKXSsessing such a 
limitation for itself did not allow British owners the* benefit of it in its 
courts, he would be justified on a principle of retorsion in not giving that 
country the benefit of its limitation in his court. 

Thus there is nothing in what has been reported from Lord 
Stowell that, except from the point of view of retorsion, can 
impugn the § which, on principle, is next submitted. 

§ 202. On principle, in cases of collision at sea, the owners of 
the delinquent ship may plead a limitation of their liability to 
the value of the ship and freight when it is accorded to them 
by the law of their flag. This follows either from considering 
the law of the delinquent ship as the lex loct delicti comrr^issi, in 
accordance with the fiction by which a ship is deemed to be a 
part of the territory indicated by her flag, or from holding that 
there is no local law, and that therefore the defendants are sub- 
ject to no obligation not imposed on them by their personal law. 
But the owners of the delinquent ship cannot plead a limitation 
of liability to the value"* of the ship and freight which is 
accorded by the law of the plaintiffs* flag but not by that^ of 
their own flag. 

“ If the maritime law, as administered by both nations to which the 
respective ships belong, be the same in both in respect to any matter of 
liability or obligation, such law, if shown to the court, should be followed 
in that matter in respect to which they so agree, though it differ from the 
maritime law as understood in the country of the former ; for, as respects 
the parties concerned, it is the maritime law which they mutually acknow- 
ledge:*’ from the judgment of the Supreme Court of the United States, 
delivered by Bradley, J., in The Belgenland (1886), 114 U. S. 365, at 
p 370, quoting The Scotland^ 106 U. S. 24, 31. In the cases arising out of 
the ** Titanic ” disaster, 1913, the Supreme Court of the United States, 
however, held that the British shipowners were entitled in the American 
court to the benefit of a limitation of liability fixed by the American law, 
though the vessel in question, which had been lost, was British, and the 
claimants were U. S. citizens : Oceanic Steam Navigation Co. v. Mellor, 
233 U. S. 718. 

§ 202a. But between Lord StowelBs time and that of the 
Merchant Shipping Amendment Act, 1862, the English courts 
were disposed to adopt the following doctrine: — ^The owners of 
a British ship in collision with a foreign ship are liable onlj: as 
by British statute law, but the foreign owners of a foreign ship 
in collision with a British one outside ter^torial jurisdiction, 



COLLISIONS AT SEA. 


m 


though liable under their own law only to the same extent as 
by British statute law, are subject in England to an unlimited 
liability by virtue of that branch of English law which is called 
the general maritime law as administered in England. [Of 
what is so called it was 'correctly said by the court of appeal in 
Lloyd V. Guihert^ L. R. 1 Q. B. 125, that it is, “ to avoid 
periphrasis, the law of England.” See also Lord Justice Brett, 
in The Gaetano and Maria^ 7 P. D. 143.] 

The first case in which this doctrine appears is probably Cope v. Doherty 
(1868), 4 K. & J. 367, Wood; affirmed (1868), 2 D. J. 614, Knight-Bruce 
and Turner ; in which it was held that the British limitation of liability did 
not apply to a collision between two American ships more than three miles 
from the British coast, and Wood said that if it had been averred and 
proved that the American law was the same as ours he would have been 
competent to apply it as between Americans, but mujst still have refused the 
limitation of liability to the delinquent Americans as against any British 
part-owners of the American ship which was sunk. The judgments of Wood 
and Turner discuss elaborately and reject the.«application of the British 
act of parliameht to limit the liability of the foreign owners of foreign 
ships on the high seas, a point which might have been expected not to cause 
much difficulty, but the vice-chancellor did not advert to the question what 
authority would have imposed the liability to British owners in the case 
which he put. Knight-Bruce declined to say what would have been his 
opinion “ if one only of the two ships had been British in ownership and 
character, or if the collision had happened in a British river or a British 
port.” The case put by Wood and reserved by Knight-Bruce arose in The 
Wild Banger (1862), Lush. 663, Lushington, where an American ship had 
caused damage ,to a British one by collision on the high seas, and the 
American limitation of liability was pleaded. Dr. Lushington refused to 
admit the limitation, founding himself on the genera! law maritime, his 
opinion as to which we have seen above in relation to the transfer of the 
property in ^movables. 

In General Iron Screw Collier Company v. Schurmanns (1860), 1 J. & H. 
180, Wood, the British limitation of liability was applied in favour of a 
British ship against a Dutclv one, the collision having taken place within 
three miles from the coast of England. In The Amalia (Cail v. 
Fapayanni) (1863), 1 Mo. P. C. (N. S.) 471, judgment affirming Lushing- 
ton pronounced by Chelmsford, the British limitation of liability was 
applied in favour of a British ship against a Belgian one, the collision 
having taken place in the Mediterranean. Both these cases are in accord- 
ance with § 202. 

It is interesting to inquire out of what order of ideas such a 
doctrine as that of § 202a can have arisen, so strange as it must 
seem to those who regard the laws administered by courts of 
justice as based on sovereignty over persons and territories. 
Some light may be thrown on the question by a remark of 
Dr. Lushington when delivering judgment in The Zollverein^ 
a case on the rule of the road at sea. He said : As regards 
the foreign ship, tox her owner cannot be supposed to know or 



276 


PRIVATE INTERNATIONAL LAW, 


to be bound by the municipal law of this country, the case must 
be decided by the law maritime, by those rules of navigation 
which usually prevail among nations navigating the seas where 
the collision takes place; if the foreigner comes before the 
tribunals of this country, the remedy and form of proceeding 
must be according to the lex fon:^^ Swabey’s Adm. Rep. 99. 
By speaking of the law maritime as the lex fori he showed 
himself to bo aware that notwithstanding that specious name 
it was British law he was really applying to foreigners, giving 
us perhaps at the same time the clue to his reasoning, namely, 
that as soon as any particular court of admiralty is recognized 
as competent to entertain the litigation, its law becomes 
applicable on the ground of the maxim si ihi forum ergo et jus. 
But that maxim only applies in favour of the court to which 
any litigation most properly belongs : above, p. 17. And to 
any one penetrated with the idea that all regular authority in 
the civilized world is either over persons or over places, it would 
seem to follow that on the high seas the only regular authority, 
whether for the enactment of law or for the establishment of 
normal jurisdiction, must be that of sovereigns and states over 
(1) their subjects or members, (2) foreigners on board ships 
rightly carrying their respective flags, ('!) pirates; that what is 
done on the high seas can produce legal effects in accordance 
with this principle alone; and that though the presence of a 
ship in a port may give to the local court a forum rei sitce^ 
carrying with it the right of applying to the thing the legal 
effects of what may have taken place beyond the jurisdiction, 
it cannot carry that of determining those effects by the law 
of the court. It must however be admitted that the deduction 
anciently drawn from the non-territorial character of the high 
seas was not that no state could exercise regular authority on 
them without special justification, but that every state could. 
So one cannot help suspecting that the application of the law 
of a particular country, under the name of the law maritime, 
to torts committed by foreigners outside its territory was a 
survival of the view that the high seas are a field for the exercise 
of universal and indiscriminate jurisdiction. Indeed this is 
confessed in what was said by Lord Justice Brett in Chartered 
Mercantile Bank of India v. Netherlands India Steam Naviga- 
tion Company: “ Inasmuch as the rule of exclusive jurisdiction 
cannot apply, it seems to me that if a foreigner in this country 
can be served with a writ for an act of his servants done on 



COLLISIONS AT SEA. 


277 


the high seas, which are as much within the jurisdiction of 
England as they are within the jurisdiction of any other 
country, an action can be maintained in a court of common 
law ’’ : 10 Q. B. D. 537. 

§ 203. The conflicting principles of § § 202 and 202a apply 
to a law by which, in any country, liability for damage wholly 
occasioned by the negligence of the master or mariners is 
imposed on them to the exclusion of the owners. If § 202 is 
adopted as to the measure of the owners^ liability, it must 
follow that the very existence of their liability must also depend 
on the law of their flag. If § 202a is adopted, the foreign 
owners will be liable in England, although freed by their 
own law. 

In The Leon (1881), 6 P. D. 148, Sir R. Phillimore, Spanish owners, 
though said to be freed by the law of Spain, were held to be subject to 
liability in England for damage caused c«i the high seas wholly by the 
negligence of the master or mariners. 

§ 204. In cases of collision at sea, the compulsory employ- 
ment of a pilot will exempt the owners in an English court 
from liability for damage caused by his fault, whatever be the 
flags and the laws of them. This agrees with the principle 
that no act can be treated as a wrong in England which is 
not such in the defendant by the principles of English law : 
see § 197. 

The Christiana (damage done by foreign ship in the Thames, but no dis- 
tinction as to the liability founded on the place) (1828), 2 Hagg. Adm. 183, 
Robinson ; The Vernon (damage done by British ship to foreign one) (1842), 
1 W. Rob. 316, Lushington. 

In The Neptune the Second (1814), 1 Dods. 467, Scott, and The Girolamo 
(1834), 3 Hagg. Adm. 169, Nicholl, the collisions occurred in British terri- 
torial waters, and foreign ships were held liable notwithstanding compulsory 
pilotage. In the latter case the fault was held to be that of the master 
himself, so that there was no necessity for objecting to the decision in The 
Christiana, as the learned judge does on p. 188. In the former case the 
compulsory character of the pilotage is not referred to, and it is therefore 
jXNSsible that Sir W. Scott may have doubted whether the pilotage could 
strictly be called compulsory, which was another point adverted to by 
Sir. J. Nicholl in The Girolamo. 

§ 205. When two ships are in danger of collision at sea, the 
rule of the road to be followed by each is that which is common 
to their flags, or if at the time no rule is common to their flags, 
then the old rule which was opce common to them. 

The question about the application of the British statutory 
rule of the road at sea differs considerably as well from that 



278 


PRIVATE INTERNATIONAL LAW. 


about the application of the British statutory limitation of 
liability to the value of the ship and freight, as from that about 
the application of the British statutory exemption from liability^ 
on the ground of compulsory pilotage. From the nature of the 
case, any rule of the road at sea must apply to both or neither 
of the ships which are approaching each other, while there is 
no impossibility in the different parties to a collision being 
bound by different laws with regard to the existence of liability 
as depending on other considerations than the rule of the road, 
or with regard to the measure of liability supposing it to exist. 
See the quotations in § 197 from the judgment of the privy 
council in The Halley. Also it is a fact, and not a hasty 

generalization, that there was once a rule of the road at sea 

common to all the maritime populations of Europe. When 

therefore the legislature either of the United Kingdom or of 
any other country alters its rule of the road, it must be 

pros^med, in the absence of expression, to intend that the old 
rule shall be left standing even for its own subjects, under 
■all circumstances in which the other party to a possible collision 
is not subject to the new rule and the legislature in question 
could not claim to impose it on him. 

In The Dumfries (1866), Swabey 63, Lushington held that the old rule, 
and not the British statutory one, applied as between a British and a 
Danish ship. The decision was reversed on the facts (1856), Swabey 125, 
judgment of the Privy Council delivered by Patte&on ; the Dumfries being 
held to have been in the wrong, even supposing the act of parliament 
applied, as to which no opinion was given. In The Zollverein (1856), 
Swabey, 96, Lushington, a Russian ship was not allowed to defend herself 
against a British one by the latter’s violation of the British rule. In The 
Chancellor (Williams v. Dutch) (1861), 14 Mo. P. C. 202, Romilly, the 
inapplicability of the British rule as between a British and an American 
ship was conceded. In The Bepeater v. The Braga or Krageroe (1865), 14 
L. T. (N. S.) 268, Kelly, the Court of Admiralty of Ireland applied the 
British rule as between a British and a Norwegian ship, the latter being 
bound by virtue of a convention between the king of Norway and the queen. 

In The Eclipse and the Saxonia (Hamtmrgh America/n Steamship Com- 
pany v. No7'th of Scotland Banking Company (1862), 15 Mo. P. C. 262; 
judgment affirming Lushington delivered by Romilly ; the British statutory 
rule was held not to apply as between a British and a foreign vessel in 
collision at sea within three miles from the coast of England, not even in 
the Solent, between the Isle of Wight and the mainland of Hampshire. 
In HM.S. King Alfred^ [1914] P. 84, Evans, P., where a Spanish steam- 
ship collided with British warships, it was held that there was no 
negligence on the part of the Spanish ship, which had followed a rule of 
the Sea Regulations, but had not followed the directions of a Board of Trade 
notice, issued some years before, to warn vessels against passing through a 
squadron of warships. The foreign vessel could not be required to know the 
En|;lish regulations. 



COLLISIONS AT SEA. 


279 


§ 206. Where the defendant has tortiously had the use of 
the plaintiff’s money or property in a given country, interest 
on the value must be allowed according to the rate of that 
country, and judgment given for the sum which will produce 
the amount in that country at the rate of exchange. 

Ekins V. East India Company (1718), 1 P. W. 395, Cowper; affirmed 
(1718), 2 Bro. P. C. 382. See below, §§ 225 and 226. 

After the slave trade had been prohibited by British legis- 
lation, but while there were still countries which had not 
prohibited it, a class of cases used to arise out of injuries done 
at sea by British officers to subjects of those countries, in the 
course of attempts to suppress slave-trading by them. The 
actions were held to lie, because the old rule of public inter- 
national law permitting the slave trade remained in force in 
favour of such plaintiffs, and was to that extent a rule of 
English law; so that the case fell under § 198, and was not 
inconsistent with the doctrine submitted in § 202, that where 
there is no local law a defendant can only be liable according 
to his personal law. 

Madrazo v. Willes (1820) 3 B. & Al. 353, Abbott, Bayley, Holroyd, Best. 



( 280 ) 


CHAPTER XII. 

CONTRACTS . 

FormaUties of Contracts. 

§ 207. Subject to § 208, the formalities required for a con- 
tract by the law of the place where it was made, the lex loci 
contractus celebrati, are sufficient for its external validity in 
England. 

Gu^pratte v. Young (1851), 4 De G. & S. 217, Knight-Bruce. See above, 
on p. 76, that learned judge’s approval, exceptional for England, of the 
principle of the lex loci actus. 

§ 208. But a contract, although externally j^erfect according 
lo the law of the place where it was made, cannot be enforced 
in England unless evidenced in such manner as English law 
requires. 

This doctrine is based on the maxim that the lex fori governs 
procedure, but it is far from being universally received abroad, 
the evidence of a contract being often deemed undistinguishable 
from its form. Indeed to say that a contract may be validly 
made without writing, but that it cannot be enforced unless 
evidenced by writing, apj>ears to be a distinction without a 
difference, at least when the law of only one country is con- 
sidered. The distinction may begin to have a meaning when 
two legal systems are considered, as in this §, though even then 
the truth will be that while the lex loci contractus celebrati deems 
the contract to be both valid and enforceable, the lex fori ignores 
it altogether. The opinion of Boullenois was that the mode of 
proof, as for example whether by oral testimony or by writing, 
depended on the law of the place of contract, as being part of 
the vinculum obligationis-* and to the same effect the Italian 
code. Preliminary Article 10, says that “ the means of proving 
obligations are determined by the laws of the place where the act 
was made.’’ Savigny says: ‘‘ The authority of merchants’ books 
as evidence is to be judged according to- the law of the place 


♦Traits de la personnalit^ et de la r^alit^ des Loix, t. 2, p. 459. 



FORMALITIES OF CX)NTRACTS. 


281 


where the books are kept. Their probativeness indeed appears 
to belong* to the law of process, and hence to be properly subject 
to Ihe le.v fori. But here it is inseparably connected with the 
form and effect of the juridical act itself, which here must be 
regarded as the preponderating element. The foreigner who 
deals with a merchant belonging io a place where mercantile 
books are probative subjects himself to its local law.^^* This 
reasoning might be admitted so far as to receive the evidence of 
such books on the strength of the le.r loci contractus; and to do 
so would simply amount to regarding the merchant who made 
the entry in his book as constituted by the Ic,r loci contractus 
the agent of the other party, empowered to reduce the contract 
for him into writing in a certain way. But it would still remain 
that if oral evidence were offered which the le.r fori excluded, 
such exclusion, being founded on the desire of preventing per- 
jury, might claim to override any contrary rule of the /c.r loci 
contractus, not only on the ground of its being a question of 
procedure, but also because of that reservation in favour of any 
stringent domestic policy which controls all maxims of private 
international law. 

Evidence by writing must be furnished, where required by the 4ih section 
of the statute of frauds, though the lex loci contractus celehrati does not 
require it. Leroux v. Brown (1852), 12 C. B. 801, Jervis, Maule, Talfourd. 

So, too, parties suing in the English court upon a contract relating to 
foreign land must comply with section 4 of the statute, ('oonibs v. Quine n, 
[1917] 142 L. T. 23, C. A. 

§ 209. The formalities required for a contract by the law of 
the place where it was made, the le.r loci contractus celehrati, 
are also necessary for its validity in England. 

“ The plaintiff cannot recover upon a written contract made in Jamaica, 
which by the laws of that island was void for want of a stamp.” This is 
the marginal note of Alves v. Hodgson (1797), 7 T. R. 241, in which 
Kenyon said: ” Then it is said that we cannot take notice of the revenue 
laws of a foreign country ; but I think we must resort to the laws of the 
country in which the note was made, and unless it be good there it is not 
obligatory in a court of law here.” In Bristow v. Sequeville (1860), 
6 Exch. 276, Pollock, Rolfe, Alderson, Platt, there was no question of 
proving the contract, but only of proving that the case provided for by the 
contract had arisen through the f&ct of a certain payment having been 
made, and a receipt was allowed to be used as evidence which could not 
have been so used where it was given for want of the stamp required in that 
country. The case therefore rested on the maxim that tlie lex fori governs 
procedure, and did not raise the point of this §. But Rolfe said : ” The 
marginal note of Alves v. Hodgson is perfectly correct, although I cannot 

*Sy8t. § 361, Guthri^ 822. ” The judicial act ” means only ” the transaction,” 
which is so called because it is of a nature to produce legal consequences. 



282 


PRIVATE INTERNATIONAL LAW. 


help thinking that there must be some mistake in the report of the case. 
... I agree that if for want of a stamp a contract made in a foreign 
country is void, it cannot be enforc^ here. But if that case meant to 
decide that where a stamp is required by the revenue laws of a foreign 
state before a document can be received in evidence there, it is inadmissible 
in this country, I entirely disagree.” And Alderson said: “If by the 
law of a foreign country a document is only inadmissible for want of a 
stamp, it is a valid contract, and receivable in evidence in another 
country.” There need be no doubt about the accuracy of the report of 
Alves V. Hodgson, Lord Kenyon, as above quoted from it, points out so 
clearly that the question to try was whether there was an obligation by the 
lex loci contractus celehrati, and implies so clearly that such an obligation 
was equally absent whether the promissory note by which, if at all, it was 
constituted, was called void or inadmissible by that law. Grant that 
certain evidence may be read, it misses the mark if it only proves that a 
certain transaction took jjlace, and not that an obligation arose on that 
transaction by the appropriate law. 

“ I should clearly hold that if a stamp was necessary to render this 
agreement valid in Surinam, it cannot be received in evidence without that 
stamp here. A contract must he available by the law of the place where 
it is entered into or it is void all the world over.” Ellenborough, in Clegg 
V Levy (1812), 3 Camp. 167. An annuity granted in England, and secured 
on land in Ireland, was void in Ireland if it did not comply with the 
formalities required by the English annuity act ; Bichards v. Goold (18^7), 
1 Molloy 22, Hart, who said that “a contract void by operation of Jiaw 
in the place where it is made cannot be set up in any other place'.” I 
have put into italics the words in these judgments which are inconsistent 
with limiting the inefficacy in England to those contracts which^ are 
expressly declared void by the lex loci contractus celehrati. 

In James v. Catherwood (1823), 3 D. <& R. 190, Abbott, Holroyd, Best, 
receipts given in France, and inadmissible there for want of stamp, were 
admitted in order to prove the loan of money. The only reason given was 
that no notice can be taken of the revenue laws of a foreign country, a 
reason of which Pollock appeared to approve when he quoted the case 
in Bristow v. Sequeville. To impose on the defendant an obligation 
which he never incurred by the appropriate law of the transaction, on 
the ground that he would have incurred it if a foreign revenue law had 
not stood in the way, is something more than not to notice a foreign 
revenue law. But in the particular circumstances of James v. Cather- 
wood proving a contract of loan was perhaps not indispensable. If the 
defendant detained the plaintiff’s money without lawful excuse there 
might be an obligation on him by the law of England to restore it, no 
matter where he received it; and so the case, like Bristow v. Sequeville, 
might be reduced to the proof of a fact. 

In Wymie v. Jackson, 2 Russ. 352, a dictum of Leach is reported, “ that 
the circumstance of [certain] bills being drawn [in Prance], in such a 
form that the holder could not recover on them in France, was no objec- 
tion to his recovering on them in an English court.” It has been assumed 
in quoting this dictum that the objection of form was the want of a stamp, 
but it does not appear to have been so, for it is said that the bills were 
not “ in the form required by the French code.” The dictum is therefore 
quite indefensible, and the case appears to have been ultimately decided 
both by the vice-chancellor, and by Eldon on appeal (1826), on the 
ground of the consideration for which the bills had been given. 



INTERPRETATION OF CONTRACTS. 


263 


See also, in §§ 227, 228, the rules enacted by the Bills of Exchange 
Aot^ 1882, as to the forms required in bills of exchange, particularly the 
non-necessity of the foreign stamp, which makes those instruments an 
exception to the doctrine here contended for, supposing that doctrine to 
be sound in general. 

§ 210. There is an authority to the effect that a formality, 
which in the place where the contract was made is an accident 
without consequence, must have in England the effect which 
English law would give it. 

A contract executed under seal in India, where there is no difference 
between specialty and simple contract debts, is a specialty in England, and 
the longer period of limitation applies to it. Alliance Bank of Simla v. 
Carey (1880), 5 C. P. D. 429, Lopes. 

Interpretation of Contracts. 

Supposing that a contract satisfies the conditions required with 
regard to its formalities, it has next to be interpreted, that is, it 
must be ascertained what the parties meant by the words they 
have used; then a question may arise whether the meaning of 
the parties was not prevented by some rule of law from producing 
a binding obligation, and therefore, in our subject, a question by 
what national law the legality of a contract is to be determined ; 
and lastly, if the contract is found to be a lawful one, it will 
often happen that the parties have expressed no meaning about 
the particular consequences of it which are under discussion, 
whence arises in our subject the question by what national law 
the unexpressed consequences of a contract are to be drawn 
from it. 

On interpretation in private international law there is little to 
be added to what is said above, pp. 80, 81. 

§ 211. Where a written contract is made in a foreign 
country and in a foreign language, the court, in order to 
interpret it, must first obtain a translation of the instrument; 
secondly, an explanation of the terms of art, if it contains any; 
thirdly, evidence of any foreign law applicable to the case; 
and fourthly, evidence of any peculiar rules of construction, if 
any such rules exist by the foreign law. With this assistance, 
the court must interpret the contract itself on ordinary prin- 
ciples of construction.^* Lord Cranworth, in Di Sora v. 
Phillipps, 1863, 10 H. of L. 633. It will be observed that in 
this passage no rule is laid dipwn as to what law is applicable 
to the case, supposing, for example, that persons belonging to 
one country contract in a second for the perfotmance of certain 



284 


PRIVATE INTERNATIONAL LAW. 


things in a third. It is not pretended by the learned lord that 
the law of any of those countries, as suchj would govern the 
interpretation. A consideration of all the facts might lead to 
the conclusion that words had' been used by the parties in the 
technical sense of this or that law, or it might lead to the 
conclusion that they had not agreed in any meaning on the 
point under discussion. And in the latter case the result might 
be either that there was no obligation on the point, or that an 
obligation on the point followed, by some law as such, from 
another point on which the parties had agreed in a meaning. 
Hut in every case the interpretation of their meaning would be 
a (piestion of fact, as it is put above, on p. 80. It is true that 
in the same case, p. 638, Lord Chelmsford is reported to have 
said : ‘‘It is difficult to understand how the construction of a 
contract can be a question of fact.’’ But he only desired to 
say that it was not a question to which a witness could be 
allowed to depose; that the witnesses could only depose to the 
more elementary facts which were to guide the court in inter- 
preting the contract for itself. The words which immediately 
follow in the rejoort — “ the construction of a contract is 
nothing more than the gathering of the intention of the parties 
to it from the words they have used ” — are ’equivalent to stating 
that the question is one of fact in the sense here meant. And 
although Lord Chelmsford added — “ if the law applicable to the 
case has ascribed a peculiar meaning to particular words, the 
parties using them must be bound by that meaning ” — the value 
of that rule can scarcely extend beyond the case in which the 
whole transaction, and the persons and things concerned in it, 
belong to a single territory. To apply it further would require 
the possession of a rule for the selection of a law on interpreta- 
tion, which it would be a bold undertaking to furnish. 

In "Duncan v. Campbell (1842), 12 Sim. 616, Sh^idwell, a deed executed 
in Scotland, and in Scotch form, wa<? under the circumstances interpreted 
according to the technical sense of the words in English law. In Crosland 
V. Wrigley, [1895] 73 L. T, 60, Kekewich, and 327, Lindley, Lopes and 
Rigby, directions to pay money to members of a family were interpreted 
according to the law of the domicile of the family. Cf. Be Miller^ [1914] 
1 Ch. 511, and Studd v. Cook^ 8 App. Cas. 571 (above p. 215). See Addenda. 

There are two important cases in which the facts pointed to 
the conclusion that in drawing up a contract the parties had 
at any rate no law except that of England in their mind, and 
in which, by the simple interpretation of the contact irrespec- 
tive of any question of the law to be appljed to it, Ttio* action 



INTERPRETATION OF CONTRACTS. 


285 


was to be brought under it except on an award in an arbitration 
which was provided for by it, but in both of which cases an 
attempt to entertain an action under the contract not on such 
an award was made and defeated. These are Hamlyti Co, 
V. Talisher Distillery^ [1894] A. C. 202, Herschell, Watson, 
Ashbourne, Macnaghten, Morris and Shand ; in which the 
attempt was made by the Court of Session, on the ground that 
the law of Scotland requires that the arbitrators shall be named 
in an arbitration clamse; and Spurrier v. La Cloche^ 

A. C. 446, judgment of himself and Macnaghten, Davey, 
Robertson and North, delivered by Lindley; in which the 
attempt was made by the Royal Court of Jersey, on the ground, 
as was suggested, of some invalidity of the arbitration clause 
by Jersey law. The language of their lordships in each case 
did not distinguish between the interpretation of a contract on 
the one hand, and its legality and unexpressed consequences or 
intrinsic validity and effects on the other hand, as has here been 
done and as it has been usual to do in j^rivate international 
law; although in the second case the judicial committee in fact 
treated the question as one of interpretation, by saying that 
‘‘ the contract is one on which no cause of action could accrue 
until the amount to be paid had been determined by arbitration, 
and by arbitration as provided by the contract.” Dealing 
without distinction with the topics that can arise on this branch 
of our subject, they assumed that some law must have been 
contemplated by the parties, and, concluding in each case that 
this was English law, they gave as their ratio decidendi what 
the judicial committee thus express in the second case: ‘‘that 
the intention of the parties to a contract is the true criterion 
by which to determine by what law it is to be governed is too 
clear for controversy; see Hamlyn 8f Co, v. Talisker Distillery] 
and the intention is here unmistakable.” 


Intrinsic Validity and Effects of Contracts, 

Supposing that a contract . satisfies the conditions required 
with regard to its formalities, and that it has been interpreted 
so fai^ as the meaning of the |)arties has been expressed in it, 
there remain the questions which are usually described as those 
of its legality and unexpreseed consequences, or those of its. 
intrinsic validity and effects. Another term which is some- 
times used, the obligation of a contract, will include them all. 



286 


PRIVATE INTERNATIONAL LAW. 


At this point begins the competition between the lex loci 
contractus celehrati and the law of the place of fulfilment, 
intending by the latter the law of that jurisdiction which would 
be the forum contractus according to true Roman principles. 
The dicta of the English judges are mainly on the side of the 
former, which at the time when the maxims of private inter- 
national law were imported into this country was almost 
universally preferred on the continent, under the infiuence of 
mistaken views as to the forum contractus in Roman law. Also 
the locus contractus celebrati and the locus actus being the 
same, our judges, who were little acquainted with the principle 
of the lex loci actus, were led to refer to the lex loci contractus 
celebrati that operation with regard to the formalities of 
contracts, and even with regard to their interpretation, so far 
as any one might be disposed to attribute a binding authority 
to the technical sense of words, which elsewhere was perhaps 
more often referred to the lex loci actus ; and they were thereby 
confirmed in their adherence to the lex loci contractus celebrati 
where it no longer ran parallel to the lex loci actus, but competed 
with the law of the place of fulfilment. But the reasons which 
plead for the law of the place of fulfilment as in general 
determining the obligation of a contract are so substantial, 
resting as they do on the general probability that it is there 
such obligation will be discussed and enforced, that the English 
judges have often abstained from actually giving to the place 
of contracting that paramount influence which their dicta 
ascribe to it. 

Thus no dictum in favour of the place of contract can be 
stronger than that of Lord Justice Turner, in delivering the 
judgment of the privy council in The Peninsular and Oriental 
Steam Navigation Company v. Shand, 1865, 3 Moo. P. C., N. S. 
290. ‘‘ The general rule is that the law of the country where 

a contract is made governs as to the nature, the obligation, and 
the interpretation of it. The parties to a contract are either the 
subjects of the power there ruling, or as temporary residents owe 
it a temporary allegiance : in either case equally they must be 
understood to submit to the law there prevailing, and to agree 
to its action upon their contract. It is of course immaterial 
that such agreement is not expressed in terms; it is equally an 
agreement in fact, presumed de jure, and a foreign court inter- 
preting or enforcing it on any contrary rule defeats the intention 
of the parties, as well as neglects to observe the recognized 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS. 287 


comity of nations.’’ Yet the same judge immediately proceeded 
as follows: Their lordships are speaking of the general rule; 
there are no doubt exceptions and limitations on its applicability, 
but the present case is not affected by these, and seems perfectly 
clear as to the actual intention of the contracting parties. This 
is a contract made between British subjects in England, sub- 
stantially for safe carriage from Southampton to Mauritius. 
The performance is to commence in an English vessel, in an 
English port; to be continued in vessels which for this purpose 
carry their country with them ; to be fully completed in 
Mauritius; but liable to breach, partial or entire, in several 
other countries in which the vessels might be in the course of 
the voyage. Into this contract, which the appellants frame 
and issue, they have introduced for their own protection a 
stipulation, professing in its terms to limit the liability which 
according to the English law the contract would otherwise have 
cast upon them.” According to the French law, in force at 
Mauritius, a stipulation so limiting the company’s liability 
would be ineffectual; but the privy council held, reversing the 
judgment pronounced at Mauritius, that it was effectual in the 
case. The actual intention of the parties,” said Turner, 
‘‘ must be taken clearly to have been to treat this as an English 
contract, to be interpreted according to the rules of English 
law; and as there is no rule of general law or policy setting 
up a contrary presumption, their lordships will hold that the 
court below was wrong in not governing itself according to 
those rules.” 

Now let us consider what was involved in the case, and in the 
judgment as above cited. When a contract was entered into 
which expressly purported to limit the liability of the company, 
there could be no serious question but that the parties intended 
to limit the liability of the company. The real question was 
whether that intention was lawful, and therefore effectual, and 
this depended on whether the law of England or of Mauritius 
was to govern : nor was any step really gained by pointing out 
that the parties, so far as they ihought of either law, must have 
intended to adopt the one which would make their contract good, 
because the lawfulness of this second intention would remain as 
open to question as that of the intention to limit the liability of 
the company. The court at Mauritius held that the law of that 
island governed because it was the place where the carriage 
contracted for was to end, and in that sense the place of 



288 


PRIVATE INTERNATIONAL LAW. 


fulfilment. The privy council decided in favour of the law of 
England, but neither substantially nor nominally on the bare 
ground of its being that of the place of contract, notwithstanding 
the strong dictum with which they commence. Substantially, 
they point out that the fulfilment of the contract was to be 
the whole carriage, and not merely its termination, and they 
refer to the English character of the company by calling the 
contract one made between British subjects : nominally, they 
build on the presumed intention of the parties to adopt English 
law. Now if the reader will turn to Savigny’s examination of 
the forum contractus above, pp. 231, 232, he will see that the 
case did not fall under I, because among all the places over 
which the fulfilment was to extend none was specially fixed, 
but that it fell under II, by reason of the obligation arising 
out of the company’s course of business in England, and also 
under III, by reason of the English character of the company; 
and that therefore, for reasc^s agreeing with the substantial 
grounds of the privy council,^ England was the Roman forum 
contractus. And as to the nominal ground, it may be con- 
fidently believed that if it had been the English law which 
prohibited the limitation of the company’s liability, and the 
French which allowed it, the decision of the privy council 
would still have been in favour of the English law, and nothing 
would have been said about the intention of the parties to adopt 
the law which made their contract good. 

And dicta of English judges are not wholly wanting on the 
side of the place of fulfilment, as against that where the contract 
was made. In Robinson v. Blandy 1760, Lord Mansfield said, 
‘‘the law of the place can never be the rule where the trans- 
action is entered into with an express view to the law of another 
country as the rule by which it is to be governed : ” Burr. 1078. 
The question was about the lawfulness of the consideration for 
a bill of exchange drawn by a person in one country on himself 
in another; and as the law of the latter country was opposed 
to a recovery on the bill, and there was nothing but the place 
the bill was drawn on from which to infer a view to that law, 
Lord Mansfield can have meant by “an express view ” to it 
nothing special to the case, but merely that tacit expectation 
which may always be said to be directed to the place of fulfil- 
ment, even when the result of appealing to that place is to 
defeat the specific intentions of the parties. 

§ 212. In these circumstances it may probably be said with 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS. 289 


truth that the law by which to determine the intrinsic validity 
and effects of a contract will be selected in Eng*land on sub- 
stantial considerations, the preference being given to the country 
with which the transaction has the most real connection, and not 
to the law of the place of contract as such. 

This principle was illustrated in Jacobs v. Cridit Lyonnais^ 12 Q. B. D. 
589 ; (1883), Denman and Manisty ; (1884), Brett and Bowen ; and Be 
Missouri Steamship Co., 42 Ch. D. 321; (1888), Chitty, affirmed in 1889 
by Halsbury, Cotton and Fry. In both cases the law chosen was in fact 
that of the Roman fai'um contractus as explained by Savigny. But in 
both cases a stress was laid by the learned judges on the intention of 
the parties, as the governing element in the choice of a law. 

In the last edition, however, Westlake justified the rule laid down in 
the § thus : — When a case shall arise in which the nature and circum- 
stances of a contract shall jxiint to judging its validity by a law un- 
favourable to it, and the court shall be asked to judge its validity by 
another law because the parties must be presumed to have intended, or 
may even have said that they intended, to contract with reference to a 
law by which their contract would be upheld, the judges may be con- 
fidently expected to decline such a request. See Iloyal Exchange Assurance 
Corporation v. Sjoforsakrings Aktieholaget Vega, [1902] 2 K. B. 384, 
Collins, Mathew, Cozens-Hardy, affirming Bigham, [1901] 2 K. B. 562. Two 
more recent decisions may be noted here ; and the second may be said to 
have affirmed his principle. Income and General Investment Trust, Lim. v. 
Borax Consolidated, Lim., [1920] 1 K. B. 539, Sankey and Balli Bros. v. 
Companhia Naviera Sota Y Aznar, [1920] 1 K, B. 614, Bailhache, affirmed 
by C. A. Sterndale, M.R., Warrington, Scrutton, L. JJ., [1920] 2 K. B. 257. 
In the first case a railway company incorporated in the United States issued 
bonds to the plaintiff company and undertook to pay the principal and 
interest in England, and the defendant company, which was a party to 
the deed of trust, guaranteed payment if the plaintiffs made default. 
Both plaintiff and defendant companies were English, and the plaintiff 
company agreed to be sued in England. Subsequently, an income tax was 
imposed by the American Government on income derived by a foreign 
cor]x>ration, and the railway company claimed to deduct the income tax 
in making the payment of interest due. It was held that the claim was 
not good, that by English law there was no right to consider payment of 
foreign tax as a discharge of the English contract, and no implied stipu- 
lation could be read in the contract that tax laws of the United States were 
enforceable against the plaintiffs in England. There was no illegality in 
performing the contract strictly, and it was not the duty of the English 
court to enforce the taxation laws of a foreign country. In the other 
case, the question at issue was whether the court in determining the rights 
under an English charterparty by -which part of the contract was to be 
performed in Spain should have regard to a Spanish law which limited 
the amount of freight to be charged. It was held that as regards the 
part of the contract to be executed in Spain the Spanish law must be 
considered and the illegality imposed by that law made the terms of the 
contract invalid and unenforceable*. Cf. also, Trinidad Shipping Co, v. 
Alston, [1920] A. C. 888, Parmoor, Haldane and Moulton, where an 
agreement made in English territory to allow rebates on freights paid for 
carriage of goods to a foreign country was held enforceable, though payment 

19 


W.I.L. 



290 


PRIVATE INTERNATIONAL LAW. 


of rebates would make the shipowner liable to penalties in accordance with 
the foreign law. 

In British South Africa Company v. De Beers Consolidated Mines j 
[1910] 1 Ch. 364, [1910] 2 Ch. 502, Swinfen Eady and the Court of 
Appeal, Cozens-Hardy, Farwell and Kennedy, applied English law as 
the proper law of a contract relating to a charge on immovables abroad 
and consequently held one of the most vital terms of the contract to be 
void, although by the lex situs of a large part of the immovables this 
term would have been valid. Swinfen Eady, while referring the deter- 
mination of the proper law of the contract to the intention of the parties, 
declined to presume an intention based on the legality of the term in 
the lex situs. Kennedy also referred the question to the intention of the 
parties ; but Cozens-Hardy and Farwell decided the point in accordance 
with § 212 without any reference to presumed intention. The real 
determining factor in Hansen v. 'Dixon^ [1906] 23 T. R. 56, Bray, cited 
under § 224, in which the intention of the parties was referred to, was 
the place of intended performance of the contract, a promise of marriage. 

Even where the supposed intention of ther parties has nominally 
been relied on, it has been in fact nothing more than a fictitious 
intention presumed from following the doctrine of this §, and 
has been in itself no substantial guide to the choice of law. 

The following cases have been decided in accordance with § 212 : 
Chatenay v, Brazilian Submarine Telegraph Co., [1891] 1 Q. B. 79, 
Esher, Lindley and Lopes affirming Day ; a case in which the questions 
of interpretation and effect are so clearly distinguished that it is worth 
while to quote from the marginal note: “ Held that the intention of the 
plaintiff was to be ascertained by evidence of competent translators and 
experts, including if necessary Brazilian lawyers, and that if according 
to such evidence the intention appeared to be that the authority should 
be acted on in England, the extent of the authority, so far as trans- 
actions in England were concerned, must be determined by English law.** 
The Mary Thomas, [1894] P. 108, Gorell Barnes, afifirmed by Lindley, 
A. L. Smith, and Davey ; South African Breweries v. King, [1899] 2 Ch. 
173, Kekewich, quoting § 212 with approval ; affirmed, [1900] 1 Ch. 273, 
Lindley, Vaughan Williams, Romer. Followed in Hicks v. Maxton, 1 
W. C. C. 150, a case under the Workmen*s Compensation Act, where it 
was held that a servant living in England who was taken over to France 
to do work and there suffered injury was not entitled to recover compensa- 
tion, because, in the absence of evidence that the lex loci contrcLctus was 
to govern the agreement, the law of the place of fulfilment applied. 

See what has been said about marriage settlements or contracts, above, 
§ 39. 

Before coming in detail to the cases in which some other 
country may compete with the place where the contract was made 
as the truest seat of the transaction in question, and therefore 
as the country giving to the contract its proper law, it will be 
convenient to take the cases in which the leaf fori competes with 
the law prevailing in the unquestioned seat of the transaction. 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS. 291 


§ 213. A contract which is illegal by its proper law cannot be 
enforced. This follows from the consideration that no obligation 
can be imposed by the lex fori as such, that is, when the forum is 
not the proper forum of the transaction. And if any part of a 
contract is illegal by the law of the place of performance that 
part is invalidated. 

"Eeriz v. Biera (1840), 11 Sim. 318, Shadwell. Balli Bros. v. Companhia 
Naviera, etc. (u.s.), and see Ford v. Cotesworth, 6 Q. B. 544, Kelly, 
Maule, and ( ?), Cunningham v. Down, 3 C. P. D. 443. 

A number of cases have decided that the law of England does not 
regard it as wrong to violate the laws of a foreign country concerning 
revenue or trade, and that therefore a contract of which the proper law is 
that of England may be enforced notwithstanding that it contemplated 
such a violation. Planchi v. Fletcher (1779), 1 Doug. 251, Mansfield 
and ( ?) ; Lever v. Fletcher (1780), Park on Marine Insurances, 8th ed., 
p. 606, Mansfield ; Simeon v. Bazett (1813), 2 M. & S. 04, Ellenborough 
and ( ?) ; affirmed (1814), suh nom. Bazett v. Meyer^ 5 Taunt. 824, Thomson 
and ( ?) ; Sharp v. Taylor (1849), 2 Ph. 801, see p. 816, Cottenham. The 
justice of this doctrine need not here be considered, because even if 
admitted it would not lead to the conclusion that a contract can be 
enforced here which produced no obligation by its proper law, when the 
cause of such invalidity was the violation of the trade or revenue laws of 
the country concerned. This however was done in Boucher v. Lawson 
(1735), Cases temp. Hardwicke 85, Hardwicke, Page and Lee; unless 
that case can be supported on the ground that a contract to carry from 
one country to another properly belongs to the latter country. See § 222. 

It may here be mentioned that a contract having for its object to 
revolutionize a friendly country, or to supply funds to an insurgent 
government not recognized by the sovereign of these realms, will not be 
enforced in England. Jones v. Garcia del Bio (1823), T. & R. 297, 
Eldon f BirS v. Thompson^ mentioned by Shadwell in Taylor v. Barclay, 
2 Sim. 222, Eldon; Macnamara v. VEvreux (1824), 3 L. J. Ch. 166, 
Leach; Be Wutz v. Ken&ricks (1824), 9 Moore 586, 2 Bing, 314, Best; 
Thompson v. Touyles (1828), 2 Sim. 194 — suh nom. Thompson v. Barclay, 
6 L. J. Ch. 93 — Shadwell ; Taylor v. Barclay (1828), 2 Sim. 213, Shad- 
well. The last case shows that the court will take judicial notice of the 
fact that the insurgent government had not been recognized, notwith- 
standing that the contrary is averred in the pleadings. When in any 
pleadings a state is mentioned which has not been recognized by the sov- 
ereign of these realms, and it may possibly be not an insurgent one but 
a new state in a region previously uncivilized, the party averring its 
existence must prove it : Macgregor v. Lowe (1824), 1 C. & P. 200, 
Ry. & Mo. 67, Abbott. 

§ 213a, But the fact that th6 performance of a contract in 
England has been made impossible by some act of a foreign 
government or by force majeure at the place of fulfilment does 
not make it invalid or prevent damages being awarded for its 
breach according to its proper law. 

BlacJchum Bobbin Co. v. Williams de Sons, [1918] 1 K. B. 540, 
McCardie. Defendants*^ sold to plaintifis timber to be imported from 



292 


PRIVATE INTERNATIONAL LAW. 


Finland and to be delivered to plaintiffs in England. They could not 
carry out the contract owing to the impossibility of obtaining the timber 
in Finland, and it was held that they were liable in damages, the non- 
performance not being excused on account of inevitable necessity abroad. 

§ 214. Where a contract contemplated the violation of English 
law, it cannot be enforced here notwithstanding that it may have 
been valid by its proper law. 

Bi(j(js V. Latorence (1789), 3 T. R. 464, Kenyon, Ashhurst, Buller, 
Grose, all however grounding their opinion on the fact that three of the 
partners who sued lived in England at the time the contract was made ; 
Clugas v. VenaluTui (1791), 4 T. R. 466, where there was a sole plaintiff, 
resident in the country of the contract, but a British subject, on which 
fact Kenyon grounded his opinion, and possibly Grose, while Ashhurst 
and Buller took the broad ground expressed in the § ; Waymell v. Bend 
(1794), 5 T. R. 599, Kenyon, Buller, and Grose, where the plaintiff was 
not a British subject, and the doctrine of the § was finally adopted. It 
had been laid down by Lord Mansfield in Holman v. Johnson (1776), 
Cowp. 341, but could not be applied either there or in Fellecat v. Angell 
(1835), 2 Or. M. & R. 311, Abinger, Bolland, Alderson, Gurney, because 
the delivery of the goods sold was complete abroad, and nothing was done 
by the seller to assist in smuggling them into England, though he knew 
the buyer’s intention to do so. In the cases before Lord Kenyon the seller 
packed the goods in a peculiar manner, for the pur}x)se of smuggling. 

In Santos v. Illidge (1869), 6 C. B. (N. S.) 841; and on appeal (1860), 
8 C. B. (N. S.) 861; the action was by a Brazilian against British sub- 
jects, for non-delivery of slaves sold by them in Brazil, and the question 
was whether they had been prohibited from selling them by a British 
act of parliament. If they had, the contract did not contemplate the 
violation of British law, but was in actual violation of it, and there 
could of course be no recovery on it in England. It was held incidentally 
by Bramwell and Blackburn that a right of pro}>erty acquired in Brazil 
to slaves there, through a purchase made there and lawful there, must 
be recognized in England as a valid Brazilian right, capable of existing 
and being transferred in that country, even though the purchaser, being 
a British subject, should be held to have committed felony under a 
British act of parliament in acquiring it: 8 C. B. (N. S.) 873, 876. 
Blackburn however thought the point would be questionable “if the 
vendor was a domiciled British subject.” The doctrine, perhaps even 
without this limitation, seems plain enough; but the contrary was held 
by Willes, Williams and Byles in the lower court, and by Wightman and 
Pollock in the higher court. In a number of cases arising during the 
war out of the contractual relations between Englishmen and enemy sub- 
jects it was held that, whatever the law under which the contract was 
made, the war put an end to all executory contracts which for their 
further performance required intercourse between a subject of the King 
and an alien enemy or any person voluntarily residing in the enemy 
country. Ertel Bieher <k Co. v. Bio Tinio Co,, [1918] A. C. 260, Parker, 
Dunedin and Atjctnson. Naylor Benson (fe Co. v. Krainische, I. G., 
[1918] 1 K. B, 331, McCardie: affirmed by C. A. [1918] 2 K. B. 486. 
The contracts were for delivery over a long period of metals to German 
firms, in which it was provided that in case of war the delivery of the 
instalments should be suspended; and it was lield that this condition 



CONTRACT OPPOSED TO ENGLISH LAW. 


203 


could not stand because contrary to English law, and the whole contract 
was abrogated. 

§ 215. Where a contract conflicts with what are deemed in 
England to be essential public or moral interests, it cannot be 
enforced here notwithstanding that it may have been valid by 
its proper law. 

The plaintiff in such a case encounters that reservation in 
favour of any stringent (loinestic policy, with which alone any 
maxims for giving effect to foreign laws can be received ; see 
above, pp. 51, 52. The difficulty in every particular instance 
cannot be with regard to the principle, but merely whether the 
public or moral interests concerned are essential enough to call it 
into operation; and where a breach of English law is not con- 
templated, this is necessarily a question on which there is room 
for much difference of opinion among judges. 

This § was cited with apjmwal in Kaufman v. Oerson, [1904] 1 K. B. 
591, Collins, Ptomer and Mathew, reversing Wright, [1903] 2 K. B. 114, 
in which the court refused to enforce a cxmtract between persons domiciled 
in France, there obtained by moral coercion, and said by an expert to be 
nevertheless valid there. It was applied again in Soci