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<OU 174571 


DU 


OP — 
73 < 

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73 73 





A TREATISE 


ON 

PRIVATE-INTERNATIONAL LAW 

WITH PRINCIPAL REFERENCE TO ITS 
PRACTICE IN ENGLAND 


BT 


the late John wkstlakk, k.c„ ll.il, 

WHT WI-LL PROFESSOR OF INTI RNATIONAL LAW IN THE UNIVFRBI1Y OF CAMBRIDGE. 
HONORARY FELLOW OF TRINITY COLLI Oh, CAMBRIDGE , HON I» C L OXFORD 
AND Tr I) IDINBUllGH, FORM’ III Y MI MH1 R OF THE PTHtMANINT 
COUR1 OF ARBITRATION AT IHI HAGUE, HONORARY PHI 81- 
DFNT OF THE INSTITUTE OF INTI RNATIONAL LAW 


SIXTH EDITION 


it 

NORMAN RENT W 10 II, 

IlARltlSTF R Ai I AW II GAL HI ( UTTAR* TO Till uO>l K\MI N I 
OF PAI 1 SI INF I ATI Will Will. 41 HOI Alt IN I HI 
UMVinsm OI CAMBRIDGE 


LONDON 

SWEET & MAXWELL, LTMITfiD, 

3 CHANCERY LANT, W C, 2 


1922 



First Edition By the \ i t t iior 1858 

Second Ediiion „ „ 1880 

Third Edison ,, 1890 

Fourth Edition „ ,, 1905 

Filth Ediiion „ „ assisted by A F Topiiam 1912 




PREFACE, TO THE SIXTH EDITION. 


Iis the last edition of his Tieatise, on Pnvatfe Intel - 
national Law, which was published m 1912, Professor 
Westlake was assisted by Mi Tophani, who, owing to 
pressure of other work, has been unable to toke any 
part in pieparng this present edition Westlake before 
his Meath haa e^piessed a wisli that I should help to bring 
his tieatise up to date when the occasion aiose, and 
although many circumstances have' made it difficult to 
do the woik with thd full devotion which it called for, 
ana, except foi short periods, I have been fai, during 
recent yeais, fiom a law libiary, yet a feeling of })ietas 
towaids my teacher has impelled me to do wlmt I could 
m fulfilling his wish 

The number of important decisions which have been 
given upon the subject by the English Courts doling 
the last decade is remarkable, and one cannot lead the 
Law Reports of more lecent yeais without being struck 
with the extent to which the Courts are called upon to 
consider foieign systems of law As the Empne glows 
in population and diversity, and as commeiee and m- 
dustiy become more and more international conflicts’ of 
law are bound to increase, and it becomes evei more 
desirable that England should take hei part, as Professoi 
Westlake constantly urged, m Inteiliational Conferences 
for establishing common principles in dealing with these 
conflicts 

I have not made any changes m the arrangement 
of the" work nor added any fresl chapteis, and for the 
most part I have preserved Westlake’s text and made 
such modifications only as the alterations in the Statute 
Law and the decisions of the Courts have required. 



IV PREFACE TO THE fc^IXTH EDITION 

But a number of sections have had to be modified, and 
on four topics m particulai the changes ha/e been so 
substantial that the text has been completely re-writteu. 

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 Gasdagli Casdagli , winch is indeed in the sense 

m which Westlake advocated that the law should be 
interpreted, has failed for t a re-statement, of the rules 
as to .domicile in Onental countnes. 

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

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

Othei matteis in which the decisions given, oi the 
rules issued, have called for modification are service of 
the writ out of the jurisdiction, execution of foieign 
judgments, determination of the rate of exchange m 
an action involving foieign law, and exterritoriality of 
public vessels 

I have not cut shoit the historical argument and the 
logical reasoning of \ T estlake set out m former editions, 
because his Tieatise is not designed simply as a note- 
book of cases but, lather, as the Treatise of a Juris-consult ; 
and it would be wrong to change its character At the 
same time, I have m some instances shortened his 
statement of particular cases where the full facts appear 
no longer to be essential to the argument, m order that 
the bulk of the book should not be excessively increased. 
In one or two sections I have changed his statement, 
not oj\ account of more recent decisions; but because 
his guaided language can now, by the passage oi time, 



PREFACE TO T \U SIXTH EDITION y 

be made more definite. I would mention in particulai 
the rule regarding the effect of the marriage contract 
on the unmovable property of the spouses, on which 
the authoritative cnticism 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 
caieful thought to understand it , but the principles >of 
tins difficult branch of law cannot be masteied 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, wheie 
it has fallen to me to state a mle afresh, I have not 
been able to repioduce adequately the exact and 
accuiate method of my master 

I owe a debt of gratitude to my father Mi Herbert 
Bentwicli, of the Innei Temple, who, m my absence m 
a i emote Provmcia, has helped to see the manuscript 
thiough the Pi ess 


NORMAN BENTWICH. 


Government Hou&f, 
Jerusalem, 

June , 1922 




(. Vfl ) 


EXTRACT FROM 

PREFACE TO THE FOURTH EDITION, 

The spelling domicile , intended to rhyme with rule, 
and cone&ponding with the analogy m fonn between 
do mi cihum and *x ilium, has been letained It would 
be lemaikable u domicil, which, by its analogy to exilnnd 
soured, would seem to have a Fiench oiigm, should 
ultimately pievail m England, wlnle m France the uvaliy 
of the two loims has been definitely decided m favour 
of domicile 

The following modes of citation have been employed — 
Clunet Journal du Droit International Prwe et de la 
Jm ib]nu deuce Comparer , fonde et public , par Edouard 
Clunet , 

Lame Introduction an Droit International Prime, 
contenant une etude historique et critique de la theorie des 
statuts, par Armand Lame, 2 tomes, Pans, 1888, to which 
book I am gieatly indebted foi histoncal matter, 

P de D 1 et de L C Pevue de Droit International 
et de Legislation Comparer ( Bruxelles ) , 

Syst § 361, Guthrie 322 Savigny’? System dep heutigen 
Pomischen rechts, § 361 , Guthrie’s translation, 2nd ed 
p 322 


Chelsea, 

24 th July , 1905 


J WESTLAKE. 




IX 


CONTENTS. 

PAGE 

Addenda >m xxxvn 

CHAPTER I 

Introduction .. .. 1 

CHAPTER II 

Domicile and Naii nalit” — Renvoi 23 

CHAPTER III 

Capacity, and Foreign Guardianships and Curatorships 40 

CHAPTER IV 

Marriage, Divorcf, Legitimacy 

Man mge 51 

Effect of Man mge on Piopeity 69 

Divorce 83 

Legitimacy 99 

CHAPTER V 

Succession to Movables on Death .. 105 

The Giant of Piobate o* Administration 109 

Validity of Wills of Peisoiml Estate ..... 117 

What Personal Estate passes by the Giant of Probate or Adminis- 
tration , or must be accounted foi by the English Executor or 
Admmisti ator , ) '124 

Pnncipal and Ancillary Admmisti atio is , and Questions arising 
m Administration pnoi to the Dish ibution of the Surplus 130 

Distribution of the Surplus in an Administration 14C 

CHAPTER VI 

Bankruptcy . . 156 

CHAPTER VII 

Movables 183 

CHAPTER VIII 


Immovables 


. . 207 



X 


CONTEND 


CHAPTER IX. 

PAGE 

General 'Notions on Jurisdiction . .. 225 

CHAPTER X 

JURISDKIION IN ENGLAND, AND EXTERRITORIALITY . 237 

Note on Actions jot Tiesjmss to Foreign Soil 254 

Extern ito ( i lalitij . 2o6 

CHAPTER XI 

Tort", 267 

CHAPTER XII 

Contracts 280 

Formalities of Conti acts . 280 

Intel pi etation of Conti acts 28o 

Intimsic Validity and Effects of Contracts . . ... 285 

Bills of Exchange and Pi omissory Notes 300 

Obligations quasi ex contractu 308 

CHAPTER XIII 

Transfer and Extinction of Obligations 310 

Tiansfei of Obligations 312 

Extinction of Obligations 313 

CHAPTER XIV 

Domicile 319 

Connection of Damn lie with Law Anglo-Indian, Anglo- 
Egyptian and smh-hke Domiciles 319 

Domicile of Origin and of Prisons not sui juris 330 

Domicile of Choice 334 

Rules as to Change of domicile 341 

Trade Domicile in Time of Wai . . .. 352 

CHAPTER XV 

British Nationality 354 

Natural-bom Subjects at Common Law 355 

Natural-bom Subjects by Statute 355 

Natu alizaticm, Denization, and Resumption of British Nationality 358 
Decimation of Alienage md Expati uition . 361 

Effect of Family Relations on Nationality 362 

Tiansfei of Nationality in cases of Cession .. 364 

Under a Pei sonal Union and after its Dissolution 364 

Conflicts of Nationality and Statelessness 365 



CONTENTS xi 

CHAPTER XVI 

PAGE 

Corporations and Public Institutions 307 

CHAPTER XVII 

Foreign Judgments and Procifdings 379 

CHAPTER XVIII 

Procedure 401 

Pioof of Foteign Laws 407 

Various 412 

CHAPTER XIX 

Conclusion 411 


INDEX 417 




( xill ) 


LIST OF CASES C1TE1) 


[ The Numbers are ttiose of the Pages ] 


Abbott v Abbott, 4O6 
Abd ul-Messih v Farra, 323, 325, 326, 
328, 329 

Abdy, Lee v , 44, 203 
Abouloff v Oppenheimer, 397 
Acklam, Doe v , 364 
Actiengesellsdiaft, &c Cudell & Co , 
Dunlop, &c Co v , 377 
Adair, Anstruthcr v , 80 
Adam, Re, 361 

v British and Foreign Steamship 

Co , 272 

Adams v Clutterbuck, 208, 215 

, Forbes v , 208 

Adamson, Copin v , 383 
Adv Gen , Thomson v , 140 
^Eneas Macdonald’s Case, 355 
Aganoor’s Tmsts, Re, 108 
Agnese, Re, 127 
Agnes Otto, The, 270 
Agnew v Usher, 248 
Aguilar, Geyer v , 399 
Aikman v Aik man, 344, 350 
ADchison v Dixon, 346 
Aktiebolaget, &c , Rc, 252 
— -, West in an v , 239, 376 
Aktiesselskabet “ Hercules ” v Grand 
Trunk Pacific Railway Co , 377 
Albany Street Police Station Superm 
tendent, R v , 357 
Albion Insurance Co v Mills, 295 
Alcock v Smith, 204, 302 
Aldrich v British Gnffin Iron Co , 413 
Alexander, Re, 123 

, Att -Gen v , 372 

v Vaughan, 166 > 

Alexander & Co v Valentine & Sons, 
250 

Alexandria Water Co v Musgrave, 373 
Alison’s Trusts, Re, 56 
Alivon v Furmval, 169, 381, 397 
Allan, Manitoba Corporation v , 248 

, Phillips v , 316 

Allardice v OnsLw, 345 
Allardice and Onslow v Cannon, 36 
Allcock, Coch v , 112 
Allen v Anderson, 153, 210 

v Cannon, 166 

v Kemble, 305, 308, 405 


Allen’s Will, 330 

Alliance Bank of Simla v Carey, 283, 
314 

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

American Leather Co , Ricaud v , 200 
American Thread Co v Joyce, 372 
Amsterdamsch Trustees, Dudei v , 217, 
251 

Anderson, Re, 169 

, Allen v , 153, 210 

-, Atkinson v , 103 

v Caunter, 128, 129 

, Dod&worth v , 166 

, Giant i’ , 241, 242 

v Laneuville, 344 

, Laneuville v , 36, 114, 117 

, Lenders r , 250, 252 

, The Queen v , 204 

Andre Chale, Er parte, Re Artola Her- 
manos, 167 
Andros, Re, 155 
Angell, Pellecat v , 292 
Anghinelli v Anghinelli, 91 
Anglesea, Phipps v , 215 
Anglesey, Case of Lord, 219 
Angk ‘Australian Ba k, Embericos v , 
204 302 

Anglo Austrian Bank, Re, 295 
Anglo Italian Bank, Moor v , 2P9 
Angus v Angus/ 217 
Annette and Dora, The, 243, 257, 258 
Anonymous, 63, 146, 299 * 

Anstruther v Adair, 80 

v Chalmer, 148, 150 

Antwerp, &c Line, Bell & Co v , 248 
Apollmans Co ’s Trade Marks, Re, 413 
Apthornc, London Bank of Mexico, &c 
v , 3 n 3 

Aramburu, d’, Viesca v , 111 
Archoold, Harvey v , 2°9 
Archer v Pieston, 219 
Argent v Argent, 98 
Arglasse v Muschamp, 217, 219 
Arkwright, Doe v v 364 
Arnntage v Att Gen , 86, 67, 94 
Armstrong v Armstrong, 402 



XIV 


LI$T OF OASES piTED 


Armytage r Armytage, 88, 90, 91 
Arnold v Arnold, 140, 151 
Arnott, Casey v , 248 

v Bed fern, 295, 396 

Arthur v Hughes, 128 
Artola Hermanns, Re, Er parte Andrt 
Oh ale, 107 

Aseguiadora Espanola, Mutzenbecher 
z , 248 

Ashburton, Baring i , 152, 153 
Ashbury v Lllis, 383 
Astor, He, 110 
Alkins v Smith, 129 
Atkinson v Anderson* 103 

v Beeruiting Officer, Bury St 

Ij)dmundH, 304 

Atlas Insuiaiuc Co , Haas v , 109 
Att Gen v Alexander, 372 

, Armitage i , 80, 87, 94 

v Beatson, 140 

v Bouwcns, 120, 138 

, Brinkley v , 09 

v Campbell, 141, 144 

, Campbell v , 412 

v Cockerell, 140 

v Dimond, 137 

v Drapers’ Co , 248 

, Fashender i , 363 

v Felce, 144 

v Fitzgciald, 329 

v Forbes, 140 

v Glendining, 127 

- — v Higgins, 138 
v Hope, 137 

i Jewish Colonization Associa 

turn, 139, 144 

v Johnson, 138, 144 

v Kent, 349 

v Lepme, 371 

r London, City of, 371 

, Markwald v , 360 

v Mill, 211 

v Napier, 141 

, New York Bievvcries z , 109, 138 

, Partington v , 138 

v Pottinger 350 

v Pratt, 137, 138 

, Bobeits i , Be Johnson, °6, 38 

v Rowe, 349, 350 

, Seott v , 88 

, Rhaw e , 94, 97 

r Si urge, 371 

, Sudeley (Lord) v , 138 

v V/ahlstatt, 348 

, W illace v , 141 

, Wmans v , 127, 139, 336, 339, 

341, 342, 344 

Att Gen of Hong Kong i Kwok a- 
Sing, 269 

Att -Gen for Ireland, Swi f te v , 55 
Att Gen of New South Wales, Platt 
r , 346 

Att Gen foi Ontario, Woodruff v , 139 
Attrill, Huntington v , 382 
Auberv, Edinbuigh (Piovost of) v , 371 
Auuiey, Chetham v , 134 
Auerbach, Crozier & Co v , 249 
August, The, 296 


Aunol v Thomas, 308 
Australasian Investment Co , Ex parte , 
202 

Austria, Emperoi of; v Day and 
Kossuth, 206 
Ayers, Willans t , 308 
Ay ton, Nouvelle Banque de 1’ Union v , 
408 


Bacon v Bacon, 355 
Badart, Re, 143, 144 
Badcock v Cumberland Gap Co , 378 
Baddeley, Willis & Co t , 240 
Badische Amlin, Ac v Basel Chemical 
Works, 250, 298 

, Clumisdu Fabrik, Ac i , 250, 

252 

v Henry T dm son & Co , 298 

Baillie i Baillie, 139 
B.nn v \^hlt^ha^m A Furness June 
tion Railw ly Co , 406 
Baker, Re, 46 

, Johnstone v , 210 

Balcarres, Ae Co , Wilson A Co v , 253 
Bald, Re, Bald v Bald, 79 
Baldwin, Lewis v , 371 
Balfour v Cooper, 215 

t Scott, 147, 148 

Ballantine i Golding, 316 
Baltica, Te, 352 
Baltimore, Penn v , 217, 219 
Banco de Portugal, Ex parte, 179 

v Waddell, 179 

Bank of Africa v Cohen, 212, 218 294 
Bank of Austialasia v Harding, 392, 397 

v Nias, 392, 395, 397 

Bank of England, City of Berne z , 260 

, Dc la Chaumette v , 312 

, Stewart v , 264 

Batik of Montreal v Bcthune, 376 
Bank of Scotland, Logan v , 238, 252, 
377 

Bankes Re, Reynolds v Ellis, 44, 78 
Baiber, Cockerell v , 134, 151 
- v Lamb, 397 
Baibuit’s Case, 266 
Baiclay, Taylor v , 291 

, Thompson v 291 

Baiford v Barford, 410 
Baring v Ashburton, 152, 153 

, Dc Tistct z , 308 

z Inland Revenue Commissioners, 

204 

Barlow’s Will, Re, 47 
Barnard, Re, Parnard v White, 79 
Barne, Re, 165 
Barnes z’ Vincent, 121, 122 
Barieett’s Trusts, Re, 148 
Baioda, Gaekwar of, Statham z 1 , 258, 
260 

Baron Liebig’s Cocoa, Ac No ks, Re, 
254 

Barrett, Vomet v , 3^8 
Barretto v Young, 123 
Barrington (Lord), Food v , 211 
Barron, Gill v , 317 
Barros, de, Sottomay'r v , 41, 42, 57, 
60, 62 



LIST OF CASES CITED 


xv 


Bairow, City Bank v , 200 

v My» rs , 249 

Barry, Brodie v , 153 

v Van den Hurk, 299 

Barbeln^ann, Haarlbleicher v , 304 
Barttls, Grirnwood a , 212 

Bartholomay Bit wing Co v Wyatt, 373 

Bartley v Hodges, 316 

Basel Chznncal Works, Badische 

Amlin, &c v , 250, 298 
Bateman v Service, 373, 376 

v Batemar , 91, 92 

Battr v Bater, 88, 97, 392, 396 
Batho, Phillips v , 90, 272, 390 
Batthyany i Wilford, 221, 270 
Baylcy v Edwaids, 221, 400 
Ba/ett v Meyer, 291 

, Simeon t> 291 

Bearcroft, Compton i 59, 60 
Beatson, Att (ie . i , 110 
Beattie, Johnstone i , 44, 45, 332 

v Johnstone, 45 

Bcauchesne, dt , Hodgson i , 347, 351, 
352 

Beaofoy, Cimpbdl v , 148 
Be rum out Re, 332 

r Oliver i, 212 

Ben van v Hastings, 129 
Beavei v Master in Equity, 138 
Bcazley, Conway v , 97 
Becker, Vive ash v , 26b 
Btckford Kemble, 220 

v Wade, 216 

Becquet v MacCarthy, 385 

Betlale , Boycs i , 155 

Begrt/, Fisher r , 205 

Behrens, Castrique v , 396 

Belfast Shipowners’ Co , Re, 177 

Bclgenland, The, 274 

Bchsario, Lindo v , 410 

Bell k Co v Antwerp, &c , Line, 248 

Bell v Goerz k Co , 372 

i Kennedy 320, 340 

t Martin, 221 

, Tyler i , 128, 129 

B<_ilamont, Connor r , 299 
Bellamy, Bodily v , 299 
Bempde v Johnstone, 148, 333 
Bennett, Field v , 240 

, Holland v , 249 

Lent i Young, 220 
Bentley v Northouse, 312 

, Scott r , 46 

Berchtoldt, C^atfield ^ , 209 
Berdan v Greenwmod, 412 
Bergerem t’ Marsh, 170 
Bernal v Bernal, 151, 152 
Bernales, de, Cosio v , 44 

, National Bank of St Charles v , 

373 

v Ne” r York Herald, 240, 242, 

2o0 

Berne, City of, v P.nk of England, 
260 

Bernes, Stanley v , 119, 347 
Bertram v Duhamel, 300 
Best, Taylor v , 265 
Bethell, Re, 69 

Bethune, Bank oi Montreal v , 376 


Bevan, Scott \ , 300 
Beyer Peacock & Co , Ep parte , Re 
Claik, 165 

Bianchi, Re, 115, 343 
Biddell Bros v Horst & Co , 249 
Biggs i Lawrence, 292 
Bingham, Ommaney i , 148 

, Pardo i , 135, 313 

Bmgley, Waite u , 212 
Binney, Mutrie v , 400 
Bin ham, Currie % , 126 
Bird v Sedgwick, lo6 
Bin 4 v Thompson, 291 
Birt v Bout inez, 98 
Birtwhistle v Vardill, 222, 223 
Bishop, Gresham Life Assurance Co r 
v , 373 

Black, Pc, 111 

Black Point Syndicate i Eastern Con- 
cessions, 217 

Blackburn Bobbin Co v Williams k 
Sons 291 

Blackwood i The Queen, 138 
Blam, Ex parte. Re Sawers, 164 
Blake i Smith, 396 
Blikeman Hovcy v , 134 
Blikcs, Er parte, 171 
Blanc, Ti afford v , 108 3% 

Bland v Ix>w, 313, 406 

, Ilobmson v , 288, 293 

Blessington The Lady, 24 3 
Bligli, Obicim i , 385 
Blithrrnn Re, 169, 170 
Bloxam v Favie, 120 
Bockwoldt, Peiuvian Guano Co v , 
400, 402 

Bode « (Baron de) Case, 408, 409 
Bodily v Bellamy, 299 > 

Boger i Boger, 90 254 
Boissicic & Co i Brockner & Co , 389, 
392 

Bold Bmcleugh, The, 401 

Bolivia Explorition Syndicate, Re, 265 

Bolton, Re, 116 

Bonncina, Re, 294, 318 

Bonakcr, New v , 371 

Bond v Bond, 89 

— — v Graham, 128 

BoncLi, Re, 410 ; 

Bonhr te r Bonhote, 409 
Bonnefoi, Re, Surrey v Perrin, 131, 
132, 151 

Bonnell i Preston, 240 
Bonnev&,, de, i de Bonneval 35, 118, 
352 

Booth v Leycester, 398 
Borax Consolidated, Income, &c , 
Trust, Ltd v , 289 
Bos, Princess of Reuss v , 168 
Bouard, Vanquclin v , 109, 127 , 383, 
395 

Bou(h°r v Lawson, 291 
Boucnet v Tulledge, 3L2 
Boulanger, Talleyrand v , 405 
Bourgoise, Re 46, 357 
Bourke v Ricketts, 146 
Boutmez, Lirt v , 98 
Bouwens, Att Gen v , 126, 138 
Bowaman v Reeve, 146 



XVI , c 


LIST OF OASES GITED 


Bowes, Re, 88 
Bodies v Qrr, 396 
Boyes v Bedale, 155 
Boyse, Re , Crofton v Crofton, 133, 412 
Bozzelli’s Settlemept, Re, 55, 57, 58 
Braddell, Steele v , 60 
Bradford v Young, 151 
Bradlaugh v De Bin, 303 
Bradshaw, Richardson v , 179 
Braga, The, The Repeater v , 278 
Braidwood, Cowan v , 385 
Brailey v Rhodesia, Ltd , 410 
Brampton, King ^ , ,67 
Brandon, Ex part n , 167 
Brandon’s Case, Re Marseilles Rail* 
7vay, 303 

Brantley 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 
Brettillot v Sandos, 405 
Brick wood v Miller, 180 
Bndport, Nelson v , 221, 409, 411 
Brieseman, Re, 110 
Briggs i’ Briggs, 97 
Bnghtwell, Wallis v , 215 
Bngella, The, 297 
Brinkley v Att Gen , 69 
Bristol Steam Navigation Co , Speller 
v , 253 

Bristow v Scqueville, 281, 282, 410 
British American Continental Bank, 
Re, Adda 

British Controlled Oilfields, Ltd v 
Stagg, 218, 250 

British Griffin Co v Aldrich, 413 
British and Foreign Steamship Co , 
Adam v , 272 

British Indemnity Co , Oesterreich 
ische Export v , 251 
British Linen Co v Drummond, 313 
British South Africa Co , Companhia 
de Mozambique v , 218, 255 

v De Beers Consolidated Mines, 

212, 217, °90, 294 
British Waggon Co v Gray, 250 
Broadmayne, The, 257 
Brockner & Co , Boissiire & Co v , 
389, 392 

Brodbelt, Raymond v , 146 

Brodie v Barry, 153 

Brogdcn, Orozet v , 413 

Brook v Brook, 42, 43, 57, 58, 60 

Brookes v Harrison 199 

Brooking, Peillon v , 44, 203 

Brown, Re, 47, 48 

v Brown, 409 

v Collins, 48 

, Collibs Co v , 376 

, Douglas v , 407 

v Gracey, 407 

v Gregson, 154 

, Leroux v , 281, 404 

v Maurice, 145 

, Potter v , 316 


Brown v Smith, 349 

- — , S^quard, Re, 36, lfl 
Browne v Phillips, 111 
Broxburn Oil Co , Burland v , 252 
Bruce, Re, 140, 364 

v Bruce, 147, 344 

, MacColl v , 122 

Brunei v Brunei, 335 
Brunswick, Duke of, v Hanover, King 
of, 258, 262 
Bruyere, Pepin v , 214 
Buccleugh v Hoare, 810 
Buchanan v Rycker, 384 

, Smith , 316 

Bull, Sydney Municipal Council v , 221 

Bullock v Caird, 405 

Bunbury t . Bunbury, 219 

Burbidge, Re, 44 

Burchard v Maciarlane, 412 

Burgess, Kent v 55 

Burke, Re, 170 

Builand v Broxburn Oil Co , Burl and ’s 
Trade Mjirk, Re, 252 

v R , 139 

Burn v Cole, 111 

v Farrar, 67 

Burnand v Rodoconachi, 2°7 
Burns, Maclver v , 242 

, New v , 412 

Burrows Jamineau, 304, 398 
Burslem, Lopez v , 407 
Burton v Fisher, 342 
Bury St Edmunds Recruiting Officer, 
Atkinson v , 364 
Bust he, von dem, Re, 116 
Buseck, von, Re, 121 
Bute, Stuart v , 45 
Butler v Freeman, 55 
Butterfield, Urquhart v , 331, 351 

Cadell v Grant, 371 
Call v Papayanni, 275 
Came v Palace Steamship Co , 395 
Caird, Bullock v 405 
Calcutta Jute Mills Co v NichoFan, 
373 

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

Callender, Sykes & Co v Colonial Sec 
of Lagos, 172, 318 
Calvin’s Case, 355, 365 
Cambefort, Ru.sell v , 241 
Cammell v Sewell, 195, 196, 198-200 
Campbell, Re, 252, 

— v Att -Gen , 412 

, Att -Gen v , 143, 144 

v Beaufoy, 148 

v Campbell, 151 

v Dent, 294 

, Duncan v , 281 

v French, 73 

v Graham, 15" 

, Meiklan v , 132 

j v Sand ford, 15 

[ v stein, 313 



LIST ot JCASES CITED 




Camphausen, Padley v , 239 
Canadian Pat lfic ’Railway Co v 
Parent, 269 # 

Canham, Gold v , 394 
Cannan, Duncan v , 44, 81 
Cannon, Allen v , 166 
Cannon, Onslow & Allardice v , 36 
Canterbury (Mayor of) v Wyburn, 211 
Cap Blanco, The, 401 
Oapdevielle, Re , 141 
Capel, Re, 81 

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

Carlebaeh’s Case, 357 
Carl Johan, The, 273 
Carnegie, Hope v , l n 3 °19 , 

Carr v Francis Tires & Co , 270 

, The Queen v , 204 

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

, Toller v , 220 

Cartwright, Stuling-Maxwell v , 130 

, Williams v , 252 

Caruth, Irwin v , 113 
Casdagli v Casdagli, 321, 3 95, 328, 
329, 336, 341, 346 
Casey v Arnott, 248 
Cash v Kenmon, 300 

, Manger v , 396 

Cass v Cass, 87 
Castrique v Behrens, 396 

v Imne, 195 197, 199, 396 

Cat’ierwood, James v , 282 
Catterma Chiazzare, The, 400 
Caunter, Anderson v , 128, 129 
Cavan v Stewart, 384, 387, 389 
Cayzer, Irwin & Co , John Russell & 
Co v , 238, 252 
Cazalet, Newman v , 297 
Central Leather Co , Oetjer v , 200 
Central Sugar Factories of Brazil, Re, 
176 

Cesena Sulphur Co v Nicholson, 373 
Challenge and Due D Aumale, The, 389 
Chalmer, Anstruther v , 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 
Champernowne, Murray v , 209 
Chancellor, The, 278 
Channel Coaling Co v Ross, 250 
Chapman, Ex parte, Re Pilling, 413 

v Cb ipman and Buist, 89 

v Cottrell, 304, 307 

Charkieh, The, 257 
Chartered Mercantile Bank of India v 
Netherlands, &c , Navigation 
Co , 276 , 295 

, Minna Craig $ S Co v , 176 

Chatard’s Settlement Re , 48 


Chatenay v Brazilian Submarine Tele- 
graph Co , 290, 298 ' 

Chatfield v Berchtoldt, 209 
Chaumette, De la, v Bank of Eng- 
land, 312 

Chavarn, Lopez v , 252 
Cheang Thye Phin v Tan Ah Loy, 56 
Cheetham, Isherwood v , 117 
Chemische Fabnk v Badische Fabnk, 
250, 25^ 

, Saccharin Corporation Oo v , 377 

Chetham v Audley, 134 
Chetti v Chetti, 41, 43, 58, 61, 62 
Chevalier de Mello Mattos, Ex parte , 
180 

Chichester v Donegal, 92 
Christian v Christian, 91 
Christiana, The, 277 
Chnstiansborg, The, 400 
Christie, De Penny v , 250 
Church Missionary Society, Coutts & 
Co v , 122 
Cigala, Re 144 
City Bank v Barrow, 200 
City of Berne v Bank of England, 260 
City ol Glasgow Bank, Re, 379 
City of Mecca, The, 380 
Clare County Council v Wilson, 248 
Claretie, Mayer v , 240 
Clark, Re, M Kccknic v Clark, 126, 151 

Re, ex parte Beyer & Co , Ltd , 

165 

Re, ex parte Claik, 164 

, Kodak v , 373 

Clark & Co , Lysaght, Ltd r , 242 
Clarke, Re 117, 151 

, de Strrc v , 73 

, Halford v , 217, 294 

\ Ormonde, 218 

Clason, O’Neil v , 241 
Clegg v Levy, 282, 410 
Clerkenwell Commissions s of Taxes, 
R v , 373 

Cliff’s Trusts, Re, 152 
Clinton, Re, Clinton v Clinton, 219 
Cloctc, Re, ex parte Cloete, 266 
Clugas v Penaluna, 292 
Clutterbuck, Adams v , 208, 215 
Clj lebar c Engineering, &c Co, 
Y7quierdo v , 261 

Clydesdale Bank, Ltd v Schroeder & 
Co , 199, 389 
Coch v Allcock & Co , 412 
Cockerell, A tt -Gen v , 140 

v Barber, 134, 151 

v Dickens, 174 — 176 

Cocquerel, Re , 111 

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

v Rothfield, 401 

v South Eastern Railway Co 297 

Coldmgham Parish Council v Smith, 
104 

Cole, Barn v 111 
Coleman, Reynolds v , 248 
Collier, Er parte Ellis and, 164 

v R^vaz, 35, 121, 334 

Collins, Browi v , 48 

-• — v North British, &c y Co , 251 

Cc'lins Co v Brown, 376 



XV^dl 


LIST CF CASES CITED 


Collins Co v Reeves, 376 
Qolliss r Hector, 81 
Colls v Robins, 254 
Colombian Government v Rothschild, 
260 

Colonial Bank, Williams v , 201 
Colonial Gold Reel Co v Free State 
Co , 373 

Colonial Mutual Life Assurance Society, 
Re, 375 

Colquhoun \ Heddon, 378 
Colston, Quarrmi v , 293 
Comber v Leyland, 249 
Commercial Bank^ot India Re, 168 
Commercial Bank of South Australia, 
Re , 168, JOB 

Commissioners of Lnland Revenue, see 
Inland Revenue /Jommissioners 
Commi&sioneis of Stamps v Hope, 138 
Commissioners of Stamps of Queens- 
land, Harding i , 141 
Commissioners of Stamps and Taxes, 
R v , 139 

Compagnie Franco Beige, Ac , South 
African Republic v , 260 
Compagnie G&ieiale d Faux Mmeralis, 
Re, 240, 254 

Compagme Geneiale Tiansitlantique 
v Low A Co , 377 
Companhia de Mozambique v British 
South Atrica Co 218, 255 
Companhia Na viera Sota y Aznar, 
Ralli Bros i , 289, 291, 299 
Compania Anonima Aurora, de Hart 
r , 295 

Compton d’FjScomptc de Pans, Haggm 
? , 377 

, Mason and Barry v , 377 

Compton v Bearcroft, 59, 60 
Concha v Concha, 217 

r Murieta, 411 

, de Mor i v , 411 

Connelly v Connelly, 98 
Connolly Bios , Re, Wood t Connolly 
Bros 402 

Connor v Bellamont, 299 
Constitution, The, 257 
T’onsuelo, Duchess of Manchester, Re, 
139 

Continental Tyre Co i Daimler, 369 
Conveiy v Lanarkshire Tramways Co , 
272 

Conway v Beazley, 97 

, Stapleton v , 299 

Conway’s (Countess de) Case, 362 
Good v Coon, 217 
Coode, Re, 115 
Cook v Dey, 23P 

v Gregson, 135 

, Studd r , 215, 284 

Cooke v Charles Vogebr Co , 164 
Cooke’s Trusts, Re, 42 
Coombs v Quiney, 281 
Cooper, Balfour v , 215 

v Cooper, 42, 408 

v Waldegrave^ 299, 304 

Cooper-King v Cooper King, 409 
Coote v Jecks, 199 
Cope v Doherty, 275 


I Copin v Adamson, 383 
I Coppin v Coppin, 215 
| Corbudge i Somerville, 336, 341, 344, 
346 

Cosio v de Bernales, 44 

Cosnahan, Re, 112, 117 

Cosse Bnssac, De, v Rath bone, 388, 395 

Costa, da, Sylva v , 48 

Costa Rica, Republic of, v Eilanger, 260 

, Strousberg v , 261, 263 

Cotesworth, Ford v , 2°1 
Cottingham, Neal v , 169 
Cottington’s Case, 394 , 403 
Cotton v R , 139 
Cottrell, Chapman v , 301, 307 
Coutts & Co v Church Missionary 
Society, 122 

, Pdlcgnn r , 46 

Coivan v P id vood, 385 

v O’Connor 298 

Cox v Mitchexx, 400 
Craig, Re, 170 
Craigie v Lewin, 350 
Craigmsh, Re, Ciaignish v Hewitt, 82, 
331, 344, 346 

Cranstown v Johnston, 217 
Ciathie, The, 180 
Ct aw ford, Woolsey v , 308 
Cn'dit General, Re, Liegeron’s Claim, 
Aihla 

Ci edit Lyonnaib, Jacobs v , 289 
Crema v Crcma 97 
Ci ess well v Parker, 252 
Crispin, Ex parte, 167 

v Dogliom, 108 

, Sharpe i , 333, 339, 349 

Cnstiani, Trubner v Trubner and, 254 
Cioft v King, 252 
Crofton v Crofton, 133, 412 
Croker v Hertford, 119 
Ciompton’s Judicial Factor v Finch- 
Noyes, 332 

Crookenden v Fuller, 36, 123, 346 
Cropland v Wngley, 284 
Cioza, Poitier v , 265 
Crozet v Brogden, 413 
Crozier & Co v Auerbach, 249 
Cruikshank v Robarts, 401 
Cudell A Co , Dunlop v , 377 
Culling v Culling, 68 
Cumberland Gap Park Co , Badcock 
v > 378 

Cumming, Soci^te des H6tels, Ac v T 
300 

Cunha, da, Re, 41 

Cunninghan , Ex parte, 165, 348, 351 

v Down, 291 

, Mather v , 326 

Curlier, De Nicols v , 72 — 74, 173, 218 
Curling v Thornton, 119 

, Thornton i , 148 

Currie v Bircham, 12o 

v McKnight, 194 

, Rothsclnld > , 306 

Curtis v Hutton, 211 
Cust v Goring, °10 
Cutforth, Griffith v , Adda 
1 Cutkbert, Royal Bank of Scotland v , 
160, 170 



LIST OF ’CASES') CITED 


j xix 


Da Costa, Sylva x , 48 

Dacre, Pitt v , 210 , 

Da Cunlia, Re, 41 

Daily Record, V^atson & Sons v , 250 
Daimler, Continent'll Tyie Co v , 369 
Dalliousie v McDouall, 101, 348 
Dallas, Hamilton v , 334, 351 
Dalrymple x' Dalrymple, 57, 96, 410 
Daly, Re, 123 
Daniel x Lukei , 127 
Danubian Factoi les t Commissioners 
of Inland Pevenue, 205 
d’Aramburu, Viesca r , 111 
Daiell, Moore v , 117 
Darling, Mackie i , 47, 50 
Davidson, Re, 109, 170 
David sson i Hill, 272 
Davies, Williams x , 172 
Davis, Selkrig v , I'M, _71, 174 
Dawkins i Snnoi tti 402 
Piwson, Re, 212 
v Jay, 45 

Day, Empeioi ol Austna i , 206 
de Barros, Sottomayor x , 41, 42, 57, 
GO, 02, 93 

de Beaucliesne, Hodgson r , 347, 351, 
352 

de Beeis Consolidated Mines, British 
South Allies Co x , 212, 217, 
290 294 

? Howe 372 

de Beinales, Cosio ?’ , 44 

, National Bank of St Charles , 

373 

i New Yoik Heiald, 240, 242, 250 

de Bode’s (Baion) Case, 408, 409 
de Bonneval t de Bonne val, 35, 118, 
352 

Decaix, McCuthy i ,96 98 
Deck i Deck, 89 
de Clermont, Ohuard r , 389, 391 
de Conway’s (Countess) Case, 362 
de Cosse Brissac v Rathbone, 388 , 395 
de ^’ogassiei as i Duport 214 
de G isquet Times r Mecklenbeig, 92, 
93 

do Geei v Stone, 355, 358 
de Gieuchy ? Wills, 309 
de Hait v C ompania Anonima, &c , 
Au i ora, 297 

Dcicliler, Muipliy i> , 123 
de la Chaumctte e Bank of England, 
312 

de la Fcitc, I ync v , 118 

de Lariagotti, Re 40 

de la line, Re, 116 

de la Saussaye, Re, 116 

de la Vega Vianna, 405 

de Linden, Re, 46 

Delta, The, 401 > 

de Montaigu v de Montaigu, 88 

de Mora r Concha, 411 

Dempsey, Norden S S ,Co x , 296 

de Nicola v Cmlur, 72-74, 173, 213 

de Noailles, Re, 148 

Dent, Campbell v j 294 

, R v , 410 

de Penny, Re , c e Pennj v Christie, 
250, 252 

WIl 


Depontlneu, Joliet v , 169 
Derfflinger, The, 326 
de Rm, Bradlaugh , 304 
de Robeck, Hopkins v , 266 
de Roven, Duple ix ^ , 380 
de Saumarez, Re, 1^5 
Deschamps i’ Miller, 219 
de Serie v Clarke, 73 
Despatie i Tremblay, 56 
Dcssilla x Pels, 412 
d Este’s Settlement Trusts, Re, Poulter 
i (I Este, 122, 123 
de Taste t i Baring, 308 
d’Etchegoyen x d’Et jhegoyen, 346 
Deutsche National Bank xi Paul, 249, 
251 

de Valdoi, Worms x , 49, 50 
' de Vigny, Re, 117 
de Vote, Re, Vaiam x Rughoni, 154 
d’Evieux, Macnamara i , 291 
Dewar x' Maitland, 153 
? Span, 299 

de Wiltoi, Re, de Wilton r Monte- 
fiore, 58 

de Wutz i Hendricks, 291 
Dey, Cook v , 239 
de Ziehy-Feiraris x Heitford, 119 
d Hoimisgee x Giey, 413 
d’Huait i Harkness, 122 
Dickens, Cockerell i , 174 176 
I Dicks j Dick N 91, 92 
1 Didisheim i London and Westminster 
I Bank, 46 

j di Ftrdinindo i Simon Smits k Co, 
; 299 

Digby, van Grutten » , 78 
Dillon x Alvarcb 400, 401 
Dimond, Att Gen x , 137 
di Savin i v Lousada, 45 
di Sora i Phillipps, 283, 411 
Dittrich, Callandai i , 398 
Di\on Aitehison i , 346 

, Hansen v , 290, 298 

Dobree, Ex parte, 179 

x Napier, 270 

Dobson i Festi k Co , 241 
Dodsworth x Anderson, 166 
Doe x Acklam, 364 

x' ,Aikw r right, 364 

v Mulcaster, 364 

Doetsch, Re, 135, 405 
Dogliom, Crispin ,v , 108 
Doherty, pope x , 275 
Dolphin r Robins, 97, 122, 333 
Don, Re, 224 

r Lippmann, 313, 385, 395 

onegal, Chichestsr l , 92 
onegall, Houlditch r , 395 
Donegani v Donegam, 361 
Donovan, Page v , 119 
D ’Orleans, Re, 41, 110, 352 
Dorrr^r, Williams v , 92„ 834 
Dormoy, Re, 409 
Dost Aly Khan, Re, 111, 409 
Doucet xi Geoghegan, 344, ^46 
Dougherty, Harvey x , 252 
Douglas x Brown, 407 
, v Douglas, 336, 339, 340 



XX 


£IST OF CASES CITED 


Douglas v Forrest, 385, 387 
— , Munroe v , 343 
Douglas’s (Sir C ) Case, 148 
Douglas-Menzies v Umphelby, 153 
Doulson v Matthews, 255 
Doutre, Queen v, 295 
Dowd ale, Richardson v , 129 
Dowdale’s Case, 129 
Down, Cunningham v , 291 
Drake, Saunders v , 151 
Drapers’ Co , Att Gen r , 248 
Drax, Re, Savile v Diax, 216 
Dresser, Meyer i $ 185 
Drevon v Drevcn, 347, 348 
Drew v Drew, 409 
Drex^l v Drexel, 248, 342, 347 
Dreyfus v Peruvian Guano Co , 413 

, Republic of Peiu ‘v , 2bl 

, SoenHe Geneiale de Pans v , 398 

, Twycioss i , 263 

Dnefontcin Mines, Jan son » , 352 
Dioege v Stuait, 296 
Druce, Renneis v , 395, 396 
Diummond, Butish Linen Co 
313 

v Dnimmond, 146, 210 

, President of II S A i 352 

Drummond’s Case, 362 
Dubout i Macpherson, 253 
Due D’Aumale, The, 251 
Ducroz, Stokes r , 140, 209 
Duder v Amsterdanihch Tiustees Kan 
tour, 217, 251 
Dues v Smith, 73 
Duhamel Beitram i , 300 
Dui B ehlei A Biooks, Ltd i Fnmei, 

372 

Duke ot Brunswick i King of Han 
over, 258, 262 

Dulaney v Meiry & Son, 170 
Dumeigue, Vallee v , 383 
Dumfries, The, 278 
Duncan i Campbell, 284 

v Cannan, 44 81 

v Lawson, 211, 214 

, Lawson v , 146, 210 

Duntannon (Viscount of) r Duke of 
Manchest r, 139 
Dundas r Dundas, 153 
Dundee, The, 273 
Dungannon i Hackett, 299 
Dunlop, In ncs v , 312 
Dunlop Rubber Co v DunPp, 250 
Dunlop Tyre Co v Cudell A Co , 377 
Dunsany, Wilson v , 135 
Dupleix, The, 240 

v De Roven, 380 

Duport, de Fogassieras v , 214 

Duiant, Isaacson v , 365 

Dutch East India Co l Hennques, 

373 

Dutch Rhenish Railway Co , fudlow 
v , 371 

Dutch West India Co v Hennques, 
373 

Daval & Co v Gans, 248 

Duveina^ , White v , 46 

Dynamite AG v Rio Tinto Co , 40” 


Eagar, Naylor v , 400 
Eames v Hacon, 132 
Earl, Re, 112 
Eason, Ross v , 251 
East India Co , Ekins v , 279 

, Freeman v , 198 

— — , Mayor of Lyons v , 371 

, Skinnei v , 255 

Eastern Concessions, Ltd , Black Point 
Syndicate i , 217 

Eastern Extension, , Telegraph Co , 
Comnussionei of Taxes v , 373 
Easton, Giant v , 379 
Eckford, Haldane v , 347 
Eclipse, The, 278 
Ede, Paget ? , 220 
Edie, Play i , 413 

Edinburgh, Piovost of v Aubery, 371 
Edwards B, ’ey v , 221, 400 

v Ronald, 31*’ 

Edwaids Moss, Mackenzie v , 79, Q 33 
Egan, Re, 149 
Egbert v Slioit, 2.18 
Eghnton Chemical Co , Ymkshire Tan- 
ntrv i 251 

Egyptian Hotels, Ltd , Mitchell v , 373 
Eidei, The, 249 
Ekins r East India Co , 279 
Elias, Re, 46 

Eliza Cornish, The, otherwise The 
Stgiedo, 191, 193, 196, 200 
Ellefsen, Jmlav v , 400, 405 
Elliott, Re Elliott v Johnson, 149 

r Mtnto, 146, 210 

Ellis and Collier, Ei paite, Re Hall- 
man, 164 

, Ashbuiy i , 38.3 

r Loyd, 299 

i McHeim, 317, 318 

~, Reynolds r , Re Bankes, 44, 78 

Elton, The, 251 

Emanuel v S\mon, 383, 385, .387 
Embineos i Anglo Australian Bank, 
204, 302 

Emeiy r Hill, 371 

Emperor of Austna r Day and Xos- 
sut'h , 206 

English, Scottish and Austialian Bank, 
Re, 168 

Enohm i W\lic, 114, 132 
Enehsen » Last, 372 
Eilangei, Republic of Costa Rica v 
260 

Ei mini a Foscolo, The, 401 
Ertel, Biebci & Co v Rio Tinto Co , 
292 

Este v Smyth, 66 

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

Etcliegoyen D’, r d’Etchegoyen, 346 

Eumaeus, The, 326 

Eustace, Kildare v , 219 

Evans, Re, 165 

Evieux d’, Mr^namara v , 291 

Ewer, Walpole v , 297 

Ewm, Re, 137 140 

Ewing i Oir Ewmg, 130 

Exploier, The, 272 

Express, The, 296 

Eyre, Phillips v , C69 



LIST OF CASES CITED 


xxi 


Fabre, Hewitson v , 239 
Fabrigas, Mostyn v 236 255, 269, 

271 

Factage Parisien Re, 168 
Fairhe, Freeman v , 134 

, Log-'n v , 128, 140 

, Lowe v , 128 

Falkenstem , Hcilmann v , 401, 402 
Famous Lasky, &c , Ltd , Serre v , 
298 

Fandkote, Rajah of, Sirdai Gurdy ll 
Singh v , 385, 386 

Farmer, Dui Biehlti. and Brooks, Ltd , 
i) 372 

, Shilling v , 255 

Farme, Harvey v , 69, 07, 98 
Farra, Abd ul-Messih v , 323, 325, 326, 
328, 329 

Farrar, Burn, v , 67 
Fashender v Att Gen , oo3 
Favre, Bloxam v , x20 
Fa 7 cus, Re, 413 

Federal Bank of Australia, Re, 168 
Felce, Att Gen v , 144 
Fels, Dessilla v , 412 
Fennel, Robinson v, 392 , 306 
Fenton v Livingstone, 222 

, Reynolds i , 385, 389 

Ferguson v Spencer, 317 
Fergusson, Re, 151 

v Fyffe, 299, 314 

, Gilbertson v , 372 

Fernandes’ Executors, Er parte, 109, 
138 

Ferrand, Wilson v , 400 
Festi & Co , Dobson v , 241 
Feyerick v Hubbard, 383 
Field v Bennett, 240 
FinJi-Noyes, Crompton’s Judicial 
Factor v , 332 
Findlay, Shearman v , 254 
Finlay v Finlay, 406 
Firbank, & Co , Worcester City Bank 
ing Co v , 242 
Firebrace v Firebrace, 91 
Fischer, Raulm v , 382 
Fisher v Begrez, 265 

, Burton v , 342 

Fitch v Weber, 362 
Fitzgerald, Re, Surman v Fitzgerald, 
79, 293 

, Att Gen v , 329 

Fitzjames, Melan v , 405 
Fitzpatrick, Hervey v , 128, 129 
Flack’s Case, he Central Sugar Fac- 
tories of Brazil, 176 
Fleming, Harris v , 252 
Fletcher, Lever ? , 291 

-, Planch^ v , 291 

Florence Land and Public Works Co , 
Norton v , 219, 221 
Flower, T^urton v , 109 
Fogo, Simpson v , 196, 109 
Folhott v Ogden, 139, 414 

, Ogden v , 414 

Fontes, Machado v , 2b9, 272 
Forbes v Adams, 208 
, Att Gen v , 140 


f Forbes v Forbes, 341, 343, 346, 350 

, Jackson v , 110 

, Mackenzie v , 209 

, Odwin v , 317 

v Steven, 140, 209 

Ford v Cotesworth, 191 

v Shepard, 240 

Forgo, Re, 34 
Fornjot, The, 243 
Forrest, Douglas v , 385 , 387 
Forsbacka, &c* , Okura & Co v , 242, 
377 

Forsjth v Forsyth, 79 

Fostci o Globe Syndicate, Ltd , 258 

v Vassall, 210 

Foubert v Turst, 82 
Fox well, King \ , 343 1 

Francis Times k Co , Cuir i , 270 
Francis v Rucker, ,308 
Franconia, Owners of, Harris v , 253 
Frinke and Rasclie, Re, 305 
Frankland v McGusty, 397 
Fiaser, P A , Re, 116 

, SmcLn i , 301, 396 

, Yf ates i , 371 

I Iitcmxn, Burner / , 36 121, 334, 411 

, Butler i , 55 

r East India Co , 198 

v Fairhe, 134 

, Nouvion i , 381 

Free St tte Co , Colonial Gold Rtcf Co 
v , 373 

Freke ? Carbery, 211 
Ficmont, Gibbs i , 308 
French, Campbell v , 73 
Fiere i Frere, 35, 121 
Frtudenbcig, Portti v , 239, 352 
Freybcrger, Ex parte, 361 
Fuerst, Jeannot v , 381 383 
Fuller, Ciookcnden i , 36, 123 346 
Fulton, Saxby v , 293 
Furness, Risdon Ironworks v , 376 , 392 
Furmval, Alivon i 169, 381, 397 
Fyffe Feigusson i , 299 314 


Gabriax i Maxwell & Co , 389 
Gadban, Musurus Bey \ , 264 
Gaetano and Maria, The, 275, 296 
Gagara, The, 257, 258, 261 
Galbraith v Gnmshaw, 181 

v Neville, 39^ 

, WitW v , 251, 252 

Gaily, Re, 120 
Gambler v Gambler, 47' 

Gans, Duval A Co ? , 248 
Garbutt, Macartney v , 266 
Garcia del Rio, Jones i , 291 
Garcias, Ricardo v , 398 
Gardiner v Houghton, 316 
Garetty Winchelsea v , 146 
Garnet Pierson c, 151 ^ 

Garnett, McConmck v , 7b, 408 

, Stewait i , 216 

Gamier, Re, 48 
Garrett, Law r , 401 
Garvar , Roach v , 403 


W I L 



XXII 


LIST OF CASFS CITED 


Gaskell, Marchionc&s of Huntly i , 341 
decides v Mowat/ 171 
Cleci, De, v Stone, 355, 358 
Geiselbrecht, Kannreuthci i , 135 
Gemma, The, 240 

General Accident Co , New Fenix 
Compagme, Ac , de Madnd \ , 
413 

General Co for Promotion of Land 
Credit, Re, 168 

General lion Screw Colliei Co ? 
Schnrmanns, 275 

General South American Co , Re, 308 
General Steam .Navigation Co v 
Guillou, 376, 388, 380, 308 
Genesee Mutual Insurance Co v 
Westman, 376 
Gcntili, Re, 211 
Geoghegm, Doucet i , 344 346 
Geotges, Re 218 
Gerson, Kaufman i , 203 
Gesehwmd ? Huntington, 341 
Geyet i Aguilar, 300 
Glnkis i Mu sums, 248 
Gibbons, Malony i 380 
Gibhs i Fieniont, 308 
Gibbs (Antony) A Sons i La Society, 
Ac , des MGiux, 316 
Gibson & Co i Gibson (1013) 240 

385 

Gibson v Gibson (1021) 409 
Gift aril, Hawksford i , 370 
G ilbei tson i Feigusson 372 
Gill v B irron , )17 
Gillespie, Re, Ei parte Bobaitex, 
308 

Gillig v Gillig, 86, 94 

Girolamo, The, 273, 277 

Gladstone i Musuius Bey, 263 , 264 

i Ottoman Bank 26 1 

Glasgow and South Western Railway 
Co , Mackereth i , 377 
Glendinmg, Att Gen i , 127 
Globe Syndic ate, Foster ? , 258 
Godaid i Gray, 306 
Goei/ A Co t Bell, 372 
Gold v Can bam, 304 
Golding, Billantine v , 316 
Gold sm id, Ex arte, 180 
Goldzihci s Claim, Adda 
Golubdnck The, 243 
Goodman, Re, 155 

v Goodman, 102, 155 

Goold, Richards v , 210, 28° 

Gordon’s Executors, Inland Revenue 
Commissioners i 329 
Gordon’s Settlement, Re, 254 
Goring, Cust v , 2 1 0 
Gould, Shaw v , 06, 07, 101 

, Smith v , 407 

Gout v Ziumermarn, 319 
Governoi, Ac , ot New Zealand, Sio 
man % , 258 
Giacey, Brown v , 407 
Graham, Bond v , 128 

, Campbell v , l6l 

i IVTassey, 218 

i> Maxwell, 133, 402 


Graham, Milne v , 312 
Gramophone A Typewriter, Ltd v 
Stanley, 37. 

Giand Tiunk, Ao Railway Co , 
Akhessclskabot Hercules v , 377 
Grant v Anderson, 241, 242 

, C a dell v , 371 

v Easton, 379 

Gnssi, Re, Stubbcrficld v Grassi, 214 
Giay, British Wagon Co v , 250 

, Godard v , 3% 

Great Australian Gold Mining Co v 
Martin, 239 
Green r Green, 94 
Greenbank, Hearle v , 154 
Greenwood, Berdan v , 412 
Greenwood i F J Smidtb A Co , 
Adda 

Gieo v Ponle, 206, 207 
Giegoiy, Jurado i , 380 
Giegson Brow v , 154 

, Cook r , 135 

Grell i Levy, 201 

Gicsbam Life Insurance Co v Bishop, 
373 

Greta The, 206 
Gieuchy, l)e, Wills ? 300 

Gicy , D Hormisgce v , 413 

i Manitoba, Ae , Railwav, 210 

, Shelby i , 315 

Grey’s Trusts, Re, Grey v Stamford, 
155 

Gnefswald, The, 308 
Grierson i Grierson, 59 
Onllith i Cutfoilh [(Ida 
Gnmshaw, Galbtaith i , 181 
Giimthorpe s Settlement, Re, 334 
Giimwood i Baitcls, 212 
Groos (No 2), Re (1016), 44, 148 

, Re (1904), 114, 119 

(hove, Re, 102 

Grub in, Kiichno A Co v, 401 
Gnindt A Oetl, Re, 116 
Guaianty Trust Co v Hannay & Co 
30, 302, 306, 406, 407 
Gueprattc r Young, 44, 76, 81, °80 
Guiard i de Clermont, 389 , 301 
Guibtit, Lloyd v , 104, 275, 205, 296, 
407 

Guillebeit, Ev parte, 290 
Guillou, General Steim Navigation Co 
r , 376, 388, 389, 398 
Gumm, Hooper v , 201 

, McTjellan v , 201 

Gumpach, von, Hart v , 269 
Guiney, Hardison v , 218 

, Jones v , 413 

Gutch, Williams v , 278 
Guthrie i Wabond, 151 
Gutierrez, Ex parte , 167 
Guy Mannering, The, 270 
Gyles, McClicane v , 251, 2o3 

Haarlblfichfr v Barselmann, 304 
Haas v Atlas Insurance Co , 109 
Hackett, Dungannon v , 299 
Hacon, Eames v , 132 
Hagen, The, 251, *02 



LIST OF 'CASES, CITED 


xxm 


Haggin v Compton* d’Escompte de 
Pans, 377 

Haldanp v Eckfora, 347 
Hale & Co , Heaiemann & Co i , 241 
Halford v Clarke, 217, 294 
Hall & Odbcr, 382, 397 
Hall, White v , 217 
Hallen, Tassell v , 248, 251 
Halley, The, 202, 270, 278 
Hallman, Re, Ex parte Ellis and 
Collier, 164 
Hallyburton, Re, 123 
Hamburgh American Steamship Co v 
North of Scotland Banking Co , 
278 

Hamilton v Dallas, 334, 351 

, Thomas v , 249 

, United States -? , 204 

, Walken v , 308 

Hamlyn & Co v Talisker Distillery 
285 

Hancock, Carrick v , 389 
Hankey, Tatnall v , 123 
Hannay A Co , Guuianty Trust Co 
v , 19 302 196 406 407 

Hanover, King of Duke of Brunswick 
v , 258 202 

Hansen v Dixon, 290 298 
Hanson i Wslke l 135 
Happi/, Pnapano v , 323 
Haiding, Bank of Australasia i , 392 
397 

v Commissioners of Stamps for 

Queensland 141 

Haie i Nasmyth, 35, 117, 118 
Harford ^ Moms, 56, 59, 67 
Harkness, D Huait ? , 122 
Hams, He , 115 

i Fleming 252 

, Moiocco Bound Syndicate t , 251 

v Owners of Franconia, 253 

v Quine, 314 

i Scaianiangi, 297 

Spr itt v , 115 

v T ly lot , 188, 391 

Hariison, Brookes i , 199 

v Guincy, 218 

\ Haruson 210 

Han op i Hairop, 381 
Halt v Von Gumpach, 209 
Hart, De, v Compuna Anonnna de 
Seguros Autoia, 297 
Hartley, Tullodi v , 219, 406 
Haivey v Arch old, 299 

v Dougherty, 252 } 

v Farnie, 69, 97, 98 

Hastings, Bexvan v , 129 
Hawker, Society des Hotels Keiinis i , 
293, 294 

Hawkins, To/ier v , 250 
Hawksford Ciffard v , 379 
Hawthorne, Re, 218 
Hay v Northcote, 64 

, Sidaway v , 317 

Haynes, Massey v 251 
Hayward, Re, Hayward v Hayward, 
169, 170 

Hearle v Greenbank, 154 


Heath v Samson, 349 

Hector, Colliss v , 81 

Heddon v Colquhoun, 378 

Heilmann v Falkenstein, 401, 402 

Heinemann & Co v Hale & Co , 241 

Heilman, Re, 42, 43, 47 

Helm, Hyman v , 402 

Hemsbeyck v Lyall Shipping Co , 249 

Henderson, Re, 381 

r Hendbrson , 393—395, 398, 399 

Hendricks, De Wutz v , 2 9l 
Henelnc, Oliphint v , 371 
Henley v Soper, 397 
Hennques, Dutch East India Co v , 
373 

, Dutch West India Co v , 373 

Henty v The Queen, 138 
Hepburn v Skuving, 333 
Herbert v Heibert, 57, 68 

, Jcrningham v , 210 

Heriz i) Hiera, 291 
Horn indo, Re, Hernando v S.iwtell, 
79, 82 

Hertford, C inker \ , 119 
— - , de Zichy Fcuans v , 119 
Hcivey i Fit/patnck, 128, 129 
Hessing 'i Sutherland, 46 
Hew it, Re, Lawson o Duncan, 146, 
210 

Heuitson i Fibic, 239 

Hewitt, (!i aignish v , 82, 331, 344, 346 

- - i Hewitt, 79 
Hicks r Martin, 290 

v Powell 221 

Higgins, Att Gui v , 138 

, Lac on v , 55 

Hilelerlev, Pc c hell r , 121 
Hill, Re, 110, 111 

— — , Dividsson v , 272 

, Emei\ v , 371 

Hilly ird v Smith, 250 
Huuhcliff, Meyding i , 410 
Hirschfeld v Smith, 306 
Hutchins l Hitclnns, 412 
HMS King Alfred, The, 278 
Hoare, Bucclcugh i , 210 

, Pike i , 218 

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

v dc Beaucliesne, 347, 351, 352 

Hog, Lxshley v , 74, 82 

r Lashley, 148 

Holland v Bennett, 249 

, Tayifcr v , 313 

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

— ■ — v Holmes, 215 

Holthauscn, Ex parte, 180 

Hong Kong and Sh xngliai Banking 
Corporation, Lhoneux Lnnon & 
Cc l , 377 

, Att Gen for, v J^wok-a Sing, 

269 

Hood v Lord Barrington, 211 
Hooper v Gumm, 201 
Hope, Att Gen v , 137 
v Carnegie, 133, 219 



XXIV 


LIST OF CASES CITED 


Hope, Com f mis8ione^s of Stamps v , 13S 

v Hope, 294, 406 

Hopkins t de Robeck, 26b 

, Sproule v , 93 

Hordern, Pouey v , 79 
Horne v Rouquctte, 306, 307 
Homgold v Horngold, 347 
Horsman, Newland v , 397 
Horst & Co , Biddell Bros v , 249 
Hoskins v Matthews, 3 27 
Houghton, Gardiner v , 316 
Houlditch v Donegall, 395 
Houstoun, Re, 45, 47, 49 
Hovey v Blakems&i, 134 
Howden, Re, llo 

Howe, De Beers Consolidated Mines 
v , 372 

Hoyermann’s Agency, St Gobam, &c 
Co v , 242 

Hoyles, Re, Row v Jagg, 209, 210, 211 
Huart, D’, v Harkness, 122 
Hubbard, Fe>erick v , 383 
Huber, Re f 123 

v Steiner, 314 

Huet v Lo Mesurier, 41 
Hughes, Arthur v , 128 

, Pemberton v , 94, 392 

.Hullet v King of Spain, 2G0 
Hume, Whicker v , 336 , 338 , 340 , 344, 
347 

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

v Nicholls, 214 

, Philips v , 178, 185, 394 

v Potts, 177, 178 

v Stewart, 399 

Huntington v Attrill, 382 

, G each wind v , 361 

Huntly (Marchioness of) v Gaskell, 341 

Huthwaite v Phayre, 109 

Hutton, Curtis v , 211 

Hyde v Hyde, 69 

Hyman v Helm, 402 

Hypatia, The, 352 

It.lidge, Santos v , 292 
Irnlay v Elle'jcn, 400 , 405 
Imperial Bank, Republic of I ’ben a v , 
260 

Imperial Japanese Government v P 
& O Steamship Co , 261, 266 
Imne, Castnque v , 195-19 17 , 199 
Income and General Investment Trust 
Ltd e Borax Consolidated, 289 
Indigo Co v Ogilvy, 241 
Industrie, The, 2°6 
Inghs v Robertson, 200 

v Usherwood, 197 

Inland Revenue Commissioners, Barmg 
v , 204 

, Danubian Sugxr Factories v , 205 

, Gordon’s Executors v , 329 

, Lawson v , 139 

v Maple & Co (Pans) Ltd , 205 

, Muller & Co ’s Margarine, Ltd 

t , 205 

, Revelstoke (Lord) v , 204 


Inland Revenue Commissioners, Smelt- 
ing Compair of Australian , 205 

, Velasquez v , 205 

, Wingate (Jamc..) & 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, fewifte v , 55 
Irwin v Caruth, 113 

, Whelan v , 413 

Isaacbon v Durant, 365 
Isherwood i Cheefcham, 117 


Jackson v Forbes, 140 
— v Petrie, 217 

, Wynn'' v 282 

Jacobs v Credit r^onnais, 289 
Jaffo v Keel, 363 
Jafftr v Williams, 387 
Jaffrey, Loid Advocate v , 333 
Jagg, Row v , 209 211 
James v Citherwood, 282 

v Junes, 344 

, Millei r , 117 

Janus Westall, The, 413 
Jam mean, Burrows v 304, 398 
Jan son v Dnefontein Mines 352 
J mveri , Middle! on v , 56, 57 
J isep, The, 402 
Jassy, The, 257 
Jauncy v Sc ale v 129 
Jay, Dawson i 45 
Jeannot v Fueist, 381, 383 
Je<ks, Coote v , 199 
Jeffery v McTaggart, 171 
Jelhrd, Re, 254 
Jenney v Mickintosh, 219, 251 
Jcphson i Rieia, 364 
Jermnghain v Herbert, 210 
Jeves v Shad well, 141 
Jewish Colonization Society, Att Gen 
v , 139, 144 

Johannesburg Municipal Councd v 
Stew ird , 401 

Johnson A Co , Badische Amlin, &c , 
v , 298 

Johnson, Re, 30, 107, 108, 326, 335 

•, Re, Roberts v Att Gen , 30, 36, 

38 

, Att Gen v , 138, 144 

, Elliott v , 149 

, Holman v , 292 

v Tayljr Bros , 249 

v Telford, 153 

Johnston, Cranstown v , 217 
Johnstone v Baker, 210 
v Beattie, 44, 45, 332 

— -, Beattie v , 4-5 

, Bempde v 148, 3o3 

Johore (Sultan of), Mighell i , 258, 260 
Joliet v Deponth ?u, 169 
Jonathan Goodhue, The, 203 
Jones v Garcia C d Rio, 291 
v Gurney, 413 

- — v Scottish Vccident Insurance 

Co , 368 



LIST OF CASES. CITED 


>xxv 


Jones’s Divorce Bill, 412 
Jongc Klassina, TTj, 352 
Joyce, American Thread Co v , 372 
Joynt v McCrum, 251, 252 
Jurado v Gregory, 380 

Kaleten, The, 243 
Kannreuther v Geiselbrecht, 135 
Karnak, The 296 
Kaufman v Gerson, 293 
Kaye v Sutherland, 248 
Keefe, Quin v , 3 1 6 
Keel, Jaffe v , 363 
Kelly v Selwyn, 202 

, Swift v , 55 

Kemble, Allen v , 305, 308, 405 

, Beckford v , 220 

Kemp v Necchi, 240 
Kennedy, Bell v , 32^, 

Kenmon, Cash v , °00 
Kent, Att Gen v 34a 

v Burgess, 55 

Keyes ^ Keyes and Gray, 85, 405 
Keymer v Reddy, 240 
Keyser, New York k( Co v , 48 
Kildare v Eustace, 219 
Kinahan i’ ILnahan, 252 
King, The See R 
King Brampton, b7 

, Croft v , 252 

v Foxwell, 343 

, South African Breweries % , 290, 

295 

King & Co ’s Trade Mark, 254 
Kirchner k Co r Gruban, 401 
Kirwan s Trusts, Re, 122 
Klsebe, Re, 135 
Klingemsnn, Re, 409 
Knight, Re, 48 

, Waring v , 179 

Kodak, Ltd v Claik, 373 
Kolchmann v Meunce, 249 
KorvineS Trusts, Re, 148, 199 
Kossuth, Emperoi of Austria v , 206 
Krageroe, The, The R( peatcr v , 278 
Kra nsche, Naylor, Bewgor & Co i , 
292 

JCrupp, Re, 414 

, Vavasseui v , 263 

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

Kynnaird v Leslie, 59 

La Aseguradoha* EspaSola, Mutzen 
becher v , 248 
La Bourgogne, 377 

La Chaumette, De v Bank of Eng 
land, 312 

La Cloche, Spurrier v , 285 
La Compagnie G^nerale d’Eaux Miner 
ales, &c , Re, 240, 254 
Lacon v Higgins, 55 

, Sclinchand & Co v , 404 

Lacroix, Re, 36, 120, 121 
Lady Blessmgton, The, 243 
Lagos, Colonial Sec etary of, Callender, 
Sykes k Co v , 172, 318 
L’Fitt v L’Batt, jl 52 
Laidlay v Lord Advocate, 138 


Lamb, Barber v , 397 
Lambe v Manuel, 141 
Lanarkshire Tramways, Cohvery v , 
272 

Lane, Re, Lane v Robin, 251 
Laneuville v Anderson, 36, 114, 117 

, Anderson v , 344 

Lansdownc i Lansdowne, 80, 215 
Lanvi^rc v Morgan, 263 
Larpent v Slndry, 118 
Larragotti, De, Re, 46 
La Saussaye, De, Re, 116 
Lashley v Hog, 74, 82 

, Hog v , 148 

Lassalle, Re, 342, 348 
Last, Enehscn v , 372 
Latter, Tomlin v , 122, 151 
Lauderdale Peerage, 102, 348 
Langhlm, Wansborough Paper Co v , 
250 

Lautour v Tcesd ih , 56, 63, 67 
Law ?’ Garrett, 401 
I Liwes, Vadala v , 397 
' Lawford t Pryie, 124 
j Lawrence Biggs v , 292 
j Lawson, Bouclici v , 291 

v Commissioners of Inland 

i Revenue, 139 

! i Duncan, 146, 210 

j , Duncan v , 211, 214 

| v Vacuum Brake Co , 412 

Lawson’s Trusts, Re, 169, 170 
Leach v Leach, 138 
Leil’s Settlement Re, 122 
Lebel v Tucker, 303 
Le Chevalier i Lynch, 174 
Lc Couturier, Rey v , 205, 376, 414 
Lee v Abdy, 44, 203 
Le Mesuner, Ex parte, 179 

, Huet v , 41 

v Le Mesuner, 84-86, 89, 90 

Lenders v Anderson, 250, 252 
Leon, The, 277 
Leon XIII , The, 243 
Lepage, Ostell v , 399 
Ltpine, Att Gen v , 371 
Lcroux v Brown, 281, 404 
Lesley, Reg v , 270 
I ?she, Xynnaird c , 5 ni 
Le Sue’.r v Ije Sueur, 89, 333 
Lever v Fhtcher, 291 
Tjevy, Re, 111 

, Clegg v , 282, 410 

, GreM % , 294 

v Levy and De Rcnance, 90 

v Solomon, 101, 102 

Lewal’s Trusts, Re, 124, 152 
I T^ewin, Craigie v , 350 
Lewis (Otto), Ex parte, 48 
Lewis v Baldwin, 371 

, McHenry v , 400, 40 1 

v Owen, 316 

Leyce ter, Booth v , 398 
Leyland, Comber v , 249 
Lhoneux Limon & Co v Hong Kong 
and Shanghai Banking Corpora- 
tion, ? 7 7 

Liber a, Republic of v Imperial Bank, 
260 



XXVI, 


fylST OF CASES CITED 


Liebenthal & Co , Montgomery & Co 
v , 240, 250 

Liebig’s Cocoa Woiks, Re, 254 
Liebrnann’s Case, 36b 
Liegeron s Claim, Re Credit General, 
Adda 

Lightowler v Lightowler, 251 
Linden, de, Re, 4b 
Linden, von. Re, 110 
Lmdo v Behsario, 410 
Lindsay, T wey v , 08, 349 
Linke v Van A ide 03 
Lipprnann, Don v , 311, 385, 395 
Listers Judicial F4ctoi v Symons, 79 
Liverpool Cottofi Association, Mcrri 
field v , 397 

Liverpool M irine Credit Co v Hurt er, 
100, 405 

Livietta, The, 204 
Livingstone, Teuton v , 222 
Lloyd v Guibeit, 104, 275, 295, 29b, 
407 

v Pctitjian, bb 

Lloyd Geneiak Italnno, Re, 169 
Logan v Bank ol Scotland, 238, 252, 
377 

v Fairlie, 128, 140 

Lolky’s Case, 06 98 
London and Westminster Bank, Didis 
hcim v , 46 

London B ink of Mexico and South 
Amenta v Apt hoi pc, 373 
London Chattcied Bank of Australia, 
Willi uns e , 201 

London, City of, Att Gen v , 371 
Lopez v Buislem, 407 

v Chavarri, 252 

, Beg v , 201 

Lord Advot ate i Jaffiey, 333 

, Laidliy t , 138 

Lord, Moorhousc i , 335, 33b, 337 339, 
341, 315 

Lorillard, Re, Adda 
Lousada, di Savim i , 45 
Loust ilan v Loustalan, 72, 76, 117, 
348 

Lovelace, Re, 143 
Lovitt, King v , 139 
Low (Thomas) & Co v Co. .pagn e 
G^m'rale Tiansaflaiitique 377 
Low, Re, Bland v Low, 313 
Lowe v Fairlie, 128 
— Macgiegor ? , 201 
Lowenfeld, Scirpetta v , 392 
Loyd, Ellis v , 200 
Ludwig, Mathtson v , 405 
Lukei , Daniel i , 127 
Luna, The, 201 
Lushmgton v Sewell, 216 
Luther v James Sagoi & Co , 200, 261, 
204 

Lyall v Lyall, 143, 111 

Lyall Shipping Co , Hemsbeyck i , 249 

Lynch, Le Chevalier v , 174 

v Piovisional Government of 

Paraguay, 108 
— , Ii 17 , 3bl, 3b2 
Lyne i le la Ferte, 118 
Lyne’s Settlement Trusts, Re 124, 20° 


Lyons, Mayor of in East India Co , 371 
Lysaght, Ltd v C'ark L Co 242 

McAllistfr, Maghee c , 97 
Macaitney, Re, 203, 294, 381 395 

v Garbutt, 26b 

MacCarthy, Becquet v , 385 
McCarthy v Decai x, 9b 98 
McCheane v Gyle«, 251, 253 
McCluie, Maxwell v , 346, 347 
MacColl i Bruce, 122 
McCormick v Girne^t, 73, 408 
MfCrurn, Joynt v , 251, 252 
McCulloch, Re, 167 
M it don aid i Macdonald, 149 
Macdonald s Case, 355 
M Donnell i M Donnell, 381 
McDouall, Dilhousie e , 101, 348 
McFarland, ‘ ' m* 3 ns v , 41 
Macfirlant, rUirtha d v , 412 

17 JS 01 1 is k)5 

Micfaydcn iV Co , Rc, 165, 179 
MFectndgi ? Stew iris md Lloyds, 
41 

McGettigan 1 North Eastern Railwa v 
Co , 249 

Macgregoi 1 Lowe 291 
Me Gusty, Frinkland ? , 397 
MtHeniy, Ellis e , 317, 318 

r Lewis, 400 401 

McIntosh r Ogilvie, 178 
MuTvci 1 Burns, 242 
MtKicknic t Cl 1 t k , 127 151 
Mackenzie, Re (188b), 112 
— — , Re, Mackenzie v Edwards and 
Moss (1911), 79, 333 
v Forbes 209 

Mackertth r Glasgow and South Wes- 
tern Baihviy Co 377 
Mickle 1 Dai ling, 47, 50 
Mackintosh, Jenncy v , 219, 251 
Mt Knight, Cumc v , 191 
Maclaren, Canon lion Co v , 133, 377 

v Stainton 377 

M Lellan v Gumni, 201 
Macmastn, Ptddtr v , 316 
Munnnara 1 d’Evitux, 291 
Matnichol, R( , 127 
Mitpheison, Dubout v , 253 
MaeRae, United States 1 , 261, 406 
Macrtight, Re, Paxton v Macreight, 
348 

McTiggut, Jeffery v 171 
Mac h ido 1 Fontcs, 2^9 272 
Madrazo v W lilts, 279 
Madrid and \ dtncia Railway Co , Re, 
168 

Magdalena Steam Navigation Co v 
Mntin 264 

M lgee’s Children, Re, 45 
Mrghee 1 McAllibter 97 
Main, Pititncc v , 312 
Maitland, Dewar v , 153 
Maltoln e Mainn, lib, 151 
Male i’ Roberts, 40 
Mali Ivo, The, 400 
Mnllac, Sirnonm v , 41, 58 61, 93 
Malony v Gibbons, 389 
Maltass v Maltass, 327, 349 



LIST OF CASES CITED 


X£V11 


Manar, The, 401 

Manchester, Consue o Duchess of, Re,) 
Duncannon i Duke of Manches- 
ter 139 

Manger v Cash, 396 
Manitoba, Ac Coiporation v Allan, 
248 

Manitoba, &c Railway, Orey i , 219 
Manners v Pearson A Co , 300 
Mannheim, The, 401 
Manning v Manning, 86 

, Newton v , 'Ti 

Manuel, Lanibe i , 141 

Maple A Co , Inland Revenue Com ! 

missioners v , 205 
Maiaver, Be, 115 
Markwald v Att Gen , 360 
Marrctfc, Be, Chalmeis v Wingfielc, 
342 

Marseilles Extcns m 1\ ulw ly ind 
Lind Co , Be, VU 
Maish, Btigoitm v , 170 
Maishall v Marsh ill 252 

v Muigitioyd, 201 

Martin, Be Lousbilan i Loustalan, i 
72 76, 117, 119 318 

, Bell , 221 i 

, Great Australian Gold Mining 

Co v , 239 
, Hicks v , 290 

, Magdiltni Steam Navigation 

Co v , 264 

, Malcolm r , 146, 151 

i Martin, 221 

v Nadel, 203 

v Nicolls, 395 

Muy Moffat, Be, 110 
M uy Thom is, The, 290 297 
Mason and Bany v Comptoir d’Es 
eompte de Piris, 377 
Ma^-pons v Mildied, 298 
Massey, Giaham i , 218 

v Haynes, 251 

Misson, Stfvciison v , 317 
Master in Equity, Bcavei i , 138 
M it ei v Cunningham, 326 
Matheson v Ludwig, 405 
Matin son Brothers, Ltd , Re, 168 
Matthews, Doulson i , 254 

, Hoskins i , 337 

Mattos, Ej parte de Mtllo, 180 
Maudslay, Sons & Field, Re, 179, 
205 

Maule v Murray, 397 

Maui ice, Re, Biown ? Muiriee, 145 

Maxwell, Graham v , 13o, 402 

v McClure, 346, 347 

, Smith v , 57 

Maxwell A Co , (Rahman i , 389 
Mayer v Claietie, 240 
Mayor of Lyons v East India Co , 371 
Meatyaid, Re, 41, 110 
Mecklenbuig, de Gasquet James v , 
92, 93 

Meeus v Thellusson, 383 
Megrct, Re, Twcci t v Tw 7 ceilie, 79 
Meiklan v Campbell, 132 
Melan v Fitzjamcj, 405 
Melbourn, Ejt part' , 136, 180 


Mello Mattos, Chevalier de, Er parte, 
180 

Melville, Picston i , 131 
Mercantile Bank of Austialia, Be, 168 
Mercantile Investment, Ac Co v 
Rivci Plate Trust, Ac Co 217 
Memfield i Liveipool Cotton Associa 
tion, 397 

Meiry A Son, Dulaney v , 170 
Messicano The, 257 
Metcalfe, Be, 50 ' 

Mette ? Mette, 41, 57, 58, 62 
Meurice, lvolchmann r , 219 
Meyding i Hindu Off 410 
Meyer, Bazctt i , 291 

v Dtcsser, 405 

-- r Rilli, 396 
Middleton r Janvmn 56, 57 

, Wood » , 218 

Miglull i Suit in of Tohort , 258, 260 
Mildied, Maspons i 298 
Milfoid, The, 202, 201 
Mill, Att C.cn i , 211 
Millet, Be 215, 281 

, But k wood ? ISO 

— , Dc sell imps i , 219 

r Janus, 117 

Mills, Albion Tiwinncc Co v , 295 

— -, PRIison v , 295 
Milnt i Giaham, 112 
Milw ird A. Co , Be, 413 
Mnut v \ulliuny, 371 

Minna Ciaig S S Co i Chirtered 
Men intile Rink At 176 
Minto, Elliott v 116, 210 
Mu Amimneddin Re ()9, 87, 94, 104, 
328 

Alissoun Ste unship Co , Be 289, 296 
Mitchell, Be 48 

— , Re Ei parte Cunningham, 165, 

318 151 

, Cox i , 100, 401 

v Egyptian Hotds, Ltd , 373 

, Tunis i 132, 396 

M Moxhnn The, 254, 269 
Moffitt, Smith ? , 171 
Moissmi, Quelin t , 316 
Mollcson, Phosphate Sew ige Co v , 
, 4 Ty 

Montaigp, de, i de Montaigu, 88 
MontLfiou , dc Wilton v 58 
Montgomciy i Znifi, 79, 82 
Montgomery A Cr v Liebtnthal, 240, 

250 

Moor i Anglo It linn Bank, 219 

Mooic t Da it 11, 117 

Moorhouse i Lmd, 335 339 311 345 

Mora, de t Concha 411 

Morgan, Re, 48 

, Lanvieie i 263 

Moiocco Bon id S\ndic ite i Harris, 

251 

Mom , Haifoid i , 56, 69, o7 
Mmnson, New Zc iland Loan, Ac Co 
i , 317, 318 

Moses, Be Moses v Valentine, 211 
Mnstyn i Fabrigas, 236^ 254' 269 
Mottuhund, Ruekm ihoye i 313 
Mouhs i Owen, 293, 301 404 



xxvm 


JilST CASES CITED 


Mowat, Geddes v , 171 
Mowbray & Robinson v Rossei, Adda 
Mulcaster,' Doe i , 364 
, Muller & Co ’s Marganne v Commis- 
sioners of Inland Revenue, 205 
Munro v Munro, r 101, 102, 310 

v Saunders, 102 

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

v Champeinowne, 209 

, Maule v , 39T 

, Nisbett v , 151 

Muschainp, Arglasse v , 217, 219 
Musgfrave, Alexandria Water Co ' v , 
373 

Musurus, Ghikis v , 248 
Musurus Bey v Gadban, 2b4 

, Gladstone v , 263, 264 

Mutnc v Binney, 400 
Mutzenbecher v La Aseguradora Espa 
fiola, 248 

Myers, Barrow v , 249 


Nadel, Martin v , 203 
Naguib, R v , 69 
Napier, Att Gen v , 141 

, Chamberlain v , 81 

, Dobree v , 270 

v Schneider, 308 

Nasmyth, Hare v , 35, 117, 118 
National Bank of St Chailes t dc 
Bern ales, 373 
Nautik, The, 243 

Nawab Nazim of Bengal’s Infants, Re, 
103 

Naylor v Eagar, 400 
Naylor, Btwgor & Co i Kraimsche, 
292 

Neal v Cottingham, 169 
Net chi, Kemp v , 240 
Neck ?’ Taylor, 413 
Nelson, Re, 318 

v Bridport, 221, 409, 411 

Neptune the Second, The 277 
Netherlands, vC Navigatio * Cc , 
Chartered Meicantile Tank of 
India v , 270, 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 Femx Compagi.ie i General Acc 1 
dent Co , 413 
Newland v Hors man, 397 
Newman v Cazalet, 297 
New South Wales, Att Gen of, Platt 
v , 346 

Newton v Manning, 46 

v Newton, 91 

New York Breweries v Att Gen , 109, 
138 

New Yoik Herald, De Bernales v , 240, 
242, 250 


New York Security and Trust Co v 
Keyser, 48 

New Zealand Loan, &c Co v Mor- 
rison, 317, 318 

New Zealand, Governor of, Sloman v , 
258 

Nias, Bank of Australasia v , 392, 395, 
397 

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

, Cesena Sulphur Co v , 373 

Nickerson, Pope v , 296 
NicolL, Martin v , 395 

, Smith v , 397 

Nma, The, 243 

Nisbett v Muiray, 151 

Noailles de, 9* 198 

Nobel Dynamite Cr v Wyatt, 373 

Noell v Robinson, 212 

Norden Steamship Co v Dempsey, 296 

Nordenfclt, Re, 165 

Norris v Chambres, 218 

, Macfarlane v 405 

North Ament an Land and Timber Co , 
Watkins v , 238 

North British, &c , Co , Collins v , 251 
North Carolina Estate Co , Re, 177 
Northcote, Ha> i , 64 
Noith Eastern Railway Co v MtGttti- 
gan, 249 

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

North Western Bank v Poynter, 200, 
203 

Northouse, Bentley v , 312 
Norton v Florence Land and Public 
Works Co , 219, 221 

, Re, Norton v Norton, 238 

Nostra Signorx de los Dolores, The, 270 
Nouvelle Banque de 1 ’Union v Ayton, 
408 

Nouvion v Freeman, 381 
Novelli v Rossi, 396 
Novello v Toogood, 265 
Nugent v Vet/era, 45 
Nunneley v Nurmeley, 79 


Obicini v Bligh, 385 
O’Callaghan v Thomond, 312 
O Connor, Cowan v , 298 
Ochsenbein i Papdicr, 396 
Odber, Hall i 382, 397 
Odwin v Forbes, 317 
Oesteireichische Export i British In- 
demnity Co , 251 

Octjer v Central Leather Co , 200 
Oetl and Grundt, Re, 116 
Ogden v Folliott, 414 

, Folliott v , 169, 414 

v Ogden, 41, 43, 58, 60 62, 88, 

89, 93 

Ogilvie, Re, 154 

, McIntosh v , 178 

Ogilvy, Indigo Co t , 241 
O’Hagan, Viditz v t 44, 78 



LIST OF CASES CITED 


XXIX 


• T 

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

Oldenburg, Prince P G , Re, 119, 409 
Oliphant, Re, li4, 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 /llardice v Cannon, 36 

Onslow, Allardice n v , 345 

Ontario, Att Gen for, Woodruff v , 139 

Oppenheimer, Abouloff v , 397 

Orcutt v Orms, 125 

Oriental Inland Steam Co , Re, 174 

Orleans, d’, Re , 41, 110, 352 

Ormonde, Clarke v , 218 

Oims, Orcutt v , 125 

Orr, Bowles v , 396 

Orr Ewing, Ewing v , 130 

v Orr Ewing, 130 

Ory v Winter, 313 
Ostell v Lepage, 399 
Otto Lewis, Ex parte , 48 
Ottoman Bank, Gladstone v , 263 
Overmann, Roaquette v , 304, 306, 308, 
405 

Owen, Lewis v , 316 

, Moulis v , 293, 304, 404 

, Bex v , 254 

Oxholm, Wolff v , 404, 414 


Padley v Camphausen, 239 
Page v Donovan, 119 
Paget, Er parte , 413 
v Ede, 220 

Palace Steamship Co , Came v , 395 
Palmer v Caledonian Bailwav Co , 378 

v Palmer, 92 

, Thompson v , 248 

Panhard Motor Co Soci£t<5 Panhard 
Lcvassor % , 376 
Papayanni, Call v , 275 
PajGier, Oehsenbem v , 396 
Paragotis v Pontrac, 272 
Paraguay, Provisional Government of, 
Lynch v , 108 
Parapano v Happaz, 323 
Pardo v Bingham, 135, 313 
Parent, Canadian Pacific Kailway v , 
269 

Parker, Cresswell v , 252 
Parkinson v Potter, 266 
Parks, Seagrove v , 239 
Parlement Beige, The, 257 
Partington v Att -Gen , 138 
Pascal, Ex parte, 167 
Patience v Mam, 342 
Patna, The 296 
Patrick i; bhedden, 381 

, Shedden v , 103 

Patten, Re, 349 
Pattison v Mills, 295 
Paul v Boy, 381 

, Deutsche Bank v , 249, 251 

Paxton v Macrei ft ht, 348 > 

Payne v Rex, 13 p 


Pearse, Re, Pc arse ,v Pearce, 138, 218 
Pearson, He, Ex parte Pearscm, 104 
Pearson & Co , Manneib v ,’300 
Peat, Re, 216 
Pechell v Hilderley, 121 
Pedder v Macmaster^ 316 
Peillon v Brooking, 44, 203 
P61egrin v Coutts, 46 
Pellecat v Angdl, 292 
Pemberton v Hughes, 94 392 
Pena Copper Mines, Ltd v 1 B 10 Tinto, 
Ltd , 401 

Penaluna, Clugas v , 292 
Peninsular and Oriental Steam Naviga- 
tion Co v Stund, 286, 297 

, Japanese Government v , 261, 266 

Pern v Baltimore, 217, 219 > 

Pepin v Bruyt're, 214 
Pepper v Pepper, 55 
Percy and Kelly Cobalt, Ac Mining 
Co , Re, 413 

Perez, Tnana & Co , Western National 
Bank v , 241 

Perrm v Perrin, 91, 92 m 

, Surrey v , 132 

Pertreis v Tondear, 65 

Peru, Republic of i Duyfus, 261 

v Weguelin, 260 

Peruvian Guano Co v Boekwoldt, 400, 
402 

, Dreyfus v , 413 

Peruvian Bill ways Co , Re, 168 
Ptshawur, The, 401 
Peter v Stilling, 145 
Petitjean, Lloyd v , 66 
Petrie, Jackson v , 217 
Petty, Re, 118 

, Carteret v , 218, 219, 221 

Phayre, Huthwaite v , 109 
Philips v Hunter, 178, 185, 394 
Phillipps, di Sola v 283, 411 
Phillips v Allan, 316 

v Batho, 90, 272, 390 

, Browne v , 111 

v Eyre, 269 

i Phillips, Adda 

Plnlpotts v Reed, 317 

Phipps v Anglesea, 215 

Phospl Ate Sewage Co j Molleson, 406 

Pickering v Stephenson, 371 

Piercy, Re, Whitwham v Piercy, 209 

Pierson v Garnet, 151 

Pietrom, Transatlantic Co v , 401 

Pike v ^oare, 218 

Pilkington, Scott v , 381 

Pillnfg, Re, 413 * 

Pipon v Pipon 131, 147 
Pitt v Dacre, 216> 

Planch^ v Fletcher, 291 
Planters’ Bank, United States Bank v , 
257 , 

Platt v Att Gen of New South 
Wales, 346 

Plummer v Woodburne, 398 
Poitier v Cro/a, 265 
Pollard, Ex paite , 217 
Pollexfen Vj Sibson, 241 
Polzjath, The, 369 
Pompe, Suse v t 308 



XXX 


^IST 0 ^ CASES CITED 


Pontrac, Pftragotis, t , 272 

Ppole, Greer v , 296, 297 

Pope t Niekcison, 296 

Porter v Frcudenberg, 239, 352 

Porto Alexandre, The 257 

Portugal, Queen of, Bothschild v , 260 

Potinger v Wightman, 332 

Potter v Biown, 316 

, Parkinson v , 266 

Pottinger, Att -Gen v , 350 
Potts, Hurler 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 , £00, 
203 

Pratt, Att Gen v , 137, 138 

v The North British Co , 251 

Pray v Edio, 413 

President of U S A i Diummond, 352 
Prtston, Archer i , 219 

, Bonnell v , 240 

r Melville, 131 

Pretoria Petersburg Hallway Co , Re, 
413 

Price, Re, 122, 152 

v Dewhuist, 109, 396 

Puns Hendrik, 270 
Pnoltau v United States 260 

, United States r 261 

Professional Lite Assurance Co , 
Sheehy i , 382 

Provisional Govtrnrmnt of Paiaguay, 
Lynch i , 108 

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

Public Trustee, Stocck r , 366 

Quarrifr v Colston, 293 
Queen, Th< Sec R 
Queen e Doutie, 295 
Queen of Portugal, Rothschild v , 260 
Queensland Conirmssioneis of Stamps 
for, Hirding i , 111 
Queensland Mercantile and Agency Co , 
Re, 202 

Queensland N itiunal Bank, Re, 168 
Quelin i Moisson, 316 
Quin v Keefe, 316 
Quine, Hams i , 314 
Quiney, Coombs i , 281 

R v Albany Street Police Station 
Superintendent, 357 

v Anderson, 2Q1 

- — , Blackwood v , 138 

, Bui land i , 139 

v C irr 204 

v Clerkenwcll Commissioners of 

Taxes, 373 

v Commissioneis of Stamps and 

Taxes, 139 

, Cotton v , 139 

- v Dent, 410 

, Herty v , 138 

v Humphicys, 104 


R v Lesley, 270 

v Lopez, 204 

v Lovitt, 139 

v Lynch, 361, 3t»2 

v Naguib, 69 

v Owen, 254 

, Payne v , 138 

v Rothcrfield Greys (Inhabitants 

of), 332 

v Sattler, 204 

i Speyer, 358 

, Stern v , 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, 3 
Raffencl, R~, 342 
Rail i, Meyer v , 396 
Ralli Brothers \ Companhia Naviera, 
&c , 289, 291, 299 
Ranelagh, Champant v , 299 
Rinkin’s Estate, Re, 113 
Ra thbone, Do Cossc Bnssac v , 388, 
395 

Raymcnt e Raymcnt & Stuart, 89, 
254, 272, 390 
Raymond t Brodbclt, 146 
R< i, Re Rea i Re i, 208 
Read, Re, 112 

, Sti other v , 170, 171 

, Waymell v , 292 

Reddy, Ivtyiner v , 240 
Rcdfcrn, Arnott v , 295, 396 
Reed, Plnlpotts v , 317 
Reeve, Bowaman v , 146 
Reeves, Collins Co v , 376 
Regina See R 
Reid, Re, 119 

lieiineis n Diucc, 395, 396 
Rein v Stein, 248 
Reiner i Salisbury, 222 
Repeater, The i The Biaga or Krag- 
e»oe, 278 

Republic ot Costa Rica i Erlanger, 260 

, Strousberg v , 261, 263 

Republic ot Liberia v Imperial Bank, 
260 

Republic of Peru v Dreyfus, 261 

v Weguclin, 260 

Reuss (Punccss of) v Bos, 168 
Revelstoke (Lord) v Inland Revenue 
Commissioners, 2U4 
Rex See R 

Rcy v Lc Couturier, 205, 376, 414 

Reynolds v Coleman, 248 

v Ellis, Re Bankes, 44, 78 

v Fenton, 385, 389 

Rhodesia Consolidated, Ltd , Brailey 
v , 410 

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

v Dowdale, 129 

Richmtzer, \an Hellc.eld v , 2^2 
Ricketts, I3ourke v , 146 



LIST OF CASES CITED 


XXXI 


Riera, Henz v , 291 

, Jephson v , 314 

v Riera, 91 

Rin, de, Bracllaugh v , 303 
Rio Tinto Co , Ltd , Ertel Bi^bti A 
Co v , 292 

r Dynamite A G , 407 

, Pena Copper Mines v , 401 

Risdon Iron Works v Furness, 376, 392 
Rivaz, Collier v , 35, 121, 334 
River Plate T’-ist, &c Co , Meicantilc 
Investment, yfcc , Co v , 217 
Roach v Garvan, 403 
Robartes, Ex parte , Re Gillespie, 308 
Robarts, Cruikshank v , 401 
Robeck, de, Hopkins v , 266 
Robcrdeau v Rous 219, 221 
Roberts v Att Gen , Re Johnson, 31 

v Biennan, 92 

, Male v , 40 

Robertson, E r parte, 1 '4 

, Inglis v , 200 

Robey v Snaofell Mining Co , 248 
Robin, Line v , 251 
Pobms, Colls i , 251 

, Dolphin v , 97, 122, 333 

, Sadler v 382 

Robu ,on, Re, 167 

v Bland, 288, 293 

v Fenner, 392, 396 

, Nocll v , 212 

Rodoconaclu, Burnand v , 297 
Roe t> Roe, 409 
Rogeis, Er parte, 171 
Rogtison, Re, 110 
Ron ild, Ed wauls i , 317 
Rose i Ross, 102 

, Whyte i , 109, 110, 125, 127 

Ross, Channel Coaling Co v , 250 

v Eason, 251 

, Rose v , 102 

, Solomons v , 169 

v Woodford, 412 

Rossei, Mow hi ay A Robinson v , Adda 
Rossi, Novelli -i , 396 
Roth^rfidd Greys (Inhabitants of), 
R v , 332 

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

v Cuine, 306 

v Queen of Portugal, 260 

Rouquette, Horne v , 306, 307, 

v Overmann, 304, 306 308, 405 

Rous, Robcrdeau v , 219, 221 
Rousillon v Rousillon, £94, 386 
Roven, de, Dupleix v 380 
Row v Jagg, 209 211 
Rowe, Att -Gen v , 349, 350 
Roy, Paul v , 381 

Royal Bank of Scotland v Cutnbtrt, or 
v s Assignees, 160, 170 

Royal Exchange Assursnce v Sjofor 
saknngs Akt boiaget, 289 
Royal Wax Candle Co , Scott v , 376 
Rucker, Buchanan " , 384 

, Francis v , 308 

Rucklige, Westei i Subirban, <kc 
Building Socety v , 240 


Ruckmaboye v Mottichund, ’ 313 
Ruddnnan’s Trusts, Re, 254 
Ruding v Smith, 63, 67 
Rue, de la, Re, 116 
Iluglioni de Vntt, Vaiam \ , 154 
Rule, Re , 117 

Rush v Riuh md Pimcnta, 89, 254 
Russell (John) k Co i Cayzcr, Irwin 
& Co , 238, 252 
Russtll v Cam be fort, 241 

v Smyth, 382 

Ryan v Ryan, 98 


Saccharin Corporation Co v Chern- 
lschc Fabnk Co , 377 
Sac! ville (Ijord), West v , 412 
Sadler v Robins, 382 
Sagor (James) & Co , Luther r , 200, 
261, 294 

St Gioigio, Weatheiby v , 132 
St Gobain, &c v Hoycimann’s, &c , 
242 

St John, Scholefitld i , 122 
Sandeis Re, 113 
Saumirez, de, Re, 145 
Salisbury, Runcr r , 222 
Salting, Stamp Duty Commissioners 
i , 138 

Samson, Heath v , 349 

San Paulo Railway Co v Caiter, 373 

Sanders, Re, 113 

Sandford, Campbell i , 151 

Sandilands v Times, 128, 130 

Sandos, Biettilot r , 405 

Santo Teodoro v Santo Teodoro, 89 

Santos i Tllidgi , 292 

S irgazuru ta, lie, 48 

S ittler Reg i , 204 

Saumarez, Re, 145 

S Hinders v Diake, 151 

, Mumo ? , 102 

Snissayr, de la Re, 110 
Savik i Dr ix, 216 
Savini, di, v Lousada, 45 
Snwer i Shu to, 73 
Sawers, Re, Er parte Blain, 164 
Saw ft 11, Htmando i 79, 82 
S^xby Fulton, 293 > 

Sixomi The, 278 
Scirannnga, Hairis v , 297 
Scarpetta v Lowenfeld, 392 
Schibsby v Westenholz, 384, 386 388 
Sell iff, Re 116 
Schneider, Napitr v , 308 
Scholcfu Id , Re, 122, 123, 153, 406 
Schnch md & Co v Lacon, 404 
Schioeder & Co , Cjydesdale Bank Ltd 
v , 199, 389 

Schumanns, General Iron Screw 
Collier Co v , 275 
Schwab Wcsterman v , 117, 119 
Scind^ Railway Co , Ex vaiie, 174 
Scotia, S S , Young v , 258 
Scotland, The, 274 
Scott, Re (No i), 144 

, Re (No 2), 140 

» Att Gen , 88 

, Balfour t> , 147, 148 



XXX11 


LIST OF CASES CITED 


Scott v Bentley, 4§ 

v Bevan, 300 

v Pilkington, 381 

v Royal Wax Candle Co , 376 

v Seymour, 271, 400 

Scottish Accident Insurance Co , Jones 
v , 368 

Scottish Imperial Insurance Co , Wat- 
kins v , 368 

Scrimshire v Scrimshire, 56, 57, 403 
Seagrovc Parks, 239 
Sealey, Jauncy^i 129 
Seaman, Re, 116 
Sedgwick, Bird v * 166 

v Yedras Mining Co , 240 

Segredo, The, 191, 193, 196, 200 
Selkug v Davis, 170, 171, 174 
Selot’s Trust, Re , 49 
Selwyn, Kelly v , 202 
Semcn7a, Re, 413 

Sequeville, Bristow v , 281, 282, 410 
Serre, do, v Clarke, 73 
Serre v Famous Lasky Film, Ac Co , 
Ltd , 298 

Service, Bateman v , 376 

Sewell, Cammeil v , 195, 196, 198 200 

, Lushington v , 216 

Seymour, Scott v , 271, 400 
Shadwell, Jeves v , 141 
Shand, Peninsular & Oriental Steam 
Navigation Co v , 286, 297 
Sharp v Taylor, 291 
Sharpe v Crispin, 333, 334, 349 
Shaw v Att Gen , 94, 97 

v Gould, 96, 97, 101 

v Staughton, 127 

Shearman v Findlay, 253 
Shedden v Patrick, 103 

, Patrick v , 381 

Sheehy v Piofessional Life Assurance 
Co , 382 

Shelby v Grey, 315 
Shephard, Ford v , 240 
Shilling v Farmer, 255 
Short, Egbert v , 238 
Shrirnpton, Watts v , 73, 78, 82 
Shute, Sawer v , 73 
Sibcth, Er pa l e, Re Sibeth, "1 
Sibson, Pollexfen v , 241 
Sidaway v Hay, 317 
Sill v Worswick, 177 179, 184 
Simeon v Ba/ctt, 291 
Simonctti, Dawkins v , 402 
Simonin v Mallac, 41, 58 61, 93 
Simpson, Re, Coutts A Co v Church 
Missionary Society, 122 

v Fogo, 196, 199 

Sinclair v Fraser, 394, 396 

v Sinclair, 403 

Sindry, Lament v , 118 
Singer, Williams v , 144 
Sirdar Gvirdval Singh i Raj^h of 
Fandkote, 385, 386 

Sjoforsakrmgs Aktiebolaget, Royal Ex- 
change Assurance v , 289 
°kinner v East India Co , 255 

v Skinner, 87 

Skirvmg, Hepburn v , 333 


Skottowe v Yourg, 103 
( Sloman v Governor of New Zealand, 
258 

Smallpage’s Case, Re Marseilles Rail- 
way, 303 

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

Smith, Ex parte, 166 

, Re (1850), 349 

, Re (1864), 14 n 

, Re (1868), 110 

, Re (1876), 253 

, Re (1916), 216 

, Alcock v , 204, 302 

, Atkins v , 129 

— , Blake v , 396 

, Brown *' 349 

v Bi . janan, 316 

, Coldingliam Parish Council 

104 

, Dues v , 73 

v Gould, 407 

, Hilly ard v , 250 

, Hirschfcld v , 306 

v Maxwell, 57 

v Moffatt, 171 

v Nicolls, 397 

, Rudmg v , 63, 67 

v Smith, 212 

v Weguelin, 263 

Sinits & Co , di Ferdinando v , 299 
Smyth, Re, Leach v Leach, 138 

, Este v , 66 

, Russell v , 382 

Snsofell Mining Co , Robey v , 248 
Society di Navjgazione, Ac , Thames, 
Ac Insurance Co v , 372, 37V 
Soci6t£, Ac des Hotels R£ums v 
Cumming, 200 

v Hawker, 293, 294 

Sou^td, Ac des Metaux, Gibbs A Sons, 

, v ’ 316 

Society, Ac Panhard - Levassor, 
Pan hard, Ac Motor Co v , 376 
Societd G^n^rale v Dreyfus Bros , 398 
Solicitor to Treasury, Yaucher v , Re 
Grove, 102 

Solomon, Levy v , 101, 102 
Solomons v Ross, 169 
Somerville, Corbndge v , 336, 341, 344, 
316 

v Somerville, 146, 148, 347 

Sopei, Henley v , 397 

Sora, di, v Ihillipps, 283, 411 

Sottomaior Re, 46 

Sottomayor v De Barros, 41, 42, 57, 
60, 62, 93 
Soulie, Re, 34 

South Aincan Breweries v King, 290, 
295 

South African Republic v La Com- 
pignie Franc j-Belge, Ac , 260 
South Eastern Ry Co , Branley v , 297 

, Cohen v , 297 

South Eastern Ry Co of Portugal, Re, 
177 

Spam, King of, v Hullett, 260 



LIST OF CASES CITED 


XXXlll 


Span, Dewar v , 299 
Speller v Bristol <?>team Navigation 
Co , 253 

Spencer, Fergusm v , 317 
Speyer, R v , 358 
Spiller v Turner, 298 
Spratt v Harris, 115 
Sproule v Hopkins, 93 
Spurner v La Cloche, 285 
Spurway v Spurway, 340 
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 Typewnter, Ltd 

v , 373 

Stansfield, Waterhouse . 221 

Stapleton v Conway, 299 
St irk, Be, 48 

Statham v Statham and Gaekwai of 
Barodc , 258, 260 
Stathatos v Stathatos, 88, 334 
btaughton, Shaw v , 127 
Steele v Braddell, 61 
Steer Be, 346 
Steigerwald, Be, 111 
Stem, Campbell v , 313 
, Rem v , 248 

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

, Thurburn v , 136, 180 

Stewart, Be, 115 

v Bank of England 264 

Cavan v , 384, 387, 389 

v Garnett, 216 

, Hunter ^ , 399 

Stewarts & Lbyds, M’Feetridge v , 41 
Stirling, Be, Stirling v Stirling, 97 

, Peter v , 145 

Stirling Maxwell v Cartwright, 130 
Stoeck v Public Trustee, 366 
Stokes, Be, Stokes v Ducroz, 140, 209 
Stone, De Gee v , 355 358 
Strathmore Peerage, 102, 

Strother v Read, 170, 171 
Strousberg v Republic of Costa Rica, 
261, 263 

Stuart v Bute, 45 

, Droege v , 296 

Stubberfiehl v Grassi, 214 
Studd v Cooke, 215, 284 
Stumpel v StumpeJ and Zeppel, 254 
Sturgc, At t Gen v , 371 3 

Suarez v Suarez, 264, 265 
Sudeley (Lord) v Att -Gen , 138 
Sudlow v Dutch 1 henish Railway Co , 
371 


Sumner, Permain & Co 1 1 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, 55 

Swifte v Attj Gen for Ireland, 55 

Sydney Municipal Council i Bull, 221 

Sylva v da Costa, 48 

Symon, Emanuel v , 383, 385, 387 

Symons, Lister’s Judicial Factor v , 79 

Tagus, The, 203, 407 
Tal sker Distilleiy Hainlyn & C^ v , 
285 

Talleyrand v Boulanger, 405 
Tamplin, Re, 116 

Tan Ah Loy, Cheang Thye Phin v , 56 

Tano v Tano, 32,1 

Tarleton v Tarlcton, 394 

Tassel v Hallen, 248, 251 

Tastet, de, v Baling, 308 

Tatnall v Hankey, 123 

Taylor v Barclay 291 

v Beat, 265 

, Harris v , 388, 391 

v Holland, 113 

, Neck v , 413 

, Sharp r , 291 

, Vecht x , ,161 

Taylor Bros , Johnson v , 249 
Tecsdale, Lautour i 56, 63, 67 
Telford, Johnson i 153 
Tennent, Welch v , 76 
Tervaete, The, Adda 
Thames and Mersey Insurance Co v 
Society di Navigazione, &c , 372, 
377 

Thane more S S Co v Thompson, 251 
Thcllusson, Meeus v , 383 
Thiery v Chalmers, Guthrie & Co , 46 
Thomas, Auriol v , 308 

v Hamilton, 249 

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

, Fire v , 291 

v Palmer, 248 

v Powles, 291, 299 

, Thaneinore S S Co v , 251 

Thomson x Adv Gen , 140 

, Yates v , 153 

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, 15 !j 
T ondear, Pcrtreis v , 65 
Toogood, Novello v , 265 
Tootal’s Tiu.L, Re, 109, 123 , 322 , 325, 
329 

Tourton >v Flower, 109 
Tovev v Lihdsay, 98, 349 
Townes, Olivier v , 190 



XXXIV 


LIST OF CASES CITED 


Tozier v Dawkins, 250 

Tr afford v Blanc/ 108 , 390 

Trail, Twyford v , 129 

Transatlantic Co v Pietroni, 401 

Tr^fond , Re, 114, 123 

Tremblay, Despatie v , 56 

Trimbey v Vignier, 303 

Trinidad Shipping Co v Alston, 289 

Trottei v Trotter, 149, 153 

Trubner i Tiubner and, Cn-stiam, 254 

Trufort, Re, 36, 107, 108, 396 

Tucker, Lebel v , 303 

Tulledge, Bouchet i , 382 

Tulloch t Hartley 219, 406 

Turnbull i Wa'ker, 385 

Turner, Re, 410 

, Spiller v , 298 

Turst, Foubert v , 82 

Tweedie v Tweedie, Re M^gret, 79 

Two Sicilies, King of, v Willtox, 406 

Twj cross v Drejfus, 263 

Twyford v Trail, 129 

Tyler r Bell, 128, 129 

Tyrone v Waterford, 151 


Udm i ITdny, 42, 102, 33], 340, 343 
Ullee, Re, 69, 103 
Uinphtlby, Douglas Menzies i , 153 
Union Bank of Australia, Ex parte, 202 
Union Bank of Calcutta, Re 169 
United States v Hamilton, 201 

i MacRae 261, 406 

i Pnoleau, 261 

, Pnoleau x , 260 

i Wagner, 260 

(President of) i Drummond, 352 

United States Bank v Planters Bank, 
257 

Urquhart Re, 165 

v Buttcifield 331, 351 

Usher, Agnevv v , 218 
Usherwood Tnglis x , 197 
Ussher v Usslier, 56 

\ acuum Brakl Co , Lawson v , 412 
Yadala v Lawes, 397 
Vaiani v Ruglioni do Yirte, 154 
Valdor, de Worms v , 49, 50 
Valentine, Moses v , 211 
Valentine A Sons, Alexander & Co v , 
250 

Vallance, Re, 110, 123 
Vallee v Durnergue, 383 
van Aerde, Dinke v , 93 
van den Hurk, Barry v , 299 
van Grutten i Digby, 78 
Vannini, Re, 110, 123 
Van Oppen and Colt s, Ac Co , Newby 
v , 375, 377 

Vanquelin v Bouard, 109, 127 , 383, 
395 

Vanvlissengen, Caldwell v , 272 

Vanz^ller, Rt y 180 

Vardill, Birtwhistle v , 222, 223 

Vardopulo v Vardopu’o, 402 

Vassall, Y 0 ster v , 219 

vaucher v Solicitor to Treasury, 102 

Vaughan, Alexander v , 166 


fVavasseur v Krupp, 263 
Vecht v Taylor, 361 
Vega, de la, v Viuma, 405 
Velasquez v * Inland Revenue Com- 
missioners, 205 
Vernon, The, 277 
Vitzera, Nugent v , 45 
Vianna, de la Vega v , 405 
Vidit7 v O’Hagan, 44, 78 
Viesca v d‘Arambutu, 111 
Vignier, Trimbey i 303 
Vigny, de, Re 117 
Vincent Barnes v , 121, 122 
Vine St Police Station Supt , R v , 
306 

Vnte, de, Re, 154 

Vivar, The, 253 

Vivash v Beckci, 266 

\ T i7i”nagara*n Co Ltd , Ex parte , 165 

Vogeler (C ^ > Co , Cooke v , 164 

Voinet v Barr tt, 388 

Voltuino, The, 300 

von Bientano, Re, 114 

von Busctk, Re, 114 

von dem Busche, Re, 116 

von Gumpach, Hart r , 269 

von Hellefeld i ltichnitzer, 242 

\on liinden, Re 110 

Vulliamy, Minet v , 371 

V addui T , Banco de Portugal i , 179 
Wade, Beckford v , 216 
W igner, United States t , 260 
Wahlstatt, Att Gen v , 348 
Waite x Bingley, 212 
Waldegi i\e, Coopei v , 299, 304 
Waldegravc Peerage, 67 
Walford, Batthyany v , 221, 270 
Walker, Re, 122 

v Hamilton, 308 

, Hanson v , 135 

, Turnbull v 385 

r Witter, 379, 394 

Wall ice x Att Gin , 141 

Wallis t Bnghtwell, 215 

Wallop, Re, 141, 143 

Walpole v Ewei, 297 

Walrond, Guthrie v , 151 

Walsh v The Queen, °03 

Wansbrough Papei Co v Laughlin,250 

Waring v Knight, 179 

Warrerulcr v Warrender, 62, 69, 87 

Warter ? Warter, 88 

Waterford, Tyrone v , 151 

Waterhouse v Stansfi Id, 221 

Watkms, Er parte , 47 

v North American Land and 

Timber Co , 238 

v Scottish Imperial Insurance 

Co , 368 

, Thorne v , 147 

Watson & Sons v Daily Record, 250 
Watts v Shrimpton, 73, 78, 82 
Waymell v Read, 292 
Weatheiby v St Giorgio, 132 
Webb & Co , Sumner Permain k Co 
v , 298 

Weber, Re, 366 
, Fitch v , 362 



LIST OF CASES CITED 


XXXV 


Wedderburn v Wcdderburh, 102 
Weguehn, Republic /if Peru i , 260 

, Smith v , 263 

Welch v Tennejit/ 76 
Wells v Williams, 352 
West t Lord Sackville, 412 
West Rand Gold Mining Co v R , 263 
Westenholz, Schibsby v , 384 1 386 388 
Westerman v Schwab, 117, 119 
Western National Bank of New York 
v Perez Triana & Co , 241 
Western Suburban, Ac , Building 
Society v uucklige, 240 
Westlake v Westlake, 55 
Wesfcman v Akticbolaget, Ac , 239, 376 

, Genesee Mutual Insurance Co 

v , 376 

Wheelan v Irwin, 413 
Whicker i Hume, 336, 338, 340,, 344 ^ 
347 

White, Barnaul v , 79 ( 

i Duvcrnay, 46 

i Hall, 217 

Whitehaven, Ac , Railway Co , Bam 
v , 406 

Whitelegg, Re, 409 

Wlntmoie, Powei v , 297 

Whit wham v Piercy, 209 

Whyte i Rose, 109, 110, 125, 127 

Wightman, Potinger v , 332 

Wild Rmger, The, 275 

Wilkinsons Settlement, Re, 122 

Whllans v Ayres, 308 

W T illco\, King of Two Sicilies v , 406 

'Willes, Madrizo v , 279 

Williams v , 111 

i Caitw light, 252 

- x Colonial Bank, 201 
v Davies, 172 

- - x Dormer, 92, 331 

— — v Gutch, 278 
, Jailor v , 387 

v London Charleud Bank of 

Austialia, 201 

v Singer, 144 

, Wells i 352 

— — , Yokohama B ink Ltd x , 372 
Williams & Sons, Blackburn Bobbin 
Co v , 291 

Williamson, E r part*, 166 
Willis A Co i Buldcley, 210 
Willoughby, Re 46 
Wills, De Gieuchy t , 309 
Wilson, E r parte , 179 
, Re, 101 

, Clare County Council i , 248 

v Dunsany, 135 

x For rand, 100 

xi Wilson, 86, 87, 346 

Wilson Sons A Co v Balcaires Ac , 
Co , 253 


Wilson’s (Captain) Case, 17# 

Wilson’s Trusts, 9 n 
Wilton, de, Re, de Wilton v Monte- 
fiore, 58 

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

r King, 139 ’ 

Winchclsea v Garettj, 146 
Wingate (James) A Co i Inland 
Revenue, 372 

Wingfield, Chalmers v , 342 
Wintei, Re, 114, 115 1 

, Ory v , 313 

v Winter, 248 

Wittcd i Galbiaith, 951, 252 
Witter, Walker i , 379 , 394 
Wolff v Oxholm, 404, 414 
Wood ? Connolly Bios , Ltd , 402 

i Middleton, 248 

Woodburne, Plummer x , 398 
Woodford, Ross \ , 412 
W 7 oodruft x Att Gen for Ontano 139 
Woolf, Re, 116 
Woolsey v Ci aw ford, 308 
Worcestei City, Ac , Banking Co v 
Firbmk, Ac , C o 242 
W T oims t de Valdai 49 50 
W orsw ick , Sill i , 177 179, 184 
Wrav i Wiav, Ac , 254 
Wright, Re 102 
W T rigle\ Croslind r , 284 
W 7 ut/, de, x Hendricks, 291 
Wyatt Birtbolomay Bievving Co t , 
373 

j — Nobel Dj minute Co r , 373 
Wyburn, Ma\oi of Canterbuiy x , 211 
W vhe , Enohin i 111 132 
W\nne x C ill inder, 293 
I i Jadv»on 282 

\ates X Thomson, 153 
Yeates r Frasti, 171 
i 3 c dr, is Mining Sedgwick x , 240 
Yclveiton x Yclveiton, 92 
Yokohama Bank, Ltd ? Williams 372 
\oikshne Taunet> x Eglinton 

Chemical Co , 251 
Young Bamtto x , 123 

, Beait i 220 , 

— — , Bradford i , 151 
— -, Gifcpiatte i 44, 7b, 81, 280 

, Skottowe v , 103 

x S S Scotix, 258 

Y/quierdo x Cl\flebank Engineering 
Co f 261 


Zarifi, Montgomciy i , 79, 82 
7nhy Feirans, de* x Hertfoid, 119 
Zimmerinann, Gout i , 349 
Zollvt rein, The, 275, 278 




ADDENDA. 


§ 17a, p 55 — A mamage celebrated in a chinch hall, after publication of banns, 
by a priest of the Chuich of England between Butish subjects 
in a remote pait of China where there was no Church of England 
was upheld on the gtound that, owing to the impossibility of ^oip- 
plying with the Bnlish A-ts is to in a mage, the paities, who 
enjoyed 1 ^ tfghts or extia temtoriahty, weie entitled to resoit to 
their i nninon-Aiw rights 

Phillips v Phillip 9, [1921] 38 T L H 150— Duke, P 

*5 3ba, p 7d — It is pointed out by Dicey ( Conflict of [,<iu s (did ed ), p b ( >2) that 
the citation of the Mannd Women b Property (Scotlind) Act, 3881, 
s 1 , m suppoif of tin view that the husband s change of domicile 
dining the mamage has no effect on the 1 iw legulating tlu matn 
mom ll piopeity is ciioneous Tn any case this citation is no 
longei in point because the Scottish Stitute of 1881 has been 
replaced by the Mimed Women’s Propcity (Scotland) Act, 1920, 
defining anew the lights ot husband md wale in resjiect of movable 
propetty The mles nc apphe able whue the husband is domiciled 
in Scotland, and no exception is made loi the case wheic the 
original matiniionial domicile was not m Scotland By the Scottish 
1 iw , therefore, a cli inge ol domicile by i huslnnd originalh 
domiciled m England to Scotland (lining (In linnuge would affect 
the ughts ot the husband and wife in then movable propcity The 
piovision in the latei statute gives some sup poll to the argument 
that the law r ol the husbands domicile miy affect the mairiage 
piopeity in iny c ise wheic theic is no cxpiess contract oi implied 
conflict in 1 iw ngulatmg the piopeity of the hush md and wife 
according to the ntles ot the onginal mat limomnl domicile 

§106,p 133 —So long as claims of cieditois ire outstanding, whether in the 
English oi the foitign idimmsti ition of the estate , there are no 
hencfici ll isscts to he distributed in accoidancc with the law ot 
the domicile But if foieign cieditois fail to ippcai in the English 
administration and to establish then debts, oi if their claims are 
baned by icason of the Sf itute of Limitations, ^though they 
would not be so bined by th£ law of the countty in which the 
deceased was domiciled, any stitplus assets in the British 
admimsti ition will he distnbuted by the English Court to the 
beneficiaries in accoidancc with the law of the deceased's domicile 

Re Lonllard ( Griffith v Cut forth), W N 1$22, p 75 — Eve, J 

§lll,p 136 — Wheie a tcstaloi domiciled in Aiptnca Jiad left estate both in 
England and m America and the claims of judgment creditors 
exhausted the estate in Amend, while no claims were made 
igamsfc the English estate by the American Creditors, but sub 
secjuently an application was made by the Amenean administrator 
1 oi the deliveiy ejt the suiplus assets of the testator’s estate in 
England, it was held that it was incumbent upon the executors 
who proved the tcstatoi s will in England to apply the assets in 
disc huge of ill the debts of the testator of which they 'had notice, 
vv he th Ci in England or America The American creditors, if they 
came in, would have to show that the older mi certificates which 
had b<mn made m America were sufl cient to support a claim in 
Eugla id, and that their debts were not bill red in England by the 
Statuie of Limitations 

Re lonllard (u s ) 



XXXV111 


ADDEI DA 


§ 113a, p 139 — The case of Att Gen v Jurns is now repo ted in [1922] 1KB 
491 

§ 125b, p 154 — In the particular case of Brown v Greqson it would liavt been 
conti ary to equity to apply the doctrine of election, as well as 
conti aiy to the lex situs ot 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 chat a receiving 
oidei was properly made m England, there being assets in England 
Inasmuch as it was by the debtor s own act that lie was pi evented 
hom complying with the English bankruptcy notice, he could not 
be allowed to avail himself ot the Scottish proceedings foi that 
puipose In re a Debtor [1922] W N 163 C A , Sterndale, 
Warrington, Younger The Court distinguished the case of In re 
Robinson because in tnat case there weie no assets in England, 
whueas in this tliue were such as 4 -*' ^ 

^ 186, p 249 — Add, after icfuencc to T nomas v Hamilton , 17 Q B D 59^ — 
Atkins v Thompson, [1922] 2 I It 102 

§ 190a, p 257 — The immunity fiom 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 agairst it 
Where a vessel winch belonged to the Belgian Government and 
w r as 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 10b— 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 tlieir 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 lien might be enforced 
if it could be done without directly or indirectly imple iding the 
foreign State 
The Tervaete (u s ) 

^ 194, p 264 -An official a$ »nt ot the Soviet Government recognized foi the 
purposes of a trade agieement between the Butish Government and 
the Russian Soviet Republic w as held not to be entitled to immunity 
from civil piocess accorded to the accredited representatives of 
foreign States The Trade Agreement provided only for immunity 
of offici il agents thereunder from arrest and search 

Fenton Textile Association v Krasttn , [1922] C A , 

38 T L R 259 

§ 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 custimaiy meaning in America of the w r ord “shipped,’ which 
wms inconsistent with the term expressed in the Eng^sh contract 
Mowbray d Robinson v Rosser , L J 1922, p 102 — Sterndale, 
Warrington, Scrutton 

§226,p 299 — The case of La SociUt des Hdtels, dc ' Cummings is now 
reported n (.1922] 1KB 451 

Atkin, L J , expressly reserved Lis opinion as to the date at 
which the rate of exchange should be calculated in a case where a 



ADI ‘END A 


XXXIX 


foreign creditor to whom i a debt is due in a foreign country m the 
currency of that country bugs his debtor m the English Courts for 
thf foreign debt That question did not arise to be settled m 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 

> 

^ 226a,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 procec dings, 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 datq on 
which the application for a statement of account was sent 
Re British j.menccn Continental Bank , Ltd, Goldziher's Claim 
aim n *hht Gdndral, Liegeron's Claim, [1922] W N , p 102 
— P O Lawrence, J 

* 304, p 373 — The circumstances in which a foreign company was held not to be 
icsident in England foi the purpose of payment of income tax 
were fuither considered in Greenwood v F J Smidth d Co , 
[1922] 91 L J , p 349 (H L) — Buckmaster, Atkinson, Wrenbury, 
Carson , confirming C A , Sterndale, Atkin, Younger, [1921] 
3KB 584, and Howlatt, [1920] 3 K B 275 




PRIVATE INTERNATIONAL LAW 


CHAPTER t 

INTRODUCTION 

Private international law is that department of national law 
which arises fiom the fact that there are in the world diffceient 
territorial jurisdictions possessing different laws * 

In order to explain more fnlly the position which private inter- 
national law occupies m the field of law, that field must be 
looked at iathei widely The woid law is applied both to the 
laws of nature and to human laws, and if we were discussing an 
ordinary division of national law, as mortgage 01 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 been so mixed 
up with international law that justice can hardly be done to oui 
present 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 co>uits A>f justice, and armies 
so far as their employment is pioperly defensive, are instituted 
to correct their breach It is true that if we look at the rule 
prescribed by a human law rather than rt its observance, the 
singleness of the rul^, compared with the multiplicity of the 
instances which call foi its application, lennnds us of the 
uniformities of nature, and probably this was the similarity 
which caused the word law to be extended frpm human laws to 
natural Inen, the extension having been made, it has some- 
times been attempted to gjve it a philosophical justification by 

1 

♦The existence witldn one territory of different juri tic systems having different 
laws — e g , jthe Hindji, the Moslem, and the Anglo-Indian systems of personal 
law which are applied, m British India — falls ^Iso withm the scope of the subject 

1 


W.I.L. 



2 


PRIVATE INTERNATIONAL LAW 


the lemaik that human laws wi 1 ceitamly he mischievous, and 
probably 'will not long enduie, if they aie not fumed with due 
regai d to the natuial laws that govern the facts about which 
they aie concerned Thus, a law about buildings will miss its 
aim if it disiegaids the natuial laws of health, and one about 
spnituous liquors if it disregards the natuial laws of human 
conduct Now this may be expressed by saying that human 
laws ought to be confoimable to natuial ones, and then it is easy, 
hist to foiget the diffeience between ought to be and are con- 
formable, and secondly to forget that even when human laws 
aie confoimable to natuial ones, that no moie implies a likeness 
between them m kind, than the confoimuy of a marksman’s aim 
to the laws which govern the flight of his bullet implies a like- 
ness m kind between the act of aiming and the flight of the 
bullet The tiuth is that it would be difficult to fiame any 
pioposition m wduch the woid law should stand, and which 
should be true both of the law T s of nature and of human laws, 
unless such pioposition w r ere a meie statement, moie 01 less 
disguised, of the fact that each aie i" some sense uniformities, 
and the homonymy of the law^s of natuie and human laws must 
therefore be regaided as little more than fortuitous 

If tins is so, human laws are not a division, conelative to the 
laws of natuie, of a single field of law, but aie a subject incapable 
of being bi ought undei any wider geneial head Indeed moie 
will have to be said befoie it can be assumed that even all the 
human institutions which aie called law r s can be properly 
bi ought undei 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 featvre of national law is that ’t is a body of 
lules, to be uniformly applied to the cases that fall within them, 
and of which the breach is lediessed or punished by a force 
lriesistible to the individual subject, and regularly applied 
through eouits of justice This redress 01 punishment, which is 
generally spoken of as the enforcement of the law, though that 
term might ntore properly imply its specific enforcement, makes 
the chief difference between law and psage Law is often trace- 
able to usage, m the sense that w T hat was once usag~ afterwards 
became law without express enactment Examples of this may 
be found m thejnstory of the law of many countnes with regard 
to th 3 distribution of the estates of deceased* persons, and the 
effect of marriage on the property of thh husband and Vife In 



INTRO >UCTI<jN 


3 


such cases the passage from u age to law is sometimes repie- 
sented as giadual That, howevei, can nevei leally have been 
so The fiequeney of the usage may have gradually inci eased, 
and so also may the stnngency of the general disapprobation 
with which its breach was visited But either theie w^as no 
administration of justice at the place and time m question, and 
then society was too barbarous for any thing answering to 
national ]n\v to exist in it, or else, when the administration of 
justice began to redress or punish the bleach of the usage, a 
distinct step was taken, however little it may have been noticed 
at the moment, by which the l nrulaiy between usage and law 
wuis crossed 

The breach of international law has not hitherto been 
redressed or punished by any foice regular m 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 Jiutne now established under rt to secure something like the 
same respect for the intei national law as the national sovereign 
and national courts sec \ue for the national law r The lules 
which are understood to c ompose that law r are often so vague that 
the uniformity of then application cannot be conclusively tested, 
even for the purpose of aigumont, so difficult is it to ascertain 
the individual oases to which they should apply The latter 
circumstance lesults from the former No set of rules, national 
01 international, wull ever be i educed to a reasonable certainty 
unless they aie tegulaily applied, or some authoritative judgment 
is passed on the question of then application Hence it would 
be difficult to frame any veibal definition of law which should 
include both national and international law The very notion 
of unifoimity, on which a link, thin and insufficient for the 
purposes of a senous elassieation, may be established between 
national laws and those of natuie, fails us lieie, unless for many 
of the uniformities of international law vve accept the pious 
intentions of wnteis uistead of the haul fact) of statecraft and 
her editary enmity Theie is, however, another mode of defining 
than by verbal formulas In zoology and botany a genus is 
defined by the cneumstan *e that every sperms within it is on 
the whole more like one or tw T o typical species than it is to any 
species outside tin genus ,Now there are rules of international 
law, as those concerning diplomatic intercourse, which leceive 
an amount of observance equal to that winch is received by 
national laws Jn x the case of other rules, the risk that the 



4 


private Inter* ational law 


mischief of a breach will recoi on the peipotiatois 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 aie piesented by rules so linpoitant 
as those which are vaunted as protecting populations from 
arbitral y conquest, and private property on land from capture 
and appropi latum m war The experience of the Great War has 
shown how feeble is the sanction for the observance of rules 
passed with gieat solemnity at the Hague Conferences for regu- 
lating the conduct of w r 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 lespect for the lules of the international society The 
truth is that the precision and stungency of international law 
range from a point below that of ordinary social usages, to a 
point at which the redressing oi punishing power lacks only regu- 
larity of action, the stiength of its uregulai mamfestationr being 
sufficient for practical purposes If then any one, taking 
national law described as m 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 s^e 
prevailing outside law, there seems to be no sufficient ground for 
rejecting his conclusion as unphilosoplncal 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 mechanics, 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 latiei division would better be called positive 
international morality 

In the field thus mapped out, the place of private international 
law is m the division of national law Private international law 
in admimstered 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 
are not a distinct class, like those m which criminal law is 
administered, but it finds its unity in a certair class of questions 
which may aris~ in any action, those namely m which it is sought 
m wiiat national jurisdiction an action ought to be brought, or 
by what national law it ought to be decided The word junsdic- 



INTRO DUCTION 


5 


tion is popularly used m the general sense of competence, as when 
the common law and equity jurisdictions, which differed m 
respect of the mattei, were formeily contiasted m England, or as 
when ih& jurisdiction of a county <ouit, which is limited m 
respect of the value, is contiasted with that of the High Couit 
But m the piesent subject w^e have to do principally w’lth juris- 
diction m the temtorial sense, except for the question of different 
juristic systems m one terntoiy We are concerned, too, with 
jurisdictions not m so far as, like those of tw^o county courts, they 
may be teintorially distinguished within a country which enjoys 
m the last resoit a unity of legal administration, but only with 
reference to temtoiies »hiclx are separate foi the purpose of law, 
as England and Eicnce, 01 England and Scotland Such juris- 
dictions and their laws may be called national, m harmony with 
the use already made in this chapter of the term national law , 
and then the department w r hich tieats of the selection to be made 
m each action between various national jurisdictions and laws 
wall not unreasonably be called international law, distinguished 
by the epithet prnate from the international law” which prevails 
betw r een states, and which may be distinguished as public 
Hence m this subject the foice of the term jrnvate 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 public 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 m what national junsdiction a criminal ought 
to be tried, is not separable from pnvate international law as 
here understood 

The principal grounds for selecting a particular national 
jurisdiction m which to bung an action aie that the subject of 
the action, if a thing, is situate, if a contract, was made, or was 
to be performed, if a delict, w’as committed, within the terntorv 
hence the foium situs, or rei sitcc , contractus , delicti , the two 
latter of which are classed together as the foium Speuale 
obhgatioms Or that the jurisdiction is that in wdnch all the 
claims relating to a certain flung oi group of things ought to be 
adjudicate^ on together, the forum concursus , or that »o which 
the defendant is personally subject, the forum rei The last 


* The opposite viev , that all law ought first to be divided into public and private 
and each of these departments subdivided into natioral and international, is 
expressed by the foiin “ mteihational private law ” 



6 


PRIVATE TNTERN \TIONAL LAW 


mentioned forum, m the Roman and denved laws/ has always 
supposed that between the judge and his justiciable, if I may use 
a foieign term to express a foieign conception, Iheie was a more 
or less dui able tie, the piecise natuie of which, and the measuie 
of its permanence, aie connected w T ith the questions of political 
nationality and domicile Among the ancient principles of 
English law, on the otliei hand, tlieie is found a competence 
based on th? fact of the wuit by which the action is commenced 
being seived oil the defendant within the temtory This seems 
to have been regaided as a case of the fontm in , the defendant’s 
mcie piesence within the ternfoiy being supposed to make him 
personally subject to the junsdiction, irrespective of any special 
ground, such as that of the fontm s peciale obligation is* , but it 
w r as ceitamly a peculiar conception of the fontm rei 

Supposing that on f-ome such ground a^ those above mentioned 
the action is entertained by the national jurisdiction in which it 
is brought, the principal grounds for selecting a ] uticular law 
to be applied m deciding it are analogous to those for selecting a 
jurisdiction Thus w r e have the lex situs, Ion ( ontvactm, Ion 
dcluti t omnussi , and Ion c out in sits , and wheievei the fontm lei 
is understood as being based on a moie 01 less dm able tie between 
the judge and his justiciable, w r e also have the conception of a 
personal law- The latter was ancientlv the lex tlomu ilu , and to 
a great extent is so still, but the modern tendency is to substit ite 
political nationality for domicile as the test of personal law T , so 
far as possible Of course, as between two 01 moie national juns- 
dictions comprised m one state, such as England, Scotland, and 
the jnovmce of Quebec, such a substitution is not jmssible and 
there at least the ler tlommhi must maintain its ground 
Another law 7 often invoked is the Ici loti at tits, that of the place 
wdiere an instrument was executed, or where pioceedings have 
been had undei judicial 01 other jHiblic authority And since 
validity is often claimed m one jurisdiction for judgments 
pronounced in another, by virtue both of the lex Ion attus and, 
m matters of status, of the jierscnal law 7 , it follows that the ques- 
tion m what jurisdiction an action ought to be brought may be 
asked m two w 7 ays first, m order to know" what are the actions 
which a particular jurisdiction wull entertain whe^ thev are 
brought rn it, and secondly, m order to know 7 when the judgment 
pronounced m an action will be allowed any force beyond the 
limits of the jurisdiction in wdiioh it w r as pronounced Lastly, 
the Court’s own law, the lex fori, is a competitor always on the 



INTRODUCTION 


7 


spot, and applicable when the claim of no othei law is estab- 
lished, sometimes even applicable on jiositive grounds 

Such are the questions of pnvate international law, and the 
various for urns and laws which they bung 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 piiscube 
And the national law is very likely to contain an answer 1 o the 
question under what conditions an action is maintainable in its 
own courts, while it may probably be silent with 1 eg aid to the 
law according to which any particular action is to be decided, 
or to the validity to be allowed to foieign 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 alw r ays 
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 
regulaily assumed that the national law tacitly adopts some 
maxims according to which foreign laws and foieign judgments 
aie sometimes admitted to be of force The law of England is, 01 
was, pre-eminently m the case lieie eonsideied Its statute book, 
and the writings of those of its earlier sages whose names aie 
revered as those of the law itself, aie almost entirely blank on 
the head of foieign laws and judgments, but maxims have been 
adopted by the (ouils by means of which an extensive and 
tolerably tonsistent jurisprudence has been built up The value 
set in England on judicial ]>re< edent is such that this juns- 
] rudence, so fai as it is consistent, must now T m its turn be con- 
sidered as a part of the national law, and therefore binding on 
the courts unless and until the legislati le shall alter it But 
with a \iew T to its completion, whethei by legislative aid or by the 
fui then action of the courts, the questions, wdience the maxims 
adopted in England w T eie derived, and what w r as the justification 
for adopting them, are not yet of merely historical 01 speculative 
importance 

The maxims adopted m England in questions of pnvate inter- 
national law T were derived from those which prevailed on the 
continent The earliest channel tliiough which they filteied into 
the insular system was that of the ecclesiastical and ^dmnalty 
courts, wdiich professedly administered laws of more than insular 
extension Then, about the time of our Revolution, the 
increasing mercantile and political intercom se with the 



8 


PRIVATE INTERN VTIONAL LAW 


contmeht obliged our lawyers to renew then acquaintance with 
its legal literature, five centuries after Vacarius taught the 
Corpus Juris m England, and the views so imported beai traces 
of the fact .that the Dutch was then the newest school, and 
perhaps also of the fact that Holland was the countiy with which 
we had the closest political connection I do not know enough 
of the Mstoiy of Scotch law to asseit it, but piobably the union 
with Scotland, coupled with the fact that it had been usual for 
Scotch advocates to complete their legal education m Holland, 
may ha\e had some effect m the same dnection Now the 
leading featuies of the system which by the middle of the 
eighteenth centuiy had been elaborated on the continent were 
these 

Statutes iv Inch disposed about things weie leal, and such 
statutes, existing in the places where the things weie situate, 
were to be applied, as the lex situs, even in othei pinsdictions 
So far as concerned movables, this was largely modified by the 
maxims mobtlia sequuntur personam , which was opposed to such 
pioperty being deemed to have a situation of its own 

Statutes which disposed about peisons were personal, and such 
statutes, existing m the places where the persons were domiciled 
were to lie applied, as the Je,v domicilii , even m other juiisdic- 
tions The chief application of this was to questions of status 
and capacity 

Statutes which weie not clearly either teal or peisonal were 
mixed, and effect might be given to them m othei junsdictions 
than those m which they existed, eithei on the ground of the lex 
situs or on that of the lev domicilii , aecoidmg as it was thought 
that they appioached more nearly m cliaiacter to leal or to 
peisonal statutes, or els'* questions not cleaily leferable either to 
the leal oi to the personal statute might be decided on one or 
other of eeitam maxims which stood outvSide the doctune of 
statutes, namely 

The lev loci < ontractus governed obligations ansing out of a 
contract , 

The lea loci uctvs governed the forms of mstiuments, and the 
validity of pioceedmgs had abroad under judicial or other public 
authority , 

The7ca fori governed the procedure in the action itself, and 
the same law, m its character of the lex Ion concursus, governed 
questions arising out oi the circumstance thai several claims, 
possibly originating under different laws, c have to be adjudicated 



INTRODUCTION 


9 


on at once, such for example as the question of the ranking of 
ci editors against a bankiupt’s estate 

It must not be supposed that even on the continent the system 
thus sketched out was certain 01 coheient As some among many 
examples of the vagueness which leally beset it, there may be 
cited the endless discussions whether paiticular statutes were real 
01 personal, 01, if allowed to be mixed, whether they approached 
moie nearly to real or to personal statutes, whether the lex Ion 
contractus ought to be understood as the law of the place wheie 
a contract was enteied into, or of that wlieie it w r as to be per- 
formed, whethei the piescuption by which an obligation is 
extinguished ought to be measuied by the lea Ion c ontiactus, as 
a limitation of the obligation itself, or by the lea fon, as a law 
of proceduie detei mining the time foi bunging an action on it, 
and, with regard to the lex actus , wliethei it was necessary to 
diaw up instillments in the foim prescribed by it, oi whether an 
option as to the foim of instruments was allowed between the 
lea loci a(tu s and the law of the place wheie they w r ere to operate 
As little must it be supposed that the system, siuh as it was, 
was imported wholesale into England Certain parts of it, which 
suited the national tempei or some peculiarity of English law, 
w'eie eagerly seized on Thus the principle of the lex situs , or 
of the real statute, was in haimony with the importance attached 
tc landed piopertv, and the estates and interests which English 
law permitted to be held m land weie so peculiar that gieat con- 
fusion would have ansen if its tenure could ha\e been interfered 
with by deeds m foreign form, or by matnmonial engagements 
tacitly entered into under and with reference to foreign laws 
Hence the application of the lex situs to land received m England 
its utmost development, as against the l°r loci actus and the lei 
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, whicn lies at the root of personal law r , wuis not conceived 
m 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 f he lex loci actus for the forms of instruments was not 
only opposed in England by the considerations just mentioned 
wuth regard to land, but from another cause can scarcely be said 
to have 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 


weie dicfwn 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 couise adopt the form of his own 
country, might make the foims of the locus actus unavoidable 
It was only m 1861, by Lord Kingsdown’s Act, that the lex loci 
actus w^s admitted m England as a sufficient suppoit for the 
f oi nidi validity of a will 

But it is not enough to have noticed the reception m England 
of continental maxims on topics of pnvate international law In 
order that the subject may be fully understood, something must 
be said of the long histoiy Enough which it had passed befoie 
England came into contact with it 

The Roman law befoie its codification by Justinian ivas com- 
posed of two parts One was the jus civile , the special law of the 
citizens, by which only Roman citizens w’eie bound or could 
defend themselves, except so fai as it had been extended to 
others (1) by express enactment, as in 198 n c the legal limita- 
tion of the late of interest was extended f to loans made to citizens 
by persons having the Latin franchise or being members of one 
of the dependent allied states ( soai ai nomen Latmum Livv, 
xxxv 7), oi (2) by a fi< tion attributing citizenship 1o a party 
where justice lequiied it, as the civil action of theft w T as 
judicially applied both foi and against peiegnm (jams, iv 87 
The othei comprised such Lnv as was equally obseivcd by all the 
peoples known to the Romans, and w r as therefore refened by the 
latter to natuial reason as its source, and called jus gentium, 
quasi quo jute omne s qentes utunlui Gams, i 1 We may pass 
over the controversies as to the date and mode of introduction of 
the generalization thus ,r nown as the jus gentium, and as to its 
application What is important lieie to observe is that besides 
the tw r o parts of their own law the Roman judges took account of 
other law r s, not necessarily foieign 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 m the scanty fragments of 
pre-Justinianean law which have come down to us otherwise than 
m the Corpus Juris Gaius (i 92) speaks of a child born of a 
peregnna <to a peregrinust, cm secundum leges moiesque pere- 
grin orum conjunctn est And (m 12u) he says* Sponsor'll et 
fidepromissoris heres non tenetnry nisi si de peregnno fide- 
promisjore qnceramus et aho jure civitds ejus tenetur And 



INTRODUCTION 


11 


Ulpian (xx 14) says that a cleditit i us cannot make a will, not as 
a Roman citizen cum sit per eqnnus , noi as a peregruius , quant am 
nail ms ter tie civitatis runs est at ad versus leges civitatis sure 
testetur * These passages weie not mseited m the ('orpus .Tuns, 
peihaps because Caiacalla’s gilt of Roman citizenship to all the 
free inhabitants of the empire gieatly reduced, though certainly 
without entnely abolishing, the nurnbei of cases in which the 
law of a provincial a vitas could operate * Rut the /1 orpus Juris 
pieseives many passages m which a diversity of laws, or of 
customs piactically equivalent to laws, is referred to, though 
coupled, not with (ivita s or any word implying a personal con- 
dition of a certain pop lation, but with regio or some other word 
descriptive of locahty Dig xxi 2, 6- -si fundus cement, c t r 
lonsuetudme ejus reqioms in qua negotiant gesturn est /no 
evutione raven oportet , Dig xxn 1 1 pi — er more reqtoms 
uln ( ontrai turn est Dig xxiv 4 1 § 15 -rnos reqioms , Dig 1 
IT 34 — reqi rnos, id quod ft equentatur , (kid vi 23 9 — spec/ale 
pnvileqium patricr fair, Cod vi 32 2 — leges rnoresque locorum , 
Cod vm 49, 1 — lev mama pn t We see then that at the tune 
of the fall of the Western empire, diversities of law oi of prac- 
tically authontatne customs existed within the population called 
Roman as opposed to the Heruli, the Ostrogoths, oi any other 
section of the northern conqueiois But neithei the texts ( ited 
not any others help us much to understand by what iules then 
application aa.is determined AAhere cncumstam es might suggest a 
conflict between t\Ao of them, oi between one of them and the 
general Roman law Often a text seems to assume that all the 
televant circumstances point to one law onlv, so that the only 
conclusion to be drawn fiom it is the assertion m principle of the 
admissibility of particular lai\ Piobably, howevei, A\e shall 
not be wrong if ive get the impiession of a system in which 
personal law was less limited than m any modern system by the 
place of an occurrence or the site of properly, and m which, as 

* Ravigny thought that Oaracalla’s gitt did not change the person il law of a 
provincial (Svst d heut Rom Rechts, § 357), but von Ba" takes the opposite 
view (p 14) It must, however, be remembered that Caricalla’s gift was only to 
those then living and by a legal consequence to their descendants A new, 
although nmHi smaller, tree population, not endowed with Roman uti7enship, 
must have arisen m the provinces from a vanety of circumstances, and even on 
von Bar’s view would have maintained the pre Justimanean passages m question 
in some amount of use 

f Savigny held tl at the regional customs mentioned in the Digest were only 
accepted as keys tc the intentions of parties, or as f rnishing the measure of 
damages Even so, however, they must have been practically equivalent to lavs 



12 


PRIVATE INTERNATIONAL LAW 


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

In the times winch followed, a system veiy highly, perhaps 
more highly, personal came into use The membeis of each con- 
quering northern nation lived within the late empire by their own 
law, leaving each conqueied nation, whether the last conquered 
01 one more deeply submeiged, to the enjovment of its own For 
example, as in Italy the Lombaids left the Roman law, with its 
paiticulai valiants which ha\e been mentioned, intact foi the 
Romans, so the Flanks m Italy 1 eft both it and the Lombard law 
intact for those respective nations, whiL bringing m not only 
then own law foi themselves, but also, for tnose who accom- 
panied them, all the other law r s lecognized m their dominions 
beyond the Alps If in any of the Germanic kingdoms a 
Gei manic stranger airrved the law of whose nation was not 
lecognized m it, he fell under the law r of the nation which he 
found supreme You might know, or might meet m the course 
ot‘ a day’s business, several peisons livipg under different laws m 
the same city It was just as now m India, wdiere Europeans, 
Hindoos and Mahometans have their respective family or 
religious laws, only m Europe dm mg the dark ages the diversity 
must have been moie striking, because it invaded more depart- 


* The rule was that “a person may he cited as defendant in every town in 
which he has citizenship by ongo, and also m every town in which he has a 
domicile ” But in the Corpus Juris we hear comparativelv 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, ongo could found no jurisdiction, while on the contrary 
the abstract notion of domicile was just as applicable to the ten itory of a province, 
and therefore to the jurisdiction of +he 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 
onginis to one who had ongo and domicilium in two different municipalities was 
always limited to the case m which he happened to be fount m the town to 

which he belonged by o, go Bat even if such a resti ctive rule of law had not 

existed, the plaintiff must still, for his* own interest, have preferred the forum 
domicilii, because the defendant was more easily and conveniently reached in the 
place of his domicile” Savigny, Syst d heut Rom Rechts § 355, 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 
foreign s^ate cannot militate against either of the parties , they are rather to be 
judged according to the jus gentium, yet for political reasons the contrary may 
be prescribed in particular cases, (b) the right ol citizenship in a particular town 
usually determines (or each^ individual to what positive bw he is personally 
Subject, and according to which, therefore, he must b judged ” § 356, 
Guthrie, p 117 



INTRODUCTION 


13 


merits of law at the same time that there was moie social 
intercourse between the persons whom it affected The geneial 
rule was that the law of the defendant governed, if an obligation 
could not be established against him by his own law, theie was 
no other to wdiich he was subject But marriage was to be 
celebrated according to the law of the husband, and so strictly 
was this rule adheied to that wives who had been ma/ried by 
their law could be dismissed at capuce, a practne to whuh m 
the year 895 the Council of Tubur could oppose none but 
religious sanctions * 

In Italy this system of personal laws, belonging to groups of 
persons not distinguished by citizenship oi residence but by race, 
came to an end through the gieat piepondeiance of the group, or 
lather mass, living by Roman law r , and the absorption of the other 
groups into it This we know to have happened, and w T e can see 
many causes for it The political significance of the nutate s, 
and probably even their topographical limits, must have been 
largely effaced by the Gei manic conquest, and c onespondingdy 
the legal impoitance of ’ orujo must have given way befoie that 
of domicile, the Roman mass being thus welded into a 
non-political whole capable of leceiving accessions with little 
friction The Germanic conquerois, except in the Lombard 
plain, were less numerous than they w r ere beyond the Alps On 
tne other hand, many of the crties are knowm to have attained a 
flourishing position even dining the dark and early middle ages, 
and the industry and commerce to which they owed that position 
must have called foi Roman law r and jurisdiction, and have 
invited those Germans who adopted such pursuits to avail them- 
selves of them And w-hen most of the nobles had come to reside 
m the cities, as well fiom a preference for city life as from the 
compulsion which in some cases was applied by the city people, 
few vestiges can have remained of any Gei manic junsdiction 
capable of upholding Germanic personal laws Certain it is that 
when, m 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 valiants called 
the statutes of the cities, and to a jurisdiction based on domicile 

The glussators of the Corpus Juris were unable to point out the 
analogy which the statutes of the Italian cities bore to the laws 
of the peregnm and the civitates mentioned by Gaius and Ulpian, 

♦Mans 1 , t 18, '•ol 151 ,1 have been directed to this example by Savigny, 
Gesch des Rom rechts lm Mitt , vol 1, § 46 



14 


PRIVATE INTERNATIONAL LAW 


because they did not possess the fragments of pie-Justmianean 
law in wlueh the position of the (nutate s is marked ^o much more 
cleaily than by anything m the Digest or the Code But that 
they m fact xegaided the statutes from the same point of view is 
shown by the text on whnh they hung what they had to say 
about them Tins was the first law of the Code, that by which 
the Empeiors Griatian, Valentmian and Theodosius lequired all 
then subjects to piofess the Trimtaiian doctune Cunctoi 
populos quo dementia’ nostta reqit impel mrri in tah vohnmn 
i di (pone ret son, &c Heie was an acknowledgment that a ruler 
could legislate only for his subjects, and accoidingly Accursius 
or some one else w T rote the following gloss Ai gumentum 

Quodsi Bononiensis c onremat ur Mutincr, non debet judtcori 
secundum statuta Mutina, quibu s non subest , cum dicat quo ? 
nod tcv clementhv ieqit iinpenum Let ns see what was involved 
m approaching the subject m this mannei First, since the field 
of application of a statute was held to belong to puncipLs of 
justice to be determined by reasoning, tlieie was invol\ed a denial 
of the doctrine to which John Yoet and Huber w’ere long aftei- 
waids led by an exaggeiation of teintonal so\eieignty, namely, 
that no junsdiction can apply any other law than the lei foil 
except at the demand of couitesy or interest Secondly, since 
the leasorung staited from the notion of peisonal subjection to a 
lawgiver, it followed that, whatever lules foi delimiting tne 
fields of application of the statutes intei se should be established, 
they would have to be equally adopted as between the legislations 
binding peoples differing m that political subjection which we 
now call nationality, and this w r as assumed from the first by the 
post-glossatois Only, since a common political subjection to 
the Roman empire revi ed by the Geimans existed for most of 
the cities of which the statutes w T eie under consideration, it 
followed that, besides the questions concerning the limits of the 
application of the statutes intei se, other questions weie raised 
concerning their relation to the common Roman law, to which 
they w r ere regarded as exceptions introduced either by subordinate 
authonty or by Some forgotten exeicise of impel lal authority * 

* Venice did not acknowledge the supremacy of the emperor, yet as the 
Venetians 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 of Justinian, while anc^her argueu, that since by the 
Roman law a parent could with two witnesses divide his propeity between his 
children, a city, which was the parent of her subjects, might authorize them to 
distribute their substance with no more elaborate formal ty BaAolus, ad 
Cod 1, 1, 1 



INTRODUCTION 


15 


North of the -Alps the course of legal history duung the daik 
and early middle ages was difteient The peisonal laws weie 
(unshed out by the piessuie of feudal authoiity, which estab- 
lished itself m Fiance on the fall of I he Cailovingians, though m 
Germany the stiuggle of the ( entral government against the 
usurpations of the stiong lasted longei The baionial fiefs 01 
chdtelleme 9 became little states, of each of whuli the inhabitants 
held scant mteicouise with those of any othei The stiangei, 
aubain , became a seif by living a year and a day on the lord’s 
soil, 01 a buigess by living a yeai and a day m a town, being 
aggregated m eithei ease to the local (ommunity Customs grew 
up which became the laws of the local (ouits Few weie the 
occasions when a w t nt was felt foi any othei law than that of the 
( hdteUenie When they o(cuired, the nule justice of the ( luite- 
hnn applied some tiaditions, in Fiance chiefly of Roman and m 
Geimany of Gei manic oiigm Fewei still must m the eleventh 
and twelfth centimes have been the o(casions which, under 
modem jurisprudence, would have called foi the application of 
any law foreign to the (li Hellenic, and we cannot doubt that any 
such foieign law was usually ignored, and the judgment given 
aeeoidmg to the lei fan , as if John Yoet and Hubei, with their 
extieme doctune of fen itonality put without then qualifying 
doctnne of international couitesy, weie already authoiities Law 
hi 1 a base m feudal piopeity, for its limits as well as foi its sub- 
stance, and as soon as a pnnciple could disengage itself fiom the 
obscunty, it was that of the Fiench brocaul, toute* le s continue* 
wnt reelles — exclusive within tlieir terntones, of no effect out- 
side them The limits of application of a law might depend on 
those of the lawgivers authoiity, but that authoiity was 
regarded as being ovei terntory ratliei than ovei peisons 
It was during the course of the thnteenth century that any 
further elaboration of the gloss on the Coipus Jims was supei- 
seded by independent legal tieatises oi commentanes on 
particular texts, starting the gieat senes of the post-glossatois, 
among whom the most famous name is that of Baitolus, m the 
fourteenth century The senes, at least so fai as oui subject 
is concerned, extends so fai as to include Dumoulin (Molmceus), 
m the middle of the sixteenth Their contributions to our 
siibject still chiefly take the form of commentaries on the law 
cunctos populoi , the hist law of the Code, and their object is to 
lay down the idles for the fields of application of diffeient 
statutes, the necessity of which had been foreseen m the gloss 



16 


PRIVATE INTERNATIONAL LAW 


It is probable fliat some of the rules which they support only by 
reasoning, including, aftei the fashion of the time, the citation 
of numeious really irrelevant texts of the Digest and Code, were 
already applied m a practice which they did not notice because 
it wanted wntten authority, and peihaps consistency Indeed, 
it is difficult to suppose that a society so advanced as that which 
by thn tune existed in Italy and the south of France, m the 
universities and law schools of wdnch oountiies the post- 
glossators lpostly learnt and taught, can have dispensed with 
some practice on the subject Thus, when the doctors submit 
contracts to the law of the place wheie they aie enteied into 
(let loci contiai tus ( elebiati), it can liaihlv be doubted that this 
must have been already the rule for the grc it fairs at which so 
much of the business of those times was transacted And when 
they make domic lie 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 m it (Dig xxvi 5 1 §2), piobably 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 tfm 
want to be supplied, m accordance with the maxim, pana sunt 
forum ahtubi sortni et statu ti s hgan si ibi foium , ergo et jus 
But in the main the task which lay before the post-glossators m 
determining the legitimate field of operation of laws was to 
effect a reconciliation, or at least a modus nrendi , between the 
Roman punciple enforced by the gloss, that law' depends on 
personal subjection to it, and the feudal principle which, as w r e 
have seen, made law territorial The former pointed to laying 
great stress on the don idle 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 twm culminates m the question of succession on death. 
The south of Fiance was the meeting-ground of those principles 
Of the four predecessors of Bariolus whose works he cites, all of 
whom weie active within the thnteenth century, only one was 
a native of Italy, the others respectively of Languedoc, Lorraine 
and Bourbonnais, three of the four studied law m Italy, and 
two taught it at Toulouse or Orleans * So great is the difficulty 


* Gulielmus Durantis (Languedoc), Jacobus de Ravena or «e Ravams (Revigny, 
Lorraine), Petrus a Belia Pertica (Bourbonnais), qnd Cmus (Pistoia) 1 Lam6, 
118— 12k, 



INTRODUCTION 


17 


of delimiting the principles icfeired to, that to tills day it 
remains the chief pioblem of pnvate international law as a 
theoietical science 

Tlieie followed two centuries of discussion, which left the 
science much as Bartolus had left it, the statutes of which the 
opei at ion was to be terntonal, and which were called leal, 
having to be ascei tamed by the answer to a question abou*5 which 
there could be no agreement because it was insoluble, whethei 
then motive was more concerned with things oi with persons 
At last an impoitant contribution to the science was made by 
Dumoulin, one of the greatest legal geniuses that have woiked 
on it His tendency was to allow moie influence to the intention 
of paities than to legal rules, and accordingly to legard customs 
lathei as usages to which men w T eie presumed to conform than 
as binding dispositions This may be instanced by the doc tune, 
developed m his 53rd consilium, that wheie a mamage is cele- 
brated without express contract, between persons domiciled 
within the aiea governed by a custom, that custom receives a 
contractual foice through then tacit adoption of it, by which it 
applies even to the immovable piopeity of the pail situate under 
another custom, coil ti ary to the then prevailing opinion m favour 
of the lev situs m such case But Dumoulin was immediately 
contradicted with asperity by cTAigentre, a Breton noble and 
magistrate, who m the interest of provincial autonomy* carried 
the reality of the customs to a higher point than it had yet 
reached m the French parliaments and universities, though it is 
possible that tlieie may always have been remote feudal courts 
into which the learning of the post-glossators had never pene- 

tiated To the statutes which were classed as leal or personal 

he added a mixed class, m which both dungs and persons are 

had m 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 Je universal* 


* Ils s ervaient Vun et Vautre, a leurs nsques et pdrils, avec une dgale sincdrttd 
des causes d'dgale importance Dumoulin luttait pour Vautontd royale et Vumti 
dti droit f d' Argentrd pour la fdodahtd et pour Vautonomxe jundique des provinces 
Le s liames et les persecution que s’attxra Dumouhr sont bien connues , la 
vie de cet hon me d'dtude jut une des plus agit^es qui furent mendes dans un sitclc 
des plus orageux Quant d d'Argentrd , s'll contnl]ua , grdee d la moderation de sa 
conduite politique, d t ,rdserver son pays des malheurs de la guerre r&hgxeuse, la 
loyaut6 avec laquelle il derwit son Histoire de Bretagne n'en fit pas pardonner la 
liberty , ce hvre lui vulut les disqrdces de la cour et d ’ parlement, devenu suspect 
il finit par Hre nnpl^qud dans des troubles qui eurent lieu d Rennes, par quitter 
cette ville, et, peu apres, par mounr de chagrin 1 Lam6, 314 


W.I L 


2 



18 


PRIVATE INTERNATIONAL LAW 


jjersonce statu / and that pure, extra rerum immobilium mixturam 
et abstracte ab omni materia reah * 

The system of d’Argentre did not at once gain much influence 
in the higher circles of Fiench jurisprudence The conflict of 
laws arose far oftener between the different provinces of the king- 
dom than between any of them and foreign states, and m the 
France of the seventeenth century the cause of provincial 
autonomy was too losing a one for legal doctrines tending m its 
direction to be successful But elsewhere the giowth of inter- 
national intercourse, the independence of the United Nether- 
lands, of which the union quahfed but little the independence of 
their several provinces, and the practical separation of the 
Belgian provinces from the ernpiie 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 territorial character as dominant, and the jurists of th? Low 
Countries welcomed the principle of d’Argentre, and carried 
them even fiuther with unflinching logic An edict of the 
Spanish governors of Belgium m 1611 provided that if there 
were diffeient customs as to last wills m the place of a testatoi’s 
residence and in that where his property was situate, the customs 
and usages of the situation were to be followed m what touched 
the quality of the property ( i e , movable or immovable), the 
powei to dispose of it, at what age, and with what form and 
solemnity In 1634 an official interpretation declared that only 
essential solemnities ( solennites du fond) were intended by this, 
not extenor 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 consuetudines Flandruv aliarumque 
gentium controversial , published in 1621 In that work, which 
he wrote while a barrister at Ghent, he described d’Argentre as 
vir excellentissimi mg°mii , and put the realistic aspect of the new 
doctrine on the conflict of laws m 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 lmnressed on the property ” Almost at the same 
time ^he connection of the doctrine with territorial sovereignty 
was asserted by Grotius with equal strength In the De jure 
belli ac pans, published in 1625, after observing that civil laws 


De statutis personabbus 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 pioper 
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 m 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 m any place is 
under the laws of that place as a temporary subject *’ Grotius 
had said (1 1, c 1, s 13, 14) that civil law draws its ongm 
from the will of the civil power, his meaning must therefoie 
be that the presumable will of q legislator is to grasp all that 
falls within the ieach of his powei 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 ansing m his territory — -for example, 
the capacity of a foieignei contracting m it The lex fou is 
thus set up as m principle the only law for transactions within 
the jurisdiction, whatever assuagement of that severity Grotius 
would have admitted if the mam purpose of his book had allowed 
him to enlarge on the subject In the passage cited he goes on 
to say that “ it will be quite otherwise if a contract be made at 
sea or in an unoccupied 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 J passing foreigners are t 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 Yoet, De statutis eorumque concur su , Huber, De conflictu 
legum, both these ^Dutch; and Hertius,Ja German, De collisione 
legum They went to different lengths, and the formal statement 
that the admissic§i of any foreign law re^ts only on a comity 
contrasted* with justice was leserved for Huber and the younger 



20 


PRIVATE INTERNATIONAL LAW 


(John) Voet - The latter admitted foreign laws ex comitate , 
hberahter et ofjiciose ultro citroque, nullo ahoquin ad id jure 
obstncta And Huber laid down three axioms which have 
become famous “ (1) The laws of eveiy state reign within its 
territory and govern all its subjects, but have no foice elsewhere, 
(2) All those who are found within its terntory, whether with a 
permanent or temporary residence, are to be considered as sub- 
jects of the state, (3) The ruleis of states admit by comity the 
laws of every people, aftei having been applied within its terri- 
tory, to preserve then effect everywhere, provided that neither 
other states nor their subjects l^ceive theieby any injury to their 
power or to their rights 99 

In the eighteenth century activity on mn subject passed again 
to Fiance, but Froland, Bouhier and Boullenois were able only to 
rearrange the old ideas m new and hesitating combinations 
Such, however, as were their results, they formed the ultimate 
doctrine of les statutanes , which was considered to surv-ve the 
mtioduction of the Code Napoleon so far as it w\as untouched by 
it, and to govern its interpretation Its leading features were 
those winch 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 hr vtin mentioneu on 
p 9 Only, while English writers and judges freely boi rowed 
the term “ comity ” from John Voet and Huber, it may be 
doubted whether they meant it strictly m a sense independent 
of justice Although on the continent comity and justice are 
usually regarded as forming an antithesis, it is probable that m 
this country the prevailing view has been that while a concession 
is made in not determining every question by the lex fon , that 
concession is dictated not only by a convenience amounting to 
necessity, but also bv deference to a science of law embodying 
justice, winch the law of the land w r as 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 th'* English courts, the practice of those courts to 
follow their precedents prevented a further investigation which 
might have damaged the belief m 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 widei legal knowledge which has 
been acquired 

Since the eighteenth centuiy the most remarkable contribution 
to the theory of private international law has been that made 
by Savigny, m the eighth volume of his Sybtem des lientigen 
Romisthen Redits , published in 1849 His geneial view about 
law, which he did not connect with a lawgiver, woidd probably, 
m any case, have pi evented him from pursuing the old course of 
deducing the proper field of each law from a government 
sovereign, either over persons 01 over a territory, but his objec- 
tion to that couise w^s stiongly reinforced by his observation of 
the tailure to produce a coherent system in which it had resulted 
He made the true question to be to what rile of law each legal 
1 elation 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 wo need not heie enter further than to observe 
that the authority of each rule was connected by him with an 
aiea ( Rechtsgebiet ) So fai as a rule applies simply to a person, 
as by defining his capacity to have and acquire lights and to act, 
the pei son was subject to it by his domicile within its area, a 
conclusion inevitable to one who approached the subject as an 
exp'\sitoi of Roman law fiom which on go had dropped out So 
far as the legal i elation m question is one arising from contact 
between peisons and things in ox belonging to different areas, as 
in the cases of family law, obligations, and lights, whether to 
particulai things oi to things giouj)ed together as m succession on 
death, the governing rule was that to which the relation belongs 
or is subject bv its jiropei nature, which Savigny also describes 
as the rule m the aiea of which the lelation has its seat This 
was equivalent to entrusting the selection of the rule m the case 
of each legal relation to an appreciation of what justice and con- 
venience requne, for nothing is gained by interposing a seat of 
the relation which m its turn justice and' convenience must point 
out Apait, theiefore, from the value of his judgment m dis- 
cussing particular questions, Savignv’s chief conti lbution to our 
subject lay m directing attention to the substantial nature of 
each legal situation to be dealt with rather than to the sovereignty 
over persons or places, and ui the check which he thereby gave to 
the exaggerated application of the lev s itv? which had set m with 
d’Argentre. The spirit' of this teaching has not ceased to 



22 


PRIVATE INTERNATIONAL LAW 


operate, though sovereignty at present hulks 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 Piliet, 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 punciple that the preference is always to be given 
to that state which has the greatest interest in the solution * 
But the mtptest which the sovereignties from which laws emanate 
have in the solution of a question ansing between them can only 
be measured and compared by reason, and so the substantial 
nature of the legal relation to be dealt ,/ith re-enters as furnish- 
ing the test That natuie may be considered more from the 
point of view of the parties or more fiom that of the 
sovereignties concerned, though a sound judgment will not wholly 
lose sight of either But at least a legislatoi will be deemed to 
have intended that his enactments shall be intei pi e + ed by science, 
not that they shall be applied to all legal situations within his 
physical control, or to the acts of all oersons acting in his terri- 
tory, except so far as he may concede exceptions by a comity 
conti asted with justice t 

*Pillet, Principes du Droit Internationa] Priv£, 1903 

+ For a discussion of recent Continental theories of the subject, see Ba l y, 
Polarized Law, p 148, ff 1914 



( 23 ) 


CHAPTER II 

DOMICILE AND NATIONALITY — RENVOI 

A very summary view lias now been given of tLe history of 
jirivate international law to the close of ihe eighteenth century 
Since then the development of ^h° subject on the continent has 
been largely influenced m its external foim by the codification 
of the law m 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 i envoi 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 theie is added a difference as to the rules which are 
to regulate that conflict The latter diffeience was not, indeed, 
first created by the introduction of nationality in some countries 
as the criterion of personal law while domicile was letamed for 
that purpose m other countries It existed, for instance, as the 
result of the want of agreement whether the lev loci actus was 
obligatory or only optional for the forms of acts, and whether for 
the form of a will the lev loci actus was not altogether over- 
ridden by the lev domicilii for movables and the lev situs for 
immovables But + he 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 Conventions of 1902 ~nd 1905 have been denounced by France and 
some of them by Belgium The Convention of 1905 about civil procedure has 
been reaffirmed in \rt 287 of the Treaty of VersaiHes with Germany, but 
France is excepted from the States renewing their adhesion 



24 


PRIVATE INTERNATIONAL LAW 


England lias 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, 
m 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 chaptei 

Before Savigny wiote, though as an expositor of Roman law, 
he had no concern with it, there had already begun on the con- 
tinent of Eiuope the substitution of political nationality foi 
domicile as the test to be applied to status and capacity This, 
wh’ch may rank with the extieme territoriality championed by 
d’Argentre as the two gieatest changes .11 0111 subject since the 
twelfth centmy, has been piogiessive, and n s not yet complete 
It arose as follows 

In Fiance the leception of domicile as the criterion of the 
personal statute was early qualified by a very limited reference to 
political conditions, not, indeed, through any lemhoduction of 
on go as a ground of jurisdiction, but thiough a jealousy of 
domicihum as such ground when by any possibility it might lead 
to consequences hurtful to Frenchmen Fiance attained early to 
the consciousness of a political unity within herself, marking her 
off from all foreign count lies, the empire included, and which 
led, long before the consolidation of the loyal po'wei undei Lewis 
the Eleventh, to certain peculianties 111 hei juiisprudence The 
Roman notion of domu ilium was revived as m Italy and other 
parts of the empire, so that a Fienchman (ould not be sued for 
a personal matter except before the judge of his domicile, but 
the foieigner ( avbam ), being 111 France with a icsidence there 
short of domicile, n as not allowed, when sued by a Frenchman, 
to plead that Ins proper judge was the judge of a foreign domi- 
cile His only piotection was that the French plaintiff could not 
bring lnm before any tubunal he chose, but only befoie that of 
his actual residence Also a foreign judgment had the force of 
re 9 ]it(h( ata 111 Fiance when pronounced against a foieigner, but 
by the ordinance ot 1629, Art 121, a Frenchman could again 
dispute the merits of the cause before a French tribunal Hence 
the peisonal statute of a Frenchman was that of his French 
domicile, and if lie' 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 
qr capacity in France. But the foreigner was bound as to his 
status and capacity by the ?es judicata , and therefore by the 



DOMICILE AND NATIONALITY 


25 


statute, of his foreign 'domicile, though it is more than probable 
that, if sued m France by a Frenchman foi matteis transacted 
m France, he would not have been allowed to defend himself by 
that statute * Suppose, however, that the foieignci established 
m France, not merely a simple residence, but such a iesidenee as 
satisfied the Roman notion of domicihum, could this be counted 
in his favour? The French legists, eitliei by a misconception 01 
thiough a desne to justify the inequitable droit d’auhame , seized 
on the Roman distinction between jus civile and jus gentium , 
and held that foieigneis enjoyed the latter m Fiance but not the 
formei Now the transfei of domicile was in Roman idea > a 
question of fact, domic dium ie et facto transfei tin tliciefoie it 
did not depend bn the jus civile therefoie a foieignei was 
allowed to establish his domicile in Fiance, with the effect of 
submitting his status and general capacity to the law of that 
domicile, his paiticulai lights lemammg limited by his exclusion 
fiom those which arose out of the jus civile , as succession to 
propel ty on death, its tiansmission by will, the patria potestas , 
and adoption t This exclusion is often spoken of as incapacity, 
and not without etymological accuiacy, but questions about it 
must be distinguished fiom those about gencial capacity A 
Fienchman, as a minoi, may have wanted the lattei capacity 
while enjoying lights, foi instance, of succession a foreigner 
in Fiance may have been sui juris while depnved of such 
rights 

In this state of things the Code Napoleon (1808) enacted that — 

The laws concerning the status and capacity of persons govern Frenchmen, 
even though xesiding in foieign countnes Ait 3 

Such was the natuial outcome of the ancient Fiench punciples 
just explained The internal difference^ of law, with icgaid to 
which the precise domicile wuthin France w^as impoitant, dis- 
appeared wutli the introduction of the code, but the political 
nationality of a Frenchman lemained to go\ern his civil lelations 
even abroad > The same code says— 

The foieignei who may have been 'admitted by the authority of the 
government to establish his domicile m Fiance shall erjgoy there all civil 
rights, so long as he continues to reside there Ait 13 

This ait'cle lepeals, for the foreigner who lias established his 
domicile m France w r ith the authority $>t the government, the old 

* See Demange, it, j Histoire de la condition civile des Grangers en France, 
pp 117—121 o ' , 

f Demangeat, lib cit , pp 123 — 155 



26 


PRIVATE INTERNATIONAL LAW 


exclusion of aliens from the rights given by the jus civile , the 
difference between which and the jus gentium is still sometimes 
noticed by French lawyers even under the empire of the code, but 
it neithei says nor implies anything as to the law by Which the 
status and general capacity of any foieigner are to be determined 
As to that matter, the prevailing opinion is that a silent revolu- 
tion hqs been wi ought 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 m 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 suffei from the incapacity by 
his personal law of a foreigner who contracts in France, when 
the foreigner would have been capable by French lew, and the 
Fienchman, m good faith and not having acted with legerete 01 
imprudence, was ignorant of his incapacity So much survived 
of the ancient practice, which m no case peimitted a foieigner 
contracting in Fiance to defend himself by his personal statute 
against a French plaintiff But the most lecent authorities pay 
respect to the incapacity of a foieigner by his personal law 
whenever he has not fiaudulently concealed it fiom the French 
party * 

The next great example of codification m Europe was that 
given by the Austnan code of 1811, m foice from 1st January, 
1812 In it the French piecedent was followed so far as to claim 
the authority of their national law over the capacity of Austrian 
subjects abroad (Ait 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 fuieign government of Austria and domestic 
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 m the old French maxims which we have seen 
determining the line taken on our subj’ect by the Code Napoleon, 


* Surville et Arthuys, § 15l, quoting judgments of 2nd Juh 1878 and 4th March 
1890, 5 Clunet 202 and 18 Clunet 205 



DOMICILE AND NATIONALITY 


27 


was developed by the Italians into a theory on winch 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 terntoiy, and united among 
themselves and differentiated fiom their neighbouis by race, or 
by what makes up the tie imagined and descubed as that of race, 
was a nationality and might claim a separate political develop- 
ment So fai the theory was preached and acted , on m many 
European countries But by the Italians, among whom the 
greatest name in this subject was that of Manemi, nationality 
was regarded as the product of a lmng foice, which tended to 
show itself at once m the political and social spheies, so that the 
political oiganization might as well be the index to that which 
ought to exist for private law, as the social charactenstics might 
be the index to the organization which ought to exist m the 
political splieie On these pnnciples, w hen the political unity of 
the country had been to a laige extent achieved, the Italian code 
of 1865, m force fiom 1st January, 1866, was fi allied, and 
declared that — 

Tho status and capacity of persons and their family lelations aie governed 
by the law of the nation to which they belong Pieliminaiy Ait 6 

The case of a political nationality including within its teiri- 
tonal limits the aieas of seveial distinct systems of pnvate law, 
as the Bntish Empue includes England, Scotland, the province 
of Quebec, the Cape Colony, and many otliei legions distinct for 
the pui poses of pnvate law T , w r as not contemplated m drawing up 
this enactment But wlierevei the national law of a subject of 
such a complex unit is refened to, theie is no possible alternative 
except to find the law sought m that of +he domicile to which he 
belongs witbm his political nationality For a British subject 
domiciled m England, English law must he regarded m 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 as to the age of the majority have 
been complicated by differences as to the authority of the law- 
givers From the time gloss on the law cufictos popvlos to the 
nineteenth century, the age of majority was determined by tbe 
law of the domicile, because it was agreed that the lawgiver of a 
territory had aithonty to fix that age for those domiciled m i^t 
and for no others There might be a difficulty m ascertaining 



28 


PRIVATE INTERNATIONAL LAW 


the domicile, but, that ascertained, there could be none m 
ascei taming the law Now, howevei, we have an English or a 
Danish lawgiver fixing the age at twenty-one, and adheiing to 
the old view that his authority over peisonal status depends on 
the English oi Danish domicile of the peisons to be affected, and 
an Italian lawgiver fixing the age at nineteen, and adopting the 
new view that his autlioiity ovei peisonal status depends on the 
Italian nationality of the peisons to be affected If, then, one 
who is politically an Englishman oi a Dane is domiciled m Italy 
and makes his will and dies theie at the age of tw r enty, neithei 
the English or Danish ndi the Italian lawgiver has claimed 
authority to determine his majority What, then, shall be 

done ? 

In ordei to answer that question it is usual to distinguish what 
are called the interna 1 law T s of a country fiom the mles of 
private international law adopted in it, the twm paits together 
forming the whole law of the eountiy For example tw r entv-one 
as the English or Danish age of majority and nineteen as the 
Italian, carefully separated fiom all consideration of an enacting 
autlioiity having a definite lange of legitimate action, aie 
treated, as being the internal laws of the respective countries, and 
then whole laws on the subject aie made up by adding the 
pnnciple of domicile or nationality as the case may be Then 
on one view, which is called m French / envoi and m German 
Ruc~k verwemtng, the lules of private international law are under- 
stood as refeiiing a judge to the whole law of a given country, 
and not merely to its internal law r s, so that in the case jnit above 
the principle of domicile would be nuclei stood as leferung an 
English or Danish judge who might be seized of the case to the 
whole law of Italy as de*oi mining the majority of the de ntjas, 
this lefeience being made, the pnnc lple of nationality, included 
m the whole law of Italy, would lefei the same judge back to the 
wdiole law T of his cnvn country, that whole law would send him 
again to Italy, and so on foi ever No result is armed at there 
is a tirculus me ttruabihs It n needless to say that m practice 
some means must be found, and aie found even by the partisans 
of the renvoi , to stop the senes of refeiences back But the 
opponents of the renvoi treat the theoretical possibility of the 
circuhis' ivextn cahili* as proof that the rules of private inter- 
national law nevei refer a judge to tie whole law of another 
country, but only to its internal law T s Thus they teach that if 
the affair of our de cujus comes before an English or Danish 



DOMICILE AND NATIONALITY 


29 


judge, he must hold himself to he ref ei red by his principle of 
domicile to the internal law of Italy, and must pronounce the 
testator to have attained majoiity at nineteen, and that if the 
same affair comes befoie 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 pionounce the would-be 
testator not to have been of age because he was not twehty-one 
And this view the opponents of the i envoi claim to have been the 
ancient one, although as long as the mles of private international 
law adopted in different countries did not differ, it did not 
mattei whether they lefened a judge to the internal law of 
anothei countiy or to its whole law, and the distinction between 
the internal and the whole law was not m fact made 

It is difficult to bo satisfied with either of these doctrines, both 
based on a notion of internal law fiom whnli the necessary (and, 
[)d( e the opponents of the i envoi, the histone al) clement of the 
authority claimed by the lawgiver has been eliminated Let us 
suppose then that an English 01 Danish judge, seized of the affair 
of oui Je (uju s, 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 peiceive that the 
Italian pnnoiple of nationality, by pi eventing the Italian law- 
giver fiom claiming authority ovei the capacity of any but his 
pulitical subjects, has made it impossible that any detei initiation 
about the capacity of a Bntish 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 pnvate international law has 
had for its consequence that they lead to no result m the case 
before him He wull be thrown back on an examination of the 
true meaning of the principle of domicile m the law of Ins 
country He will find that that principle is the expression of the 
view, entertained from the twelfth century or earliei to the nine- 
teenth, that the world is divided for the ourposes of pnvate law 
into civil societies based on domicile, .and that no law T givei can 
pioperly attempt to withdraw hi 4 * political subjects from any such 
civil societv m 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 countiy, and he will finally con- 
sider that domicile is eliminated from* the case, and that there is 
no reason foi holding the political Dane or Englishman to have 
attained his majority sooner than he wotild have attained it nl 
his own country It is to the elimination of domicile, and not to 



30 


PRIVATE INTERNATIONAL LAW 


any throwing Lack 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 m the British empiie 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 Eaiwell, J , took that line 
in He Johnson (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 
accepted ex necessitate , 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 matin lty, as indicated by the climate 
of the domicile, he will no doubt reply, fust, that the domicile at 
the age of nineteen proves nothing as to the climate under which 
the de (ujus may have been glowing up towards maturity, and 
secondly, that historically such a consideration haci nothing to 
do with the establishment of the principle of domicile 

The matter is so cardinal m relation to the real meaning of 
private international law, that, at the risk of being tedious, I will 
put it again in different language, 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 9 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 m 
Italy prevents the Italian lawgiver from claiming authority over 
the capacity of a British or Danish subject The English or 
Danish judge therefor© cannot say that the Italian lawgiver 
made the de cvjus of age at nineteen Then, it will be asked, 
who is the lawgiver that keeps him a mmo^ till he has attained 
twenty-one 9 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 
disclaimer removes the objection which he would have felt to 
exercising it m the case of one of his subjects who was not domi- 
ciled m the Bnt’sh dominions or m Denmark The result will 
Coincide with that given by the renvoi, properly limited so as to 
avoid an endless series of references to and fro, but its real base 



DOMICILE AND NATIONALITY 


31 


lies, not m the doctune of renvoi , but m the duty of considering 
the essential nature of the legal i elation in question m any 
concrete case, and the essential meaning of the rules of private 
international law adopted in the diffeient countries concerned 

Writing m and for a country m which the pnnciple 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 cujus came 
before him But I may say that I see no leason why he also 
should not hold the age of majority in the conciet3 case to be 
twenty-one The same considerations as to the essential meaning 
of the Italian principle of nationally and the Butish and Danish 
pnnciple of domicile, respectively, aie open to him And if he 
follows them, his decision in favour of the English or Danish 
age of majonty will coincide with the result which would be 
given by legardmg* the mles of private international law as 
requiring the application only of the internal laws of the 
countnes to which they point But a diffeient view has been 
adopted m the law intioducing the Gennan Civil Code 
(einfuh rungs gesetz), m fcice fiom 1st January, 1900, of which 
the important articles aie 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 acqunes the character of a Geiman subject, he retains the legal 
condition of a poison of full age even though he is a minoi accoidmg to 
the laws of Germany 

If a foreigner acts m the empire in any way for which he is incapable 
oi 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 m matters of family law and of succession, or to dispositions 
of foreign immovables 

Art 27 If by the law ( recht ) of a foreigr state, of which the laws 
( gesetze ) are declared by Ait 7, paragraph 1, Art 13, paragraph 1, Art 15, 
paragraph 2, Art 17, paragraph 1, or Art 25 to be applicable, the laws 
( gesetze ) of Germany aie to be applied, the latter shall be applied + 

Thus Germany has followed Fiance and Italy in substituting 
nationality for domicile as the cr 4 rtenon of personal law, though 

* It is noteworthy also that the International Convention' drawn up at the 
Hague Confeience 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 law 
Article 74 runs — La capacity d’une personne po’jr s’engager * est d4temnn(5e 
par la loi nationale * Si cette loi nationale declare comprtente la loi d’un 
autre 6tat, cette derm&re loi est apphqu^e J 

f The matters treated of in the other articles referred to are marriage (Art 13), 
the effect 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 Geimany, and while doing so has provided for the 
conflict of rules of private intei national law, as well in the case 
of capacity which we have been considering as m certain other 
parts of the subject By gesetze the so-called internal laws of a 
country are meant, and by reclit its whole legal system as 
resulting from them m combination wutli its rules of private 
international law The German rules of the latter descrrption 
are treated is pointing to the internal law’s of another country, 
but if, m the cases to which Ait 27 extends, the rule of private 
international law^ of the country of which the internal laws are 
so indicated refers back to Germany, tlie i envoi is admitted by 
exception and without any further lefeience back, and the 
internal law’s of Geimany are to be applied If an Italian judge 
adopts this system, he wull hold that a British subject 01 a Dane 
domiciled in Italy attains his majority at nineteen The system 
has been supported from the point of view of genual theory by 
the great authority of von Bar, m theses which he presented to 
the Institute of International Law 

Theses piopos4es pai M L de Bar 

1 Chaque tribunal doit observer la loi do son pays en ce qui concerre 
l’application des lois 6trang&res 

2 Pourtant, s’il n’y a pas de disposition contraire expresse, le tnbunal, 
conformement aux pnncipes du droit international pnve, doit respecter 

(a) La disposition d’une loi 6trang&re qui, en renon 9 ant a her ses 
nationaux quant au statut personnel en pays etranger, veut que ce statut 
personnel soit determine par la loi du dominie , ou meme par la loi du lieu 
ou l’acte dont ll est question a etd fait , 

( b ) La decision de deux ou plusicuis legislations etrangkies qui, pouivu 
qu’rl soit certain qu’une d’entre elles est necessanement competente, s \iccor- 
dent en attribuant la decision d’une question a la meme legislation 

Septembre,1900 * 

It will be observed that the thesis ( a ) supposes a country (A) 
w’hich makes nationality the entenon of personal laws, and that 
the country of the m honality so referred to (B) makes personal 
law depend on (C) the domicile of the de (iijus or the country m 
which he has done the act m question If (C) is the same as (A) 
we have the case of the German Art 27, and decided m the same 
way astby that article If (C) is diffeient from (A) we no longer 
have a reference back (/ uclverweisun g) , but a further reference 
[welter verweisung) Both are called renvoi , and von Bar gives 
the same rule for both the internal laws of the country either 

* 18 Annuaire de l’ln&tihit 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 earned so far and then stopped To 
illustrate this further reference let us suppose that the will of 
our old de cujus , an Englishman or Dane domiciled m Italy and 
making a will and dying there at the age of twenty, comes to be 
decided on in Germany On the doctrine of the thesis he will be 
adjudged to have attained his majonty 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 firsu reference has been made by England, 
but which makes capacity to depend on the lev 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 count ly first ref ei red to 
and that fuither referred to will be agreed in placing the decision 
with the latter, while m the view of the English judge the com- 
petence will ceitainly lie with one or other of them Piobably, 
therefore, he will feel no hesitation m deciding by the lex 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 pait 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 htisband and wife, on suceessibns and wills, and on 
the curatorship of adults * Aimther convention of the latter 


* France denounced her adhesyon to the Conventions of 1902 in 1912 and 
to those of 1905 m 1916, on the ground that they interfered with questions of 
her public policy (see Clunet, 1914, p 301 and 1917, p 782) Belg um also 
denounced her adhesion to the Conventions of 1902 by decree dated 30th Oct 1918 
The Conventions of 1902 conctining the guardianship of minors and of 1905 
concerning 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 


WIL 


3 



34 


PRIVATE INTERNATIONAL LAW 


date, between fifteen European states, on piocedure in civil cases, 
revised a convention of 14th November, 1896 The convention 
on marriage agiees with Arts 7 and 27 of the German law, on 
the framing of which the interchange of ojnmon at the con- 
ferences must, of course, have exeited an influence, and is thus 
expressed Art 1 Le choit de conti actei manage est regie par 
la loi rationale de chaiun de<t futurs epoux, a moms qidune 
disposition de (ette loi ne se ref ere enpressement a une autre 
lot * 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, theieby making it plain that A has no interest in the 
matter, its internal dispositions will not be applied 

On the continent of Europe the couits of law seem to adopt 
the re'nvoi oftenei than to i eject it Dr Bate, m Lis Notes on 
the Doctrine of Remoi in Pnvaie Inter national Law , pp 24-26, 
enumerates the judicial pronouncements foi and against that 
doctune, from 1856, when it seems to have first come before a 
continental court, to 1901, with the following lesults 
France, 13 foi, 3 against, Belgium, 5 for, none against, Spam, 
1 for, none against , Netherlands and Switzerland, each none for 
and 1 against, Geimany, before the code came into foice, 10 foi, 
12 against, totals, 29 foi, 17 against t Moreover, aftei the 
Fiench Court of Appeal had for a period given conflicting 
decisions, the Court of Cassation m 1910 emphatically restated 
its opinion in favour of the i envoi (IS Affaire Sonlte y Clunet 
(1910), p 888) That opinion was originally given m the 
Affaire Forgo (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 lather involved article, a vote which 
may be taken as condemning the renvoi by 21 to 6 The names 
of the majority were Asser, Boieeau, Buzzati, Catellam, Cor si, 
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 s£rie, p 488 , 28 Clunet 13 B’ Art 2 some 
effect is Iso 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, the argument therefore holds 
For a recent study of the question, see “ La Question de Rmvoi," by Dr Potu, 
Pans 1913 



DOMICILE AND NATIONALITY 


35 


de Roszkowski, Sacerdoti, 8tieit, Vesniteli, and those "of the 
minority weie von Bar, Biusa, Haiburger, ltoguin, Weiss, 
Westlake * 

The question, wlietliei m its tme meaning a rule of inter- 
national law lefeis a judge to the whole law or merely to the 
internal law of the country indicated by it, was raised m England 
at an eailiei date than that of any of the continental cases quoted 
by Di Bate as above It is not necessaiy here to trace historic- 
ally the connection of the succession to movables with the 
pei soiidl law oi statute of the de tujus it is enough to say that 
that connection was adopted in England in its extieme form, 
requiring not only that the distribution should be made m 
accordance with the 1 iw of the domicile of the de c itjtn , but also 
that a testator domiciled in England should make his will m the 
form given by the law of his domicile Hence there arose a 
conflict between this English mle of pnvate international law 
and the moie widely iceeived mle which at least allowed an act 
to be good if made in the foim of the loan actiib, even if it did 
not require it to be in tli it form The cases turning on that 
conflict have furnished the English couit with the oppoitumty, 
of which it has abundantly availed itself, of declaring that m 
matteis of movable succession its rule of private international 
law refers it to the whole law of the countiy indicated by it, 01 , 
wh ?h is the same thing, to the judgment which would be passed 
m that countiy on the concrete case Thus, m De Bonneval v 
De Bonne tal (1838), 1 Curt 857, where the question was on the 
form of a will, Sir Heibert Jenner, having decided that the 
deceased was domiciled m France, said “ The couits of that 
country are the competent authonty to determine the validity of 
his will and the succession to Ins personal estate, and, as in the 
case of Haie v Nasmyth, 2 Add 25, t the court suspends the 
proceedings lieie as to the validity of the will till it is pionounced 
valid or invalid by the tribunals of France 39 In accordance 
with this pronouncement wills of movables, not m the normal 
forms of the countries wheie the testators w'ere domiciled, have 
been admitted to probate because it w r as held on the evidence that 
they would have been operative in those countries Collier v 
lhvaz (1841), 2 Curt 855, Sir Herbert Jenner, Frere v F rcre 
(1847), 5 Notes of Cases 593, the same jqclge, then Sir H . Jenner 


*18 Annuaire de 1’j.nsititut Droit International, pp 34, 176, 177 
f A similar case, putting Scotland for France, before Sir John Nicholl m 1815 



36 


PRIVATE INTERNATIONAL LAW 


Fust, Croolenden v Fuller (1859), 1 Sw & Tr 441, Sir C Cress- 
well) Laneuville v Anderson (1860), 2 Sw & Tr 24, Sir C. 
Cresswell, Onslow and Allardne v Cannon (1861), 2 Sw & Tr 
I3T (Dr Deane, Q C , withdrawing his opposition when it was 
decided m Scotland that the will of a testator there domiciled 
would be valid if in the form of the locus actus), Re Biown- 
S equat'd, [1894] 70 L T , N S 811, Sir F Jeune And m Re 
Lacroix (1877), 2 P D 96, Sir J Hannen held that in Lord 
Kmgsdown’3 Act the “ law of the place wlieie [a will] was 
made ” means the law which in the lotus actus would be deemed 
applicable m 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 piobate, the court having 
arrived by intricate reasoning at the conclusion that it would not 
be good in France * 

In Re Tr it fort, [1887] 36 Ch D 600, the meanirg of our prin- 
ciple of domicile had to be considered by Mr Justice Stirling m 
iclation to the distribution of the movable succession of a Swiss 
citizen domiciled in France, with regard to which Fiencli law 
admits the authority of Switzeiland both by its geneial refer- 
ence to nationality and by a Franco-Swiss treaty of 1869 There 
had been a decision in Switzerland, and the learned judge, m 
accordance with the cases relating to the forms of wills, "-aid 
(p 612) “ The claim of the party litigating m this court has 

been actually laised and decided m the couits which according 
to the law of the deceased’s domicile were 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 Johnson, Roberts v Att -Gen , [1903] 
1 Ch 821 The case related to the distribution of the movable 
property of Miss Jonnson, a British subject domiciled at her 
birth in Malta, but at the dates of her will and of her death m 
1894 domiciled in the grand duchy of Baden, in which she 
was never naturalized The English principle of domicile 

* Inc this and m some others of the above cases the domicile in France or 
Belgium liad not been estabhsled with the authority of *he 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 m Bremer v Free • 
man, remains one established ammo et facto , it was before domiciles with 
government authorization were invented 



DOMICILE AND NATIONALITY 37 

referred the judge to the law of Baden, and the master’s certifi- 
cate found that, “ accoiding to the law of Baden, the legal 
succession to the propeity 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 mastei as meaning 
the whole law of that country and not merely its 1 iternal 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 distribution of movables in the country supposed 
to have been chosen, is tor this purpose no domicile at all, and 
that the pro posit u s therefore is left with his domicile of origin 
unaffected The Baden c ourts would in effect have disavowed 
him and disclaimed jurisdiction ” It may be remarked m 
passing that no reason was given, and there is none, for distin- 
guishing a domicile of choice fiom one of oiigm for the purpose 
either of the succession to movables or of the personal statute 
generally On the main point the judgment, as w^ell as the 
reasoning which has been quoted fiom it, was m accordance with 
the doctrine which I have advocated The Baden law having 
put the Baden domicile out of the case, the movables w r eie dis- 
tributed as if it had never existed, and theiefoie by the law of 
Malta In other wxnds, domicile was not resoited to as an 
aibitiaiy mle, but only so far as implying membership of a civil 
society existing for the purpose of pm ate law, and not therefore 
valid m the case of a countiy wheie no such society based on 
domicile exists The rut ulus mc.vtricabilis alleged to result 
from the doefnne of return did not ternfy the learned judge 
He put the case of a subject of Baden domiciled in England, 
and held that “ an unavoidable conflict ” would arise m it “ If 
and so far,” he said, “ as this court distributes his movables, they 
would be distributed according to our law T , but if and so far as 
the courts in Baden distributed them, they would be distributed 
m accordance with Baden law ” That is true/ subject to the 
question whether the death of the de c u jus would not fix the rules 
of succession for his movables at that date in either country, 
so that then distribution ought not to be affected by their subse- 
quent removal from Bade a to England or vice verm, but on any 
doctrine as to the meaning of the rules of private international 
law, whether that of renvoi or any other, concurring decisions 



38 


FRIVATE INTERNATIONAL LAW 


will not always be given in countries winch differ as to the 
cntenon of the personal statute. 

Theie aie countnes m which the domicile of international law, 
also distinguished as that of fact, with which we have dealt m 
this chapter, is known (Fiench civil code, § 102); but is of no 
effect for foieigners unless completed by government authoriza- 
tion (ib , § Id), wdien it is distinguished as a legal domicile 
The British subject w r ho w r as the testator in Re Bowes , 1906, 22 
T L R 711, had Ins domicile of fact, but not a legal domicile, 
in France, and Mr Justice Swmfen Eady, avowedly following 
Mi Justice Farwell’s decision m Re Johnson, held that his will 
v T as governed, both as to its consti notion and as to its admmistia- 
tion, by English law Thus the renroi is adopted by the English 
cases when the international domicile fails as a giound of 
decision, either because (1) nationality and not domicile is 
adopted as the cntenon m the foieign countiy in question — 
Baden in Re Johnson — oi (2) the international domicile has not 
been accompanied by a legal sanction necessaiy in that country — - 
France m Re Bones 

I conclude with the opinion, as founded m leason, that a rule 
leferung to a foieign law should be understood as ref ei ring to 
the whole of that law, neeessanly including the limits which it 
sets to its own application, without a legaid to wdnch it wouhl 
not be really that law wdnch w r as applied It is also the Oxily 
opinion accepted m the English judgments, and is at least 
stiongly suppoited on the continent 

In a recent case a question of remot arose m very different 
cncumstanees, but was not discussed by the court The ques- 
tion was as to the construction of a bill of exchange diawn m 
America and accepted and payable m England The bill w T as 
purchased by Amenean dealers m bills, wdio sent it, together 
with the bill of lading for the goods in respect of wdnch it was 
drawn, to the acceptors m England They paid it at maturity, 
but, on the discovery that the bill of lading was a foigery and 
that no goods had been shipped under it, claimed that the bill 
was conditional on the genuineness of the bill of lading, and 
brought an action m America to recover the amount paid by 
them 

The American court lmld that the question whether the bill 
was conditional, or unconditional should be decided according to 
the law of England. When an action was subsequently brought 
in England the English court decided that, m accordance with 



DOMICILE AND NATIONALITY 


39 


the teims of Section 72 of the Bills of Exchange Act, the question 
whether the document was conditional or not was to Jbe constiued 
according to the Amencan law, and, theiefoie, it examined that 
law, and gave its decision upon its mterpietation of the American 
decisions It is submitted that, the American court having held 
that the question of constiuction was for the English law to 
determine, the English couit should have accepted the reference 
and decided the matter according to the English internal Law of 
Bills of Exchange Scrutton, L J , indeed, m the Court of 
Appeal, doubted whether the English couit should have referred 
the matter back to the American law, but the question of accept- 
ance or non-acceptance l of the i envoi had not to be decided, 
because the Couit of Appeal found that the result would be the 
same whether the document was constiued by the English or by 
the American law * 

* Guaranty Trust Co v Hannay <1 Co , [1918] 2KB 680 



( 40 ) 


CHAPTER III 

CAPACITY, AND FOREIGN GUARDIANSHIPS AND CURATORSHIPS 

I now come to the main object of this work, the rules which 
$ra received m England on private international law, and it 
seems best to follow the Italian code by commencing with the 
capacity and family relations of persons A ny jiroposition 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 affiimative or the negative 
of it to be so laid down, will be numbered foi convenience as a § 
Such propositions will differ in their breadth and importance 
with the measure in which 0111 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 piesentmg the actual 
state of English jurisprudence Irish authorities will occasion- 
ally be quoted, since the laws of England and Ireland are + he 
same on the matters in question And the decisions of the House 
of Lords on Scotch appeals, and those of the pi ivy 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 paiticular rule of private international law as a part of the 
national law of the countiy appealed from 

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

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

The following authorities were opposed to the admission of a 
persoiial law m such case 

A person is of less than full age by every Lw to which reference could be 
made His capacity to bind himself by a contract for th** purpose of articles 
of a given description, necessaries or other, is *o be decided by “ the law of 
the country where the contract arose ” Male v Reheits (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, wheie 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 oi mcompetency of individuals to 
contract has been held to depend upon the law of the place where the con- 
tract is made ” Ciesswell, in Stmonin v Mallac (1860), 2 S & T 77, 
though his opinion m Mette v Mette , quoted below undei § 21, prevents 
this learned judge being counted as a positive authority m favour of the 
lex loci contractus In Sottomayoi v Ve Bairos (1879), 5 P P 94, Hannen, 
at p 100, expressed himself in favour qf the lex loci contractus as governing 
personal competency, aftei citing the pronouncement of Lord Justice Cotton 
in the same case in 1877, quoted below And now the judgments m 0<jden 
v Ogden , [1908] P 46— Sir Goiell Bapies, Cozens-Hardy and Kenneciy-*- 
and Chetti v Chetti, [1909] P 67 — Sn Gorell Barnes — which are discussed 
below, tend strongly m the same direction, though it may be doubted how 
fa 1 what was said m them about capacity foi mairiage 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 labouier in Scotland , 
and having suffered injury made an agreement about compensation Subse- 
quently, he claimed damages against his employei and uiged that the 
agreement was* invalid on the ground that he was a minoi 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 McFietndge v 
Steuaits and Lloyd, [1913] S C 773 In Jfuet v Le Mesuner (1786), 
1 Cox, 275, Kenyon lequued 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, noi was the fact that majonty theie is at twenty referied 
to A case rather apparently than leally opposed to the admission of a 
pexsonal law is that of the Comte de Pans, held to be domiciled in France 
and under twenty-one, but emancipated m accordance with French law, so 
fai only howevei as still to lequire the assistance of a curator, who had 
been duly appointed in accordance with the same law $n C Ciesswell 
refused to make a giant of administration to him assisted b> his curator, 
and required him, accoiding to the English piactice, to elect his next of kin 
as his guardian for the puipose of administration on his behalf Be 
D’ Orleans (1859), 1 S & T 253 , 28 L J (N S ) P AM 129 This case 
was cited with approval by Jeune, m The goods of Meatyaul, [1903] P , at 
p 129 He explained it as a refusal to grant powers, to be exeicised in 
England, to one whose minority by English law would prevent his exercising 
them 

The following* authorities aie m fav9ur o* the peisonal law 

Sn 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 minoi 
by English law, but was emancipated by the law of her domicile, and who 
was entitledj during her life t<5 the dividends m questoon Dr Lushmgton, 
who moved for the grant, put it on the ground that by the law of hei 
domicile the lady could not appoint a guardian , an aigument which 
strengthens the assertion of the personal law as governing capacity Be da 
Cunha (1828), 1 Fag Ecc 237 “ The civil status is governed universallv 

by one single principle, namely that of domicile, which is the cntenon 
established by law for, the purpose of d^teinunmg civil status For it is 



42 


PRIVATE INTERNATIONAL LAW 


on this basis tha., tho personal rights of the paity, that is to say the law 
which detei mines his majonty or mmonty, his marriage, succession, 
testacy or intestacy, must depend ” Westbury, in Udny v Udny (1869), 
L R , 1 Sc Ap 457 “As in other contracts, so m that of mainage, 
peisonal capacity must depend on the law of domicile ” Cotton, m Sotto- 
mayor v T)e Banos (1877), L R 3 P D 5 followed m Be Cooke's Ti lists 
(1887), 56 L J (N S ) Ch 637, Stirling “ The capacity to contract is 
regulated by the law of domicile ” Halsbury, in Cooper v Cooper (1888), 
13 Ap Ca 99 In this case Lords Watson and Macnaghten declaied against 
the lex loci solutionis as regulating the capacity to contract, but expressed 
no cleai opinion between the domicile and the locus contractus celebrati r 
which hapjiened to be the same See also the next § 

The following authority admits the personal law T , hut not as 
exclusive 

A person domiciled abroad can give an effectual leceipt for a legacy 
bequeathed to him by a testatoi domiciled m England, on attaining his 
majonty 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 m the above that Loid Westbury puts 
majority or minority on the same footing as mainage, and that 
Loid Justice Cotton puts marnage on the same footing w r ith 
othei contracts Indeed, in the case of mainage, tlieie is an 
incapacity on the ground of age whi<h cannot be distinguished 
m principle from incapacity on the ground of age to buy an 
estate, although the age for capacity with legaid to those two 
subjects of conti act may be different Tlieie is also, in the cu^e 
of mainage, a relative incapacity on the ground of consanguinity 
or affinity with the other paity, which on the continent is treated 
as being as much a mattei for the peisonal 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 
consanguinitv, but a similar objection existing by the law of the 
place of eelebiation 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 minonty generally I refer advisedly to the 
decision of the House of Lords in Broolc v Brool , 9 II L 193, 
because lh the determination of that case by the court of first 
instance, m will'll Sir 0 Oresswell himself took part, the point 
of domicile was not clearly referred to as decisive But the 
dicta of Lord Westbury and Lord Justice Cotton were subsequent 



CAPACITY 


43 


to the full and final eonsideiation of Brook v Brook , and the 
express refeience winch, as already observed, is made m them 
to mainage, would seem to have been intended to mark the sense 
of those learned judges that the determination with regaid to 
mainage had fixed the rule for capacity m otliei cases as well 
And the adhesion of Lord Halsbury to the same side gives it a 
decisive prepondeiance * 

Ought, however, all reference io the lev loci contract us on the 
subject of capacity to be excluded v The case of mairiage is 
peculiai, m that m almost all countries that paitnulai tie is not 
cieated without the intervention of public authority, applied by 
means of some ceiemonial, civil oi leligious It may therefore 
well be that such a ceiemonial is void unless the conditions are 
present which the law of the place of celebration lequires to be 
fulfilled in the conti acting paities, no less than those which their 
personal laws lequire, and vet that, if the latter conditions are 
present, the foimer may not be necessary to the legal effect of a 
different kind of contract which no public mimstei is called on 
to authenticate But cfflier considerations may arise, and m 
pp 26, 31, we ha\e seen the exceptions to the pnnciple of the 
personal law whn h aie allowed in Fiance and Germany to operate 
m favour of the validity of tiansactions It is noteworthy that 
Ihe article m The Hague Convention of 1912 concerning a 
Uniform Law for Bills and Cheques provides expressly that, 
while capacity to contract is noimallv governed by the national 
law , — ‘ La per sonne qui seiaii incapable, d’apies la loi indiquee 
par Calmed precedent, est, neanmoms, valablement tejme, si elle 
s’est obligee sui le temtoiie d’un Etat, d’apres la legislation 
duquel elle aura it ete capable ” Thus the lev loci conti actus 
prevails ovei jthe personal law to make an engagement valid 
Here, however, notwithstanding Lord Bomilly’s opinion m Be 
Hellmann , the limits which an all but invaiiable understanding 
sets m England to the authority of judges w T ill certainly prevent 
them from establishing, without the, aid yf parliament, any 
similar exceptions to the rule of the personal law, once adopted 
as the general one for capacity It w r ill iemam J foi parliament, 
in pursuance of conventions to be (oneluded wuth foreign 
countries, ^o select between domicile and political nationality as 
the criterion of personal law, and to establish such exceptions to 


* The later decisions in the marriage cases of Ogden v Ogden and Chetti v 
Chetti (below, p 60) ha' p impaired this principle 



44 


PRIVATE INTERNATIONAL LAW 


the applicatiori of the personal law as convenience may seem to 
lequire 

§ 3 When the capacity of a mained woman to act m any 
given way is questioned on the ground of hei coverture, the 
solution will also be leferred m England to her personal law 

A woman having marned dining her minority, her capacity to repudiate 
and therefore also to confirm the marriage conti act made for her was held 
to depend on the personal law which she acquired by her marriage Viditz 
v O' Hagan, [1900] 2 Ch 87 , Lmdley, Rigby, and Collins, reversing Cozens- 
Hardy, [1899] 2 Ch 569 In Cuepratte v Young (1851), 4 De G & S 217, 
Knight-Bruce, the capacity o * a marned woman to contract m England 
with the concurrence of her husband, on the subject of an expectation under 
an English settlement, their domicile being French, and the particulai 
expectation having been compused m hei dot by a French contract made on 
their mainage, was referred by the vice-chancellor to the law of France 
It is true that it was much discussed whether the law of Fiance, as that 
of the mairiage conti act, permitted the contract before the court to be 
made, independently of any question about capacity piopeily so called , 
but the latter question was not, and could not have been, absent from the 
mind of the judge In Be Bankes, Beynolds v Ellis, [1902] 2 Ch 333, 
the capacity of a lady domiciled in England to bind heiself by a marnage 
settlement was decided by English law, but c 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 foi which both parties 
were not competent In Be Gioos (No 2), [1915] 1 Ch 572, Saigan + , 
the capacity of a woman domiciled at her death m 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 whethei a foreign wife, having capacity by the law of ner 
domicile to trade m partnership with her husband, can sue in England, 
jointly with him, on conti acts made in such tiade, was noticed in Cosio v 
T)e Bernales (1824), 1 C & P 266, Ry & Mo 102, Abbott, but not decided, 
because the foreign law was not proved In Peillon v Brooking (1858), 25 
Beav 218, Romilly, it was held that a married woman was not freed from 
a restraint on anticipation, annexed to the bequest of income to her by an 
English will, by the circumstance that the law of her domicile did not allow 
oi such a restiamt on hei capacity In Lee v Abdg (1885), 17 Q B D 
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 Can nan, 18 Beav 128, 7 D M G 78, ouoted below, under § 39 

§ 4 'The authority of a foreign parent over Ins child living m 
England is recognized m England, to the extent to which an 
English parent would have similar authority 

Cottenham, m J ohnstone v Beattie (1843), 10 Cl Sr F 113, 114 

§ 5 When a foreign minor or lunatic is m England (even 
temporarily Re Burbidge, [1902] 1 Ch 426, Vaughan 



FOREIGN GUARDIANSHIPS 


45 


Williams, Stirling and Cozens-Hardy) the English Court is 
undoubtedly competent to appoint a guardian of Ins person and 
estate m the case of a minor, or to issue a commission of lunacy 
m the case of a lunatic, notwithstanding that he has a foieign 
guardian, curator, or committee of his person 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 foieign 
junsdiction 01 holding the office by force of foreign law without 
judicial appointment, has no authority over his minor or lunatic 
m England, and that tnerefoie, when the latter is m England, 
the English couit ought, on application, to exercise the pow T er 
mentioned m § 5 

Lunatics Be Iioustoun (1826), 1 Ru«s 312, Eldon Minors Beattie v, 
Johnstone (1841), 1 Ph 17, Cottenham , Johnstone v Beattie (1843), ID 
Cl & F 42, Lyndhurst, Cottenham, Langdale 

The other and better view is that guardians and committees, 
deriving their office from the pioper personal law oi jurisdiction 
of the mmois or lunatics, have authonty over such mmois or 
lunatics m England, and that theiefoie the English court ought 
not m such cases to appoint guardians oi committees of the 
person without special cause 

Brougham and Campbell, m Johnstone \ Beattie, u s , both expressing 
themselves with legard to minors, but Brougham also mentioning the case 
of lunatics, 10 Cl & F 97 

§ 7 And the English couit, even m appointing a guardian oi 
committee of the person, will suppoit the authority of the 
guaidian or committee existing undei th? 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 
m this country isha.ll be without prejudice to tho order of the [Austrian] 
consular court appointing Signor Vetzera guhidian, 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 otheiwise Motion to dischaige the service 
abroad refused On the motion to appoint a guardian ad litem, the defen- 
dant Vetzera appointed guardian ad litem ” Di Savim v Jjousado (1870), 
18 W R 425, Jam^s See Stuart v Bute $1861), 9 H L 440, Campbell, 
Cranworth, Wensleydale, Cholmsfoid, Kmgsdown See also Dawson v Jay 
(1854), 3 D M G .,764, Cranworth , Lord Campbell’s comment on that case, 
in Stuart v Bute,* 3 H L> 467, and Be Magee's children, 31 L R Ire 
513, Porter, where, thy deceased father being a Roman Catholic and the 



46 


PRIVATE INTERNATIONAL LAW 


mother a Piesbycerian, a Roman Catholic was appointed joint guardian 
with the mothei 

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

§ 8 Wlieie a minor is a British subject, though only by 
statute, the English court is competent to appoint him a guaidian 
even though he is domiciled m a count ly politically foieign, and 
will do so in a propei ease, notwithstanding that he is neithei 
piesent within the jurisdiction noi has any propel ty within it 

Be Willoughoy (1885), 30 Ch D 324, Kay, affirmed by Cotton and 
Lmdley, Be Vavitt , [1907] 1 I R 234, Meredith In Be Bourgoise (1889), 
41 Ch D 310, Cotton, Lindley and Bowen, the appointment was refused 
because the case was not a piopei one 

A minoi lesiding abroad being a necessaiy pa^ty, and she and her foreign 
guaidian declining to appeal, a guaidian ad litem wa, apjxunted White 
v Duvernay, [1891] P D 290, Jeune 

§ 9 With legal d to the estate — the guaidian, curatoi, or 
•committee of the estate, eitliei appointed by the peisonal juris- 
diction or holding the office by force of the peisonal law without 
judicial appointment, can sue and give receipts m England foi 
the ])eisonal jiroperty of Ins minoi oi lunatic Both as to this § 
and as to § 6, it will be obseived that the office is often held by 
law without judicial appointment m the case of Illinois, though 
it can scarcely be so m that of lunatics The doctrine of this 
\eiy 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 
Tie USA , [1901] 2KB 32, Rigby, Vaughan Williams, 
Stirling 

Lunatics Newton v Manning (1849), 1 M & G 362, Cottenham , Be 
Elias (1851), 3 M & G 234, Truio, Scott v Bentley (1855), 1 K & J 281, 
Wood , Hesung v Sutherland (1856), 25 L J (N S ) Ch 687, Knight- 
Bruce and Turner, Be Bak°r (1871), L R 13 Eq 168, Wickens, where the 
lunatic had been judicially found such m the colony of Victoria, and the 
colonial master in lunacy appeared by the colonial statute to be m the 
position of a committee , Be T)e Linden, [1897] 1 Ch 453, Stirling , Thiery 
v Chalmeis , ( luthric d Co, [1900] 1 Ch 80, Kekewich , Duhsheim v 
London and Westmmste Bank, [1900] 2 Ch 15, Lind 'ey, Rigby and 
Vaughan Williams, reversing North, where the doctrine was applied m 
favour of an admimstrateur provisoire, the lunacy of the person beneficially 
entitled not having been declared The decision was followed in PtUqrin v 
Coutts , [1915] 1 Ch 696, Sargant, where it was held that English trustees 
showed «mdue caution m refusing to hand ovei secuiities deposited with 
them m England to an administrator appointed by a French court for a 
lunatic domiciled m France, ffie administrator having an express power 
to receive the securities Where the funds a™d securities are m England, 
the court has a discretion about handing them to the foreign curator, as to 
the exeicise of which see Be de Larragotti, [1907] 1 CL 14, Cozens-Hardy 
and Kennedy 



FOREIGN GUARDIANSHIP^ 


47 


Wheie a woman was undei lestraint in New South Wales, but had not 
been found lunatic theie nor was her estate vested in the master m ltmacy 
there, although he had powei to sue, it was held that he could not sue 01 
give receipts foi hei estate in England, although a tiustee would be justified 
m paying to him whatevei he 01 any othei pioper authonty m New South 
Wales decided that it was foi her benefit to expend for hei Be Barlow's 
Will (1887), 36 Ch D 287, Cotton, Bowen and Fry, affiimmg 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 (CoUon), oi 
(2) if theie* had been a declaration in New South Wales , affecting the 
woman’s status (Bowen and Fiy) Now, however, it has been settled by 
Be Brown, [1895] 2 Ch 666, Lindley, Lopes and Rigby, that vesting the 
proprietary light m the committee, &c , which is larely done, is of no 
impoitance, his right to sue and give receipts being sufficient 

Lord Eldon seems to have questioned the powei attnbuted m this § to a 
foreign committee of tho estate of a lunatic Be Houstoun (1826), 1 Russ 
312 But both as to this point and as to the authonty ovei the person, with 
refeience 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 meiely a committee, but an English court, should have authority 
ovei him and Irs property 

Mmois A fathei claimed the enjoyment of his children’s piopeity up 
to the ago of eighteen, under Art 384 of the Code Napoleon, and Sn L 
Shadwell appears to have rejected the claim only on the ground that the 
children weie domiciled in this countiy, and not in that in which the Code 
Napoleon was m force (Jamlnei v Gamlner (1835), 7 Sim 263 In Be 
If ell man n, however — (1866), L R 2 Eq 363 — wheie a legacy was bequeathed 
to an infant, Loid Romilly lefused to direct the executois 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 othei wise it would not seem to be maintainable, for a distinction 
could hardly be diawn between recognizing the guardian of an orphan and 
recognizing the father as guardian dunng his child’s life, or between recog- 
nizing a guardian by law and one judicially appointed, and the geneial 
doctune seems to be sufficiently established as well by the cases with regard 
to lunatics as by that next cited A Scotch (uiatoi boms and factor loco 
tutons is the proper peison to retain the English assets of his Scotch 
minors Marine v Barling (1871), L R 12 Eq 3l9, Wickens I n Be parte 
Watkins (1752), 2 Ves Sen 470, it is said, but the saying appears to be only 
that of counsel, that the appointment m a colony of a guaidian of peisonal 
estate failed as §oon as the infant came to England Loid Hardwicke 
appointed a guardian of the personal estate, foi which there may have 
been 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 propel ty vested in lunatic^, it is m the disci etion 
of the court whether and to what extent it will Jiand over the 
property, or the income of it, to the foreign guardian, curator or 
committee 



48 


PRIVATE INTERNATIONAL LAW 


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

§ 11 It is m the disci etion of the court whethei to treat a 
foreign minor as a ward of couit, in a case where gn English 
infant would be such a ward 

Blown v Collins (1883), 25 Ch D 56, Kay 

§ 12 “ Where any stock is standing m the name of oi vested 
in a person residing out of the jurisdiction o* the High Court, 
the judge in lunacy, upon proof to his satisfaction that the 
person has been declaied lunatic and that his peisonal estate has 
been vested m a person appointed for the management theieof, 
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 
theieof 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 interpietation clause, s 341, “ stock includes any fund, annuity 
oi security transferable in books kept by any company oi society, or oy 
instrument of tiansfer alone, or by instrument of tiansfer accompanieu by 
other formalities, and any share or intei est therein, and also shaies in 
ships registered under the Merchant Shipping Act, 1854 ” (now Merchant 
Shipping Act, 1894) 

“ Vested ” in this enactment does not mean vested m the sense of English 
law, but is satisfied by a power to sue and give receipts , I?~e Brown, quoted 
under § 9 Security will not be required from the foreign curator if it 
would not be required from him m 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 appLed to persons who have orly been found 
lunatic m foreign proceedings, or to committees or curatois 
appointed in foreign proceedings, without expiess w r ords to that 
effect 

Sylva v Da Costa (1803), 8 Ves 816, Eldon, ovenulmg Kx parte Otto 
Lewis (1^49), 1 Ves Sen 298, Hardwicke 


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



FOREIGN GUARDIANSHIPS 


49 


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

He Houstoun (1826), 1 Russ 312, Eldon 

§ 15 The measures which m different legislations aie taken to 
supply the defect of capacity are not confined to the case where 
that defect is total, but often extend to sujiplementmg a capacity 
which is deemed to be only incomplete Thus a wife may be 
capable of acting with her husband’s concuirence, but not other- 
wise, a minoi who has passed out of guardianship may still be 
capable of acting with the concunence of a cuiatoi, but not 
otherwise In such instances it would seem on punciple that 
the modified capacity is one entile institution, and cannot be 
divided into* an abstract capacity to be detei mined by the 
personal law’, and the practical limits set to that capacity by 
the personal law, which aie to be ignoied But a different view T 
was taken m Worms v De Valdor (1880), 49 L J Ch 261, 41 
L T 791, 28 W R 346, Fiy There a French plaintiff, wdio m 
France w r as incapable of suing without the concunence of a 
conseil judtcuiite , on the ground of his having been adjudicated 
a prodigal, was allowed to sue without the concurrence of his 
co%iseil judiciaire It was shown that the plaintiff’s condition 
in France w r as not that of total interdiction, and the learned 
judge said “ Theie being therefore no change of status, but 
merely a requirement of French law m particular cases, it 
appears to me that that does not prevent the plaintiff m this case 
from suing m this action ” And on the same ground a French- 
man similaily cneumstanced w T as held entitled to payment out of 
court of a fuiyl, notwithstanding the opposition of his conseil 
judicial re Re Selot’s Tmst i [1902] 1 Ch 488, Faiwell, both as 
following Worms v De Valdor and from his ow r n opinion But 
what is status except the sum of the particulars m which a 
person’s condition differs from that of the prrnal person ? If 
there had been no change of condition the question would not 
have arisen The learned judge m 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 customjiry or positive L4w of a 
foreign country, and especially such as are of a pe^al nature, are 
not generally regarded m.otlier countries wdiere the like disquali- 
fications do not exist Probably no English judge would now T 

4 


W I L. 



50 


PRIVATE INTERNATIONAL LAW 


found any proposition on tlie law of nature, not in the sense of 
just and reasonable principles, but in that of an ascei tamable 
code of rules The true grounds for the two decisions are, theie- 
fore, fiist, that in the opinion of some a paitial 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 
comeil juchciaue is an institution foreign to English law But 
so is the curator boms of a person above the age of pupillanty, 
and yet the title of a Scotch (uiabor boms is recognized Mackie 
v Darling, quoted above, p 47 If the personal law is admitted 
when it declares the complete incapacity of a person under a 
ceitam age, the capacity of one above that age can scarcely, 
with consistency, be accepted to any greater extent than that m 
which the peisonal law confers it, unless the limitation under 
which it lies by that law is penal, 01 otlieiwise falls under the 
next following § 

§ 1 G An incapacity" existing by a foieign law of a penal 01 
leligious nature, 01 so opposed to Butisli principles as for 
example is slavery, will be disregarded in England This is a 
more extensive doctune than would result from the leseivation m 
favour of any stnngent domestic policy with which all lules for 
giving effect to foieign laws must be understood (see belcw, 
p 51 ), foi foreign penal laws mays be thoioughly m aceoidame 
with English policy, but the doctrine seems nevertheless to have 
alwavs been leceived in England in the whole extent here stated 

Loid Justice Fry’s quotation with approval from Stoiy m Worms v 
T)e Valdoi see last § The doctune was held in England as to the in- 
capacity resulting from leligious profession abroad, even while that 
incapacity was known to English law “ If a man oi woman be professed 
m leligion in Normandy, or m 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 m some house of religion within this 
realm, for that may be tried by the ceitificate of the ordinary, so as of 
foieign possessions the ommon law taketh no knowledge ” Co Litt 132 b 
“ Has it not always been held that profession m a foreign countiy did not 
cause civil death?” Kmght-Bruce, in Be Metcalfe (1864), 2 D J S 124 



( 51 ) 


CHAPTER IV. 

MARRIAGE, DIVORCE, LEGITIMACY 

Marriage 

Marriage introduces us to the question of public older, to a 
reservation in favoui of which, as it is undeistood in the judge's 
country, all xiiles for the application of foieign laws aie subject 
No attempt to define the limits of that leseivation has e\er 
succeeded, even to the extent of making its nature eleaier than by 
saying that it exists in favoui of any stungent domestic policy, 
and that it is foi the law of each countiy, whethei speaking by 
the mouth of its logislatuie 01 by that of its judges, to deteimine 
vdiat paits of its policy aie stungent enough to lequire its being 
invoked 

The Italian code has 

hotwithstandmg the dispositions of the preceding articles, neither the 
laws acts 01 judgments of a foieign countiy, not jmvate dispositions 01 
contiacts, can in any case deiogate from piolnbitive laws of the kingdom 
concerning persons piopeity 01 acts, 01 from laws which in any way what- 
ever legal d public ordei or good morals Italian Code, Pielimmaiy 
Aiticle 12 

Coirespondmgly the Code Napoleon has 

Private contracts cannot derogate fiom laws which intei est public ordei 
or good moials Art 6 

The reservation is in theory inevitable Jt merely amounts to 
saying that, just as there aie nations, like the Turks or the 
Chinese, whose views and ways are so different fiom 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 m "Christian states to their laws and judgments, so, 
between Christian fates, differences of Views and ways may exist 
which may necessitate exceptions to the general iiile of giving 
effect to their laws and judgments Thus, even while slavery 
existed m certain Christian countries, the rights arising out of rt 



52 


PRIVATE INTERNATIONAL LAW 


were very rarely recognized m tliose Christian eountnes where it 
did not exist Now, howevei, the most important piactical effect 
of the reservation is m connection with marnage and divorce 
Let us suppose that a mainage is contemplated m any country 
between persons w r ho are foieigneis to it by their personal law 
So fai as regards any objection which may be entei tamed to it 
on the ground of consanguinity, affinity, religion or morality, 
which aie eminently questions of public order, it interests the 
locus actus or conti actus celebrati , as being that place m which 
it will begin and may continue for an indefinite time to have 
effect, just as much as it mteiests the domicile in which the 
paities are likely to pass most of their live**, 01 the political 
state for which their union w ill pioduce new subjects And the 
case is fuither distinguished fiom that of other contracts in that 
m most countries the tie of mainage is not created without the 
intervention of public autlionty, applied by means of some 
ceremonial, civil or leligious, and that the mtiochiction of any 
foreign or private form of contracting would offend against public 
ordei by its tendency to clandestmity The one point on which 
the country m which the tie originates may well give v ay to the 
country of the personal law, as being alone senously concerne 1 , 
would seem to be the capacity of the paities as depending on age, 
including the consent of paients or guai chans as supplying a 
capacity which would otherwise fail If then the iules of pnvate 
international law aie to be fi allied on giounds of principle, and 
so that the validity of a given marriage may be determined alike 
m every country m which it shall be called in question, the form 
of contracting marriage ought to be referred to the lex loc 1 actus 
or conti actub celebrati absolutely and not meiely as optional 
The capacity of each party, as depending on age oi the consent of 
third pei sons, 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 Ion contractus celebrati 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 iules 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 g^ven me rnage will receive 
the same determination everywhere. 



MARRIAGE 


53 


By the French and Italian codes the international aspect of 
the capacity for marriage is not dealt with otheiwise than by the 
general provisions as to capacity which we have seen (above, 
pp 25, 27) We have also seen (above, pp 31, 32) how the 
German einfuhniruj&geselz deals by Arts 7 and 27 with geneial 
capacity, and these provisions aie applied to marriage as 
follows — 

Ait 13, fiist paiagraph The entering into mamage, i r either of the 
parties is a German, must be decided m i elation to each of the parties 
accoidmg to the laws ( (jcsctzt ) of the state to which he or she belongs 
The same holds good foi foieigneis who entci into mainage in Geimany 
[This is one of the paragraphs to which Ait 27 applies See above, p 31 | 

The convention of 1902 made between twelve states,* in its 
Ait 1 which we have seen above (p 34), like the Geiman 
Art 13, requires the sepaiate fulfilment by each party of the 
conditions of capacity to contract mamage, and this must be 
considered as beyond controveisy We shall see that, when the 
existence of the marnage tie is established, its effect on property 
may depend on the matrimonial domicile oi the husband’s 
nationality, but it would be illogical, while it lemains to be seen 
whether the tie has been established, to give the determination of 
the woman’s capacity to the peisonal law of the man The 
convention then proceeds to the objections to particular 
nmmages, and Ait 2 pi ovules that the law r of the place of cele- 
biation may prohibit a mamage of foieigneis which w’ould 
conflict with any absolute prohibition contained m it on the 
ground of consanguinity or affinitv, of the adultery of the parties 
having caused the divorce of one of them, or of the paities 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 authonty in respect of them with that 
of the peisonal law T But this is not so, for there follows a 
provision that a marriage which has been ce'^brated m disregard 
of any such prohibition shall not be null, if valid according to 
the law indicated by Art 1 And by a further clause of Art 2 
combined wuth Ait 6, a state is not bound to lend the authority 
of its own celebration to a marriage which would be contrary to 


*It has since been denounce 1 by both France and Belgium On the other 
hand, it is notable that its provisions were adopted by the Mixed Court of 
Appeal in Egypt as a kind of pis gentium, although Egypt was not a party to 
the Convention (See Cbjnet 1914, p 643 ) 



54 


PRIVATE INTERNATIONAL LAW 


its laws by reason of a pnoi inainage or of a religious obstacle, 
of which holy oiders 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 consulai agent, while, if the 
paities succeed m getting such a marnage celebrated m the 
oidinary way, other countnes must not give effect to the nullity 
ansing m the place of eelebiation So great indeed is the 
tenderness shown by the convention to parties who have gone 
through a form of mainage, 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 cekbration may permit the 
marriage of foreigners notwithstanding a prohibition by the 
personal law founded solely on leligious motives, though othei 
countries are to have the light not to lecognize the validity of a 
marriage celebrated in those cncumstances 

With regard to the foun of mainage, the Italian code has only 
the general provision 

The external foims both of acts intn vm s and of last wills are deter- 
mined by the law of the place where they are made Nevertheless, it is 
optional foi paities making dispositions 01 conti acts to follow the foims of 
then national law, provided such law be common to all the paities Italian 
Code, Pielimmaiy Aiticle 9 

But the German enifuhnniqsqesctz has both a general permis- 
sion m Ait 11 and a special one m Art 13 

Ait 11, fust paiagiaph The foim of an act m the law (? echt sqeschaft) 
is determined by the laws (qcsetze) go\eining the legal relation which is 
the object of the act But it is sufficient to obseive the laws (qesetze) of 
the place wheie the act is done * 

Art 13, third paiagraph The form of a mairiage which is celebrated 
m Germany is decided exclusively according to the Geiman laws ( qesetze ) 

The convention of 1902 has these piovisions 

Art 5 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, undei stood that countries of which the law lequnes 
a religious celebration may refuse to recognize as valid marnages con- 
tracted by their nationals abroad without observing that requirement 

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


*This prevents the renvoi from being obligates If the whole law (recht) of 
the locus actus should refer to the foim given by the internal laws of another 
country, it will still be sufficient to observe the form giveL by the internal laws 
of the locus actus 



MARRIAGE 


55 


nage to be null in any othei countnes than that of which die law has been 
violated 

An official ( authentique ) copy of the act of mamage shall be sent to the 
authorities of the countiy of each of the paities 

Ait 6 A marriage celebrated befoie a diplomatic 01 consulai agent con- 
foimably to the law of his country shall be recognized everywhere as valid 
so far as legards its form, if neither of the paities is a subject of the state 
m which the mamage has been celebrated, and if that state does not object, 
which it cannot do if the marriage would be contrary to its laws bj leason 
of a former marriage 01 a leligious obstacle 

The reservation expiessed by the second paiagiaph of Ait 5 is applicable 
to diplomatic and consulai mamages 

Art 7 A mainage which is null for defect of foim m the countiy m 
which it has been celebrated may neveitheless be lecognized as valid in 
othei countnes, if the foim presenbed by the national law of each of the 
parties has been obseived 

The anxiety to uphold what has been celehiated as a mamage, 
which the convention shows with i elation to capacity, is here also 
tiaceable, but combined with a respe(t, which no doubt was 
necessaiy m oidei to its being concluded, for the objection felt 
m some (ountnes to the absence of a leligious foim 

We have now to exhibit the English doetnnes on the intei - 
national validity of mamages 

§ IT It is indispensable to tire \aliditv of a mamage that the 
7c, t loti actus be satisfied so fai as legaids the foims oi 
eei emomos 

Putlei v F iceman (1756), Ambl 303, Haidwicke, Lacon v Higgins 
(1822), 3 Star 171, Dow & Ry N P 38, Abbott, Kent v Buigess (1840), 
11 Sim 361, Shadwell , Rg Bozzelh’s Sctth ment y [1902] 1 Ch , at p 757, 
Swmfen Eady , Westlake v Westlake, [1910] P 167, Baigiave Deane-, 
Prppei v Pcppei, [1921] L J Newsp , p 413, where a mamage was held 
to be null which was celebrated between two English paities in Scotland by 
declaration at a mamage office, on the ground that the twenty-one days’ 
residence required m Scotland before the mamage had not been completed 
according to the Scotch computation of the peiiou See also Sniff v Kelly 
(1835), 3 Knapp, 257, Riougham , wheie the validity of a mamage con- 
tracted at Rome depended on the sufficiency of the abjuration of pro- 
testantism by the paities, and the question whether then abjuration was 
sufficient was decided according to the law of the Roman Chinch And see 
Sunfte v Att -Gen foi Ireland, [1912] A C 2d Loiebuin, Halsbury, 
Atkinson, Haldane, an lush statute invalidating certain marriages if pel- 
formed by a Popish priest held not to apply to a mamage celebrated out 
of Ireland 

§ 17a The leligious oi ecclesiastical law of a dumb will be 
disiegaided if tlie requirements of the law of the state C c to foim 
have been observed 

Thus a mamage celebrated m a private house m Ireland by a Roman 
Catholic pi lest m the piesence of one witness was valid though alleged to 



56 


PRIVATE INTERNATIONAL LAW 


be contrary to the rules of the Roman Church issued bj the Pope in the 
Ne 'Temn e decree of 1907 Ussherv Ussher, [1912] 2 I R 445 Kenny, J , 
affiimed by O’Bnen, C J , Palles, C B , Gibson, J , [1912] 2 I R 445 The 
old common law still applied m Ireland and under it the presence of wit- 
nesses at a marriage celebiated by a clergyman was not necessary The 
same pi mciple was upheld in Vespatie v Tremblay , P C [1921] A C 
102, judgment of Moulton, when it was held that a civil marriage m Canada 
was valid, though m a prohibited degree accoidmg to the law of the Roman 
Chuich to which the paities belonged 

On the other hand, if the law of the state requnes the observance of the 
rules of the religious community Qf the spouses, the mamage will be void 
if those rules are not followed See Be Alison* s Tiusts (1874), 31 L T R 
638, wheie a mamage celebrated in Persia between an English protestant 
mm and an Armenian piotestant woman was held void because the rules of 
the religious community were not followed, as the law of Peisia lequired 

A Chinese marriage has been lecogmzed for Chines^ subjects in Penang 
though no ceiemony took place because the lex loci actns lequned no foims 
Cheung Th ye Thin v Tan al Log , [1920] A C 369 

§ 18 It is also indispensable to the validity of a marriage that 
the lex Ion actus be satisfied so fai as lega ids the consent of 
parents or guardians 

Scrimshne v Sinmshne (1752), 2 Hagg Cons 395, Simpson, Middleton 
v Janvenn (1802), 2 Hagg Cons 437, Wynne In both these cases theie 
was also a defect of form according to the lex loci actus, and in the second, 
wheie the mamage was solemnized by the chaplain of the Dutch garrison 
at Furnes in Austrian Flanders, it does not appeal that by the law jf 
Austrian Flandeis 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 foi any reason by the lex loci actus 
cannot be set up by the lex domicilii 

In llaiford v Moins — (1776), 2 Ilagg Cons 423, Hay, and (1781) and 
(1784), 2 Hagg Cons 436, Couit of Delegates — the mamage, which was 
solemnized abroad, was invalid according to the lex loci actus for want both 
of form and of the necessary consent, and it was further alleged that it 
had been piocured by foice Also, since Lord Haidwicke’s marriage act had 
been passed m the interval between the marriages m Scrimshire v Sciim- 
shire on the one hand and those in Hat ford v Morns and Middleton v 
Janvenn on the other, the want of consent, which at the c«rliei date would 
have rendered the marnage 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 mainage m the two later cases could only be maintained 
on the ground that there existed a jus gentium on the subiect of marriage, 
adopted by the old law of England, and which therefore, through the saving 
in Lord Hardwicke’s Act of Scotla*td and of marriages solemnized beyond 
sea, continued in force as an English law of mainage for English persons 
man led abioad, notwithstanding that the lex loci actus might be quite 
diffeient This doctrine must not be confounded with that in Lautovr v 
Teesdale , see below, §§ 26, 28 To the latter no objection can be made, 
because tie maxims of private international law do not apply with refer- 
ence to the native laws m India, between which and Cnnstian legal systems 
theie is no jural' intercommunion Stated as m Harford v Moms, with 
reference to a mamage m Christian Euiope, the docti ne went fai towards 
the denial of all private international law 



MARRIAGE 


57 


§ 19 It is equally indispensable to the validity of a marriage 
that the Icj loci actus be satisfied so fai as legards the capacity 
of the parties to contract it, whether m lespect of the prohibited 
degrees of consanguinity 01 affinity, 01 m lespect of any other 
cause of incapacity, absolute or lelative 

This proposition does not appeal to have been questioned in any English 
case, and it is covered by the broad view above refeired to as having been 
taken in Scnmshire v Saimshire and Middleton v Janverin, that a mar- 
liage void foi any reason by the lex loci actus cannot be se^, up by the lex 
domicilii A still broader doctune would seem to have been propounded in 
Dalrymple v Hahymple (1811), 2 Hagg Cons 54, Scott, which was the case 
of a marriage m Scotland between a Scotch lady and a gentleman who is 
treated m the judgment as domiciled m England (see pp 54, 60, 61) The 
discussion in the judgment turns entirely on the sufficiency of the com- 
pliance with the forms necessaiy m Scotland, and the want of the consent 
of Mr Dalr^mple’s fathei is not alluded to On the contrary, Sn William 
Scott says “ The only principle applicable to such a case by the law of 
England is that the validity of Miss Goi don’s marriage lights must be 
tued by lefeienco to the law of the countiy where, if they exist at all, they 
had then origui ” (p 59) The propositions contained m this and the 
two preceding §§ amount to the statement that no mairiage lights can be 
\alid unless they aie valid by the law of the country wheie, if they exist 
at all, they had then ougin, but § 21 will show that marnage lights 
which aie countenanced by the law of the country where, if thej exist at 
all, they had then ongin, aie not always deemed valid m England 

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

Herbert v Herbert (1819), 3 Phil Eccl 58, 2 Hagg Cons 263, Scott, 
Smith v Mum ell (1824), Ry A Mo 80, Best, Be BozzelWs Settlement , 
[1902] 2 Ch , at p 757, Swmfen Eady 

§ 21 It is indispensable to the validity of a mainage that the 
personal law of each party be satisfied so far as legards his 
capacity to contract it, whether absolute, in respect of age, or 
lelative m respect of the prohibited degrees of consanguinity or 
affinity * 

BiooL v Brooh (1857) and (1858), 3 Sm & G 481, Ciesswell and Stuart, 
(1861), 9 H L 193, Campbell, Cianworth, St Leo 'ards, 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 expiessly on the ground that the capacity of each 
party by his own law was necessary, and without leference to any 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 Sottomryoi v T)e 
Barros (1877), 3 P x) 1, Cotton, James, Baggallay , reversing S C , (1877), 
2 P D 81, Phillimore , the case of a marriage solemnized m England 


*~See note below at end of this section 



58 


PRIVATE INTERNATIONAL LAW 


between paities domiciled one m England and the othei m Portugal, but 
at this stage of the case heated as both domiciled in Poitugal, and i elated 
to each other within degrees prohibited m Portugal but not in England , 
the cucumstance that a mamage within the degiees m question would have 
been valid according to the lev domicilii, if a papal dispensation had been 
obtained, was adverted to but disregarded , and the Couit of Appeal, in 
decieemg nullity, said that their opinion was “ confined to the case where 
both the contracting paities are at the time of then marriage domiciled in 
a countrv the laws of which piohibit then mainage ” In the same case, 
(1879), 5 P D 94, it being consideied that one of the paities was domiciled 
in England, Hannen held the marriage good, but this authority is 
weakened, (1) by the learned judge’s pronoun* ement m favour of the lex 
Ion contrm tus as governing competency, cited above, p 41, (2) by his 
takmg Cresswell’s opinion in f«,voui of the ler Ion contractus from Simonin 
v Mallac , without reference to that learned judge’s saying m 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 lefeience to the statutes 
on the maruage of first cousins, which seems to imply that the rules of 
pnvate international law aie less applicable wheie the English law is con- 
tained m statutes than where it is the common law In Be T)e JVilton, De 
Wilton v Montefior e, [1900] 2 Ch 481, Stilling, the dependence of capacity 
foi mamage on domicile was held not to be subject to an exception foi the 
mamages of Jews Where, theiefoie, the paities weio domiciled m Eng- 
land, a mamage between uncle and niece, celebrated at Wiesbaden accoidmg 
to Jewish law, was held to be null The iecc gnition of Jewish law extends 
only to the foimsof marriage and not to questions of capacitv 

And conveisely a mamage m which the peisonal law of each jrarty as 
regaids his capacity is satisfied is valid in England so far as legards such 
capacity, notwithstanding that by English law it would be incestuous 
lie Bozzellds Settlement, [1902] 1 Ch 751, Swinfen Eadv, and the judg- 
ments of Loids Campbell and Cianworth in Biooh v Biool theie quoted 
Theie is no necessity to make an exception, as is sometimes done, foi mam- 
ages legarded as incestuous by the general consent of Chi istendom, because 
no countiy with which the communion of private international law exists 
has such mamages 

It must be observed that § 21, and, substantially, the above 
note on it, aie left as they stood m the pieced mg edition of this 
woik Doubt, however, has been tin own on tin? principle of 
this § by the decisions m Orjden \ Off den , [1908] P 46, and 
Chetti v ( lietti , [1909] P 67, the discussion of which is placed 
after § 25 

§ 22 That an incapacity to marry ot a penal nature, oi 
resulting from religious vows or oiders, will not be admitted m 
England on the ground of the peisonal law, is a < onsequenee of 
the doctrine stated m § 16 With regard indeed to religious 
vows Ox orders, no prim iple of British policy can he deemed to he 
moie stringent than that which would refuse to exclude a whole 
class of the population fiom the possibility of marriage But 
where the penal or religious incapacity for mamage exists bv 



MARRIAGE 


59 


the lex loci actus , its direct effect is to prevent the marriage from 
ever having an inception, and its mdiiect effect must theiefoie 
be to prevent the ceiemony or the consent from being legarded m 
England as having constituted a mainage 

It seems that, by the law of England, an attainted person is not in- 
capacitated fiom contracting marriage, but the incapacity, if any, will not 
pievent the English couit from recognizing a mamage contracted > abroad 
by an Englishman attainted at home, supposing him to be capable — “ m 
the land m 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 paity may m some foim 

01 other marry without the consent of paients oi guaidians, the 
want of such consent will not invalidate a marriage by him which 
satisfies the lex loci act in, although the foim observed was not 
that which by his peisonal law would lnne lendeied the consent 
unnecessaiy In other woids, a consent which is not essential 
m the domicile ranks, foi the pui poses of pnvate mieinational 
law’, among the fonns of mainage, and not among the conditions 
of capacity 

This is the case of what weie called Gietna Gieen maiiiages, the validity 
of which appeals to have first come tip for formal decision in Compton v 
Been ci oft (1767), Ilav, and (1769), Couit of Delegates, 2 Hagg Cons 430, 
443, 444 The mamage in this case, in which Dumfries took the place of 
Gietna Gieen, was upheld by Sn Geoige Hay on the same ground which he 
took in If ai foul v Moms , but his sentence was affirmed by the Delegates 
on the ground of the lei Ion The same class of marnages was again 
upheld, and on the ground of the lei Ion, in (inn son v (inn son (1781), 

2 Hagg Cons 86, 98, 99 , and a simtlai decision was given as to the mamage 
of Fiench peisons m England, m Simonvn v Mallac (1860), 2 S A T 67, 
Cress well 


§ 24 And -a mainage (clebrated m England is held valid 
undei the doc time of § 23, notwithstanding that it has been 
declared invalid in the country of the domicile on the ground of 
the puipose o^' the parties to evade the law of that country 

S nnomn v Mallac (1860), 2 S AT 67, Cresswell 

§ 25 When by Ins personal law a paitv cannot many m any 
foim withopt a ceitain consent, the want of such consent wall 
invalidate a mamage by him notwithstanding that i+ satisfies 
the lex Ion actus~, unless, apparently, one of the paities is domi- 
ciled m England, and the mamage is celebiated m England 
according to the English form 



60 


PEI V ATE INTERNATIONAL LAW 


Sussex Peerage Case (1844), 11 Cl & F 85, Tmdal, delivering the opinion 
of the judges, I/yndhurst, Brougham, Cottenham, Denman, Campbell In 
this case the marriage lequired either the express consent of the King m 
Council, undei the hist section of the Royal Marriage Act, or the tacit con- 
sent of Pai Lament under the second section See also Sottomayor v De 
Ban oh, above, § 21 

There is an Irish decision contraiy to the doctnne asserted m this §, 
Steele v Braddell (1838), Milw 1, Radcliff , and it seems to be approved by 
Lord Campbell, m Brook v Brook (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 Mainage Act an 
intention to cieate a peculiaily stungent incapacity by British law, over- 
riding the usual maxims of pnvate international law It need not be denied 
that such an intention would be within the competence of a statute of the 
domicile, although in Simomn v MaUac (see § 24), th~ court gave no effect 
to the expiess claim of the French code to regulate the 6tat civil of French- 
men abioad, or that such an intention might very reasonably be ascribed 
to the Royal Mairiage Act But since any statute, which enacts that a 
marnage celebiated m any foim without a certain consent shall be null 
and void, does ceitainly cieate an incapacity for marnage without that 
consent, it appears to me hazaidous to draw distinctions op presumed in- 
tention only, as to the degiee of stungency which that incapacity was meant 
to have, and I prefei to dissent from Steele v Braddell, and to justify 
Compton v Beni a oft and Simon in v Mallai by the fact that m those cases 
the marnages were possible in the domicile if the pioper forms had been 
there observed, as I understand Loid Campbell himself to do m Brook v 
Brook (1861), 9 H L 215, 218 

The exception is tlnns stated because of the judgment m Ogden 
v Ogden , [1908] P 46, Gorell Baines, Cozens-Hardy, M R , and 
Kennedy, L J , reversing Baigiave Deane, J The result was to 
pronounce the validity of a marriage which had been celebiated 
in England between a woman of British nationality domiciled m 
England and a man of French nationality domiciled m Fiance, 
who fell under Art 148 of the French code by which, being 
under 25, he “could not contiact marriage ” without a consent 
which he had not obtained, and Arts 188 and 185, which limit 
the period for the nullity of his attempted marriage being 
declared The case therefore goes beyond Swwnin v MaUac , 
where m consequence of the age of the parties the French consent 
which w r as missing would by Art 152 as it then stood have 
become unnecessary after it had been three times refused m as 
many months, and might therefore be well treated as a form 
In the^case presented by Ogden v Ogden 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 as one 
relating to forms, saying (p 82) “ the observations made m this 



MARRIAGE 


61 


judgment are dnected to questions arising m connection with 
the formalities required on entenng into a marriage, ancl are 
not to be understood as necessanly advocating an interference 
with any views which may be held in any country as to marnages 
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 distimt 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 m 
England when it arises from a foreign law But in its long 
judgment the coiut of appeal manifested a great reluctance to 
admit any foreign determination, of the capacity of a paity, going 
so far as to say that “ it may be doubted whether theie is much 
substantial difference of opinion between foreign and English 
jurists as to the general rule that between persons sui juris the 
validity of the marriage is to be decided by the law of the place 
where it is celebrated/ ’ p 58 Did the court consider that a 
person who m his own country cannot marry without a certain 
consent is but juns as to marnage 9 Probably by a person mi 
juris' is meant one to whose capacity for the marriage no objec- 
tion exists by the law of the place of celebration 

Twenty days after the judgment m Ogden v Ogden was pro- 
nounced, Sir Gorell Barnes decided the ease of Chetti v Chetti , 
[1909] P 6T A Hindu, on the ground of an alleged personal 
incapacity by his religion, disputed the validity of a marriage 
which, being domiciled m India, he had contracted at a regis- 
trar’s office m England with a woman domiciled m England A 
simple answer would have suflfh ed, for notwithstanding the 
popular use of the term “laws” for the rules of the Hindu 
religion, and whatever binding force thosv, rules might have been 
allowed if India had been under Hindu Government, it was cleai 
that, m the sense m which “ laws ” are cognizable by a court of 
justice, Chetti was not even m India under any legal incapacity 
to contract a monogamous marriage with i Christian, only by 
doing so he would have lost caste among his co-ieligionists, 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 wdnch the agent is free to get rid of 
is no personal incapacity If the performance of the act is not 
m itself a sufficient rerunciation to remove the obstacle, the 
obstacle, so far as it reiqams, can only be a matter of form, like 
the consent m Simoyun v Mediae , 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 peisonal incapacity as an obstacle 
to mainage, and arrived at a conclusion foreshadowed in Sotto- 
mayor v De Banos and Ogden v Ogden , and for which, being 
treated in Chetti v Chetti as an element of decision, the latter 
case must be regaided as an authonty It is that peisonal 
incapacity is not an obstacle to mainage unless it exists by the 
law of the place of celebration, or by the laws of the countries m 
which at the time of the mainage 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 
mainage m England, an English court must, juridically, accept 
01 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 wall never find that it contains an 
ex< eption for the case of the jiciso^ subject to it manying 
abroad a party not subject to incapacity If m spite of this the 
court rejects the incapacity presented when the other paitv ti 
the marnage is capable, it leaves itself no ground for accepting 
it when the otliei paity also is incapable The legislature migl t 
diaw the distinction, but it involves the tenet that foreign law T s 
and the rights under them are not recognized eu debt to justituc 
but by virtue of a comity extended to them wdien thought 
expedient That may be a legislative motive, but as one for 
courts of law T it w r as exjiressly condemned by Lord Biougliam 
m the often cited case of Warrender v War render, 21 Cl & F 
530 * 

Another noticeable point m the judgment m Chetti v Chetti 
is that, as foreshadowed m Ogden v Ogden , it denies the exist- 
ence of any solid distinction between form and substance, at least 
m the conflict of law^ on marriage Wher'y it says, the English 
judgments cited “ speak of e>sentials and forms, those who 
decided these cases were locking at them from an English stand- 
point, but it may be observed that what may be regarded as form 
in this country might m a foreign country be regarded as an 


* In the question 1 if legislation about maruages in Canada which was referred 
to the Judicial Committee in 1912, Haldane advised that urovincial legist iture 
may make rules as to solemnization of marriage which may affect the validity 
of the contract 1912, A C 886 



MARRIAGE 


63 


essential ” (p 82) Again, “ if in a foreign country a marriage 
is declared void for want of consent, wlucli we hold a mattei of 
form only, what difference is theie m substance between the 
position in such a case and the case wheie the consent is moie 
than form?” (p 84) On such a footing all discussion of the 
scope of the lex loci actus m pnvate 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 Wlieie a mamage valid according to the lex loci actus is 
impossible, from the want of any such law applicable to the 
case, pai ties may mairy with the foims, so fai as it is possible to 
obseive them, and wuth the consents, lespeetively lequued by 
their own law 

Anonymous case m Ciuise on Dignities, 276, Eldon, wheie it was sup- 
posed that there was no let Ion applicable to the mamage of Piotestants 
at Rome, though it appeals fiom the Sussex Fai aye ('asc, 11 Cl & E 152, 
that the mamage in Piotestant foim might have been sustained as 
peimitted by the lei loci Lau torn v Tei sdah (1816), 8 Taun 830, 
Gibbs, wheie the impossibility aiose from there being no lei Ion applicable 
to the mamage of Europeans at Madias and these, if British subjects, 
weie theieloie held entitled to many theie in accordance with English 
law as it stood befoie Loid Haidwicke’s Act Budiny v Smith (1821), 
2 Hagg 371, vStowell , wheie the impossibility aiose fiom the Dutch law 
a f the Cape of Good Hope not applying to Bntish peisons passing thiough 
the place so soon aftei the conquest that its futuie legal system was not 
settled And see the cases quoted undei § 28 

§ 2T Mairiages m embassies and consulates are subject to 
ceil am special rules which piobably diew then ongin fiom the 
exaggerated exteiritoriality foimeily attributed to embassies, but 
aie now maintained on the continent on the giound that the 
foims of the lev loci actus aie not imperative but optional, and 
that the parties may adopt instead the forms wdnch the legis- 
lation of then country provides for them in its foreign establish- 
ments This ground will not extend beyond the case m 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 opeiates to g*ve the other the benefit of 
the privileged form, and it is generally lielc} that the inter- 
national validity of their marriage m point of ceremonial must 
fall under the lex loci actus But any legislation, while pro- 
viding for a couple of its 'nationals an internationally valid form 
of marriage m it' embassies and consulates, may allow that form 
to carry a special validity m its oym dominions for marriages 



64 


PRIVATE INTERNATIONAL LAW 


one only of the paities 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 foim of the lex loci actus as impera- 
tive, at least foi mamage, convenience rather than the conti- 
nental ground lefeired to must be the support of the special rule, 
even where both parties are British As to capacity an ambas- 
sadorial oi consulai mamage eonfeis no pnvilege Wlieie both 
parties aie nationals, general punciples will be sufficient to 
refer their capacity to the law of tlieir country, or to that of their 
domicile within it when it includes more than one system of 
pnvate law Wheie only one is a national the capacity of each 
must be decided by the law proper to it, and even the special 
validity which the legislation providing the foim gives in its own 
dominions to the mamage of its own national will be subject to 
the fulfilment by the other party of the condition so arising 
§ 28 The British law now m foice foi the purpose thus 
explained is the Foieign Mairiage Act, 1892, s 1 of which enacts 
that “ all mainages between paities of whom one at least is a 
Butish subject, solemnized m the mannei in this a(t piovided in 
any foreign countiy or place by oi before a mamage officei within 
the meaning of this act, shall be as valid in law as if the sarre 
had been solemnized m the United Kingdom with a due obseiv- 
ance of all forms' requited by law ” The special validity thus 
given for the British dominions is lllustiated by Hay v North- 
cote , [1900] 2 Cli 2G2, Farwell, m which a marriage solemnized 
under the act before a British consul m France was held good, 
notwithstanding that it had been declared void in France for 
non-observance of the French foim The act further contains, 
m 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 m England ” Here the contrast of “ England ” with 
“ the United Kingdom ” mentioned m s 1 must be noticed it 
bungs m the law of England as a pierogative British law for the 
purposes of the act Of course, the act might have left the 
question of capacity to the Biitish domicile of the parties, m 
which case an Australian end his deceased wife’s sister, capable 
of mtermarrvmg by the law of their colony or so-called state, 
might have mtermarned effectually m a Butish embassy or con- 
sulate before such a marriage was made lawful m England But 
the intention se°ms to have been that nc marriage should be cele- 
brated under the act which could not have bee T ' effectually cele- 
brated m England, and therefore that English prohibitions 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 m Council, 1913, made under the Act now being 
consideied — * 

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 m that 
country under the Foreign Marriage Act, the marriage officei must be 
satisfied eithei — 

(a) That both of the parties are British subjects, or 

(b) 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 m the foreign country in accoi dance with the law of 
that country , or 

(d) If the man about to be married is a British subject and the woman a 
subject oi 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 m this article ] 

2 In the case of any marriage undei the Foreign Marriage Act, if it 
appeal's 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, m addition to that undei 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 piovisions 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 
m the country of the latter With regard to ( b ) no 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 m 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 
m embassies had been this r Sir W Scott, m Pert re n v Ton- 
dear (1790), 1 Hagg Cons 136, a case on the validity of a 
marriage celebrated m England m the chapel of the Bavarian 
ambassador appears to have considered the matter only from the 

* This Order in Council repeals an earlier O^der of 1892 

f By the Marriage with Foreigners Act, 1906 (6 Edw 7, c 46), a British 
subject proposing to marry a foreigner can ascertain through the Registrar of 
Marriages m his dis'rict, whether this marriage will be valid according to the 
foreign law 


W.I L 


5 



66 


PRIVATE INTERNATIONAL LAW 


point of view of exteintonality From tliat point of view lie 
doubted whether a pnvilege could exist where neither party was 
of the countiy of the ambassador, and where the woman on whose 
account it was claimed had not during hei residence m England 
“been living m a house entitled to privilege,” or, as he also 
expressed it, was not “ domiciled in the family of the ambas- 
sadoi ” Then came the st 4 Geo 4, c 91 (1823), since repealed 
by the Foieign Marriage Act, 1892, which enacted that all 
“ mainages solemnized by a minister of the Church of England, 
in the chapel oi house of any British ambassador or minister 
residing within the country to the court of which he is accredited, 
or m the chapel belonging to any British factoiy abroad, or m 
the house of any Butish subject residing at such factory, 
[should be] as valid in law as if ihe same had been solemnized 
within her majesty’s dominions with a due observance of all 
forms requited by law r ” This got nd of the notion that 
membership of the ambassadoi’s household oi letmue was 
necessaiy to the enjoyment of the pnvilege, and was so carried 
out m Lloyd v Petit jean (1839), 2 Cui 251, Lushmgton, and 
Este v Smyth (1854), 18 Beav 112, Ronully, m the latter of 
which cases a difference of opinion between French advocates as 
to whether the mairiage, celebrated m the British ambassador’s 
chapel at Pans, was valid in France did not prevent its being 
held valid m England In the formei 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 m foreign states, for w r hich the 
diplomatic representa f ive, 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 m 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 
its system marriages “ solemnized on board one of h^r 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 1 0 of the order m 
council And by s 22 “ it is declared that all marriages 



MARRIAGE 


67 


solemnized within the British lines by any chaplain, or officer oi 
other person officiating under the oiders of the commanding 
officer, of a British army serving abroad, shall be as valid m law 
as if the same had been solemnized within the United Kingdom 
with a due observance of all forms required by law ” The 
doctune laid down by this declaration may be regaided as not 
being an exception to the general rule of the form of the iex low 
actus for marriage, but iatlier as flowing from the principle that 
within the lines of an army, whether in hostile occupation of a 
place 01 admitted to it by a fuendly government, its national law 
becomes the local law so fai as concerns the institutions of per- 
sonal status necessaiy foi the hoops and those who are attached 
to them It is in accoi dance with this view that the chaplain or 
other person officiating is not made by s 22 a marriage officei 
under the act, nor is he tied to the use of the forms given m the 
act, but it must be consuleied that a simple Scotch maniage 
would be sufficient for Scotch paities 

§ 31 Within the lines of a Butish army seivmg abioad, the 
soldieis and British subjects accompanying the army are not 
subject to the foreign law, even as a lex actus, and therefore may 
marry with the forms of then British law so far as it is possible 
to observe them 

King v Brampton (1808), 10 East, 282, Ellenborough and Giose 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 cany 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 beon 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 m Lautour v Teesdale, as 
distinct fiom that of Sir George Hay m Harfoid v Moms, see § 26 
It is much easiei to suppose that Parliament intended to reserve an English 
form of contracting marriages abroad for English persons 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 (1810), 2 Hagg Cons 369, Scott, the husband was an 
officer in the British army of occupation m France, and the eminent judge 
** doubted whether he was at all subject to the French law, as pleaded m 
the libel ” Had the case gone on, the doubt would probably have been 
confirmed It will be observed that the same judge decided the oase of 
Bud mg 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 his orders Waldeqiave Veerage (1837), 4 C & F 649*, Cottenham and 
Brougham , a case depending On an enactment m st 4, Geo 4, c 91, similar 
to that in the Foreign M .image 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, 18T9, st 42 & 43 
Viet c 29, provided that all mainages between British subjects 
which had been “ solemnized on board one of her majesty’s 
vessels on a foreign station, m the presence of the officer com- 
manding such vessel, whethei solemnized according to any 
religious rite oi ceremony oi contracted per verba de prcesenti, 
shall be valid m 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 m the case of a marriage between 
British subjects, performed by the ship’s chaplain in the presence 
of the captain, on boaid a ship of hei majesty at Limasol, it was 
held that banns or licence were unnecessaiy, although the act 
just cited was not lefeired to m 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 refeience in these authorities to the piesence of the 
commanding officer, justifies the Fore'gn Mamage Act, 1892, m 
treating the two cases differently 

§ 32 a The Naval Mamage Act, 1915 (5 Geo 5, c 35) pro- 
vides that where during the continuance of the war one of the 
parties to an intended marriage was a naval officei 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 m any parish, the marriage might be solemnized by the com- 
manding officer of the ship or be lawfully solemnized m any other 
building 

§ 33 The validity of a marnage 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 

Herbeit v Herbert (1819), 3 Phil Eccl 58, 2 Hagg Cons 263, Scott; 
in winch case it was m vain argued that a sentence for restitution of con- 
j ugal rights should only run from tae expiration of a term during which, by 
the lex loci conti actus, the husband was liable to imprisonment m a fortress, 
and the wife m a convent, as a punishment for the clandestmity of the 
marnrge 

§ 34 Where the lex lo^i contractus allows polygamy, marriage 
under it, even m the case of a first wif \ is a different thing from 
monogamous marriage, and will not be regarde I in England as a 
marriage, nor will the matrimonial dutici arising under it be 



MARRIAGE 


69 


enforced, or any divorce 01 other relief granted for a breach of 
them 

Hyde v Hyde (1886), L R 1 P & D 130, Penzance , following what 
was intimated by Lord Brougham m Warrendei v Wai render (1835), 2 
Cl & F 531, 9 B1 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 m 
this country will be recognized Brinkley v Att - Gen (1890), 15 P D 76, 
Hannen And m Harvey v Farnie (1880), 6 P D 47 (see p 53), it was 
said obiter, per Lush, L J “If one of the numerous wives of a Moham- 
medan was to come to this countiy and inairy m this country she could 
not be indicted foi bigamy, because our laws do not recoghise a marriage 
solemnized m that country as a marriage m our Christian country ” 

§ 34 a A marriage eelebiated befoie an English public officer 
(clergyman, legistrar, marriage officei under the Foreign 
Marriage Act, &c ), must always be understood to be a mono- 
gamous one, even though a party to it may be a Hindoo oi other 
person who m his own country could have contracted a poly- 
gamous mamage, and a divoice from such a marriage can only 
be obtained, if at all, on the principles applied to Christian 
marnages Cf Re Mir inivareddm, [1917] 1KB 364, and 
see below p 87 And a person may be guilty of bigamy if, 
having conti acted such a mamage lieie, he afterwards marries a 
second wife m 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 Avoiy, J In that case an Egyptian married m Egypt 
according to Moslem law Subsequently, when m England, he went 
through a form of marnage with an Englishwoman, and then, without 
having di voiced this wife, went through a form of marnage with another 
Englishwoman He was convicted of bigamy, the court holding that no 
regard should be paid to the polygamous mainage in Egypt, which, it was 
argued, rendered the first mainage m England null 

But there is sembJe no reason why persons to whom their 
personal law allows polygamy should not contract a polygamous 
marriage m England by such methods, not involving paiticipa- 
tion by any English public office 1 , as they may find available 
See Re Ullee , below p 103, where a marnage had taken place in 
England according to Moslem ritual 

Effect of Marnage on Property 

The doctrine which descended from the mediaeval post- 
glossators was that the jeffect of marriage on immovables was 
governed by the lex situs, and that on movables by the lex 



70 


PRIVATE INTERNATIONAL LAW 


domicilii, so much freedom of contract, to he expressly exeicised, 
being allowed to the parties as the lespective law gave them 
That was the delimitation arrived at between the real and 
personal statutes m the absence of an expiess contract those 
statutes would respectively take effect as law, and this for 
movables as well as foi immovables, the foimei being subjected 
to the peisonal statute of then ownei bv the maxim mobilia 
tequunhu peisonam And the domicile meant was that of the 
husband at the tune of the mamage, which by the mainage 
would become that of the wife also, if it was not lieis before 
We have seen (above, p 17) that a levolt against this doc- 
trine was led by Dumoulin, in whose opinion mamage without 
expiess contract ta< ltly applied the custom of the domicile con- 
cerning immovables to the immovables situate m the area of 
anothei custom Evidently the pnnoiple of that levolt was a 
lefeience of the matumonial system to the will of the paities 
rather than to the operation of statutes as law, but Dumoulin did 
not carry that reference far, for the custom under which the 
parties marned was the only index uf their will on which he 
relied, so that for their immovables, wherever situate, he imposed 
on thorn in the absence of express contract the dispositions of tl e 
lex domicilii as rigidly as the older view r imposed on them those 
of the lex ntm Savigny practically agreed with Dumoulin, 
though until great dialectical refinement he declined to assert 
implied 01 tacit contract m the matter, and described the exten- 
tion of the lex domicilii as produced by voluntaiy submission to 
it, coupled with the improbability that the parties intended to 
make the arrangement of their pioperty depend on the situation 
of the several parts composing it * For those who adopted this 
modification of the older doctune without carrying it further, 
the unity of the matrimonial system for movables and immov- 
ables came to be a principle, but it was a unity still on the wdiole 
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 matumonial system of property 
was changed wuth it It m thus that we have seen (above, p 27) 
the Italian code placing family relations along with status and 
capacity 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 fhe national law of the 
husband 


* Syst § 379 Guthrie 293 



MARRIAGE 


71 


But other jurists, especially m France, have carried fuither 
the principle of iespect for the will of the parties which lay at 
the bottom of Dumoulm’s innovation They are prepared to 
aw ept 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 mobiha sequuntui per- 
sonam , not as subjecting movables to the personal statute taking 
effect as law r , but as grouping at the ownei’s domicile goods which 
equally with immovables have a local situation, but of which the 
real local situation is too uncertain and liable to vaiy to be taken 
into account Fiom this point of view the adoption of 
nationality instead of domicile as a basis of status and capacity 
does not lead to a similar tiansfei 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 dnection Thus the Institute of 
International Law adopted at Lausanne in 1888 the resolution 
that d defaut tVun contiat de manage, la lot du domicile matri- 
monial — ( ’est-d-dne du piemier etabhssement des epoui — reqit 
les droits patnmoniaiLV des epoujr, s’ll rVappert par de s circon- 
sxances on des faits V intention tontiaire des patties * To judge 
this pioperly it must be noticed that the Institute had already, 
at Oxfoid m 1880, voted that Vetat et la capaute d’une pet sonne 
sont leqis par les lots de Vetat auquel elle appat tient par sa 
national! te t And thus Suiville and Aithuys, aftei laying dowrn 
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 wheie everything turns on facts md their appreciation, 
sum up as follows the practice of the Fiencli Courts Telle est la 
settle vraie dot time Elle est s nine ties tjeneralevnent par notie 
jurisprudent e ftan^aise qui applique , s uirant les rirt onstantes, 
tantot la loi rationale des epous', tantdt telle du domicile matri- 
monial, voire meme cVautres lois Ses arrets , qui au premier 
abord paiaissent ineonciliables, sont au tontraire des plus 
concordants si Von admet la doctrine de la convention taute dans 
toute son aripleur And they answer the objection, founded on 
the marriage of minors, to the notion of a free convention of the 


> 

*1.0 Annuaire 78, Tableau G^n^ral 43 
f 5 Annuaire 57, Tableau <3r4n6ral 34 



72 


PRIVATE INTERNATIONAL LAW 


parties by citing the maxim Habibs ad nujrtias, habilis ad facta 
nuptialia * 

§ 35 The law of the matrimonial domicile regulates the rights 
of the husband and wife to immovable property, whether m 
England or abioad, belonging to either of them, at least where 
that law by its mles of private international law holds the 
matumonial system of property to be indivisible 

This statement is substituted for that in the last edition m view of the 
decision of Be Nicols v Curlier (below, p 74), which has not been doubted 
for over 20 years r 

§ 36 In the absence of expiess contract, the law of the matri- 
monial domicile regulates the rights of the husband and wife m 
the movable property belonging to eitliei of them at the time of 
the mamage, oi acquired by either of them dm mg the marriage 
By the matrimonial domicile is to be understood that of the 
husband at the date of the mamage, with a possible exception m 
favour of any other which may have been acquned immediately 
after the marriage, in pursuance of an agreement to that effect 
made befoie it 

With regard to the scope suggested in the last pait of § 36 for the term 
“ matrimonial domicile,” Vaughan Williams, L J , quoting it from previous 
editions of this book m Be Martin , Loustalan v Loustalan , [1900] P 239, 
held that the agreement as to domicile must be express m older to have 
any effect on the property Certainly those who regard the lea' domicilii as 
governing the matrimonial system for movables by its own force, m the 
chaiaoter of the personal statute, can find that statute only in the law of 
the husband’s actual domicile at the date of the marnage But those who 
accept the doctrine of the tacit convention, above explained, must find it 
m 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 to'u 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, § 350 

§ 3 6a Suppose that duiing the mamage the husband changes 
the domicile of himself and Ins wife Those who adheie firmly 
to the viei\ that the ler domicilii enters into the matrimonial 
system of piopeity by its own force, in the character of the per- 
sonal statute, are likely, though perhaps not obliged, <to hold that 
the law of the new domicile will thenceforward take the place of 

* Cours 616mentkre de Droit International Priv£, § 372, 2« Edition, pp 397 — 398 
See too the section on the matrimonial system o f property where there has not 
been an express contract, in Weiss’s Traits th^onque ^t pratique de Droit Inter- 
national Priv6, tome 3*ne, pp 547— < 561 



MARRIAGE 


73 


the matrimonial one m governing the relations of the parties m 
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 foi which he does not need her assent, and, 
as Savigny points out, the wife who has manied withutit an 
express contract “ has accepted the conjugal rights as fixed by 
the law of the domicile, and naturally has leckoned on its 
perpetual continuance ”* 

The principle that the law of the matrimonial domicile is not ousted by 
a change of domicile duung the marriage has been adopted m the Married 
Women’s Property Scotland Act (1881), st 44 & 45 Viet c 21, of which 
s 1, Nos (1) and (5), are as follows “ (1) Wheie a mainage is contracted 
aftei the passing of this Act, and the husband shall at the time of the 
marriage have his domicile in Scotland, the whole movable oi personal 
estate of the wife, whethei acquned before or duung the marnage, shall uy 
operation of law be vested m the wife as her separate estates, and shall not 
be subject to the jus manti (5) Nothing heiem contained shall exclude or 
abridge the power of settlement by antenuptial contract of marriage ” 

Sawei v Shute (1792), 1 An^ti 63, Court of Exchequei This is perhaps 
the case referred to by Lord Loughborough in Campbell v French (1797), 
3 Yes 323, and supposed by him to have been decided by Loid Thurlow 
Lues v Smith (1822), Jacob 544, Plumer , MiCormich v Garnett (1854), 5 
D M G 278, Knight-Biuce and Turner, T)e Serve v Clarke (1874), L R 
18 Eq 587, Malms No change of domicile was in question in any of these 
cases, but in Watts v Shnmpton (1855), 21 Beav 97, Romilly, a British 
subject domiciled in France marned an Englishwoman m the Butish ambas- 
sador’s chapel at Pans, and aftei wards became naturalized as a Frenchman 
The discussion arose about money to which the wife became entitled after 
such natuialization, and which was not comprised in an agreement which 
had been enteied into on the marriage Therefore a change of the personal 
law wes m 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 reg ilated the rights of the husband and wife at the time of the 
marriage , that, consequently, pioperty coming to the wife subsequently 
must be dealt with according to the English law by the courts in this 
countiy, which have a dominion ovei the fund, although the husband is 
now a domiciled Fienchman ” The last expression should have been “ a 
naturalized Fienchman,” and on the whole, whatever weight may be allowed 
to the dominion ovei 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 m respect of 
property, despite any qhange of domicile, during marriage 
was decisively Lid down m De N tools v Curlier, [1898] 1 Ch 


Syst f 379, Guthrie 294 



74 


PRIVATE INTERNATIONAL LAW 


403, Kekewieli, reversed, [1898] 2 Cli 60, by Lindley, Rigby 
and Collins, icveisal icveised, [1900] A C 21,* by Halsbury, 
Macnagliten, Moms, Sliand and Brampton The consorts, both 
French by nationality and domicile, weie niamed in Fiance 
without expiess contiact, and theiefoie under the system of 
( ommunity The\ lemoved to England, wheie the husband 
was naturalized, and wheie they amassed by then industry a 
laige foitune, of whidi a part was invested m English fieeholds 
and leaseholds and a part lemained m money and securities. 
The husband having died, leaving a will by which he had dis- 
posed of the whole as though he wd e sole ownei, the widow 
claimed hei shaie as of a community, and the House of Lords 
decided unanimously in hei fa’voui as to the personal chattels, 
which .done were before it Tlie evidence was that by Flench 
law the marriage placed the pa i ties in the same position as if 
they had entered into an expiess contiact to the effect of the 
Aits 1401 to 1496 of the Code Civil, and on this their lordships 
held that there was between them a contiact cieated by law, 
from wdiioli the husband could not fiee himself by a change of 
domicile The (Joint of Appeal had held, unwillingly, that in 
a Scotch case of Jjfishlry v Hog, 4 Paton 581, 1 Robertson Sc 
Ap Ca 4, Lords Eldon and Rosslyn had decided that the pro- 
prietary relations beh\een husband and wife changed with the 
domicile, but the House of Loids arrived at the conclusion that 
that case turned on testamentary and not on matrimonial law 
It is evident that there was nothing to diffeientiate the case 
under decision from the general one There could be no argu- 
ment to show' that by French law' a contiact w r as made between 
the parties which would not equally apply in any countrv, and 
it must therefore be nc w treated as a geneial rule of the private 
international law T practised m England that a change of domicile 
after the matrimonial domicile has been once established — or, by 
parity of leason, a postnuptial change of nationality — will not 
affect the matrimonial system of property 

The case of T)e Nuols v Curlier came again before Keke- 
wuch, J , for a determinahon as to the English freeholds and 
leaseholds [1900] 2 Oh 410 On these the point put m argu- 
ment ior the widow T , that they represented the investment of the 
money acquired during the mainage, wdnch the House of Lords 
had practically declared to have been subject to community, 
would have been amply sufficient to support a decision 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 favoui on the 
ground that immovables, wherevei situate, were within the scope 
of the conti act made for the paities by the French code, the 
Avoids of which — compnsing m the community immovables 
acquired duung the marnage otheiwise than by succession or 
donation — he said appeared to be wide enough to include them, 
and winch the exjieit evidence declaied that they did include 
Now theie is no expiess mention of foieign immovables in the 
hiench code, and whether they aie to be consideied as tacitly 
liu luded by it was indeed a matter foi expeit evident e, but not 
as a point of so-called internal French law, only as a point of the 
international law leceived in Fiance Taking the Fiench 
international doetnne to be that the matiimonial system of 
pi opei ty ought to be indivisible, and theiefore independent of 
the situation of the objects comprised, it becomes a pait of 
French law — not of the so-called internal law of France, but of 
French law as a whole — that persons who on then marriage 
tacitly contract under and by reference to it include foieign 
immovables in then (ontrict The law of the countiy wheie 
these aie situate may prevent that contract fiorn being carried 
i T1 to effect, but Kekewich, J , held that no such difficulty arose 
in the case before linn from the Statute of Frauds, because com- 
munity is partnership, to which it is settled that the require- 
ment of a wilting in older to confer an interest m 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 paities at the date of the mariiage to enter 
into the community, really adopt Dumoulm’s doetnne that the 
law of the matrimonial domicile (01 matrimonial nationality, as 
the case may be) extends bv tacit contract a> foieign immovables, 
if not m eveiy case, at least whenever the matrimonial domicile 
or nationality is m or of a countiy in which the matrimonial 
system of property is held to be indivisible as a matter of pi ivate 
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 system of p^opertv generally coincides 
best with the wishes of persons who, by not entering into an 
express contract, show that they do not desne complicated or 
unusual arrangements * 

__________ • TJ * “ ' 

* The principle th.*t immovable as well a& movable property of the consorts 
should be regulated by one law is laid down also in the Hague Convention of 
1905, s 2 



76 


PRIVATE INTERNATIONAL LAW 


In Welch v Tennent , [1891] A C 639, Herschell, Watson, Moms, 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 marnage and which she 
and her husband had sold , but the price was not held to represent her 
rights m the estates In Be Martin , Loustalan v Loustalan , [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 befoie 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 Lmdley, M R , dissenting (and 
Jeune, President, m the court below), held that the domicile was always 
French 

If the mainage be accompanied by a settlement or express 
contract relating* to property, we have the following* rules, of 
which § 37 flows from the geneial pimciples of our subject and 
§ 38 fiom the peculiar nature of English conveyancing 

§ 37 The foimal requisites of a mainage settlement oi con- 
tract will generally depend on the law of the place wheie it is 
made, the lev loci actus 

In (i utpratte 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 fmmam dat, mspiciendus est locus actus , non domi- 
cilii, si de solemmhus quantur aut de modo actus , ratio ejus loci habenda 
est ubi celebiatur 

§ 38 But if the marriage settlement or contract relates to 
English land, it cannot operate as a conveyance unless it is m 
proper English foim 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 legaid to the substance of the settlement or con- 
tract, the fiist question will be wdiether the unity of the matri- 
monial relation m its proprietary aspect is regarded by the judge 
as a principle requiring him to lefer the wdiole matter to one law, 
w T hich with the English adherence to domicile can only be that of 
the domicile On this, which w T as the old view at least for 
movables, and m Dumoulm’s doctrine for immovables too, it was 
possible in eailier 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 to say that thece questions are referred 
to the law which is judged from all the circ lmstances of the case 



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 m accoi dance 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 m the first rank of consideritions, 
and declining to treat the law of the matrimonial domicile as the 
exclusive index of that will, the tendency lef erred to may be 
compared with that of the French decisions on the matrimonial 
law of property m the absence of contract (above, p 71) 

It is common for the laws of a countiy to fence marriage con- 
tracts with peculiar safeguards Where these relate to foim, as 
that such conti acts shall be made by notarial act (e g , Art 1394 
of the Code Napoleon), the courts of the country m question may 
say, m the case of a contrac t entered into abroad, either that 
those safeguards must yield to the general rule that the lex loci 
actub 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 m a special contract 
made with relation to property so circumstanced that the courts 
of another countiy 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 m 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 m 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 m England about form. 
Suppose that an Englishwoman marries a man domiciled m a 
country wh?re marriage contracts are required to be made » by 
notarial act, and that her fortune comprises money vested ^n 
English trustees under the trusts of an English will or settle- 
ment She and her friends and their English solicitor naturally 
wish that any disposF ion 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 moie 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 a deed and incorporate it besides m a notarial 
act, sc 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 lex loci actus If m 
England, and it should appeal 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 private inter- 
national law, will the deed lie permitted to operate m England 
when operative force is denied to it by the law of the matri- 
monial domicile, which generally legulates the lights of the 
husband and wife in movable piopeity ? Such cases have long 
been dealt with m this countiy with a strong disposition to give 
effect to the intention of the paities, and with that disregaid of 
the lee loci actu s 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 ( hutten v Vigby (1862), 31 Beav 561, Romilly, wheie the deed 
m English foim 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 conti act previous to marriage, and if on the faith of that contract 
the marriage aftei wards takes place, and if the contract i elates 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 whol'» matter were to be legulated by English law ” 
p 567 This may be compaied with the reference made bj the same judge 
to the circumstance of his court having dominion over the fund, as a ground 
of decision in a case wheie the fund was not comprised m the contract made 
on the mainage Watts v Shnmpton, above, p 73 Probably in both 
cases the dominion over the fund was not meant to be a*i element m the 
choice of the law to apply, but was referred to «.s giving to the court the 
opportunity of acting on its opinion as to the law In Viditz v O’Hagan, 
[1899] 2 Ch 569, Cozens-Hardy, Van Grutten v Digby was followed not- 
withstanding evidence that by the law of the Austrian matrimonial domicile 
the marriage articles acted on by the court were void as not being notarial, 
and, if good, had been effectually annulled by a postnuptiaf notarial act 
T r' He Bankes, Reynolds v Ellis, [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 legai order of succession estab- 
lished by Italian law, it can have no effect at all in Italy ” And conversely, 



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 , Surman v Fitzgerald , [1904] 1 Ch 573, 
Cozens-Hardy, Stirling and Vaughan Williams, founding on various indicia 
of intention In the last case Stirling, L J , differed from his colleagues 
only by holding, m 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 legarding public order It seems to 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 therefoie 
m the only way m 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 m English form made in contemplation of her mainage with a 
Spaniard Be Hernando, Hernando v Sawtell (1884), 27 Ch D 284, 
Pearson Where a domiciled Scotchman marned a domiciled English- 
woman, and settlements weie made by them respectively in Scottish and 
English form, it was held that the parties intended those settlements to be 
governed icspectively by Scottish and English law, and such intention was 
followed Be Mackenzie, Mackenzie v Edwaids-Moss, [1911] 1 Ch 578, 596, 
Swmfen Eady Where an antenuptial contract was made between an 
Englishman, resident m Scotland, and a Scotchwoman, m Scotch form, 
with a piovision that the wife’s fund, aftei hei death, should go to hei 
next-of-km, and after marriage the matrimonial home was moved to 
England and the wife died there, it was held that the intention of the paities 
must be deemed to ascertain the next-of-kin by Scotch law Jjistei' s Judicial 
Factor v Symons, [1914] S C 204 

Where, on the marriage of a husband domiciled in Scotland, and a wife 
domiciled m England, a marriage settlement was made m English form, 
with a provision that the rights of all persons claiming undei it should be 
legulated by English law, and the matrimonial domicile was Scotch, and the 
husband obtained a divorce m 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 propeity Mont- 
gomery v Zaiifi, H L (Finlay, Haldane and Shaw), [1919] L J P C 20 

A marriage settlement made m 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 m England under the doctrine 
of the above cases, a person having a power of appointment under it may 
exercise that pow^i in a way m which he oould not dispose of his propeity 
by the law of his matrmnAiial domicile Fouey v Hordern, [1900] 1 Ch 
492, Farwell , Be Megret, Tweedie v Ttpeedie, [1901] 1 Ch 547, Oozens- 
Hardy See Be Bald, 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 Nun neley v Nut neley, 
[1890] 15 P D 186, Hannen Even although the matrimonial domicile was 
foreign, but that at the time of the divor<?e was English Forsyth v 
Forsyth, [1891] P 363, Jeune 

This is a convenient p’ice for giving an elementary notion of 
interpretation, as prrw te international law is concerned with it 



80 


PRIVATE INTERNATIONAL LAW 


Interpretation is a question of fact Pi%ma facie, the law of the 
place of contract will furnish the most proper clue to the meaning 
of the parties If they have used woids which there are 
technical, or have mentioned coins, weights, or measures which 
under the same name have a diffeient 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 m mind, they most 
likely intended to follow according to the law of the same place, 
or the usages there prevailing Yet these aie hut presumptions, 
and therefore liable to be rebutted if the agreement expressly 
stipulate for a peilormance elsewhere, the usages and technical 
language of the latter place, at least m all that relates to the 
performance, aie more likely to have been piesent to the minds 
of the contractois than those of the place of contract Still more 
will this be the case if the place of perfoimance be m the country 
from which both parties deuve their personal law The Italian 
code, Prelimmaiy Aiticle 9, is certainly right m laying down — 
that the common personal law of the parties will, even without 
the circumstance of a stipulated performance m 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 m England to the law of the matrimonial domicile, 
as being the place m 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 powei to charge, on marriage, an annual sum on land 
in Ireland, and of the execution of that power, the domicile being m Eng- 
land “ If this were the case of a simple charge of £3,000 on lands m 
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 
ai rangements, some like to the provision in question, others different from 
it ” Iddon , Lansdowne v Lansdowne (1820), 2 Bligh 60, 87 A marriage 
contract was made between persons domiciled in Scotland, and an equity 

as 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 thecae Amtruther v Adair (187 i), 2 M & K 613, Brougham 
A marriage settlement construed partly accords ig to English law and partly 
according to Scotch, m obedience to the plain int nt of the settlement itself 



MARRIAGE 


81 


Chambei lam v Napier (1830), 15 Ch D 614, Hall A husband is tiustee 
m England for his wife of piopeity which belongs to hei separately un,der a 
foreign marnage settlement of which there is no tiustee exp ttiheth, Re 
Sibeth (1885), 14 Q B D 417, Biett, Cotton, Lmdley Where there was a 
conflict of opinion among Scotch experts as to the meaning of ceitain 
words m a settlement in Scotch foim, though the matrimonial domicile was 
m Scotland, English canons of construction were applied by the English 
court Re Capel (1914), W N 452, Eve The English lex fon pievailed in 
the absence of any clear indication of the foreign law i 

It is not easy to see how a change of domicile, important as aie the 
questions it raises with legard to the matter of § 36a, can give use to any 
question as to the operation of an express conti act But in Duncan v 
Caiman (1854), 18 Beav 128, Romilly, and (1855), 7 D M G 78, Kmght- 
Bruce and Turner, the matrimonial domicile was Scotch, and it was admitted 
that Scotch law governed Undei the conti act, as operating by that law, the 
wife’s concurrence in a leceipt for a sum of money compnsed m the contiact 
was assumed to be necessary, and, if necessaiy, would ceitainly be effectual 
She concuned m such a leoeipt aftei the domicile had been tiansferred to 
England, by the law of which country hei leceipt would be ineffectual, 
having legaid to the woids of the matiimomal contiact, though by men- 
tioning separate use the contiact might have made her leceipt effectual 
under the law of England It was argued that Scotch law adopts the lule 
of pnvate international law which determines capacity according to the 
actual domicile, that the wife, by the law of hei actual domicile, wanted 
capacity to give a leceipt, and that hei 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 
h. can effectually do , and his capacity, spoken of collectively, is the total of 
his abilities to do diffeient things effectually The matiimomal contiact m 
this case gave the lady a pecuniary benefit, and the question whethei she 
could still icceive it aftei the change of domicile, was identical with the 
question raised about hei capacity , they were not two questions, admitting 
of the former being solved by help of the answer to the latter In Guepiatti 
v Yaumj (see above, p 44), the question of capacity l elated to the making 
of a new agreement 

§ 40 Where the mainage takes place on the faith of an agree- 
ment that the husband shall tiansfei hns domn lie to anotliei 
country, the law of the lattei country imisi he considered as that 
of the matiimomal domicile in what regards an express matri- 
monial contiact as to property 

Collxss v Rector (1875), L R 19 Eq 334, Hall See § 36, above, as to 
the true meaning of matrimonial domicile 

§ 41 If a settlement oi expiess contiad is made on the 
marnage, not comprising* all the movable pioperty of both con- 
sorts, the question whether it excludes any rights which aould 
otherwise arise m the pait not comprised in it will be decide 1 by 
the law of the mariiifionial domicile, ds appro pi iate both to the 
operation of the settleme it oi contract and to the destination of 
the property on which, it' has no opeiation, subject however to 

6 


W I L 



82 


PRIVATE INTERNATIONAL LAW 


the wider refeieiue to the will of the paities now made, as m 
§ 39 

See Watts v Hhiimpton , above, p 73 

§ 42 It is admitted m principle that the succession to either 
consort on death must he separated from the effect of marriage 
on property, and he regulated hy 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 Fouhertv Tuist (1702),' Pre Cha 207, and (1703), 1 Bro P C , 38 fol , 
129 oct , the consorts were in community under an antenuptial oontract, 
except as to a sum of 800 hvres, which was to “ be the proper estate of the 
wife and her heirs of hei pait ” There was also a postnuptial contract, 
which appeals to have been held inoperative The wife predeceasing the 
husband, and without issue, after a lemoval of the domicile from the custom 
of Pans to England, “ hei heirs of her part ” according to the custom were 
of course entitled, by contract, to the 800 hvres , but the husband, as suc- 
cessoi to his wife by the law of England, claimed her share m the community 
as to the lest , while hei relations claimed this also, evidently on the 
ground that the antenuptial contract had been made with the intervention 
of the wife’s mother, who should therefoie be considered as having stipu- 
lated foi them by implication, when she stipulated for the community m 
return for the poition which she gave with her daughter Lord Keeper 
Wright repelled this implication, holding that a contract, which so far as it 
wont coincided with the custom of Pans, must be taken as an adoption of 
the custom But his decree was reversed in the House of Lords, and the 
wife’s share m the community given to the heirs of her part, on their 
counsel pointing out that m certain particulars, collateral to the stipula- 
tion of community, the oontract deviated fiom the custom of Paris, whence 
it was argued that it could not m any part be considered as an adoption of 
it The contract was probably most correctly interpreted by the higher 
court If the antenuptial conti act had been between the husband and wife 
alone, with no particulai leason for implying a stipulation m favour of her 
relations, oi if the paities had married under the custom of Pans without 
express conti act, theie n no leason 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 matnmonial domicile, would have given her on her death In 
Lashley v Hog (1804), 1 Robertson’s Sc Ap Ca 4, Lord Eldon said of 
Foubert v Tuist that “ if there had been no contract tl e law of England 
would have regulated the rights of the husband and wife, who were domi- 
ciliated m England, at the dissolution of the marriage ” This dictum has 
been quoted m favour of the new as against the matrimonial domicile, m 
the question which arises between them on the matter of § 36a but it is 
not liKel} that Loid Eldon meant anything of that kind See above, p 74, 
and Tie Ciaigm&h, Craignish v Hewitt, [1892] 3 Ch 180 In Be Hernando , 
riernando v Sautell (1884), ?7 Ch D 284, Pear^m, a question again arose 
as to the rights of succession, having regard to the terms of the marriage 
settlement See too Montgomery v Zanfi, tbove, p 79 


* See Savigny, syst § 879, Guthne, 247 



MARRIAGE 


83 


Divorce . 

Two cau&es affecting tlie tie of marriage, jactitation of 
marriage and nullity of marnage, and two affecting the personal 
relations of the paities during the continuance of that tie, divorce 
a mensa et toro and restitution of conjugal rights, were ancient 
subjects of ecclesiastical junsdiction That is to say, the juris- 
diction m them was exercised by the courts of bishops who 
acknowledged each othei, and were acknowledged by the secular 
power m then 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 couits by mles of competence as authontative 
as those which the law of England lays down for the competence 
of different county couits 01 the law of France for that of the 
tnbunals of fust instance As long as this state of things con- 
tinued, and between countnes in which it continued, no question 
similar to those of private international law could anse about the 
causes m question But m consequence of the reformation, the 
English bishops ceased io be officers of the same church with the 
continental bishops, an appeal from then couits to the crown 
was substituted foi one to the pope, and divoice a unculo , which 
the church did not giant at all, came to be granted by private 
act of parliament, but with a regularity m the procedure for 
obtaining it which m the opinion of the best autlioiities caused 
it to lank among legal remedies And by the “act to amend 
the law relating to divorce and matrimonial causes m England,” 
st 20 & 21 Yict c 85, which came into opeiation m 1858, the 
episcopal jurisdiction m the matrimonial causes which had 
belonged to it was tiansfened 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 tiansferred fiom parliament to a 
regular court In thp meantime, the refoimation in Scotland 
had led at a much earlier date to the transfer of the episcopal 
jurisdiction m matrimonial causes to the ciown, and the estab- 
lishment of judicial procedure for divorce a vinculo , and changes 
more or less 1 similar have taken place at different times almost 
throughout the civilized world Henc^e matrimonial causes* now 
afford as prolific a field as anv other for the questions of law 
and jurisdiction J which constitute private international law. 
Among those questions it will be convenient to take first those 



84 


PRIVATE INTERNATIONAL LAW 


relating to jurisdiction, and, last, that of the cause foi which a 
divorce will be granted 

The act of 1857 is silent as to the conditions of competence in 
the matter whnh had previously been of pailiamentaiy cogni- 
zance, divoice, by which tenn I shall intend divoice a vinculo 
where it is not otherwise expiessed On the appeal m Niboyet v 
Niboyet (1878), 4 P D 1, it was held by James and Cotton, 
L JJ , against Biett, L J , that those conditions must be taken 
from the ecclesiastical rules relating to suits foi di voice a mensa 
et toro which had been sijbject to such niles But after a penod 
of uncei tamty the opinion that divorce a vinculo , udiicli affects 
status, is so different fiom the old ecclesiastical divoice a mensa 
et toroy which was adnunisteied foi 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 iules on the soundest principles, tnumphed 
m Lc Mesunei v Le Mesuitei , [1895] A 0 517, an appeal fiom 
Ceylon m which the judgment of the judicial committee was 
given by Lord Watson Dui mg the intei veiling penod theie 
was no doubt, as theie is none now T , that 

§ 43 The place where the mamage was conti acted is of n^ 
importance with legard to the authonty of the English court to 
grant a divorce 

And to this it may be added that theie is equally no doubt that 
the authonty of the English couit to giant a divoice is indepen- 
dent of the place wheie the adulteiy w 7 as committed, oi, if the 
husband is respondent, where the adultery and cruelty oi desei- 
tion were committed, independent also of the domicile of the 
paities at the time of then mamage, if that was difteient fiom 
then domicile at the ame of the suit 

But on the wdiole the decisions led to a doctime that a di voice 
w r ill be gi anted m England when the husband, being either 
petitioner oi respondent, is eithei domiciled in England (§ 44), 
or lesulent theie, not on a visit or as a tiaveller, 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 m England 
when, and only when, the parties weie domiciled within the 
, uiisdiction of that couit at the time of the suit m it (§ 50) 
This difference between the conditions foi granting a divorce and 
those for recognizing the validity of a foreign one, the former 
allowing the local English dissolution oi a mairiage which m 



MARRIAGE 


85 


view of tlie latter we could not expect to see treated abroad as 
having been dissolved, was veiy regrettable But while it was 
inevitable so long as divoice a vinculo was assimilated to that 
a mens>a et toio, it was countenanced by certain Scotch decisions 
which upheld for the foimei a foundation in lesulence falling 
shoit of domicile, and descubed such lesidence as a matrimonial 
domicile distinct fiom one foi succession, a use of tli*e term 
“ matiimonial domicile ” which must not be confounded with its 
commonei employment to expiess the true domicile at the time 
01 established on the occasion of maniige (§ 86) The doctime 
in question was however dispelled by Le Mesunei v Le Mebunei , 
the judgment in which put the mattei, wliether as English, 
Scotch 01 mtei national, on a single and reasonable footing The 
pnnciple has been lecently affumed m a most emphatic and 
embaiiassing fashion bv the decision m Keyes v Keyes and 
( rtay , [1921] P 205, Duke, wlieie it was held that the couit 
in India set up by statute to tiv matiimonial causes had no juris- 
diction to deciee a dissolution of marnage between parties not 
domiciled in India, though the marnage w T as celebiated and the 
parties w r ere resident in India and the act of adulter v w r as com- 
mitted within the jurisdiction of the couit The Indian 
Councils Act, 1861, allows the (lover noi -General rn Council to 
make laws and regulations, and flip Indian Divorce Act, I860, 
purported to permit an Indian couit to grant di voice to a person 
piofessmg the Christian religion and residing in India But 
the couit held that the statute of 1861 could not, m the light of 
jmnciples enunciated latei, empowei the Governoi -General to 
legislate foi Butish subjects meielv resident m India so as to 
affect then status as to mainage in the country of their domicile 

The following extiacts fiom the judgment in the Le Menniei 
case state the principles of the law r , and are substituted for the 
§§ m earlier editions 

§§ 44, 45, 50 “When carefully examined, neither the 

English nor tlie Scottish decisions aie in then loidslnps’ opinion 
sufficient to establish the proposition that, m either of those 
countries, theie exists a lecogmzed rule of general law to the 
effect that a so-called rule of matrimonial domrcile gives jurisdic- 
tion to dissolve marriage Their lordships have come 

to the conclusion Jhat, according to international law, the ciOi^. 
cile for the time being of the mamed pair affords the onlv true 
test of junsdicnon tc dissolve their marnage They concur 
without reservation in the view's exjnessed by Lord Penzance m 



86 


PRIVATE INTERNATIONAL LAW 


Wilson v Wilson ,* wlucli were obviously meant to refer, not to 
questions arising m legard to the mutual lights of mained 
persons, but to jurisdiction m the matter of divorce ‘ It is the 
strong inclination of my own opinion that the only fair and satis- 
factory lule to adopt on this matter of jurisdiction is to insist 
upon the parties in all cases referring then matrimonial 
differences to the courts of the country m which they are 
domiciled Different communities have different views and laws 
respecting matrimonial obligations, and a diffeient estimate of 
the causes which should justify divorce It is both just and 
reasonable theiefore that the differences of married people should 
be adjusted m 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 adheience to this prin- 
ciple, moreover, will preclude the scandal which arises when a 
man and woman are held to be man and wufe in one country and 
strangeis m anothei ’ ”i Of couise, it will be understood that, 
m thus referring to domicile, both Loid Penzance and Lord 
Watson intend to lefer to the personal jurisdiction over the 
parties, as governing their status, wdnch divorce affects The 
English court wall claim 01 disclaim authority to divorce the 
parties on the ground of their domicile being or not being 
English, and on no other giound, but, whatever may be their 
domicile, it must recognize then divorce jrronounced bv a juris- 
diction which claimed authority over them on the ground of then 
nationality And it will recognize a divorce pronounced by a 
juiisdiction to which the parties w T eie not personally subject, if 
it would be held valid m the count ly to wdnch the husband was 
personally subject at the time of the proceedings bv domicile, 01 
by nationality if that 1 , there taken as the giound of subjection 
Armitaqe v Att - Gen , Gilhg v Gilhg, [1906] P 135, Gorell 
Barnes 

The English court will not, however, recognize a divorce 
granted by a Moslem husband m India to an English wife 


*1872, L R , 2 P & M 435, at r> 442 In Manning v Manning (1871), L R , 
2 P & M 223, p 228, Lord Penzance had said “ When the case has been 
reversed and when thp courts of this countiy have had to consider how far persons 
who are domiciled Englishmen shall be bound b\ the decree of a foreign matri- 
mn>' court, the strong tendency has been to repudiate the power of the foreign 
court under such cncumstinces t& dissolve an English m rriage It would be 
unfortunate if an opposite course should he followed by the courts of this country, 
when they are determining to what extent they w U entertain the matrimonial 
suits of foreigners ” 

f Le Mesurier v Le Mesurier , per Lord Watson, [1895] A C , at pp 536, 540 



MARRIAGE 


87 


married m England, though the divoice might be valid m the 
Moslem community of India to which the husband belongs, 
Ex parte , Mir Anwareddin [1917] l K 11 , 882, Court of Appeal 
(Swinfen-Eady, Bankes, Lawience, A T , affiiming Reading, 
C J , Bailing, Bray, J J 

In that case a Moslem native of India, domiciled there, married an 
Englishwoman at an English registry office Latei he separated f?om his 
wife and returned to India, wheie 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 accoi dance with Moslem law sent his wife a bill of 
divorcement, purporting to dissolve the manage Later, on his return to 
England, he petitioned for a divorce, which was refused on the ground that he 
v a 1 * not domiciled in England Thereupon he applied to an English 
registrar foi a licence to many again , and this was refused on the ground 
that there was a lawful impediment to the mainage 

The Divisional Court and the Court of Appeal, upholding the registrar’s 
decision, held that there was neither principle nor authonty 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 leligion without the decree of a 
court of law An Englishwoman acquires by mamage 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 oi become subject to his special leligious system of 
law If the Moslem husband had obtained a divoice fiom a couit m India, 
the English couit, on the authority of Attonneij-Geneml v Armitage , 
would have recognized the deciee and treated the main age as dissolved 
But the court in India can only grant a divoice when the two paities belong 
to the same religion , and heie no deciee was applied for 

It was suggested obiter by Lord Watson in Skinner v Skin net (25 I A , 
p 43), that a Moslem husband who desires to di/oice his wife can do so by 
Moslem law But such a divorce, howevei good in a Moslem country, will 
not be lecognized in an English couit as a dissolution of a mamage with a 
woman who has mamed m England with an implied understanding that she 
will be a sole and permanent wife and not just a wife at hei husband’s 
pleasure 

The respondent m a divoice suit does not give jurisdiction to 
a court by appealing hefoie it without piotest and absolutely 
And if the divoiee would not have been recognised in the countiy 
of the husband’s domicile, the English court will annul the 
second mamage by ,the divorced wife on a petition of the 
husband, he being a domiciled Dntish 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 aduiteiy committed abroad, and the husband, who was the 
petitioner, had acquired an English domicile only after the adultery, aim 
does not apjieai that the wife had ever been m England It theiefore 
decides for England, as Waryender v Wai lendei, 2 Cl & I' 488, decided for 
Scotland, the possibility o^icmndmg junsdiction m divorce against the wife 
on a domicile imputed to ner by a mle of law 



88 


PRIVATE INTERNATIONAL LAW 


When the law under which a divoice has been pi enounced prohibits the 
mairiage of either paity within a given time, then mainage is not fully 
dissolved till the expnation of that time Waitei v TLc/iffo (1890), 15 P 
152, ilannen It might bo put that then incapacity to lemany within the 
times adheies to them in othei junsdictions as a pait of their status But 
wheie the lemarnage of the guilty paity only is lestucted, the incapacity so 
created is penal, and will not follow that paity to England S(ott v Att - 
Gen (1^86), 11 P D 128, Hannen , decision explained m TT T u/ tei v Waiter 

§ 46 But to the doc time that “the [English] couit does 
not now pionouiue «i decree of dissolution where the parties 
aie not domic lied in tins country,” it must be added “except 
m fa\oui of a wife* deserted by her husband, or whose husband 
has so conducted himself towards her that she is justified m 
living apait from him, and who, up to the time when she was 
deseited or began so to be justified, was domiciled with her 
husband m this counti\ ”, Goiell Baines, J , in At mgtage v 
Ai in iftaijc, [1898] P D 178, at j> 185 He proceeded to say 
that in t lie < ase described, “without necessniilv lesoitmg to 
the American doctrine that in sue li c licninstanc es a wife may 
acquire a domicile of liei own in 1 lie countn of tlie matn- 
monml home, it is considered that, m order to meet the injus- 
tice which might be done by compelling ,i wife to follow' lie’ 
husband from country to country, he cannot be allowed to 
assert foi the pm poses of the suit that lie has ceased to be 
domiciled in this countn ” And see his lemaiks m Bater v 
Batei, [1906] P 216, and m Ogden v Ogden, [1908] P 78 

The rule has been adojrted, and indeed extended, in later 
cases (Stathato s \ Stathnlos [1919] P 16, Deane, and De 
Wontanju y De 1 fontanju [1919] P 15-1, Evans') In the 
for men < aso it was said “In jnopei circumstances the 4 court 
here ought to assume jurisdiction m a wife's suit foi divorce 
by treating* hei as haying a domicile of her own suthnent to 
support such suit ” The wife was dominled in England at 
the time of hei mainage with a foieignei He obtained a 
dociee of nullity in the foieign domicile which deluured her 
from suing foi any relief 8he leveitcd then to hei English 
domicile, and the couit gi anted her a decree of dissolution 

The giant of divorce to an Englishwoman maiiied to a domiciled 
foreigner is in pnnciple questionable 

T* 1 INLiti imonial Causes Bill mtioduced into the House of Loids m 
1920 to give effect to the lecom nendations of the Roy 1 Commission, which 
befoie the wai le roited on the amendment of the law of divorce, juoposed to 
give autliontv to the limited exception m sectn n 5 as f 'llows 

5 The jurisdiction of the High Court m divoi e shall be limited to cases 
in which the parties to the man age are domiciled in England and Wales 



MARRIAGE 


89 


Provided that wheie a wife has been deserted by liei husband, or wheie 
hei husband has been depoited fiom the United Kingdom under any law 
foi the time being m foice 1 elating to the defoliation of aliens, and was 
immediately befoie the deseition 01 depot tation domiciled m England 01 
Wales, hei domicile shall foi the puiposes of this Act be titated as the same 
as it was immediately befoie the deseition 01 deputation 

The same exception was confidently suggested b\ Biett, 1 1 J , in Nd>o\/tt 
v Niboijet (1878), 4 P D , at p 14 — befoie L( Mfsunn v Le Mqsunei, 
it is tiue, but while contending against his colleague's foi the e\elusi\e 
authority of the domicile wlucli the lattei case established As to the oldei 
authoutics, a divoice was gi anted to tlu wife undei the c n c must ancts stated 
in the exception, but on the giound of hei political nationality being 
Bntish Dak v Dak (1860), 2 S A T 90, Cflpsswell, Mailin, Willes, who 
on the same day thiew fuithei doubt on the applicability of The A, v Dak foi 
tins pm pose by saying th it Bond v Bond, 2 S A T 93, was the same case 
with it m substance, ^though tlu point of the wile alone 1 being domiciled oi 
lesident in England did not tlieie anse And in Santo Tuntoio v Santo 
Tfodoiu (1876), 5 P 1) 79, Phillimou', wheie the domicile was foieign 
thioughoul, a di\<nce was gi anted to a wile who (ontinueel to leside m 
England though the husband had left it When Ihe wife came to leside in 
England only aftei hei deseition it was infused Le Sunn v L( Sunn 
(1876), 1 T D 139, Phillnnoie 

^ 46c/ Whole a mama£e is hold good m England but is not 
lecognized in the husband’s < ountiy, so that tbo wife cannot 
eheie obtain a divouo, a ease which mav easily happen when a 
foieignei goes tliiough the ceiemony of mamage with an 
Englishwoman m England, it the dependence of capacity foi 
mamage on the peisonal law is not lieic* iecogm/ed, “it would 
seem leasonahle to })ennit hei to sue [in England] foi the 
dissolution of the tie wdne li is lecognized tlieiem, m case 

she has gi minds of suit which would entitle hei to a dixoice if 
hei husband had been domiciled in hei countiv” Sn (foiell 
Baines (Lend Goiell) m Ogden v Ogden, [1908] P 84 

§ 46b “ The pinsdic tion of the eouit 8vei the ro-iespondent , 
both as to damages and costs, m a suit piopeilv instituted lic'io, 

does not depend on domicile, allegiance oi lesidence If a 
foieign eo-iespondent is seixed in England, this eouit lias foi 
Unit ieason ] unsdictmn oser him He can be seixed abioad, 
whatever his nationality, and if he is seiveel abroad the statute 
autlioiizing such seixuce gix^es to this #jourt junsdiction ox r er him 
Tn propel cases this eouit mav exeicise disnetionaiy powei, and 
dismiss oi dispense with a co-iespondent domiciled abioad, but 
lie is not entitled fo demand as of nglij that be be dismissed lio.fi 
the suit ” Sn Samuel Exans, m Rinjment x Rayment and 
Stuait and Chapman ' Chapman and Bunt, [1910] V 271, at 
p 292 Appioved m Rmh v Rit^Ji and Pimenta (Duke, P , 



90 


PRIVATE INTERNATIONAL LAW 


alfiimed b\ V A , Sleindale, M B See, too, Phillips s v 
Jiatho [1914] 1 Iv B 25, Nciulton, where damages gianted by an 
Indian eouit against a corespondent, tliough lie was out ot the 
junsdie iion, wcie lield to l>e leemcrable m England in an action 
on the Indian judgment In eailiei cases it was held that the 
(ouit lieie had no juiisdictiem o\ei a corespondent domiciled 
alnoae 1 , and the petitioner should pioceed without citing him 
h(\\f v Ac / y and l)e Romanic [1908] P 25G Boijn v Bopn, 
Il> 400 But the latei dec lsions indicate a stead tendency o± the 
eouit to widen its juiisdietion ovei ancillaiy matteis w litre the 
pnncipal paities aie subject to it 

$ 47 If the niattei be considered on the giound of social 
latliei than of legal pnnciple, a doubt mav be suggested whether 
it is necessaiv to identify the jurisdiction foi judicial sepaiation 
with that foi divoice The foimer deciee leaves the paities man 
and wnfe, but gives to the mjuied pai t\ a piotection against some 
of the consequences of that status and it mav theiefoie be 
leasonable to allow its benefit to be en]o\ed within the temtorv 
by those who aie lesident in it, even though the remit of then 
rountiv oi domicile should alone be held competent to dissolve 
the* tic* ot maiiiag-e between (hem In sa\mg this which \\a i 
cited with appmxal b\ ({moll Baines, I , in A/nn/taip v Anny- 
tai /( , [1898] P D 178, at p 191 I was led to loseive 
the question of legal pnnciple owing to Biett, L I , m V dxnp l 
\ Yibm/ct , holding that the cxclusne lule ot domicile* apjdies 
to the c out t 's “ pow er to giant anv lelief w hie h alter s m any way 
that lelation between the paities which anses b\ law fiom then 
m, image It applies theiefoie/’ he said, ‘ as P seems to me, to 
suits foi judicial sepaiation and to suits foi the lestitution of 
conjugal lights I d not think it does apjdv to suits foi a 
decJaiafion of nullity of oi m inspect of 'jactitation of 

mainage”, 4 P I) 19 But the judicial committee, per Lord 
Watson, in Lc Mcsintft v Lc 1/e s// nr/ , adopted the otliei view 
They said “ Tlieie aie unquestionably othei iemcdies foi matn- 
monial misconduct, shoit of dissolution, which acc*oidmg to the 
mbs of the ///s ipntnnn may he administered b\ the c emits of the 
country in which spouses, domiciled elsewheie, aie foi the time 
resident If foi instance a husband descuts Ins wRe, although 
tb'' . lesnlcnce be of ,i tempoiaiy cdiaiactei, these comts mav 
compel him to aliment her , and in cases wdicre the* icsidence is of 
a moie peimanent chaiactei, and the 1 usbane 1 tleats his wife 
with such a clegiee of eiuelty as to render hei continuance in 



MARRIAGE 


91 


his society mtoleiable, the weight ot opinion among intei national 
jurists and the geneial pidctue is to the effect that t lie eouits of 
the icsidem e aie waiianted in giving the xeniedy of judnial 
sepaiation, without lefeieiue to the domicile of the paities ” 
Tins was acted on m Annytayi \ Aimytaqe , and again in 
Anqhmelh v Anqhmelh [1918] P 247, G A , Swinfen Eddy, 
M It , Duke, Waningtoii, and must now' he eonsideied ai he 
the law' of the English eouit In the lattei case the husband ’s 
domicile was m Italy, but both paities at the commencement ot 
the suit weie lesident m England and the wife before mamage 
w r as domiciled m England The eouit gianted a deciee of 
sepaiation, and distinguished the rase fiom one of divoice, on the 
giound that it was not deal that a deciee of judicial sepaiation 
affected status 

See also (Jhustmn v ('hnstuni, r 1897] 78 L T 86, Jiune, and liieia v 
liieni, [1914] 112 L T 223, Diane 

§ 4<S The English eouit has junsdution to deciee lestitution 
of conjugal lights wlieie both jiaities aie lesident m England 
at the time of the commencement of the action 

As to the question whethei domicile is necessary to found the 
junsdution, theie is an agi cement to tieat this mattei on the 
same footing as judicial ^ejiaiation In Xihoyet v \ihoy(t , 
Biett, L J , jMialleled both with divoice (abene, ^ IT), in ],e 
Mcsin let v Tx Misuari neithei is distinctly mentioned by Loid 
Watson, and m Aimytaqe v 1 nnyiaqe, (Joiell Dames, J , 
thougli the case befoie him was one of judic lal sepaiation, showed 
In Ins leasonmg that he held lestitution of conjugal lights to be 
also cognizable on the giound of meio lesulence ([1898] P , at 
j)j) 192, 194) And so the same judge held in Du l s \ Did s, 
[1(899] P 275, and Bateman \ Bateman , [1901] P lit), and he 
w\is followed by Evans, P , m Benin v Pnnn [1911] P 13o 

The oldei cases to tho same effect — Nation v Ntuton (1885), 11 P D 11, 
Ilannen, and Thai lion v Thornton (1886), IIP D 176, Cotton, Bowen and 
Fiy, affirming Butt — aie su i]cct to the lemailv that divoice was then In Id, on 
the authonty of Xihoyd v Nihnyet, to lx cognizable on the giound of mere 
lesidence 

Foi the othei point comprised m § 48, namely, that the lesidence of one 
jiarty only will not be sufficient to found the jurisdiction, theie is Fiuhraie 
v Fnebtucc (1878), 4 P D 63, Hannen, wheie “the difficulty, amounting 
m most (ases to an impossibility of enfoiemg the deciee of the emm 
against a lespondent neithei domiciled noi lesident m the countic, was 
refill led to as a leason foi not claiming jiuisdiction ovei a husband who had 
failed in lendeung conjugal Ji^hts to his wife while he was heie Neverthe- 
less, if a wife who has been deseited m England icmains theie, it would 



92 


PRIVATE INTERNATIONAL LAW 


si em that she may hung h< i suit foi lestitution of conjugal lights on the 
gionnd of he i own lesidence, on the pnnciple of the exceptions to the stuct 
luloof jm isdi< I ion m §£5 46, 46n and 47 Baft man y Bateman, u s , would 
be an authouly f<n this if it weie deal that the husband in that ease had 
(hanged lie domiule, and the doctiim is not opposed to Ydinton v 
\ihnltm (1859), 1 S A T 574, ( usswell, while it was held that a wife 
cannot obtain a dam of nstitution, tin husband being neitliei domiciled 
mu lesnhnt in fin countiy, notwithstanding lie t having tstablished a 
icsidehce in it since his d( su turn of In l 

Whin mitliii paity has had a lesiduue oi domicile m England, it is 
cleai that nodeuie toi lestitution will hi gianted by the English Couit fie 
(lasqiut fault s v Mi dJenhuuj, [1914] P 53, Evans 

In the i isi ot l^iiui \ l*t) mi, u s , Evans, P , laid down the following 
mles of piac tice as to suv ice - 

“ In <i suit toi itstit ulion ol ion jugal lights when it is stated in the jut it ion 
oithei that the paities to the suit weie domiciled m England at the time of 
the institution tin not , oi that the\ had a matumomal home m England at 
the dati whin thin cohabitation uased, oi that tliev weie both lcsident in 
England it the turn of the institution of the suit, the petition and citatum 
may be si 1 v ed eitln i within m wilhout his M iji sty ’s Dominions 

I When a suit fm lestitution of (oii|Ugal lights has been dulv lnstitutecl, 
and a dune is made tluicin, such diene mav be seived citliei within oi 
without his Majesty s Dominions ” 

In any lutthei jnoceeilings aiming out ot a lion-i omphaiue with the 
deuce, the petitiomi must satisfy tin couit that the lispondcnt has been 
si ived tin lewifli at a jdace fiom wliuh he could icasomihly have ic tinned to 
his wite within the ju nod n mu il in tin dune Baft man v Batumi , 

1 1901 1 P 136, (Dm 11 Baines, see also finks v fink s, [1899] I* 275, (knell 
Bell ncs 

Substituted su vice of a dioiee foi lestitution was allowed while the 
n sjKunh id’s win n abouts wi le unknown l*ahnn \ Palmu, [1921] W N 
247, llouidge 

^ P) The | it t isdii lion ot the English <ouit m suits tm a 
dei lai ntion of nullity ot iiMiunge, oi m lesput ot jactitation oi 
inamago, is sufh< lenlly foundod by^ (he defendant s being iesi- 
dent in England, not on a visit oi as a tiavtdlei, and not having 
taken up that lesideme foi the pm pose ot the suit 

II ill nuns y fionnu (1851), Fust, and (1852), Dodson, 2 Rnbeitson 505 
“ \ dec tie of nullity of a pietimhd mailing? is quite as much a deuce m 
icm ” [as oiu of diyoicej, “ and has all the ( oust quern es IIow would it 
be possible to make domicile the test of juusdiction in s ch a case? Sup- 
pose the alleged wife weie the complainant, hi i domicile would depend on 
the vi i\ mattoi m contioveisy If she was ically m.nued, hei domicile 
would be the domiule of hei husband, if not maiued, then it would he hei 
own pievious domiule” L«ud Justice James, in A lhaifit y Xiboyet, 4 
P D 9 And sec the quotation fiom Loid dustice Butt in the same case, 
undei § 47 r LTius both suits to the (ontioveisv mentioned on p 90 aie 
agieid as to this § But the alleged yv lie, hung tin difuidant and main- 
taining the m imago, is hound by hei own contention to submit to the 
juusdiction of the petitioners domicile tlndn^fu v fionujal (1822), 1 
Add 5, at p 19, Nuholl In ft abuts \ 7 i>ut>>< i, [1902] P 143, Jcuno, no 
otlui giound appuus foi assuming the juusdiction m a woman’s suit for 



MARRIAGE 


93 


nullity e\cej)t that the parties had lived togethei in England during some 
]>ait of the tune since the celebiation of the disputed mai uage , but it 
was an undefended case 

But in suits foi ,i deelaiation ol nullity of maniage junsdn- 
tion lias also been entei tamed in England on the ground of the 
maniage which is questioned Inning been (ontia< ted heie It is 
questionable, howevei, wlietliei junsdution will an\ longei he 
entei tamed on this giound only l)i (fasqmt fames \ Med- 
lenbtn <j (us) 

Evans, P, lefused a declaiation of the vahditv of a maniage wheie 
neithei paitv had domicile 01 nsidence m England, and he said “ r Ihe nine 
fact tliat t Ik* maniage was cchbiated in England and petitions pin polled 
to ic si do heie at the c ate of the institution of pioc eedmgs, cannot give the 
couit power to give a declai itoiv judgment as to the validity of the main- 
age ” I he couit of the mail mioiiial domicile is the natuial foium foi deter- 
mining thi goodness of tin maniage, and m this cast the emu t of the 
husband’s domic lie had di c laied the mat 1 1 igi null and void Possibly, if the' 
foieign couit had not so pronounced, tlu s untiUa of jurisdiction denved 
from the maniage in England would have lx en accepted , but in vit w of the 
decision, the j ui lsdiction m a suit foi nullity based on the foi inn uni- 
tnutu s would now appeal to be doubtful 

In Simon in v WulUu (1860), 2 S A T 67, Cicsswtll held the jurisdiction 
foundtd against a defendant ncuthei domiciled noi usident in England, noi 
a Hulisli subject, who also had been stived abioad, because “ the partus, by 
piofessmg to entei into a conti act in England, mutually gave to each othei 
the light to have the fence and effect of that conti act dttci mined by an 
English tubunal ” p 75 lie quoted old authoutus m tavoiu of a forum 
ici r/esta , which he seems to have considered was supported by the Common 
Law Pinceduie Act, 1852, s 19 Now however that the Supmne Court 
Rules, 1883, have abandoned the foium unit nut us uUhiati for the actions 
to which thev -apply, even could that foium he extended to the case where 
the existence of the contract is in question, the reason given m Simon in v 
Mallai can baldly be maintained But the jurisdiction in nullity on the 
giound of the disputed maniage having been celebiated m England was 
assei ted m Snttonunfoi v 7b Banos (1877), 2 P I) 81, Phillimoie , Link? 
v Pun Audi, [1894] Times Repoits, 1893-4, -t26, Goiell Baines, and 
Sjntmlev Ilnpl tin, [1903] 2 I R 133, Andrews 

^ 19c/ A sentence of nullity m the domicile will not nec es- 
s.uily be autlioiiiati \ e in England Oqrft n \ Oijrfrn, [1908] 
P 40, Goiell Baines Co/ens-Haidv, Kennedy, 2nd question, 
]> 78 

It is notewoithv, howcveL, that the Mati imonial Causes Bill introduced 
into the House of Lords m 1920, piojiosed m section 6 to empower tin English 
Couit to give effect to a deciee of divorce, judicial sepaiatnm, oi nullity, 
obtained In a Butish subject domiciled m England, while resident m nv 
Butisli possession, piovided that the cleeicc was made on grounds which 
would be iecogni7cd m England as sufficient foi the deciee 

The section also proposed to clcai up the doubts laised m Ogden v 
Ogdci i by piovidmg 



94 


PRIVATE INTERNATIONAL LAW 


(2) Wheie d woman who is a Butish subject domiciled m England 01 
Wale-s mames a foieign subject, and the mamage is subsequently declared 
invalid by a couit of competent jurisdiction m the foieign countiy of which 
the husband is a subject, the High Court may giant a decue nisi of nullity 
of mairiage notwithstanding that the marnage was valid accoidmg to the 
law of the place of (elebiation of the mamage, and the piovisions of this 
pait of this Act with lespect to such decrees shall apply accoidmgly 

§ 51 Not even where the husband liad deseited the wife, 01 so 
conducted himself that she was justified m living apart from him, 
will a divoice be tieated in England as \alul which she has 
obtained in a countiy neithei his actual domicile, noi that m 
which she has lemamed after a change by him of domicile in 
whicli she was justified m not following him 

The last clause of the § is based on the fact that the English 
couit would giant a divoice to the wite who \v r as justified m not 
following hei hushand m a change of domicile fiom England 
(aho\e, § 4b), combined with the punciple, not only just hut 
now appareullv established, that the lecognition of a foieign 
divoice and the giant of a divoice in this countiy ought to he 
governed by the same mles Eoi ilie lest of the ^ see SJiau v 
Att -Gen (1870), L R , 2 V & M 156, Penzance, Gieen v 
Gieen, [1893] P 89, Goiell Baines 

§ FAa T T nless the divoice so obtained by the wife is leoognized 
as valid by the law r of the husband’s actual domicile Aimita(fe 
v Aft -Gen , Gi/h q V Gilhi/, [1906] P 135, Goiell Baines 
But see Ei //arte J fir Anwmeddtn (u s ) 

§ 52 Divoice can only be pionounced foi cause sufficient by 
the le.i fan, and when cause sufficient b\ r the le.v fan exists, the 
junsdntion being established under the rules already consideied, 
divorce cannot he lefused because it would he lefused eithei by 
the ler Joi i i ont raetm of the mamage, or by the personal law of 
the paities at the time of the mairiage, or by tlie l«w of the place 
wdieie any fact or cuned on which the application for a divoice 
is giounded, oi by the peisonal law of the paities at the time 
when any such fact oeemied This cloetiine is leceived m 
England, both for granting divorces tlicie and for ieeognizing 
the validity of foieign divorces 

A divoice pionounced m Floucla on the giound of ungovernable temper, 
wheie both paities were domiciled m Florida, was upheld in Pembeiton v 
Huqhes , 1 1899] 1 Ch 781, Lmdley, Rigby, Vaughan Williams 

The complete dependence of the cause for divorce on the ler 
fori , if divorce be allowed at all, lesults for us m England from 
the leservation m favour of all stringent domestic policy which 



MARRIAGE 


95 


is understood in pnvate mtei national law, see above, p 51 Tlie 
only law, except that ot the loium, the claim o± which to decide 
on the cause of divoice can be advanced with much plausibility , 
is the peisonal law of the paities deiived fiom then matumonial 
domicile liepiesentmg maiuage as a conti act made at a given 
place, with contemplated perfoi malice in the matumonial domi- 
cile, it may be said that the substance of the maiuage, including 
the causes of its possible dissolution, must be affected by the 
place of contemplated peifounaiue to the same extent to which 
that place affects the opeiation ot the maiuage, oi ot any < onfiact 
collateial to it, on piopeity The answer is that the substance 
of the maiuage is not left to the choice ot the paities, like its 
opeiation on then piopeity They aie fiee to contiact the 
maiuage, but not to modify its substance The existence of the 
maiuage is an effect of contiact, but its teims aie not The 
paities contiact a mutual lelation on some of the paitnulais of 
which chfteient views aie held m clifteient countues, but as to 
which all nations agiee in thinking it to be of the utmost social 
nnpcntance that all its pai+iculais shall he deteinnned by Lnv 
In England, the piopuetv of putting in foice oui pioceduie 
foi the dissolution of a maiuage has nevei been disputed on the 
gi ou nd that a foieign law, having any possible i elation to the 
mattei, would eithei not divoice foi the cause in cpiestion, ot 
even would i of use to dtcoice at all Theie aie howevei autliou- 
ties to the effect that what is culled m them an English maiuage 
cannot be dissolved by a foieign deciee, for any cause foi which 
it would not be dissoluble in England, and these authouties aie 
complicated by an aigument which used to be put foiwaid when 
the English pioceduie foi divoice was by pnvate act of pailia- 
ment, namely that English law, law being taken foi the pmpose 
of the aigument m a naiiow sense, did not admit dnoice at all, 
and that theiefoie an English maiuage was not dissoluble foi 
any cause by a foieign deeiee Tt wull piesently be seen to what 
extent the case pistifv the statement m the §, that no limitation 
is now T placed m this count i\ on the cause foi which any maiuage 
can be dissolved by a competent couit, so that the dissolution 
may be tieated lieie as a a lid Rut m the meantime a lemaik 

must be made on tlie oil cum stance tliat the cases lefeued to 
designate tlie maiuagcs, as to the dissolution of wdiich abioad the 
doubt aiose, as English maiuagcs It would lurve been con- 
sistent with the extent to wdnch domicile is now T allowed by oui 
eouits to be influential with regard to maruage — see above, 



96 


PRIVATE INTERNATIONAL LAW 


§§ 21, 25- to liold that tlie suffh ien< y hy English law of tlie 
( an .e for <li voice mus a question after ting* tlie divoice of peisons 
domiciled m England at the date of the foieign deciee The 
matinnonial dominie, as hefoie ohseived, <ould not piopeily he 
mtioduied into the question, but the domicile, if any, which 
should go\em ywtli legaid to a change of status, whetliei to oi 
fiom maniuge, would be that existing at the tune of tlie change 
asseited But the mainages on which the aigument that they 
were not dissoluble by a foieign deciee foi a cause insufficient by 
English law, oi even at all by any foieign deciee, used to be 
uiged befoie the passing of the Matinnonial Clauses Act, yveie 
those which had been conti acted in England This will appear 
the less suipnsing to anj one who will considei what confused 
notions on the international healings of inaiiiage aie displayed 
m some of the eailiei English cases, oi the excessive bieadth of 
tlie iefeience to the lei lo< i ( ontiiK tus, quoted fiom Dal njmple 
\ Dahymple undei § 19 

In Tolley’s Casi (1812), Liu A Ry 237, all the judges weie “ unani- 
mously of opinion that no sentence oi act of any foieign count i\ oi State 
could dissolve an English ni.nna^e a muulo matnmonu, foi giound on 
whicli it was not liable to be dissolved a vuuulo matnmonu in England ” 
Lolley’s fust mamage was conti acted m England, and his domicile at its 
date was English, but it is to the foimei point alone that tlie teim 
“ English marriage,” m the above lesolution, has always been undei stood 
to lefei, and was certainly meant to lefei He was divoiced in Scotland, 
wheie he had only a veiy tiansient lesidence, at the suit of lus wife, foi his 
adultery, without the aggiavating c licumstances which in a veu few cases 
induced Parliament to giant to the wife a divoice by pnvate Act, and it 
is evidently to this that the lesolution alludes, in speaking of a divoice foi 
giound on which a niamage was not liable to be dissolved m England The 
caieful woichng implies the opinion, which has been expiessiy adopted by 
the highest authorities, that divoice by pnvate Act of Pail lament was 
essentiallv a judicial pioceedmg, and that it would have been an enoi, 
even m 1812, to say that divoice a vinculo was not known to the legulai 
couise of English law See Loids Westbuiy and Colon sax, in Shaw v 
Gould (1868), L R 3 E & I A 86, 91 Lolley manied secondly m 
England, and was found guilty of bigamy the conviction was sustained, 
aftei aigument, by all the judges, who came to the lesolution above cited, 
which in consequence of his continuing English domicile at the time of the 
divoice was not necessary to the decision of the case and he was sent to 
the hulks foi one oi two yeais, the lesidue of the sentence being i emitted 
In McCaithy v Divan (1831/, 2 Ru A My 614, Biougham, the question 
aiose incidentally in a suit about piopeity The cause of the divoice, which 
m this case was gi anted m the domicile, does not appeal , 1 ut the learned 
Chancellor thought himself bound to follow the lesolution m Lolh i/’ s Co sc, 
which he, while stiongly objevtmg to it, extended, perhaps inadvertently, 
bv interpreting it as deciding that a mamage conti acted m England was 
indissoluble by any foieign proceeding, ancj therefore of couise foi any 
cause alleged m such pioceedmg But the lesolution m Lolley’s Case 



MARRIAGE. 


97 


does not appear to have passed at any time without question. Lord 
Eldon, before whom McCarthy v. Decaijr had been argued prior to its 
being heard by Lord Brougham, had refused to ignore the divorce m the 
domicile without further assistance 2 Ru. & My. 619. Then, by 
Lushington, m Conway v. Beazley (1831), 3 Hagg. Eecl. 639; by Black - 
burne, Lord Chancellor of Ireland, in Mayhce v. McAllister (1853), 

3 Ir. Ch. 604; and by Cranworth and Kmgsdown, in Dolphin v. Robins 
(1859), 7 II. L. 390; Lolley'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 T msts (1865), L. R. 1 Eq 247, 
Kindersley revived Brougham’s extension of the resolution m Lolley'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, 
sub no7ti. Shaw v. Could (1868), L. R. 3 E. & I. A. 55, Cranworth, 
Chelmsford, Westbury and Colonsay renewed the refusal to adopt the 
resolution even m its proper interpretation, and Lord Westbury (p. 84) 
strongly urged the inconvenience of referring to the le.r loci contractus of 
a marriage on the subject of divorce. In Shaw v. Att.-Cen (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 conti actus and the matrimonial domicile are English: L. R. 
2 P. A M. 161. 

Now however the resolution m Lolley's Case, and all reference to the 
causes for which a marriage is dissoluble m 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), 
5 P. D. 153, Hannen ; affirmed (1880), 6 P. D. 35, James, Cotton and Lush ; 
affirmed again (1882), 8 Ap Ca. 43, S el borne, Blackburn and Watson.* See 
also Briyys v. Briyys (1880), 5 P. D. 163, Hannen. t 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 domicile con- 
tinues at the date of the foreign divorce. But, not to mention that the 
authorities neaiest 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 llarvey v. Farnie 
and Briyys v. B. iyys plainly show that the real intention in these latest 

* S. P , Bater v. Bater , [ lOOfi J P 209. But the cause for divorce, as possibly 
connected with the contract of marriage, cropped up again, though harmlessly, in 
Re Stirling; Stirling v. Stirling , [1908] 2 Ch. 544, Swinfen Eadv. 

| It has been held in the Australian courts that, where there ha<} 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, hut the hmhand 
subsequently acquired a domicile m a country where the court could grant’ a 
divorce, the court in that country should grant the decree of dissolution (see 
Cremer v. Cremer, [1905] V L B. 532). The redress granted is not that 
given in the foreign country bin the particular redress attached <o the particular 
offence by the lex fori. 


W.I.L. 


7 



98 


PRIVATE INTERNATIONAL LAW 


cases was to suppoit the chvoice pionounced m the actual domicile for what- 
ever cause, mespective as well of tho matiimonial domicile as of the place 
wlieie the maniage was cclebiated Loid Justice James appeals to have 
questioned whether tho lesolution in Lnlley's ('as? is coirectly reported, 
thinking it i atliei in the style of Loid Coke’s time than m that of 1812 
6 P D 43, 44 But the diffeienoe fiom Lord Coke’s time is piobably less due 
to the judges, who have always given their leasons, than to the lepoiters, 
who then put the substance of the reasons sententiously, and now repoit 
tlie speech fiom the Bench as they would a speech fiom a platfoim Lolley's 
Cos f is no doubt one of the last icpoited in the old sententious style, but 
that is not a cause for doubting that, as we have it, the so-called resolution in 
it coiiedly singles out the points on which the judges laid the stiess of then 
decision It only lemains to obseive that in the judgments in Harvey v 
Flu nit will be found pioof that Loid Brougham’s dicta in McCarthy v 
7 )c((u i weie not calh d foi by the mattei before him This is a conveise erioi 
to that imputed to the reporter in Colley's Case , who * t least did not travel 
outside the facts, but is accused of having indicated too precisely on which of 
the facts the judges lelied 

The le i lot i tontiatfu s ot a mamage was also more oi less vaguely refeired 
to, with reference to the validity of a divorce from it, in tho following cases 
from which no lule can be extracted Tovty v Lindsay (1813), 1 Dow 117, 
Eldon and Redesdale , Ityan v llyan (1816), 2 Phil Eccl 332, Nicholl , 
('on mlly v ('onntlly (1851), 7 Mo P C 438, Lushington, in which case the 
validity of a separation a memo et toio was m question , Argent v Aiqtnt 
(1865), llJur (N S ) 864, Wilde , Birt v houtinez (1868), L RIP AM 
487, Penzance 

Tho extent to which the rules of private international law 
adopted in England fall shoit of receiving universal assent is 
peiliaps more remarkable in the mattei of divoice than in anv 
othei pait of oui subject To lllustiate it, I will give the 
substance of the Hague convention of 12tli June, 1902, on 
divoioe, eoneluded between the twelve states mentioned on 
p d7 * Neithei divoice noi judieial separation (s epmation de 
toips) is to be gianted unless it is allcnved both by the lei foil 
and bv the national law of the parties, and that, both generally 
(Art I) and in the particular ease (Art 2) Neyei theless, the 
national law alone shall be observed if the lei fon dneets or 
pei m its that course (Art 0) The national law of the parties 
( annot give the chaiactei ot a cause of divoice oi of judicial 
sepaiation to a fact which took jrlac e when the paihes oi one of 
them had nnolhei nationality (Ait 4) An action foi divoice or 
judicial separation can be brought (1°) m (he jurisdiction com- 
petent In the national law T of the jiaities, (2°) in (he competent 
juiisdic turn of then domic lie If by then national law the' domi- 
nie of (lie parties is not the same, the c omjreiont jui isclic turn is 
that of the defendant’s domicile If the domicile has been 

1 Nov dc Mount t d bv Fr nice irul Belgium St c above, p 3.3 



MARRIAGE 


99 


abandoned 01 changed altei the happening of the cause of divoice 
01 judicial sepaiation, the action may also be bioughi in the 
competent junsdiction of the last common domicile Ho\\e\ei, 
the national junsdic tion of the paities is leseived, so fai as it is 
exclusively competent foi actions foi divoice 01 judicial sepaia- 
tion The foieign junsdic tion lemains competent foi a mamage 
which cannot be the subject of an action foi divoiee 01 judicial 
sepaiation in the competent national ] misdic tion (Ait 5 ) 
Whole a husband and vile aie not authorized to bung an action 
foi divoice 01 judicial sepaiation in the c ountiy where they aie 
domiciled, eitliei of them ma\ nevertheless apjily to the com- 
petent junsdn tion of that countiy foi the piovisional measuies 
wlncdi its lavs tuinish m view of the cessation of the common 
life Those measuies shall be maintained it they aie continued 
within a yeai by the national junsdiction of the parties, they 
shall not last longei than the law of the domic ile pcnmts 
(Ait 6 ) Devon e and judicial sepaiation, jnemouncod by a 
couit competent acc ending to Ait b, shall be lecogm/ed eveiy- 
vlieie, on condition that the clauses ot the piesent convention 
have been observed, and that, if the judgment has been given m 
default of appcaiance, the dejendant has been cited m accordance 
vith the sjiecial dispositions lequiied by Ins national law foi the 
ice ogmtion of foreign judgments Divoice and judicial separa- 
tion pionouneed by an administrative jurisdiction shall equally 
be lecognized eveiywheie, it the law of each of the parties 
recognizes such divoice oi separation (Ait 7 ) If the juuties 
have not the same nationality, the law last common to them shall 
be considcied as then national law foi the application of the 
piecedmg ai tides (Ait 8 ) * 


Lc(jitnna( y 

The si ibjed of 1 egitnnac y is one villi legaid to vlucli it is 
impossible fully to canv out Ihe maxim of detei mining questions 
of status by the peisonal lav of the jiaity conceined, foi whethei 
the cuteiion be domicile oi politic nl nationality, the jieisonal 
law of «i newly bom child v ill generally be that of its father if it 
be legitimate, but if it be illegitimate will be denved from its 
mothei oi fiom the place of its bntli Hence m n inn bei less 
cases a decision on the pcisonal law can onl\ be leached thiough 
a juevious decision on the legitimacy But eveiy question of 

*■ Rlvtk do D I ot de L» C , 2' s£rie, t 4, p 402 



100 


PRIVATE INTERNATIONAL LAW 


legitimacy must involve that of the validity of some marnage,. 
and if the party comemed was born before the marriage it must 
involve the further question of the applicability to his case of a 
lule comeming subsequent legitimation existing in some 
national law Also the validity of a marriage may depend on 
that of the divorce of one of the parties to it from a pienous 
mairiage, and thus the subject of legitimacy ran be treated as a 
corollary to those of marriage and divono, with an appendix 
relating to legitimation per subsequent mat/imonnun 

Different cases may occur on the remarriage of a divorced 
person duiing the life of his 01 lier former consort When it is 
the man who has been divorced and remarries, and at the date 
of his remarriage his personal law is that of a country in which, 
as well as in the loan at tin of the lemamage, the whole senes 
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 Ins personal law was that of a c ounti \ in 
which the jurisdiction that gianted the divoice would not be 
deemed internationally competent He has changed his domicile 
or Ins political nationality between the dates of the dnoice and 
the remarriage, he was competent to make such change, whether 
the divoice was valid or not, and it would be unreasonable to 
make the legitimacy of his children depend on Ins peisonal law 
at any date prior to that of the marriage from which they sjinng 
But when the woman lias been divorced and remarries, hei power 
to change liei domicile 01 political national]! \ in the Intel's al 
depends on the validity of the divoic e 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 reman y in 
accordance with her personal law r , and puisuant to the docinne 
that the capacity of each jiaity to a marriage accenting to his 
peisonal law T is requisite, which in § 21 has been expressed with 
regai d to age and the prohibited degiees, it must be una\ ailing to 
allege that the divoice and the lemamage would be deemed valid 
in the lo( u s cutu s of the lattci and by the peisonal 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 ansen before our courts, namely 
that in which a sentence of judicial separation, pionounced in her 
undoubted country, may authonze a woman to transfer her 
domicile independently of hei husband and thereby to acquire a 
capacity for reman lage without any divoice which otherwuse 



MARRIAGE 


101 


than by reason of such transfer would be held \alul in her tormei 
country The next ^ shows that on the point which has on uued 
the English autlioirties take the view 7 just now expiessed 

§ 53 AVheie the capacity of a woman to lemany depends on 
the validity of a divorce the jurisdiction for which is not deemed 
in England to have been internationally competent, t lie children 
of the remarriage will be deemed illegitimate m England, not- 
withstanding that the lemarnage is deemed to be valid m its 
fonts attu s and by the personal law of the new husband 

Ttc Wilson (1865), L R 1 E<] 247, Kmdeisley , confi lined, suh nom 
Shan v Gould (1868), L R 3 E A I A 55, Cianwoith, Chelmsford, 
Westbuiy, Colonsay 

§ 54 With legal d to the legitimation of a child by the subse- 
quent mainage of its parents, neither the place of its bath nor 
that wlieie the mainage is contracted is impoitant But such 
legitimation cannot take place unless pei nutted bv the personal 
law of the fathei at the date of the marriage 

Since the legitimated child must accjime the personal law 7 of its 
fathei, its legitimation m despite of the peisonal law of the 
fathei at the time of the legitimation would be a contradiction 

Jhilhousie v McDouall (1840), 7 Cl A F 817, Munio v Mumo (1840), 
7 Cl & F 842, both decided togethei by Cottenham and Biougham In 
these cases the fathei ’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 foimei 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 paients were domiciled at the birth and the mainage 
Tf the domicile was not the same foi both paients at these two periods, we 
should hold that that of the fathei at the time if the mainage should give 
the lule But as they weie the same in this case, the question does not 
anse ” And with lefeience to the opinion thus quoted he added imme- 
diately, “ thus agreeing cleail> upon the point of law with the majonty of 
the learned judges, though fhe\ diffeied in point of fact ” p 884 
Finally, he dn, cubed himself as “ agreeing with almost the whole of 
them,” the Scotch judges, “ upon tli° question of law ” p 893 Lord 
Brougham therefore would have suppoited a wider statement than has 
been ventured on m the §, namely one <hat legitimation by subsequent 
mainage depends onl\ on the law 7 of the father’s domicile at the date of 
the marriage , but Loid Cottenham contented himself with “ the preposition 
that the child of a Scotchman, though boin m England, becomes legitimate 
for all civil pui poses m Scotland by the subsequent marriage of the parents 
in England, if the domicile of the fathei was and continued throughout to be 
Scotch ” p 875 The subsequent marnage of Jewish parents m England 
does not make then childien already born abioad legitimate, the Jewish 
law on legitimation not being recognised as a personal law Levy v 



102 PRIVATE INTERNATIOI AL LAW 

Solomon (1877), 25 W R 342 See too The Laud ei dale Peerage, 
10 A C 692, at p 739, Selborne 

§ 55 Neithei however can the legitimation of a child by the 
subsequent inaiiiage of its paients take place unless it is also 
permitted by the peisonal law of the fatliei at the date of the 
bnth 

This was decided by Vicechancelloi Wood, in Pc Wright (1856), 
2 K & J 595, not noticing the tontiaiy ojiinion of Lord Biougham shown 
under the last § and enoneously quoting Loid (Tottenham as saying m 
Munro v Munio that “the question m such cases must be, can the 
legitimization of the childien be effected in the countiy m which the fathei 
is domiciled at then bnth?” p 614 The doctrine however was repeated 
by the same judge, as Loid Hatherley, in T T dny v TJdny (1869), L R 
IS A I) A 447, and followed in Goodman v Goodman (1862), 3 Giff 643, 
Stuait, and it has since been again asseited in Be Giove, Vauchet v 
Sohcitoi to Tieasun/, 40 Ph D 216, Potton, Fry and Lopes (1888), 
affirming Stirling (1887) 

Sawgny’s opinion is the same as that of the Scotch judges m 
Munio v Munro and of land Brougham He says “ legitima- 
tion by subsequent mamage is regulate 1 ac c oi dmg to the fathei \ 
domn lie «\t the time of the mamage, and in this lespect the time 
of the lmth of the fluid is immaterial Tt has indeed been 
asserted that this latter point of time must be regarded, because 
by his birth the child has already established a ceitain 1 ('gal 
relation, which only obtains fuller effect by the subsequent 
marriage of the paients, and it is added that the fathei could 
aihitianK elect before the mamage a domicile disadvantageous 
to the child But we cannot speak at all of a right of such 
childien oi of a violation of it, since it depends on the fiee will 
of the fathei not onlv whether he mames the mothei at all, but 
even, if he contracts such a mamage, whothoi he will recognize 
the child In both these cases the child obtains no light of 
legitimacy, foi a tine proof of filiation out of wedlock is impos- 
sible, and accordingly voluntary recognition, along with 
mail lage and independently of it, can alone confer on the child 
the lights of legitimacy '** 

The following cases beat on tl r subject of legitimacy, but it is not possible 
to e\ti ict a rule fiom them Stiathmoie Peerage (1821), 6 Paton 645 
Eldon and Redesdale , SFumo v Sanndtri, or Po sc v Ross (1830), 6 Bligh 
N R 468 4 Wits A Sh 289, Eldon, L>ndhuist, Wynfoid In Bligh’s 
lepmt of Bos< v Ross the d te is incorrect ly given as 1832, and the 
respondent is inc nectly named Rose in the title 


Syst § 380, Guthrie 250 



MARRIAGE 


103 


§ 56 A child whose legitimacy has been acquired through the 
subsequent mainago of its fathei, domiciled abioad, ranks ’as a 
child under the British legacy and succession duty acts 

Slot tone v Youiuj (1871), L R 11 Eq 474, Ktuait 

See the same principle applied to the statute of distubutions and to the 
consti uction of wills of personalty in § 126, which might equally well 
have been placed heie, but it was desirable to notice the point both heie 
and m connection with personal successions 

§ 57 But if a child born m a (ountiy politically foreign lx* 
legitimated by the subsequent mainage of its paients, it will not 
theieby be naturalized undei st 4 Geo 2, c 21, although its 
fathei was a natural-boni Bntisli subject, because the benefit of 
that act is expressly limited to clnldien whose fathers weie 
natuial-born subjects at the time of then biith, and at the time 
of its Ini 1 h the ( hild was not only an alien blit films nulhus, and 
in legal understanding had no natural-born subject foi its fathei 

ShedfUn v Fatnd (1854), 1 Macq 535, (hanwoith, Biougham, SI 
Leon aids 

^ 58 AVlieie there lias been no mamage at all between the 
paients, a foreign law 7 entitling illegitimate (hildien to succeed, 
as such, leaves them stiangeis m blood within the English 
Sue c ession Duty Ac t 

itlnison v Anrfnson (1882), 21 ('ll D 100, Hall 

Theie is a unions case of Itr ( lhi } the Nan ah Nazim of Bnn/al\ 
infants (1885), 53 L T (N S ) 711, t ’bitty , 54 L T (N S ) 286, 
Baggallay, Bowen and Fiy The Nawab Nazim, a Mahometan Butish 
subject, domiciled m Butish India, and who had at least one wife living 
in that count! y, went m England thiough a leiemony of mamage 
at (Oi ding to Mahometan utes with a (Jhustian Englishwoman who did 
not know that he had any othei wife The issue of that union weie 

heated by the Butish Government of India as being childien of the 

Nawab Nazim, and it seems that this could not have been othei wise, 

whatevei opinion was entei tamed about the effect of the mamage 
ceiernony, because the fathei had lecogmsed them and, as Mi Justice 
('hitty said, “ that the Mahommedan law allows lecognition to establish 
legitimacy is den fiom the authonties lefened to by All Macnaghten 
m his aigument ” The .tatus of the childien m England was discussed, 
but it was not necessaiy to deteimme it Had it been so, AT i (latei Loid) 
Macnaghten’s aigument m favoui of then legitimacy, which was m effect 
that the peisonal law of the fathei ought to he as efficacious in the case 
of legitimation by acknowledgment as in that of legitimation by sub f aquent 
mamage, appeals to be conclusive, and All Justice (’bitty evidently leant 
to that opinion If m siimlai cncumstances it should become impoitant 
to deteimme the effect of the ceiernony as constituting a valid Mahometan 
mamage, the first question would be whethei the woman intended such 
a mamage, and it she did it might be aigued, in accoi dance with the 
punciple of § 26, p 63 and having legaid to the man’s Indian domicile, 



104 


PRIVATE INTERNATIC NAL LAW 


that he might many with the foims of his own law wheie the lev loci 
<utu, supplied no applicable foini See § 34a, p 69 But a mainage 
of a Moslem Indian celebiated befoie a legistrai in England will be assumed 
to be a Chnstian mamage See Ejt parte Mu Anuateddin (u s ) 

It must be obseived, with legard to the doc tunes on legitima- 
tion quoted in this section e\en tiom English authonties, that 
they do not deteitfnno the light ot succeeding to leal ]>iopeity in 
England We shall see in due place that the light of inheriting 
English land is held to he limited by the condition of having 
been bom in wedloek, m addition to that of being legitimate 

§ 58a The question wliethei a child is a bastard depends 
entuelv on the law of t lie domic lie of the paients at the time 
ot the bi i th and the fact that the child is boin abioad is 
immnteiial as legaids status- J\ v Humphreys, [1914] 4 K B 
124, Bankes and Lush, LT , A\oiy, J , dissenting So too the 
liability of a fatliei to maintain his son is determined solely by 
the law of the fatliei ’s domic lie — C ohhmqham Parish Council v 
Smith, [1918] L J Newsp , p 181, Sutton, J 



( 105 ) 


CHAPTER V 

SUCCESSION TO MOVABLES ON DEATH 

At ter status, capacity, and family relations, I pass to the 
lemainmg cases m which piopeity is considered m special con- 
nection with a pei ‘-on, in ordei to exhaust the applications of the 
peisonal law while on the subject of it, and of such applications 
the most important, aftci those connected with wantage, are 
those connected with death These must foi English practice be 
limited to movables, because foi that blanch of our subject 
English land is m no case subjected to the personal law but 
always to the lev situs 

In England, and m those countnes and colonies of which the 
law T is derived from that of England, the peisonal 01 movable 
pioperty of a deceased person can only be possessed under a 
giant fiom public authority, usually judicial Such giant is, m 
England, in one of three foi ms 

(1) Probate of a will, granted to the persons, one 01 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 wall 

The exec ut oi s or admimstiatois have to lealize the personal 
piopeity of the dec eased, pav his debts, and distribute the surplus 
among those who may be entitled undei the will, or bv law in 
case of intestacy These duties aie classed togethei undei the 
name of administration, which term has theiefoie two meanings 
it is used in opposition to probate, to expievs a certain description 
of public grant, and it is used to express that course of dealing 
with the piopeity granted which is expected fiom the grantee, 
whatever was the kind of grant 

In cases where the deceased person died after the Land 
Transfer Act, 189~, 00 & 61 Viet e 05, came into operation, on 
1st January, 1898, the real or immovable property also vests m 
the exeeutoi oi administrator m the same w\uy as personal 
property 



106 


PRIVATE INTERNATK NAL LAW 


In those countnes of which t lie law lias been denved from 
that of Home moie dnectly than has been the case with the 
English law on the subject, the nun able piopeity of a deceased 
pei son, like lus nnnio\able piopeity, descends on the heirs 
appointed by his will 01 entitled by law as the case may be, and 
m some cases on his universal legatees, subject of couise to the 
acceptance of such liens 01 legatees And these aie liable 
personally foi the debts of the deceased, though, if they have 
accepted the succession with benefit of inventory, only to the 
amount of the piopeitv received by them, to which amount they 
are also liable for the paiticulai legacies bequeathed by the will, 
but the beneficial mteiest is theirs, subject to the satisfaction of 
the debts and particular legacies The appointment of 
exeeutois by a testator is exceptional, and the powei of making it 
is usually limited, as for instance by Ait 1026 of the Code 
Xapolcon, which penults seism of movable piopeity alone to be 
given to the exeeutois, and of this foi not more than a year and 
a day 

In the former 01 English s\ stern, mlv the beneficial mteiest 
in the sui plus of personal piopeity (and since 1808 m the leal 
piopeity also), remaining attei paunent of debts, is tiansnntted 
cm death, whether m the case of testacy oi of intestacy The 
peisonal piopeity itself passes by the public* giant, made after 
the death and implying no beneficial mteiest, though m the 
absence of an executoi appointed by will it is usually made to 
some one beneficially mteiested In the lattei or continental 
s\stem, the movable piopeity is itself tiansnntted on death, 
w hethei m the case of testacy oi of intestacy, and such tians- 
mission implies a beneficial mteiest, which is limited onl\ by the 
debts and legacies to be satisfied out of it This system, as will 
be peiceived, is veiy sunilai to that which tin oil gli successive 
legislative changes came to exist in England foi leal piopeity 
befoie the Land Tiansfer Act, 1807 The common oiigm of 
both systems is the ancient principle of Homan law', by which 
llie lien continued, and in tint sense represented, the peison of 
the deceased, both .is to Ins lights and as to Ins obligations The 
principle has been modified in England, foi peisonal piopeitv, 
fust by making a public giant necessary m all eases fir the repre- 
sentation of a deceased peison, and secondly by separating the 
beneficial interest m the representation fiom the representation 
itself, and the executoi oi administrator, ealle 1 in England the 
personal representative, lias thus come to be something veiy 



SUCCESSION T< * MOVABLES ON DEATH 


107 


different from the complete contmuator of the deceased’s person 
In the continental system the principle has been modified only 
by the benefit of inventory, mtioduced by Justinian 

In working out the pioblems which anse for jrnvate inter - 
national law out of these systems, the continental mle governs 
movable succession, whethei testate oi 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 m other countries than his own 
The principle which lies at the base of the English authorities 
with regard to succession in personal piopeity is m substance an 
adaptation of the same rule to the English system, and may be 
stated thus 

§ 59 The law of a deceased pei son’s last domicile go\erns the 
benefn lal interest m the surplus of his peisonal piopeitv, aftei 
payment of his debts, funeral expenses, and expenses of admin is- 
tiation, that is of getting m and distributing su< h piopeity, and 
this, whethei in the case of testae v 01 m that of intestacy The 
law heie meant is the whoV law of the last domicile, and not 
merely its so-called internal law See the disc ussion of teniot 
m Chapter II , and especially Re Tmfoit and Rc Johnson, 
quoted on pp 5(>, 97 In the lattei ease Eaiwmll, J , explaining 
what the law of Baden must have intended by its reference to the 
British nationality of the dr (it/us f said that “distribution 
according to the law of the nationality means act or ding to 
English law, but accoidmg to that law T as applicable to the pai- 
ticulai propositus, and not to Englishmen generally without 
regard to then domicile of origin ” [1905] 1 Ch 855 The 
words “of origin” must be read only m connection with t lie 
particular case If Miss Johnson had lefl Malta for another 
British domic lie 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 
eouits of the country where it is in foice, the following corollary 
from the last § is well established 

§ GO Where the couit of a deceased person's last domicile has 
had an oppoitumty of declaring wdio aie entitled to the bene- 
ficial interest m his personal property, subject to payment of his 
debts, funeral expenses, and expenses of administration, its 
authonty is regarded m England as final, whethei the question 


*Syst § 376, Guthne 227 



108 


PRIVATE INTERNAT ONAL LAW 


arises on a claim to a giant of administration, on a claim to lie 
heanl as contradictor to a will propounded foi piobate, m the 
disti lbution of the English assets aftei payment of debts and the 
othei expenses above mentioned, 01 in any other w r ay This 
consequence would not follow fiom the hist sentence of § 59 
on the theoiy of those who oppose the renvoi and the doctrine of 
Chapter II , for according to them the English court would have 
to follow the internal law of the Iasi domicile, whereas a court of 
that country would apply its whole law T That the present § is 
well established m English practice is therefore another argu- 
ment to disprove the alleged reception m England of the view 
that out rules of private international law r infer only to the 
so-called internal laws of other countries 

i'm pm v Doqhoni (1863), 3 S A T 96, Ciesswell , (1866), L R 
IE & I A 301, Chelmsfoid and Oianwmth, Be Tun fort, above, p 39, 
and the citation fiom Faiwell, J , m Be Johnson, under § 59 

§ 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 couit of the countiy to which he belonged 
by nationality 

This is the very point of Be Trufoit, Tt afford v Blanc (1887), 
36 Oh I) 600, Stilling The question of domicile in Turkey and othei 
countries with which we have not the full communion of private inter- 
national law will be considered in the chaptei on Domicile 

§ 62 By the law T of the deceased’s last domicile, in the pre- 
ceding §§, must be understood that law as it existed at the dale 
of his death A retrospective law, passed since the death, will 
be disregarded by the English couit in all questions concerning 
the succession 

Lynch v Provisional Government of Paraguay (1871), L R 2 P AM 
268, Penzance, Be iyanooi's Trusts, [1895] 64 L J (N S ) Ch 521, 
Roniei 

The moie detailed international questions which arise in 
England on the mattei of personal succession may conveniently 
he taken m the order of the proceedings m a particular case 
Fust will come the rules as to the person to whom a grant of 
piobate or administration is made, and those as to what wills 
are provable both these operate at the same time m determin- 
ing the gra^t, but the former are of more general application, 
because they comprise the case of intestacy as well as that of 
testacy Next will come the rules as to what property passes by 



SUCCESSION T( MOVABLES ON DEATH 


109 


the grant of probate 01 adinmistiation, and, last, those which 
decide the questions that can anse in the administration of such 
piopeity, taking the \101d admimstiation m the second of the 
two senses c outlasted on p 105 


The Giant of Piobate 01 Admimstiation 

§ 61 Whatevei the doinn lie oi political nationality of the 
deceased, his personal piopeity situate in England cannot lie law- 
fully possessed, oi if lecoveiable m England cannot be sued foi, 
without an English giant of piobate oi adnmnstiation, unless 
the piopeity be money due undei an msuianee policy upon his 
own life 

Tom ton v Flown (1735), 3 P W 369, Talbot New York Brcweues 
To, fjim v Att -Ten t [1899] A C 62, Halsbuiy, Watson, Sliand and 
Davey, affirming Smith, Rigby and Collins, who had leveised Wills and 
Giantham , a case of shaies and debentuies m an English company Price 
v Dewhuist (1838), 4 M & C 76, Cottenham , illustrating what is a 
necessaiy consequence of the §, that in the judicial admimstiation of the 
peisonal estate of a deceased person, that is to say when the duty of the 
executois oi admmistratois to admimstei is being carried out under the 
dnection of a couit — see the second sense of administration, p 105 — the 
couit can take no notice of any will which has not been pioved in England 
Ex paite Fernandes’ Ejeeutoi s (1870), L R 5 Ch Ap 314, Giffaid, 
leveismg Romilly The exception is based on a statutoiy provision 
(section 19 of the Revenue Act, 1889), which piowdes that m the case of 
a policy upon his own life taken out by a peison dying domiciled out ol 
the United Kingdom, the pioduction of a giant fiom a couit m the 
United Kingdom shall not be necessaiy to “establish the light to recene 
the amount assuied ” Haas v Atlas Fnsinann To , [1913] 2KB 209, 
Sci utton 

In Huthwuite v Phayie (1840), 1 M & Gi 159, Tmdal, Bosanquet, 
(Altman and Eiskine allowed an admimstiatoi undei an lush grant to 
sue on a deed which was assumed to have been be na notab ilia in lieland 
at the date of the death But this was certainly an eiroi see Whyte v 
Pose, undei the next § In Vaiuyuelm v Bouard (1863), 15 C B (N 8 ) 
341, second count and 16th plea, it was held by Erie, Williams, and 
Keating that a universal successor, entitled undei the law of a deceased 
person’s domicile *o sue m his own light foi debts compused in the 
succession, could sue for them in England m his own name, without an 
English grant At the same tune they were anxious to save the lule laid 
down m this §, only they seemed to think that then own holding applied 
to a peculiai case, instead of the case before them being the general one 
undei continental law 

If however tne 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 m trust pursuant to it, quoere whether 
the English court may not look at a foreign probate as it might look at 
any other document presented to it as containing the terms of the trust 
Be Tootal’s I’nists (1883), 23 Ch D 532 (pp 541, 2), Chitty, may perhaps 



110 


PRIVATE INTERN ATI 3NAL LAW 


be sustained on this ground, independent of the ground noticed m Be 
VuJlance (1883), 24 Ch D 177, Pearson 

§ 64 And no giant fiom any foieign jurisdiction is necessary, 
to enable a suit toi any peisonal piopeity ol tlie deceased to be 
maintained m England 

Wkyte v Bose (1842), 3 Q B 496, Tmdal, Abingei, Coltman, Maule, 
Parke, Alderson, Rolfe, reveising the saint case, (1840), lb 493, Denman, 
Littledale, Patteson, Colei ldge 

§ 65 The leading maxim toi detei mining the peison to whom 
the English giant should be made cannot be bettei expiessed than 
by the following quotation “ I lia\e befoie acted on the general 
principle that where the couit of the countiy of the domicile of 
the deceased makes a giant to a paity, who then comes to this 
couit and satisfies it that by the piopei autlioiity of lus own 
countiy he has been authonzed to admimstei the estate of the 
deceased, [ ought without fuithei consideration to grant powei to 
that peison to admimstei the English assets ” Lord Penzance in 
He Hill (1870), L It , 2 P & M 90 Only, “ this couit cannot 
follow the foieign law T so fai as to giant administration to any 
one who is personally disqualified fiom taking the giant For 
instance, how r ever much the foieign couits may think that a 
minor should have the giant, this couit cannot go so far as to 
give it to such a person ” Jeune, P , m He Meatym d , [1903] 
P , at pp 129, 130 In that case administration with the will 
annexed was granted to icceiveis appointed by the court of the 
domicile, passing ovei executors appointed by the wall Cf He 
IV Oilcans, us, p 41 

Lord Penzance is reported to have expiessed the same maxim on anothei 
occasion as follows “ P is a genei al i ule on which I have already acted 
that wheie a person dies domiciled in a foreign country* and the court of 
that countiy invests anybody, no mattei whom, with the light to administer 
the estate, this couit ought to follow the giant simply, because it is the 
giant of a foreign couit, without investigating the giounds on which it 
was made, and without refeience to the punciples oi which giants are 
made m this countiy ” Be Smith (1868), 16 W R 1130, Wilde But this 
mode of expressing the maxim i^> scaicely so accurate, foi it will be seen 
that so long as powei to administer is granted to the same person who has 
received it fiom the court of the domicile, it is not always necessaiy that 
he snould icceivt it m the same foim below, § 69 Tn suppoit of the 
present see also Be Bo</erson (1840), 2 Cur 656, Jennei 

The giant, whether oi not m pursuance of a foimgn giant, ought to be 
m such form as uiU enable the grantee to fulfil the duties imposed on him 
by the law of the domicile Be Briesemann, [1894] P 260, Jeune See 
Bi von Lindt n, 1 1896] P 148, Jeune, Be Mary Moffatt, [1900] P 152, 
Jeune, Be Yannim, [1901] P 330, Jeune 



SUCCESSION 1 4 MOVABLES ON DEATH 


111 


A converse rule to that of § 65, lequmng that, wheie the deceased was 
domiciled in England, powei to administer should be gi anted in the 
colonies to the peison who had leceived such power in England, was laid 
down by the Pi ivy Council as eaily as 1762, m Bum v Cole, Ambl 415, 
Mansfield In Bioani v Fhilhps (1737), theie cited, the Pn\y Council 
considered that the lule did not extend to the case wheie admimstiation 
m the donmile had been gi anted to a cieditoi , and it may not be quite 
ceitam that Loid Mansfield disappioved this limitation, though his own 
woids m Bum v Cole do not lepeat it He cited howe\ei with 

disappioval the reason given foi the mle in Williams v (1747), 

P C , Lee, “ that the plantations, being within the diocese of London, 
are suboidmate to the pieiogative of Canteibuiy,” “the bettei and moie 
substantial leason for such a determination,” he said, “ is the residency ” 

Wheie a foreign (ouit had assigned ceitain piopeity of the testatoi to 
one of his hens, administration was granted to that heir, limited to the 
pioperty so assigned Be Dost Ah) Khan (1880), 6 P D 6, Hannen 

Administration with will annexed granted to attorneys for the use and 
benefit of one who by the executoi in the domicile had been lawfully 
substituted as such foi himself Be Black (1887), 13 P D 5, Butt 

§ 65 a If no older has heen made by the <ouit of the foieign 
domicile appointing executors, the English (ouit will, in a 
proper ease, giant piobale to executois appointed by an English 
will The rule that the English <ouit will not giant piobate so 
as to conflict with any appointment made by the couit of the 
deceased’s foreign* domicile only applies if the actual older is 
made by the foreign couit, and not when proceedings only have 
been commenced Re ('mqueiel, [~1 ( )18] P 4, Evans 

§ 66 The mle of § 65 applies in favour of one who has 
leceived m the domicile a giant de bonis non , as veil as to one 
Ailio has leteivod an onginal giant 

Bi Hill (1870), L R 2 P & M 89, Penzance 

§ 67 And it has been applied in favoui of one who in the 
domicile had been appointed judicial administrator , pending a 
suit to determine which of two wills was valid 

Vns<a v iVAuimlnuu (1839), 2 Oui 277, Jenner 

§ 68 Also in favoui of one who in the domicile has been 
appointed provisional executoi, dining the incapacity of the 
exec utoi named by the w ill , and the giant of admimstiation was 
then limited to such time as the authority of the pnwisional 
executor slioubl continue m the domicile 

Be Sten/eru aid (1864), 10 Jm (N S) 159, Wilde 

Tn Be Livif , [1908| P 108, Goiell Baines, where a foieign couit 
appointed a judicial administrator for a limited time, the English couit 
made a general giant to him But it is doubtful if this decision would 
be followed (See L Q R , [1913] p 40) 



112 


PRIVATE INTERNATIONAL LAW 


§ 69 Wheie in the testatoi’s domicile piobate had been 
granted to one as executoi arc oi ding to the tenour, the case being 
such that according to English piaetice he would only have been 
entitled to administration w ith the will annexed, the giant to 
the loieign executor will only be administration with the will 

annexed 

* 

Be Bend (1828), 1 Ha gg Eccl 474, Nieholl , Be Mackenzie (1856), 
Deane 17, Dodson, Be Carnahan (1866), L R 1 P & M 183, Wilde, 
Be Bari (1867), L R 1 P & M 450, Wilde 

§ TO “ From and aftei the date afoiesaid ” [12th Novembei, 
1858J “ it shall be ( ompetent to include m the inventory of the 
personal estate and effects of any person who shall have died 
domic lied in Scotland any peisonal estate or effects of the 
deceased situated in England or m Ireland, or in both provided 
that the peison applying foi continuation shall satisfy the com- 
missaiy, and that the commissary shall by Ins mterloc utor find, 
that the deceased died domiciled in Scotland, which interlocutor 
shall be conclusive evidence of the fact of domicile piovided 
also that tire value of such peisonal estate and effects situated in 
England oi Ireland respectively shall be separately stated in 
such inventory, and such inventory shall be impiessed with a 
stamp corresponding to the entile value of the estate and effects 
included therein, wheresoever situated within the United King- 
dom ” Confirmation and Piobate Act, 1858, st 21 & 22 
Yu t c 56 , s 9 

“ Fiom and aftei the date aforesaid, when any confirmation of 
the executor of a person who shall in manner afoiesaid lie found 
to have died domiciled m Scotland, which includes besides the 
personal estate situated in Scotland also personal estate situated 
in England, shall be pioduced m the principal emit of piobate 
in England, and a copy theieof deposited with the registrar, 
together with a eeitified copy of the interlocutor of the com- 
luissaiy finding that such deceased peison died domiciled in 
Scotland, such confirmation shall be sealed wutli 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 ” lb s 12 

This legislation provides, m fact, for a new form of English 
giant and pi oof, and therefore does not impair the necessity of 
an English grant foi possession oi suit in England, or the neces- 



SUCCESSION TO MOVABLES ON DEATH 


113 


sity of an English proof before a com! of adnnnistiation in 
England can take notice of a will, as laid down undei § (>3 

Wheie confii mation of a Scotch will has been gi anted in Scotland to 
the Qxecutois, the sealing m England will be gi anted by the English 
piobate autlroi lties, although the (onhunation is to a peison who, 
accoidmg to English law, is not competent to be an executoi lie 
linn Km S E staff, [1918] P 134, Point of Appeal, S win fen Eady, IPnkes, 
Eve, level sing Colei ldge The Scotch will appointed a coipoiation as 
executors, and it was held that the continuation of the will must be 
lesealed in England without question, although a coipoiation by English 
law cannot take out piobate 

Sect IT of the same act is identic al with s 12, putting Ii eland 
foi England, and s 14 makes a < oi responding provision for 
giving efficacy m Scotland to probates and letters of admrnis- 
tration granted in England or Ireland to the executors or 
administrators of peisons who died domic lied m the latter 
countries respectively 

The English court can howevei giant piobate oi letters of administra- 
tion m a case wheie the lush giant has not in fact been lesealed 
ha in v C ninth , [1916] P 23, Horndge 

§ 70<7 Another new form of English giant is given by the 
Colonial Probates Act, 1892, which provides foi the sealing m 
the United Kingdom of piobates and letters of administration 
granted in Bniish possessions winch have made adequate pio- 
vrsion for leeipioc rty, or by Biitish couits in foreign countires 
The latter of course are consular courts, either in countries really 
foreign or m British colonial protectorates 

Rescaling of colonial letteis of administration may be allowed m 
England though the intestate leaves no estate in England li( Sandrts, 
[1900] P 292, Goiell 

70 b The Government of Iieland Act, 1920, has not affected the pioceduie 
in resealing Insu giants of administration, and the Colonial Piobates 
Act, 1892, has no application to Ireland, lie Hobeit (iaalt, [1922] W N 
p 116, Duke, P 

§ 71 Where the deceased died domiciled abioad, and no one 
lias 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, tlie English 
court makes tne grant 

First, to the executors, if any, appointed by the will or 
appearing from its tenour 

And wdiere the will of a testator who died domiciled abroad 
contains a general appointment of executois, the English court 

8 


W I L 



114 


PRIVATE INTERN ATI INAL LAW 


ought to grant piobate of it to the executes so appointed with- 
out lnquinng vhetliei the will opeiates on any personal 
pi opei ty in England, just as it would do in the ease of the will 
ol an English testate 

Lord Chelmsfoid, in Enolun v Wylie (1862), 10 H L 1, p 23 Lord 
Westbury, m the same case, p 14, refeired to the further cncumstance 
that the will had been authenticated by the executors m the proper court 
of the domicile , but the pioposition does not seem to need that qualification 

§ 72 But whole a testate appoints by the same will difteient 
executors foi his English and foreign piopeity, it may reason- 
ably be assumed that those appointed foi the lattei will not be 
entitled to any piobate in England 

In lie f l inter, cited undei § 78, Sir 0 Cresswell said “I find that 
when a testatoi has left general executors and a limited executor, the 
practice has been to giant piobate to each of them accoiding to the terms 
of his appointment I do not quite see the punciple upon which that 
practice has obtained ” With defeience, the piactice seems sound, and it 
leads to the conclusion that no probate can be granted to an executor 
specially appointed for property not within the junsdiction 

Where a will is only good so far as it is an execution of a power of 

appointment, the giant will be limited to such piopeity as the deceased 
had power to dispose of and did dispose of by will, unless a laiger giant 
can be supported by necessary consents lie Tie fond, [1899] P 247, Jeune 

Where a testator domiciled abroad makes two wills, one dealing 

exclusively with land m England and appointing English executors, and 
the other dealing with foreign piopeity and peisonalty m England and 
appointing a foieign executoi, the court may make a grant to the 
executes of the founer will limited to the realty m England and a 
(oeterotum giant to the foieign executoi JRe Von Brentano, [1911] P 172, 
Evans 

§ 73 And an executor appointed by the will, but whose 

executorship has expued by the law of the testate’s last domi- 
cile, is not entitled J o any grant m 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 fiom the death Be Groos, [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 4 

Be Ohphant (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 the grant to 
be made 



SUCCESSION 10 MOVABLES ON DEATH 


115 


§ 75 Reverting* to § 71, it there is no will, oi no executors 
aie appointed by the wil] oi appear fiom its tenoui, the second 
class of pei sons entitled to the grant, which under these circum- 
stances must be one of administration and not of piobate, is 
composed of those who as hens, next of km, or legatees, aie 
interested m the beneficial succession, that is to say in the 
suiplus after payment of debts and funeral and admmistiation 
expenses The English prac tice will be followed m selecting the 
giantees, subject to lefernng the question of beneficial interest 
to the law of the deceased’s last domicile, understood a& m § 59 

lie Stewcut (1838), 1 Cur 904, Nicholl And see lie Oliphant, under the 
preceding § 

§ 76 And one who in the last domicile of the deceased repre- 
sents the pei sons interested m the beneficial succession, for 
example as guardian of the deceased’s childien, is entitled to a 
giant of administration m England 

lie Bianchi (1862), 3 S & T 16, Ciesswell 

§ 77. Thndly, failing any title to the giant under the pie- 
ceding § § , it will be made to a creditor 

lie Maraver (1828), 1 Hagg Eccl 498, Nicholl 

§ 78 Whether a testatoi died domiciled in England or 
abroad, administration will not be gi anted with a will or codicil 
i elating only to foieign property annexed, noi will piobate be 
granted of any such will or codicil unless it be incorporated by 
reference m some will otherwise entitled to probate m England, 
m 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 

Be Mvriay, [1896] P 65, Gorell Barnes, where it is sa*d, p 71, that on 
the other hand “ the foreign will may incorporate the English will, m 
which case the foreign will would not be limited in its operation to property 
abroad, and both would be included m the probate ” 

lie Goode (1867), L R 1 P & M 449, Wilde, ovei ruling Spratt v 
Harris (1833), 4 Hagg Eccl 405, Nicholl, and Be Winter (1861), 30 L J 
(N S ) P & M 56, Cresswell Be Harris (1870), L R 2 P & M 83, 



116 


PRIVATE INTERNATIONAL LAW 


Penzance, Be J)e La Saussayc (1873), L R 3 P AM 42, Hannen 
Be Houden (1874), 43 L J (N S ) P & M 26, Hannen, m all which 
cases the documents disposing of the foieign piopeity weie admitted to 
piobate on the giound of meoipoiation, and m the last of them the 
second leason given m the § was assigned by the judge Wheie there is 
no meoipoiation, an affidavit exhibiting an attested topy is filed, and 
is lefened to m the piobate of the will lelatmg to English piopeity 
Be Astoi (1876), 1 P 1) 150, Hannen, Bi Callauay (1890), 15 P D 147 r 
Butt See too Bt l)r La Bur (1890), 15 P D 185, Hannen , Be Beaman, 
[1891] P 253, Jeune, wheie an affidavit was lequired showing that the 
movables mentioned m the Canadian will weie in Canada at the time 
of the testatoi’s death, and that the movables mentioned in the English 
will weie m England, Be I* .1 Fiasti, [1891] P 285, Jeune, Be 
T a inpUn , [1894] P 39, Goiell Baines 

In Be Bolton (1877), 12 P D 202, Jeune, the wills dealing respectively 
with the English and Belgian piopeity weie both admitted to probate 
although neither was mcorpoi ated with the othei, the Belgian executor 
having lenounced and consented to the giant 

§ 79 By st 24 & 2) Viet ( 121, s 4, it is enacted that sub- 

ject to lenpiocity being* seemed by a convention with the foieign 
state m question, and to the making of an oidei in council there- 
upon, “whenever any subject of s u ch foieign state shall die 
within the dominions of hei majesty, and tlieie shall be no 
person piesent at the time of sin h death who shall be lightfullv 
entitled to admimstei to the estate of such de< eased peison, it 
shall he lawful foi the consul \iee-<onsul oi (onsulai agent of 
such foieign state within that pait of hei majesty’s dominions 
wheie such foieign subject shall die to take possession and have 
the custody of the personal piopeity of the deceased, and to 
apply the same in payment of his oi hei debts and funeial 
expenses, and to letam the surplus foi the benefit of the poisons 
entitled theieto, but such consul, vice-consul oi consular agent 
.shall immediately apply for and shall be entitled to obtain fiom 
the piopei comt letters of administration of the efforts of such 
deceased person, limited in such manner and foi such time as to 
such court shall seem fit ” 

§ 79 a Hunng the Great Wai # the Public TiUstee was invested with the 
custody of propei ty left by will m on intestacy to alien enemies, and was 
authorised to take out adinm^tiation foi enemy next-of-km Be J Bchiff , 
[1915] P 86, Deane, Be Giundt and Oetl, [1915] P 126, Evans, In the 
Gooas 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 propei ty pi England of German 
subjects domiciled in Germany, without reference to the German executois 
and beneficiaries, the whole of such propei ty being subject to the charge 
in favour of the Clearing House Be von dvm Busch e, [1921] W N 359 r 
Duke, P 



SUCCESSION 10 MOVABLES ON DEATH 


117 


Validity of II ills of I*en>onal Estate 

§ 80 As to t lie testamentaiy chaiaclei of a document, and 
its validity as a will oi codic il, with lesjiect not only to the fonns 
ot execution but also to evei\ cm uinstance on wlin h the \ ability 
of a w r ill may depend, the English (ouit will follow a judgment 
obtained in the countiy in whieli tlie testatoi oi alleged te tator 
had Ins last domn lie, which must be undei stood as mr In dnif^ 
the countiy of his nationality in the < ase of 61 

Piobdte, oi adinimsti ation with do( ument annexed, gianted on the 
stiength of a judgment in the domn lie Han v Nasmyth (1816), 2 Add 
25, Nicholl, lit Cosnahtm (1866), L It 1 P & M 183, Wilde, Miller v 
Janus (1872), L R 3 P A M 4, Hannen In the last case unsound 
mind and undue lnfluente weie objected, but the couit held itself bound 
by the judgment m the domicile in favoui of the will, although those 
objections had not been made theie 

Piobate, oi admimsti ation with document annexed, lefused m revoked 
on the st length of a judgment in the domicile Hate v Nasmyth (1821), 
2 Add 25, Nicholl, piobate ie\oked, Movie v DaieU (1832), 4 Hagg Eccl 
346, Nicholl, Laneuvdh v Andtison (1860), 2 S A T 24, Ciesswell 

But the English ude that a will is i evoked by mamage, being part of 
matiimonial and not of testamentaiy law, will be applied when the 
matnmomal domicile was English, liiespective of the last domicile All 
the judges in li< Maitm , Loustalan v Loustatan, 1 1900] P 211, seem 
to have agieed in this — Jeune, Bindley, Rigby, Vaughan Williams A 
domiciled Englishwoman, who had made hei will while domiciled in 
England, mained a domiciled Scotchman Bj Scotch law mamage 
does not levoke a will Hei will was not i evoked Westeiman v Schuab, 
1 1905 J 43 Scottish Law Reportei, 161 

§ 81 Yet it is said that where a couit of the domicile has pio- 
nounced on a document piopounded as testamentary, the 
authoiity which is allowed to that judgment in accoidance with 
the piecedmg Si iests only on its being conclusive e\idence of 
the law r of the domicile, and that it is there foie not sufficient to 
avei the judgment, but those who piopound the document must 
a\ei its exec ution <u c oiding to the law of the domicile 

Tshnuoml ^ rheetham (1862), 7 L T (N S ) 250, Ciesswell 

§ 82 On t lie otliei hand, wheie the onginal document is m 
English, and a tianslation of it has been established in the couit 
of the domic lie, if the doctnue of ^ 80 be lehed on, what wilj be 
obtained will be adminisfiation with a letianslation of the tians- 
lation annexed, although the ongmal will be admitted to piobate 
on pioof of its validity accoidmg to the law of the domicile 

lie De Tviny (1865), 4 S A T 13, Wilde, lie Haile (1867), 36 L J 
(N S) P AM 72, Wilde, lie Buie (1878), 4 P D 76, Iiannen It 



118 


PRIVATE INTERNATIONAL LAW 


seems difficult to reconcile this with § 81, for if the foreign judgment 
opeiates only as evidence of due execution according 1o the law of the 
domicile, it is the oiigmal the due execution of which is so testified by it, 
and theiefoie it might be aigued that piobate of the ongmal, or 
admimsti ation with a copy of the ongmal annexed, ought to be gianted 
in England even on the stiength of the foreign judgment 

The original will being m a foreign language, the English court will not 
gi an t f piobate of a tianslation of it Be Petty , 41 L T 529, Hannen 

§ 83 If the testamenlaiy charattei of a document, oi its 
validity as a will, is being litigated in the testatoi ’s last domi- 
cile, probate m England will be suspended m oidei to await the 
result of those proceedings 

lime v Nasmyth (1821), 2 Add 25, Niclioll , 7)e Bonneval v T)e 
Bonneval (1838), 1 Cur 856, Jenner 

§ 84 The English eouit will also follow the eouit of t lie 
domicile, on the question whethei two papets aie to be admitted 
to piobate as a will and codicil, oi as containing together the 
will of the deceased 

Lnrpmt v Suulnj (1828), 1 Ilagg Eccl 382, Niclioll 

§ 84c/ In the case of a testatoi domiciled m England the 
English eouit will deteinnne foi itself upon evidence of the 
foieign law wliethei a document is a valid will by the law of the 
place where it was made 

Lyne v de la Ferte , [1910] 102 L T 143, Eve 

§ 85 When the English eouit is not aided by any judgment 
m the testatoi ’s last domicile, the old mle was that the testa- 
mentaiy chaiacter and validity of any document propounded 
must bo tiled by the law of that domicile But now, by section 3 
of st 24 & 25 Viet c 114, commonly called Lofd Kmgsdown’s 
Act, “ no will or othei testamentaiy instiument shall be held to 
be revoked or to have become invalid, noi shall the constitution 
thereof be altered, by leason of any subsequent change of domi- 
cile of the pei son making the same ” And by section 5, “this 
act shall extend only to wills and other testamentary mstiuments 
made lv\ peisons who die after the passing of this Act,” 6+h 
August, 1801 Consequently, in the case of future testators, or 
of those who have died since the date just named, the document 
will be held i valid testamentary one if it satisfies eithei the law’ 
of the testator’s last domicile, or that of tin place which was 
his domicile at the date of the document , and it is necessary 



SUCCESSION 10 MOVABLES ON DEATH 


119 


that it should satisfy one of those two laws, so fai as the case 
does not fall within the exceptions stated m §§ 87, 88 * 

Foi the old lule, see Stanley v Bernes (1831), 3 Hagg Eccl 447, Court 
of Delegates, Paikc, afterwaids Loid Wensleydale, apparently being then 
president, reversing the same case (1830), 3 Hagg Eccl 373, Nicholl, who 
had admitted to piobate codicils not executed accoiding to the law of the 
domicile, on mixed considerations, lefernng to the testator’s political 
nationality^ to the situation of the pioperty bequeathed (money m the 
British funds), and to a supposed difference between the lespect to be paid 
to the law of the domicile in cases of testacy and of intestacy Sir John 
Nicholl had expressed snnilai views in Curling v Thornton (1823), 
2 Add 6 See also de Zichy Ferraus v Hertford (1843), 3 Cui 468, 
Jenner Fust, affirmed (1844), sub num Croher v Hertford, 3 Mo P C 
339, Lushington , in which the place of execution and the situation of the 
property disposed of 1 eie lepudiated as giounds of decision on the fonn 
of a will and Fa qe v Donovan (1857), Deane 278, Dodson, where the 
lex loti actus was not even referred to 

In Be Fruit e F G Oldenburg (1884), 9 P D 234, Butt, it was 
detei mined bv the special law of an imperial family wliat document should 
be admitted to piobate as the will of a member of that family 

S 3 of Loicl Kmgsdown’s Act is not confined to the wills of Bntish 
subjects, notwithstanding the mention of sudi subjects m the title of the 
act Be Groos, [1904] P 269, Goiell Baines 

§ 86 Eitliei the old oi the new rule in § 85 is not limited to 
the forms of execution, but extends to e\eiy (licumstnnce on 
which the validity of a will may depend, except, it rs piesumed, 
the testatoi ’s capacity, whn h even under the new iule should 
certainly continue to he determined by his personal law at the 
time of las death Thus, under the new rule, if the testatoi 
marries after changing’ his domicile, and his mamage 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 Bcul (1866), L 111 P & M 74, Wilde, ZY Groos , [1904] P 269, 
Gorell Baines, and see Be Martin , and Westerman v Schwab , quoted 
undei § 80 

§ 86n And wheie the testatoi changes his domnile after 
making a wull, and bv the law of the new domnile his testa- 
mentaiy capacity is cnlaiged, so that he can dispose of all his 
personal piopeity, a disposition of all his piopeity with a 
reservation of the legitimate shaie to winch the lelations may be 
entitled at the time of death will pass the wffiole of the 
personalty He Groos, No 2, [1915] 1 Ch 572, Kaigant 

* This interpretation of section 3 is cnticised by Baty ( Polarized Law, p 91) 
But it would be unreasonable to hold that a will may be invalidated on a 
question of fonn owing to a chinge of dmncile if its substance is not to be 
affected by such change 



120 


PRIVATE INTERNATIONAL LAW 


The question beie was not one of consti uction 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 b) will, which is detei mined 
b\ the peisonal law at death 

^ 87 “ Eveiy 'w ill and otliei testament aiy mstiunient made 
within the United Kingdom by an) Rntish subject, whatever 
may be the domicile of such poison at the time of making the 
same oi at the time of his oi hei death, shall as legaids peisonal 
estate be held to he well executed, and shall he admitted in 
England and Iieland to piohate, and ill Scotland to continua- 
tion, if the same he executed aeeoiding to the fonns lequned by 
the Ians foi the lime being m lone m that pait of the United 
Kingdom wheie the same is made ” St 24 & 25 Viet c 114, 
s 2 This enactment, m the cases to which it applies, adds a 
fluid alternative, that of the Un u s (utu s, to those of the 
mle in ^ 85, with legaicl to the fonns of execution, but not with 
legal d to am othei < iicumstance on which the validity of a will 
mat depend Ecu the commeneement of its operation see s 5, 
quoted m § <85 

S* 88 “ Eveiv will and othei testamentaiy mstiunient made 
out of the United Kingdom by a Bntish subject, whatevei may 
be the domicile of such poison at the time of making the same 
oi at the time of Ins oi hei death, shall as iegai els peisonal estate 
be held to be well executed foi the puiposc of being admitted 
in England and Iieland to piobate, and in Scotland to con- 
fii niation, if the same be made accoidmg to the foi ms lequired 
eitliei bv the law of the jilace wheie the same was made, oi by 
the law of the jilac e wheie such pel son was domiciled when the 
same was made, or by the laws then in toice in that jiait of hei 
majesty’s dominions whole he had his domicile of ongin 
St 24 & 25 Vic t c 1 14, s 1 This enactment, m the cases to 
which it apjilies, adds two altemat i\es, th.it of the let Ion c/c hn 
and that of the law existing in the domic lie of ongin at the date 
of the will, to those of the new mle m ^ 85, with leg.ud to the 
foi ms of execution, but not w ith iegai cl to any othei circum- 
stance on winch the validity of a will may depend 

The enactments in 87 and 88 weie applied to the wills of natuialized 
Bntish subjects in Hr Halhf (1876), 1 P D 438, Hannen (case of § 87), 
and He Lttunu (1877), 2 P D 94, Hannen (case of § 88) The former 
case howevei might have beei decided cm the new iiile in § 85, and the 
lattei on the sa ae rule combined with that in § 89 The same enactments 
were not extended to the wills of aliens by the Natu alization Act, 1870, 
s 2 Bio mm v Fame (1883), 8 P 15 101, Hannen, affirmed (1884), 



SUCCESSION TO MOVABLES ON DEATH 


121 


9P D 130, Selbome, ( ^olei lduce. Cotton Noi, s i ruble, by section 17 of the 
Bntish Nationality Act of 1914, because the light is not expiessly 
confer led, whilst the section of Loid Kmgsdown’s Act expiessl) lefeis to 
Bntish subjects Noi do they apply to the wills of peisons who have lost 
the Bntish nationality which they had by bntli Be v on Bused (1881), 
6 P T) 211, Hannen Eoi these peisons, theiefoie, the foim of will must 
still satisfy the law of the domicile, eithei at the time of the testatoi's 
death, oi at the time the will was made 

§ 89 In interpreting §§ 85, 87 and 88, tlio law of any foreign 
eountiy by w Iik li a will may bo sustained unhides pirvate inter - 
national law as reeeixed in that eountiy, so that if a will would 
tlieie be bold xalrd because executed amending to the foims of 
any otlioi law, as toi example that of the lotus tit (its oi of the 
testatoi’s politieal nationality, an execution arc ending* to those 
foims will be one aeroidmg to the law of tlie domicile, though 
not in accoidanee with the foims of the domicile 

See the cases quoted above, p 39 In Collier v Bner, Fine v Fiere, 
Biemei v Freeman and Be Biou n-Sf quard, this interpretation was treated 
as applicable to the old lule m § 85, and m Be Laeiou , to § 88 

^ 90 In all cases wlieie alternatives aie given by 85, 87 
oi 88, the couit will lone legaid to the law* of one eountiy only 
at a time, and will not mix up the legal piecepts of two countnes 

Buhell v Ih I dei It i/ (1869), L B 1 P A M 673, Penzance 

§ 91 Where a doc ument was intended to opeiate m execution 
of a powei to appoint by will, contened on its authoi by some 
mstiument itself opeiatmg undei English law, it must be 
admitted to piobate, oi administiation must be gi anted with the 
document annexed, m either of two cases, notwithstanding m 
each ease that the authoi mav have had no testamentaiv capacity 
otheiwise than as donee of the powei 

The hist case is that wlieie the cloc un ent complies with the 
foims which would be lecjimed foi its validity as a will by the 
law, oi am of the laws, which nuclei the preceding $ would be 
applicable m the case of an oi chinny testator 

Bonus v I nutnt (1846), 5 Mo P C 201, Brougham, Buccleugh, 
Tottenham, Campbell, Knight -Bruce The cone unence ; of the pnvj 
coumillois who heard the argument, and of Lvndhurst and Sugden, to 
whom the judgment had been submitted, is stated by Biougham at p 218 
No question of ])ii\ate international law aiose m this case, but it was 
decided that J he will of an English man led woman, which satisfied English 
testamentai> forms, should be admitted to probate without mquiiing 
whethei it also satisfied the particular formalities imposed by the powei 
m execution of which it was made, and the date of t 1 e will pievented 
the decision being aided Iry the Wills Act, which now, as a rule of English 
law, puts the geneial English testamentary forms m the place of all 



122 


PRIVATE INTERNATIONAL LAW 


particulai foimalities imposed by poweis on their execution by will 
The principle of the decision was that probate must not be refused on the 
giound of the foim of the document, in any case in which such foim would 
entitle it to probate if its authoi weie an ordmaiy testator, and the 
beaiing of the punciple on pnvate international law was not allowed by 
Loid Biougham to pass unnoticed See p 217 The international applica- 
tion aiose m 7 VHuait v Harlness (1865), 34 Beav 324, Romilly, where 
the will of a married woman, made since the Wills Act undei an English 
power, was not m English form, but was m good foim by the law of hei 
last domicile It had been pioved, appaiently without objection, and was 
held to be a good execution of the powei But Lord Ci an worth stated the 
inclination of his opinion to be opposed to this doctune, m Dolphin v 
Robins (1859), 7 II L 419, wheie, however, Baines v Vincent does not 
seem to have been quoted “ A will, in an instiument creating a power, 
whethei geneial or special, covers any instrument lecognized by the law of 
England as a will, though not executed according to Mie law of England ’ ’ 
(Re Wilkinson’s Settlement , [1917] 1 Ch 620, Sargant) Theie were dicta 
which suggested that the powei, having legaid to § 10 of the Wills Act, 
will not be held to have been well executed unless either the formalities 
prescubed by the powei or those of the Wills Act aie satisfied Re Kir- 
uan's I’ntsts (1883), 25 Ch D 373, Kay, Hummel v Hummel , [1898] 
1 Ch 642, Kekewich But these data ha\e been doubted m a numbei of 
latei cases, and may be deemed not to be valid Wheie the will is good in 
form by the law of the last domicile, the punciple of IV Huai t v Harlness 
will apply, not meiely to the pioceedmgs in the Couit of Piobate, but also 
so as to make the document a good execution of a simple power to appoint 
by will Re Bnec, Tomlin v Lattei , [1900] 1 Ch 442, Stilling It was 
foimerly held that the will was valid as an execution only so fai as it can 
be such without calling in the aid of the Wills Act, s 27, which makes a 
geneial bequest a good execution of a general power Re D’Este’s Settle- 
ment Trusts, Boulter v D'Este, [1903] 1 Ch 898, Buckley , followed in 
Re Scholefield Scholefield v St John , [1905] 2 Ch 408, Kekewich, in 
which case, however, terms were agieed on, [1907] 1 Ch 664 But if in such 
a case the document cieating the power lequires special formalities which 
have not been complied with, the couit will aid the defective execution in 
favour of children of the appointor Re Walker, MacGoll v Bruce , [1908] 
1 Ch 560, Joyce This limitation, howevei, no longer holds 

The tendency of the latei decisions is to assist, wheievei possible, the 
execution of the powei by will The principle which was laid down in the 
case of Re Simpson Coutts d Co v (dim eh Missionary Society, [1916] 
1 Ch 562, Neville, and was followed in Re 11 ilhnson’s Settlement, [1917] 
1 Ch 620, Saigant, is that a gift which, according to the law of the 
testatoi’s domicile, amounts to a geneial bequest of personal property, 
opeiates as an exeicise of a geneial powei of appointment, unless a con- 
trary intent appeals m the v ill Moreover, when a power of disposition 
by will over piopeity not belonging to the testatoi is unknown in the 
foieign law, “ the construction which would be applied to an English will 
must b^ applied to the construction of a foieign 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 m a will valid by the law of the testa- 
tor’s foreign domicile a good execution of a general power Re Leual’s 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 made 



SUCCESSION TO MOVABLES ON DEATH 


123 


an unattested hologi aph will at the age of seventeen, appointing hei husband 
hei “universal legatee” She had a powei of appointment undei 'hei 
marriage settlement, made in England and sanctioned undei the Infants’ 
Settlement Act 1855 According to the law of hei domicile, the Fiench 
law, the document was valid as a will , but she was only competent to 
dispose by will of one-half of her property The appointment of a 
universal legatee was held a valid execution of the powei, Ly invoking 
s 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 piopert}, one-half of the fund subject to the power was disposed of by 
the will and one-half went as in default of appointment The Court refused 
to follow the reasoning in lie TTEste (us) and lie tichole field 

§ 92 The second case is that wheie the document complies 
with English test unentaiy forms, although it does not comply 
with any forms which undei the pi eroding §§ would sustain its 
validity as the will of an oidmaiy testator 

Tntnall v Hankey (1838), 2 Mo P C 342, Brougham The leport of 
this case was supplemented, and the case followed, m lie Alexandei (1860), 
29 L J (N S ) P & M 93, and 1 S & T 454, note, Cresswell , oontiaiy 
to the peisonal opinion of that learned judge, which he had previously 
expiessed m Crookenden v rullrt (1859), 1 S & T 441 Tatnall v 
Hanley was again followed, also with dissent, m lie Hallyburtou (1866), 
L It IP AM 90, Wilde, and maj now be considered to be the law It 
was approved in Afmphy v Deiehler , [19091 A C 446, Loieburn, Ash- 
bourne, Atkinson, Shaw of Dunfei mime 

In cases falling undei this § the English couit grants administration 
limited to such property as the deceased had power to dispose of and did 
dispose of by the document Re Iluber, [1896] P 209, Jeune (see [1899] 
P 250), Re Trefond , [1899] P 247, Jeune Unless the grant can be 
enlarged with the consent of the parties interested Re Vannuu, [1901] 
P 330, Jeune 

§ 93 Where the document does not come within either of the 
above cases, oi, coming within them, does not satisfy special 
forms prestnbed by the pow r ei, it is not a good execution of the 
powei 

lie Daly (1858), 25 Beav 456, Ronnlly , Banetto v Young , [1900] 2 Ch 
339, Byrne 

§ 94 That the document conies within eitliei of the said 
cases must be established by its being proved m England 

lie Vallanee (1883), 24 Ch D 177, Peaison , explaining or coirectmg 
lie TootaVs Trusts (1883), 23 Ch D 532, Chitty 


§ 94 a Wheie an English power oi appointment is so executed 
as to make the fund assets of the appointor, the appomtoi’s 
capacity for disposing of those assets will be measured by the law 



124 


PRIVATE INTERNATIONAL LAW 


of his domic ilo at Ins death and not hy tlie law of the settlor’s 
domic ilo 

li* L*nj(t } TMufoitl \ I'nju, |_19H1 2 Ch 286, iVens-Hdid), Buckley 
and Kennedy, cweiiuling Paikei , and lie Leual’s I'm sis (u s) 

The capacity to dispose of a fund subject to a special powei of appoint- 
ment confened b\ a mamage settlement is, howevei, not measuied by that 
of the appointor but by that of the original settloi (see p 79, above) 

It will he understood that nothing in § § 80-94c/ applies to the 
validity of wills of English leal estate 

Pei son a 1 estate, lioweyei, includes the pi oieeds of a settlement 
fund invested in land, but held on tins! foi sale, He Lyne* s 
Settlement 7 nests, [ 11) ID J l ('ll 80, C A , S win fen Eady, Duke, 
Eve, leieismg Peteison Such an mteiest m English land there- 
foie will pass un dei a will made in Fiance and good by the 
Fiencli law 

TF/n/f Personal Estate passes by the Giant of Piobate oi Ad min in- 
tuition , cu must lx accounted foi by the Enc/hsh E.ierutcn 
oi Achni nistiatoi 

In England and those othei rountnes in wdnch the succession 
to movable piopeity on death is legulated by the method of 
English law explained on p 105, eieiy giant of piobate oi 
admmistiation is held to cany such corpoical chattels of the 
deceased as eitliei aie at the date of the giant within the juris- 
diction of the court from which it issues, oi afterwards come 
within that jurisdiction without having been previously reduced 
into possession by lawful authonty since the death Such 
authority would be that of an administrator under a grant issued 
by some other court, or that of an heir oi universal legatee 
entitled without grant undei the continental system explained on 
j) 100 The propel tv m all goods falling within this desc uption 
is vacant, and the jurisdiction m which they are found can 
confer such piopeity on the executor whom it contains oi the 
administrator wTiom it appoints But if the go ds only come 
into the jurisdiction aftei they have been induced into possession 
by law ful authority since the death, the property m them has 
not been vacant at any moment at which the domestic grant 
could operate on them, they must be recognized afc being the 
goods of the foreign hen 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 sense, 
so as to include executors If the goods, since the decease of the 



SUCCESSION TO MOVABLES ON DEATH 


125 


testatoi oi intestate, have been within a foreign jimsdn tion m 
which a grant has been made, 01 an hen entitled to then posses- 
sion exists, but the admimstiatoi undei that giant or the hen 
has not reduced them into possession, that makes no difteieme 
the piopeity is legaided as vacant when they entei the domestic 
junsdic turn Thus m a New r Yoik case, wheie theie weie stage- 
coaches and stage-hoises belonging to a dail\ line lunnmg tiom 
one state to anolhei, Cdianc elloi Walwoith said “It adminis- 
tration had been gi anted to difteient individuals in the two 
states, I think the piopeity must have been considered as 
belonging to that admimstiatoi who hist 1 educed it into posses- 
sion within the limits of his own state ” Onutt v Onus, 1832, 
d Paige 459, 465 And Stoiy says “ Accoidmg to the common 
couise of commeieial business, ships and eaigoes and the 
proceeds theieof, locally situate m a foieign countiy at the tune 
of the death of the ownei, always pioceed on then voyages and 
leturn to the home poit without any suspu ion that all the paities 
concerned aie not legall\ entitled so to act, and they aie taken 
possession of and adnnnisteied by the admimstiatoi of the 
fonim c lommhi , with the constant peisuasion that he may not 
only i lgh t f ill 1 v do so, but that he is bound to udnnnistei them 
a^ pait of the funds appiopi lately in his hands ” Conflict of 
Laws , § 520 Hence 

§ 95 The coipoieal chattels of a deceased poison \ielong to 
the hen or admimstiatoi who hist 1 educes them into possession 
within the temtoiy fiom the law oi jurisdiction of wdnch he 
de]i\ T es his title oi his giant 

“ Tf pioperiy came to England aftei the death, would the foieign 
administration give a light to it?” Rolfe, In Wln/te v Pose (1841), 
3 Q B 506 “ Suppose, aftei a man’s death, his watch be bi ought to 

England by a third paity, could such paity, m answei to an action of 
tiover by an English admimstiatoi, plead that the watch was m Iceland 
at the time of the death?” Paike, lb These questions weie evidently 
meant to be answei ed m the negative, and to refei to piopeity not i educed 
into possession before it is brought to England “It seems to me that 
your argument goes too far and would show that no adnunistiation in 
England could give a light ovei goods anywheie out of England A man 
may sue here in his own name, naming himself as executor or admimstiator 
under a foieign probate or grant, but does a man ever sue here in the 
character of executor or administrator undei such a probate oi giant?” 
Abmger, lb p 504 Here Lord Abinger appeals to have contemplated 
property which had been l educed into possession undei a giant within the 
jurisdiction from which the giant issued If England was that juris- 
diction, the English administrator would afterwards have a right over the 
goods out of England if that jurisdiction was foreign, the goods would 
afterwards belong in England to the foieign admimstiatoi, who might sue 



126 


PRIVATE INTERNATIONAL LAW 


foi them in his own light, naming himself administrator undei a foieign 
giant as a meie mattei of descuption Cume v Bi7cham (1822), 1 Dow & 
Ry 35, King’s Bench , wheie it was held that an English administrator 
cannot ieco\ei fioin the agent m England of a Bombay administrator the 
pioceeds, i emitted to him by the latter, of effects of the intestate i educed 
into possession under the Bombay admimstiation It does not appear, and 
can have made no diffeience, whether the effects weie corporeal chattels or 
choses in action 

In the case of ships an aigument m favoiu of an exception might be 
based on the incidence of the piobate duty By st 27 & 28 Viet c 56, s 4, 
piobate duty was charged “ m respect of the value of any ship or share of 
a ship belonging to any deceased person which shall be legistered at any 
port m the United Kingdom, notwithstanding such ship at the time of the 
death of the testatoi or intestate may have been at sea oi elsewhere out of 
the United Kingdom ” 

§ 9 da With legal d to debts belonging to the deceased, the 
jurisdiction in which it is neeessaiy oi possible to sue for them 
depends on consider ations not connected with administration 
the death of the cieditoi cannot affect that question, except so 
fai as he may have been entitled, and his heir or administiator 
may not be entitled, to the benefit of some such exceptional 
legislation as that of Ait 14 of the Code Napoleon, which allows 
a Fi Pitchman to sue in Fiance on all obligations contracted 
towaids him foieigneis But in whatevei jurisdiction the 
cncumstances of the case point out that a debt ought to be or 
may be sued foi, the administiator who has obtained a giant m 
that j ui lsdic turn, oi the lien who is entitled under its law, and 
he only, can sue for it theieiu, oi, if the debt is assignable, 
assign the light of suing for it therein see § 63 

§ 96 But to the mle m § 95a the debts due on negotiable 
instruments are an exception, because they can be sufficiently 
i educed into possession by means of the paper which represents 
them They aie m fact in the nature of corporeal chattels 
Hence the negotiable instruments of a deceased person, and his 
bonds or certificates payable to bearer, belong to the heir or 
administrator who first obtains possession of them within the 
territory from the law or jurisdiction of which he denves his 
title or his grant He can indorse them if they were payable to 
the deceased’s order, and he oi his indorsee can sue on them m 
any other jurisdiction without any other grant 

Att -Gen v Bouwens (1838), 4 M & W 171, Abmger, l J aike, and ( ?) 
The point decided m this case was that such instruments, when found m 
England at the date of the death, are liable to probate duty , and the class 
to which the decision referred was described by Lord Abmger, m delivering 
the judgment of the court, as that of instruments “of a chattel nature, 
capable of being transferred by acts done here, and sold for money here ” 



SUCCESSION TO MOVABLES ON DEATH 


127 


The same lule applied in lespect of liability to estate duty Wmans v 
Att -Gen , [1910] A C 27, Loiebmn, Atkinson, Goiell, and Shaw of Dun- 
fermline That an admimsti atoi who becomes lawfully possessed m one 
state of a negotiable note of the deceased need not take out administration 
m 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 m 
Whyte v Rose was that the place where an msti uinent which is not 
negotiable is found at the death is of no importance to the question undei 
what grant it ought to be sued on (1842), Tmdal, Abmgei, Coltman, 
Maule, Parke, Alderson, Rolfe , leveising Denman, Littledale, Patteson 
and Coleridge The doctune was applied to ceitificates of shares, not to 
beaier, but of which the possession is of practical value, by Stem v The 
Queen , [1896] 1 Q B 211, Wright and Kennedy (piobate duty) , lie 
Agnese, [1900] P 60, Jeune (giant of probate) , Be Clink, McKecknie v 
Claih, [1904] 1 Ch 294, Farwell (interpretation of bequest) , and to 
colonial bonds to bedrer though containing a charge on property in the 
colony, by Att Gen v Glendining , [1904] 92 L T 87, Phillimore (estate 
duty) Cf Be Steinlopf , [1922] W N 12, Russell, German bearer bonds, 
pait of estate of peison domiciled in England held not situate in Gennany 

§ 97 Judgment is anothei means of reducing debts into pos- 
session Theiefoie when a foreign hen oi administratoi has 
obtained judgment abroad on a debt to the deceased, he may 
sue in England on such judgment, oi prove on it in bankruptcy 
or any othei administration of assets {< om ui sin), without an 
English grant 

Vanquehn v Bouaui (1863), 15 C B N S 341, hist count, Erie, 
Williams, Keating Be Macnichol (1874), L R 19 Eq 81, Malms 

§ 98 If an administrator receives without suit payment of a 
debt due to the deceased, will his receipt be a sufficient discharge 
to the debtor, supposing that the jurisdiction from which he 
holds his giant was not one m which the debt could have been 
recoveied, and another administrator afteiw r ards sues for the 
debt in the proper court for its recovery p On principle, it 
should not be a sufficient discharge 

Tn 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 piopeily 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 Stoughton 
(1670), 3 Keble 163, it seems to have been thought that the question 
whether even a recoveiy by one administratoi was an answer to an ~ction 
by another depended on the determination to which of the two the debt 
more properly belonged 

Besides tbe property which under the doctrine thus far 
developed passes primarily by an English giant, the wide extent 
which is given in this country to the liability of an admimsti ator 



128 


PRIVATE INTERNATIONAL LAW 


and to judicial ailnmiistiation of tlio effects of a deceased person 
may lead to the result that piopeity is ultimately deemed to be 
eoni})iised m sucdr a giant, although it has been ledueed into 
])ossession since the death undei a toieign title 01 at least without 
any assistance fiom the English title 

§ 99 It a toieign administrator sends 01 bungs to England 
any peisonal assets of the deceased, foi his administration of 
which he has not }et accounted in the jurisdiction fiom which 
he denves his title, and which lie has not caused by any specific 
appropriation to lose then character as pait of the deceased’s 
estate, a ciechtoi or beneficiary may maintain an action heie 
for then judicial administration, and an injunction and leceiver 
wull be granted in case of need to pi event then being removed 
out of the jurisdiction But m accordance with jj 6d 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 

Loue v Farrlie (1817), 2 Mad 101, Plumer , Logan v Farrlie (1825), 2 
S & St 284, Leach , Sandilands v Inna (1829), 3 Sun 263, Shadwell , 
Bond \ Graham (1842), 1 Haie 482, Wigiam , Ihnnj v Fitzpatncl, fiist 
motion (1854), Kay 421, Wood, leceivei granted 

In Anderwn v Gauntu (1833), 2 My A K 763, which was a suit by a 
cieditoi against the Indian executrix of the debtoi’s Indian executor, who, 
it was charged, had possessed assets of the debtoi, Leach held that the 
piesence of an English admimstiatoi * 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 Cottenham pointed out that this 
was li i econcilable with what the same judge had said m Logan v Farrlie 

In 1 rthur v Hughes (1841), 4 Beav 506, Langdale, there had been such 
a specific appi opnation as to take the case out of this § The principle was 
thus stated by Wigiarn in Bond v Graham “If an executor oi adminis- 
trator has so dealt with the fund that by reason of such dealing it has 
ceased to beai the chaia^tei of a legacy or shaie of a residue, and has 
assumed the charactei of a trust fund in a sense diffeient from that m 
which the executoi oi admimstiatoi held it — if it has been taken out of 
tlje estate of the testator and appropriated to oi made the property of the 
cestui que ti ust — it may not be necessaiy that the cestui que trust should 
bung before the couit the personal lepresentative of the testatoi m a suit 
to lecover that pait of the estate ” 

§ 100 So also any perronal liability for a breach of tiust m 
dealing with any assets of the deceased, which under the 
ordinal v mles governing the competence of the English court 
may be enforceable against a foreign adnumstratoi m this 
country, may be enforced by or m the presence of an English 
administrator of the deceased, the fruits of such action being m 
fact an asset of the deceased recoverable here 



SUCCESSION TO MOVABLES ON DEATH 


129 


Anderson v Cauntei , which as to this point is not impugned by Tyler v 
Bell see these cases referred to undei the preceding § Twyford v Trail 
(1834), 7 Sim 92, Shadwell , decree against estates of Hall and J A 
Simpson The last case also shows that the English executoi of a foreign 
executoi is not executoi of the original testatoi, as the English executor of 
an English executor is 

§ 101 But the meie presume m England of a foreign 
admmibtiatoi who is at countable m the jurisdiction fiom which 
he denves his title toi assets leceived by him, but who has not 
so dealt with those assets as to make himself personally liable foi 
a bieacli of tiust, will not enable any one to maintain an action 
against him for judicial admimstiation heie, although foi that 
pui pose the plaintiff, has piociued an English grant 

Jauncy v Sea ley (1686), 1 Vein 397, Jeffiejs, Htivey v Fitzpati uk, 
second motion ^1854), Kay 434, Wood 

§ 102 And although a foieign lien who has accepted the suc- 
cession without benefit of mventoiy may piobably be sued m 
England on the peisonal obligation he Iiun theieby assumed 
towaids the < leditois of the deceased, and, if so, an English 
grant of admimstiation is not necessaiy foi that puipose, yet 
no action can be bi ought against Jinn lieie foi judicial admmis- 
tiation, because his liability is not m lesjiett of assets 

Beavan v Hastings (1856), 2 K A J 724, Wood 

§ 10 i If an English admimstiatoi, without obtaining a 
foreign giant of administration, succeeds m i educing assets of 
the deceased into jiossession abioad, he wull be liable to account 
for them m a judicial administration m this < ountiy, oi on an 
issue upon assets m answer to the action of a cieditoi indepen- 
dent of judicial admimstiation, just as if tlmy had been leceived 
by autlioiity of the English giant 

Dowdale's Case (1604), 6 Coke 46 b , sab nom Ttichauhon v Dowdalc, 
Cio Ja 55, Common Pleas, on an issue upon assets, Walmsley dissenting 
Atkins v Smith (1740), 2 Atk 63, Haidwuke , where it would seem from 
the obscuie note that the doctrine was applied to a case of judicial adminis- 
tration Stoiy understands that the English executoi who in Dowdale's 
Case was made liable foi assets leceived by him m Iceland had received 
them under an lush giant of administration, and accordingly tieats that 
decision as n reconcilable with the modern ones Conflict of Laws, § 51" 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 m 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 mentioned in either of the leports of Dowdale's Case Story con- 
siders that an administrator who obtains assets of the deceased m a country 

9 


W I L 



130 


PRIVATE INTERNATIONAL LAW 


wheie he has no giant will be liable m that countiy as executor de son 
tost V on ft ut of Lou s, § 514 This may well be ttue, and yet he may 
be also liable m the countiy fiom which he denves his giant 

In tftuluuj-Maiu (11 v (\ntmiqht (1879), 11 Ch 13 522, James, Bag- 
gallay, Biamwell, the Couit of Appeal affiimed the decision of Hall (1878), 
9 Ch D 173, who had held that if an English piobate oi letteis of admims- 
tiation aie not expiessly limited to the English assets, no such limitation 
will be mtioduced into a judgment foi admimstiation founded on them 
although the deceased was domiciled abroad, unless theie has been a decree 
foi judicial admimstiation abioad, as to which case the judge leserved his 
opinion James said “ If anything had been done in Scotland, the couit 
would have lecogm/ed the light of the Scotch couit to deal with the matter 
It is not foi us to anticipate that tlieie will be any such pioceedmgs m 
Scotland” Tn On Hu mg v On Hunuj (1882), 22 Ch D 456, Jessel, 
Cotton and Bowen, leveising Manisty , leveisal affiimed (1883), sub nom 
Huing v Otr Hu naj, 9 App ('a 34, Selbome, BhcKbum and Watson, it 
was held that where an oiclei foi seivice in Scotland has been made on one 
who is exec utoi both m England and in Scotland, no pioceedmgs being then 
pending in Scotland, and he appeals unconditionally, the only judgment 
that can be pionounced at the tual is the common one foi admimstiation 
of the whole estate The same mattei gave use to the Scotch appeal, Hiring 
v On Hu mg (1885), 10 Ap ('a 453, Selbome, Blackburn, Watson, Eitz- 
geiald In Sandilands \ /urns (1829), 3 Sim 263 (see above, undei § 99), 
Shadwell said that the account of the assets In ought to England would 
incidentally make it necessaiy to take an account of all the assets possessed 
undei the toieign admimstiation These authonties can haidly be con- 
sideied as establishing eithei that theie is no distinction between the case 
of an English admimstiatn who has leeeived foieign assets undei a foieign 
giant and that of one who has leeeived such assets without a foieign grant, 
oi that the liability of a foieign admimstiator to account m England for 
the assets leeeived undei his foieign giant can depend on whethei he has 
oi has not an English giant also 

Pmnipa I and Am illanj Ad nit rust ration s, and Questions arising 

in Ad ministration pnor to the Distribution of the Sin plus 

When the estate of a deceased pel son includes both peisonalty 
m England and picpeity elsewhei e, so that theie aie oi may be 
concunent administi at ions m different countnes, that m the 
country of the deceased’s domicile is called the pnncipal 
admimstiation and the otlieis aie called ancillary It has been 
seen at p 105 that an English adininistiatica consists of two 
parts, hist, utilizing the peisonal estate of the deceased and 
paying* his debts, and secondly, clistnbutmg the surplus among 
those who me entitled by will, oi by law m case of intestacy 
The fiist part belongs to an ancillary administration as well as 
to a pnncipal one, foi the English courts, maintaining the para- 
mount authority of the situs oyei the assets themselves as distinct 
from the beneficial intei est m their clear surplus, a principle 
which we have already seen earned out m the necessity for an 



SUCCESSION TO MOVABLES ON DEATH 


131 


English giant in older to confer the possession of the English 
assets, consistently make it then lule to allow eieditois to seek 
then lemedy in England against the English assets, notwith- 
standing that the administration in this country is ancillaiy 

§ 104 An English gidtii of piobate oi administration lenders 
the exerutoi 01 adnnnistiatoi liable to account in an English 
couit, to creditors of the deceased, for the assets received undei 
it, so that even if the deceased was domiciled abroad, such 
executoi 01 admmistiatoi cannot l>e required to hand over, and 
cannot safely hand ovei, any pait of those assets to the hen or 
adnnnistiatoi of the domicile', until they have been cleaied of 
debt 

Pie stun v Melville (1841), 8 Cl & F 1, Tottenham 

Hut it is much less deal how fai the second pait of the duty 
of admmistiation, the distnbution of the suiplus, is field to be 
incumbent on an English peisonal representative when the 
deceased died domiciled abioad Since the law of the domicile, 
and the\ autlioiity of the couit of the domicile wheie it has been 
consulted, aie admitted to govern the lights in the suiplus 
(§8 59, GO), much may lie said toi the expediency of lequinng 
that all questions lelating to such lights shall be brought befoie 
the c ouit of the domic lie Even in the c use of intestacy, the law 
of succession must be best known to the eouits of the country 
wheie it is m fence, still moie where a will is concerned, than 
which no (lass of documents is more fertile in legal disputes, 
ought the c emits of that country to be appealed to bv the law 
of which it must be intei pi eted and the validity of its disposi- 
tions asc eitamed Hut theie may be spec ml e licumstances that 
make the court of anothei country bettei qualified to interpret 
the will (see Re Bonne fen, p 1 \2) 

§ 105 Wheie no action foi administration is pending in 
England, and there is in the deceased’s domicile eitliei a personal 
lepiesentative m the English sense, charged with the distribu- 
tion of the property, oi an hen or universal legatee holding the 
property foi his own benefit subject to actions by particular 
legatees, an English executoi or admmistratoi who pays over 
to such pei son the suiplus of the English assets after clearing 
the estate will be held m England to be discharged by such 
payment 

In Pipon v Pipon (1744), Amol 25, Lord Hardwicke refused to entertain 
a suit by persons claiming as next-of-km the clear English assets of an 



132 


PRIVATE INTERNATIONAL LAW 


intestate domiciled m Jeisey, not meiely because the geneial administrator 
was not befoie the court, but also saying “ the plaintiffs aie wrong in 
coming into this couit foi an account of only part, for by the statute [of 
distributions] an account must be decieed of the whole ” , and “if I was 
to dnect an account of the whole, the couits in Jeisey would act contrary, 
which would be to involve people m great difficulties ” It is true the 
lepoitei makes Loid Haidwicke add, “ this case diffeis fiom wheie a 
specific pait consists of chattels here in England ” , but that dictum is not 
recon< liable with the rest of the judgment, and I suspect the real words 
were “ this case diffeis from a specific legacy of chattels heie m England ” 
In flnohm v Wi/lie (1862), 10 H L 1, it was laid down by Loid Westbury 
that wheie the domicile of the deceased was foreign, not only the English 
executois oi admimstiatois, but even the English couit, supposing the 
estate here to be undei judicial admimsti ation, ought to hand over the 
suiplus of the English assets to the peisons who are entiusted with the 
administration of the estate m the domicile, m oiuei to be distributed by 
them among the persons entitled by the deceased’s will oi by law Loids 
Cianwoith and Chelmsfoid thought otherwise, and the point did not call 
foi decision The doctune stated in the § is coveied by the principles laid 
down by Fiy and Jessel in flames v Haion (1880), 16 Ch D 407, Fiy, 
affiimed (1881), 18 Ch D 347, Jessel, Baggallay and Lush , but the decision 
in that case lestecl on other grounds as well 

§ 100 But wheie tlioie is an action foi aolmiiusti ation m 
England, it is doubtful whethei the couit wall insist on eanying 
flint action out to its full completion, by distnbuting the suiplus 
with such light as it can obtain oil the law of the deceased’s 
foieign domicile, oi will hand ovei the suiplus to a i epi esentative 
of the deceased in the domicile 

In IVeatheiby v St Gioiqio (1843), 2 Ha 624, Wigram considered that 
as soon as the debts are paid the executoi m the domicile is a mere trustee 
of the suiplus foi the parties beneficially interested, and that therefore to 
hand over the surplus to him would be contraiy to the lule “that if pio- 
perty is given to a tiustee for certain cestui que trusts, the court will pay 
it to the cestui que trusts and not to the tiustee ” , and this was m a 
case where the testato had expressly directed his English executois to 
transmit the suiplus to his Italian executors Tn Meiklan v Campbell 
(1857), 24 Beav 100, the evident leaning of Romilly was towards distribut- 
ing the surplus himself, only adopting any proceedings m the courts of the 
domicile On the same side are the opinions of Lords Cranworth and 
Chelmsfoid, cited under the preceding § On the othe side is the opinion 
of Loid Westbury there cited, and the argument to be drawn from the 
action of the English couit where the domicile is English, for which see the 
next ^ In Lines v Mitchell (1857), 4 Dr 141, 1 De G & J 423, the 
beneficial interest in the English personal estate of a testatrix domiciled m 
Scotland was in dispute, and there was a suit pending m Scotland m which 
the question might have been tued Kindersley and Knight-Bruce agreed 
in ordering service of the bill on certain defendants m Scotland, m order 
that the litigation m England might proceed , but Turner doubted 

In Be Bonne foi, Surrey v Perrin, [1912] P 233, C A , Cozens-Hardy, 
M R , Farwell and Kennedy, L JJ , reversing Evans, P , an Englishman 
married an Italian woman, and left England and became domiciled m 



SUCCESSION TO MOVABLES ON DEATH § 


133 


Italy He made no will, but signed a letter m England said to be a holo- 
giaph will according to Italian law His sister sued m England, as ndxt- 
of-km, foi letters of administration Other persons claimed under the 
hologiaph document and commenced pioceedmgs m 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 m England , 
and (2) that the question, being one of construction only of English words, 
should be decided by an English court See too, Addenda, lie Lonllaid 

§ 107 On the otliei hand, if the deceased was domiciled in 
England wheie there is an action for admmistiation, and the 
English executors or admmistiatois do not suggest that m 
lespeot of assets leceived by them undei foieign title oi autho- 
lity the English couit can give them no valid discharge as 
against cieditois, an injunction will be gianted m England to 
lestiam the piosecution of a suit abioad for the administration 
of the peisonal estate theie situate 

Hope v Carneyie (1866), L It 1 Cli Ap 320, Kmght-Bruce and Turner, 
affirming Stuait Tlie discussion was between beneficianes only Baillie 
v llaiUie (1867), L R 5 Eq 175, Malms The plaintiff m 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 executois did not suggest that a foreign dis- 
charge as against ci editors was necessary foi then protection, and one of 
them, on the contrary, was the paity 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 theie is any lule oi pnnciple of the court of chancery which, after 
a decree foi admmistenng a testator’s assets, would induce it to interfere 
with a foieign creditor resident abioad, suing for his debt m the courts of 
his own country Certainly not Ovei such a creditor the courts here can 
exercise no jurisdiction whatevei It must be obseived that we are 

dealing with the case of a foieignei, or rather a foreign corporation, seeking 
no assistance fiom the courts of this country If the appellants had come 
m under the deciee, so as to obtain payment partially from the English 
assets, a veiy diffeient question would anse ” Lord Cranwoith, m Carron 
Iron Company v Madmen (1855) 5 H L 441, 442 Brougham’s view was 
similai, and St Leonards’ only differed as to whethei the corpoiation m 
question was foreign This was followed m lie Jim/w, t 1 rofton v Ciofton 
(1880), 15 Ch D 591, Malms In Graham v MarueU (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 m the English suit 

§ 108 But if the persons who are m possession of the foreign 
assets of one who died domiciled m England should object to 
lely on the discharge which the English court can give them as 
against the creditors of the deceased, it may be doubted whether 
that couit would restiain by injunction foreign proceedings 
foi administration, fuithei than as such proceedings might be 



134 


PRIVATE INTERNATIONAL LAW 


directed to the distribution of the surplus To restrain them 
fuither would not he consistent with that view of the authority 
of the situs ovei the assets on which § 104 is based 

§ 109 If the accounts of a foreign admin istiator have to be 
taken m the English court, Enough his submission oi otherwise, 
he will be allowed such commission on his transactions undei his 
foreign giant as would be allowed him m the "jurisdiction fiom 
which it issued 

The Indian commission of 5 per cent was allowed in ('hetham v AucUnj 
(1798), 4 Ves 72, Aiden affirmed by Loughboiough, and ('ocleiell v Jiaihei 
(1826), 1 Sim 23, Leach Tt was disallowed m lloviif v BJaltman (1799), 
4 Ves 596, Aiden, on the facts as to the transactions, and in Freeman v 
Fan In (1817), 3 Mei 24, Giant, because the will gave a legacy to the 
executor foi his trouble, which it must have been considered would defeat 
his title to the commission even by Indian practice 

110 E\ciy administrator, puncipal oi ancillary, must apply 
the assets reduced into possession undei Ills giant in paying all 
the debts of the deceased, wliothei contracted in the jurisdiction 
fiom which the giant issued oi out of it, and whether owing to 
creditors domiciled oi resident in that jurisdiction oi out of it, 
m that or dei of pi unity which according to the nature of the 
debts oi of the assets is jn escribed by the law of the junsdiction 
liom which the giant issued 

This mie is an immediate consequence ot the maxim of pnvate 
intei national law that the pnonties of cieditois m a concur sus 
are determined by the lev fori oi hi c one in w/s, which indeed is 
almost ,m inevitable maxim, for if two debts weie contracted 
unclcn dilteient laws, and each by the law nuclei winch it was 
e ontiaeted would he pnoi to the* othei, how shall then oidei of 
pi ioi it > lio determined if not by the law of the fomm where 
they meet J Mediately, the mle is a c onsequeme e of the autho- 
rity which English law attributes to the situs ovei the assets 
themselves, as distinct fiom the benefit ml interest in the clear 
suiplus ot them, toi it is by r leason of that authonty that 
English law hist lequnes the assets to he possessed undei a 
giant m the situs, and then establishes a concursits in onlei to 
cleai fiom debt the assets so possessed befcnc the law of the 
deeeised’s domicile ean affect then beneficial suiplus If the 
authonty of the domicile oi political nationality weie admitted 
to extend ovei the gross instead of ovei tlm net pioperty left 
by the deceased, which is the geneial continental view, the 
succession would be opened, as the phrase is, m the country of 
the domicile or political nationality, the concur* nn of creditors 



SUCCESSION TO MOVABLES ON DEATH 


135 


would be theie, and the law of that counliy would deteimme 
then oi dei of pnonly, as on the continent it is geueially held 
to do In fad, in that system, it is not a tout m sits against 
the assets but against the hen, although his liability may be 
limited by the benefit of mventoiy, and the lien is detei mined 
foi all ]unsdi( tions by the law of the deceased’s peisonal 
junsduition, m which the succession is opened 

This § was cited with approval in lir Ktabr , Kanmcutlu i v Gnstl- 
bndit (1884), 28 Ch D 175, Pearson The learned judge added “No 
doubt, in a case in which Fiench assets weie distnbuted so as to give 
Fiench ueditois, as such, pnoiitv, in disti lbuting the English assets the 
couit would be astute to equalize the payments, and take caie that no 
Fiench cieditois slum! I come in and leceivc am thing till the English 
eieditois had been jiaul a pi open tionate amount But subject to that, 
which is foi the pm pose of doing that which is equal and just to all the 
cieditois, 1 know of no law undei which the English ueditois aie to lie 
piefened to foicigneis ” See also the authonties cpioted undei the next §, 
and 1{( Dotfsih, [1896 | 2 Ch 836, Rumei “Speaking genei all) , English 
assets have to be distnbuted acc ending to the Fnglish law — awn ding to 
pi lenities lccogm/ed b\ couits m this country ”, p 839 

T 

^ 111 If, thiough t lie submission ed a foieign admimstiator 
oi otbeiwise, foieign assets aie being judicially administeied m 
England, the couit will apply them as the foieign lepiesentative 
should have clone, that is, will assign to the cieditois as against 
am paitnulai assets that oidei of puouty which is piescnbed 
by the law T undei the authonU of winch those assets weie 
leduced into possession 

In Hanson \ 11 athn (1829) 7 L I C'h 135, Loath, tin jnochne of 

foreign land belonging to a testatoi domiciled in England was applied m 
the oidei of pnonly among ueditois pi escribed bv the hi situs In Hook 
v (Unison (1854), 2 l)i 286, Kindeisley, a cieditoi claiming on an lush 
judgment was allowed puouty ovei simple conti ac J < i editors as fo piopeity 
biought fiom Ti eland, but as against the English property he ranked as a 
simple contract creditor, according to the into which allows only that rank 
to foieign judgments, notwithstanding that the testatoi was domiciled in 
Iieland On the conti aiy, in II it son v Jfunsmn/ (1854), 18 Beav 293, 
llomilly, wheie ah j the testatoi was domiciled in Ireland, both the English 
and the lush assets weie applied on that giound in the Tush oidei of 
pi unity, a cieditoi on an English judgment being ranked against both as 
a simple contract cieditoi This case was decided before (\><>L v (Un/son f 
but was not cited m it, and was cited with disapproval m Jtr KI a be, 
Kannuuthei v (it isethiriht (1884), 28 Oh D 175, Peaison In Far Jo v 
Bincjham (1868), L R 6 Eq 485, Romilly is repoited to have expressed 
the modified view that the law of the deceased’s domicile would not detei - 
mine the priority of ueditois as against assets foreign to the domicile, 
except m favour of a ci editor who was domiciled m the same countiy with 
the deceased, but he was not equired to apply either this doctrine or his 
former one, the alleged domicile of the deceased out of England not being 



136 


PRIVATE INTERNATIONAL LAW 


proved Story appioves the doctune which I have adopted in § 110, and 
says that it is established m the United States Conflict of Laws, 
§§ 624, 525 See too, Addenda, lie Loidlaid 

See the decisions in favoui of the lex loci concursus as the rule for 
priorities in bankruptcy JRr parte Melbourn (1870), L R 6 Ch Ap 64, 
Mellish and James, Thun burn v Steward (1871), L R 3 P C 478, 
Cairns 

§ ^12 The mles about death duties belong to this place, as 
piesentmg questions which anse m an administration pnor to 
paying ovei the net suiplus 

The old death duties in England were of two kinds One was 
the piobate duty, in which teini we may include that on letters 
of administration as well as that on grants of probate, fuitlier 
applied by the st 24 & 25 Viet c 15, s 4, to peisonalty disposed 
of by will undei a general powei of appointment This might 
be (onsideied as the pi ice of the protection afforded by the 
government to movable wealth, fioni which point of view it 
followed that the domicile of the deceased was n relevant to it, 
but the situation of the piopeitv protected relevant The othei 
was the legacy duty, in which teim w~e may include that on 
shares of lesidue of peisonalty, and as tins was a toll taken by 
the go\ eminent on the tiansmission of movable wealth fiom 
dead to living hands, it followed that the domicile of the peison 
whose nun able wealth was tiansnutted was lelevant to it and 
the situation of the paitn ulais (omposmg that wealth melevant 
In 1854 there came the succession duty, which, like the legacy 
duty, was a toll on beneficial inteiests leceived, but, so fai as it 
applied to lealty m England on the death of an absolute ownei, 
was pievented by the English doctunes on our subject from 
having anything to do with domicile So fai as the succession 
duty applied to piopeity not absolutely owned but settled, its 
incidence wall be explained undei § 110 Lastly, foi deaths 
occuinng since 1st August, 1894, the piobate duty has been 
abolished and an estate duty cieated, applying to all piopeity 
wdiich had been subject to piobate duty, to all lealty m England 
and othei piopeity subject to succession duty, and to all pioporty 
situate out of the United Kingdom which passes on a death in 
such c lie umstanc es that undei the law’ m foice befoie 1894 
legacy oi succession duty would have been payable m lespect 
theieof, oi would ha\e been payable but foi the lelationslnp of 
the peison to whom it passes The effect of the last categoiy 
is to add the domicile of the deceased as a pm ciple of the duty 
to the protection of piopeity wdncli is the pimnple of the other 



SUCCESSION TO MOVABLES ON DEATH 


137 


categories, and the effect of the whole is to make the estate dut\ 
one on wealth as such, comm lent with the legacy and sm cession 
duties repiesenting tolls on beneficial intei ests iecei\ed, just as 
the piobate and legacy duties lan com uiiently on the peisonalty 
to which alone they applied 

The duty on piobates and letteis of admnnsti.it ion was 
formeily payable, and estate duty is now payable, mespective 
of the domicile of the deceased 

On Ins coipoieal chattels, negotiable instillments, and bonds 
or certificates payable to beaiei, so fai as at the date of Ins 
death they were m England, 01 , il they weie then on the high 
seas 01 m othei jmisdictions, so fai as they aie after wmkIs fust 
reduced into possession by the administiatoi undei the giant, 

And on the debts due to the deceased othei wise than in lespeet 
of negoti.ible instillments 01 bonds or c eitificates payable to 
beaiei, and on Ins sliaies in companies and othei incoipoieal 
chattels, so fai as at the date of Ins death England was the 
pi open junsdic tion m winch to lecovei them 01 otliei wise 1 educe 
them into possession 

In othei words, on the poisonal estate which passes pnmaiily 
by the English giant, puisuant to 55 § 63, 95, 90, and not on any 
other peisonal estate foi wdnch an English administrator may 
be accountable puisuant to § 103, oi which may be lecoveiable 
by oi in the piesence of an English administiatoi puisuant to 
§§99 oi 100 

TJi.it piob.ite duty is not payable on the proceeds of foieign pioperty 
which the administrator could not have lecovei ed oi reduced into posses- 
sion by means of the giant, although having leceived them he may be 
accountable foi them m England, was tieated as certain by Alex.mdei and 
Bayley m deciding lie flu in (1830), 1 Ci A J 151, 1 Tyi 91, and was 
decided m Att - Gen v Dtmond (1831), 1 Ci A J 356, Lyndhuist, Bayley, 
and (?) In both these cases foieign government stocks weie m question 
It was decided again by tlie Couit of Exchequer, and by the House of 
Lords (Brougham) on appeal, in Att -Gen v Hope (1834), 1 (5 M & R 
530, 8 B1 N E r4, 2 Cl & F 84, in which case foieign government stocks, 
debts due fiom persons domiciled and lesident abroad, and goods which at 
the time of the death were m foreign countiies 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 foi sale were sold by them 
and not sent home again, and that if there had been any goods in foreign 
jurisdictions at the time of the death which afteiwaids ai lived m this 
country and were heie reduced into possession by the adiyimstiatoi, duty 
would have been payable on them as well as on those which were on the 
high seas at the time of the death at least the case is no authority to the 
contrary In Att -Gen v Pratt (1874), L R 9 Ex 140, Amphlett reserved 



138 


PRIVATE INTERNATIONAL LAW 


his opinion us to the incidence of piobate duty on piopeity on boaid ship 
at the date of the death, but Kelly was dear m its favour, and theie seems 
to be no leason for a doubt As to ships on the high seas registered in the 
United Kingdom see st 27 A 28 Viet c 56, s 4, cited undei § 95 

Piobate duty has been held to be incident on negotiable instruments 
found in England at the death Att -(ten v Bounins and othei cases 
cited undei § 96 On the shaies in railway companies mcoipoiated within 
the juifsdiction, wheievei then business may be earned on Att -(ten v 
Hap/ins (1857' 2 H A N 339, Pollock, Martin, Watson, Funande s’ 
Fiei ntoi\ Cast (1870), L R 5 Ch Ap 314, Giffaid reversing same case 
(1869), Komilly , oi in a company mcoi penated by loyal chaitei with a head 
office m England, although its business was chiefly earned on m India, 
New Toil, Bieuene s Company v Att -(ini , [1899] A C 62, Ilalsbury, 
Watson, Slrand, Davey and Ludlow, affiiming Smith, Rigby and Collins, 
r 1898 ] 1 0 B 205, who had leveised Wills and Gianthain, [1897] 1 Q B 
738 On specialty debts wdieie the deed was within the jurisdiction at the 
time of the death , Commnswiu i of Stamps v Hope , [1891] \ C 476, 
Field, on appeal fiorn New South Wales but without prejudice to the 
duty being also pa} able wlieie the debt is one by simple contract , Payne v 
B( i , [1902] A 0 552, Macnaghten, and see Unity v Tin Queen, [1896] 
A O 567, Watson And on debts due fiorn peisons lesuling m England 
Itt -din \ l*i att (1874), L It 9 Ex 140, Kelly, Pigott, Amphlett But 
not on Indian government secunties which at the death had not been con- 
\eited into debts due fiom the East India ('om|)any in England, although 
the' deceased had declared his option for such conversion Putisi v Pearse 
(1838), 9 Sun 430, Shad well 

As to when* the intei est of a deceased paitnei is situate ten piobate, see 
Laidlay v Lotd I dio<at< (1890), 15 A C 468, Herschell, Watson, Mac- 
naghten , Burnt \ Mastti in Eguity of Supnnu (Unut of I utona , [1895] 
A C 251 11 ei schell, followed, Stamp Duty ('omm isswnt i s v Salting , 

[1907] A C 449, Loiebuin, Ashbomne, Macnaghten, Wilson, Wills 

Where an estate not comiiletely administered includes foieign assets, a 
shaie of the lesidue is situate as .in asset m the domicile of the deceased 
Laid Sadi l< y \ Att -(Jni , 1 1897 1 A C 11, Halsbuiy, Hei schell, Mac- 
naghten, Sliand and Davev, affiiming Lopes and Kay (from whom Eslicr 
dissented) 1 1896 | 1 B 354, who had leveised Russell of Killowen and 
(diaries, 1 1895] 2 Q B 526, l(i Smyth , Liaih v Liaih, [ 1898 | 1 Ch 89, 
Komei , I tt -Cm \ loin son 1 1907 ] 2 K B 885, Biay (estate duty) 

In Paitington v Att-Cni (1869) L U 4 E A 1 A 100, administra- 
tions had been taken out to the estates erf two peisons, though by applying 
the doctrine of ^ 65 only one would have been necessary, as Lend Westbiny 
pointed out Westbiny held that the dut> on the unnecessary grant ought 
not to be exacted, but H cither ley, Colonsav, and Can ns held that wlrethei 
tlr.it grant was unnecessaiy oi no* the duty must be paid on it, since jt 
had been taken out Chelmsfoid and Cairns consideied it to have been 
necessaiv, but they cannot be ' ited in opposition to the doctune of § 65, 
the bearing of which on the case they do not seem to have had cleaily m 
\ lew 

See Blailuood v The Que< n (1882), 8 Ap Ca 82, Hobhouse , a case on 
the constiuction of a statute of the colony of Victona / imposing a piobate 
duty to which all legatees were to contribute pi opoi tion ally, instead of its 
being borne entirely by the residuary legatees as the English probate duty 
is borne The judicial committee held that this circumstance did not pre- 
vent the statute fiom being constiued as imposing the duty only on property 



SUCCESSION TO MOVABLES ON DEATH 


139 


passing by the giant, and therefoie not on peisonalty out of Victona 
This case was followed m Woodruff v Att -Gen for Ontario , [1908] A C 
508, Robertson, Atkinson, Collins and Wilson, wheie it was held that the 
piovmce of Ontario had no powei to impose taxation on propeity situate 
outside the piovmce And m Cotton v The Kiruj , [1914] A C 176, P C , 
Haldane, Atkinson, Moulton, and But land v The Kim/, [1921] W N 344, 
P C , Haldane, Buckmastei, Cave, Philhrnoie, Caison, wheie the same 
principle was u])held for a Quebec statute , but see The Kira) v f \ovitt , 
[1912] A P 212, Haldane, Macnaghten, Shaw, Robson with xegai d to a 
similai statute of the Piovmce ot New Biunswick 

All piopeity within the lealm is now liable to estate duty whatevei may 
be the domicile of the poison on whose death the piopeitv passes Con- 
sequently all piopeity foimeily liable to piobate duty appeals to be now 
liable to estate duty, except possibly ccitain classes of piopeity actually 
situate abioad and belonging to poisons domiciled abioad which by special 
statutes weie deemed to be situate within the kingdom foi the put poses of 
piobate duty, such as ships icgisteied within the kingdom undei 27 & 28 
Viet i 56, s 4 II mans \ Tin Kuuj, [ 1908 j 1KB 1022, Cozens-Hai dy, 
Eletchei -Moulton, Buckley, affiuned sub rwrn II man s v itt -Gin , [1910] 
A C 27, Loiebum, Atkinson, Got ell, Shaw of Dunfeimline , Bi Consuelo 
Duduss of Maruhr sir r , [1912 | 1 Ch 540, Swmfen Eacly 

lid Wheie the deceased left assets m diiteient junsdic- 
tions, and foieign assets ‘not liable to English piobate duty 
leached the hands of the English adimnistiatoi , the lattei was 
neveitheless entitled to a letmn ot duty < oiiesponding to the 
whole amount ot the debts paid by him, and it seems that tills 
should now apply to the estate duty 

Bn/ v Ctn/l/N issiotu i s of Stamps and Tans (1849), 13 ,J ill 624, 
Denman, Patteson, Colendge 

^ ILL/ With leg aid to ])i opei t\ win eh yvas not subject to 
piobate duty but is now subject to estate duty, as being such 
that even pieviously it was subject to legacy oi succession duty 
notwithstanding its being situate out of the United Kingdom 
because of the domieile of the deceased, the expiess yyoids of 
the Finance Act, 1894, s 2 (2j, piecdude any question being 
laised on the giound ol such situation 

In fjauson v 'orntn rssnnu r s of Inland Beienm, [1896] 2 1 R 418, 
Weekly Notes, 1896, p 145, Palles, Andiews, Muiphy, the question was 
taised, partly in consequence' of the peculiauty of pievious lush legisla- 
tion, and the duty was held to apply In 1ft -Gen v feuish Colonization 
Assoc latiun, [1900] A C 123, Smith, Collins and Stilling, affirming Rigby 
and Darling, the estate duty was applied as of course when it was Seter- 
mmed that the succession duty applied And also in Be Consuelo Burliest 
of Ma in h ester , Dura annon (1 mount of) v Manchester ( Duhe of), [1912] 
1 Ch 540, Swmfen Eady, wheie the English executois of a testatoi domiciled 
in England weie held liable, to the extent of assets m then hands, to pay 
estate duty payable <>n foieign peisonalty, though that peisonalty was 
expressly bequeathed to foreign executois and remained under their sole 



140 


PRIVATE INTERNATIONAL LAW 


conti ol So, too, in lie Stott (No 2), [1916] 2 Ch 268, Cozens-Hardy, 

Phillimore, Saigant, affirming Neville, it was held that estate duty on 
chattels abioad specifically bequeathed was payable out of the residuary 
personal estate by the English executors, because all personal estate, 
wherever situate, of the testator domiciled m England passed to his 
executoi s, as such Estate duty was payable on property situate abroad 
which passed on the death of the tenant foi life, although legacy duty 
had bqpn paid on the death of the settlor and was not payable again 
Att -Gen v Bums (1922), L J , p 38, Sankey 

§ 114 The duty on legacies and shares of residue arising out 
of movable piopeity is payable when and only when the last 
domicile of the det eased was m the United Kingdom, and is 
then payable on the entne amount of the deceased’s legacies 
and lesulue, whetliei pioduoed oi not fiom assets received under 
any Jhitish giant, and whateyei may be the domicile of the 
legatees oi persons mtei ested m the residue 

The old authorities did not make legacy duty depend on domicile, but on 
the estate being adrninisteied in England, including all the cases of §§ 63, 
95, 96, 99, 100, 103 Att -Gen v Cockerell (1814), 1 Puce 165, Thomson, 
Richards, and (?) Att -Gen v Beatson (1819), 7 Price 560, Couit of 
Exchequer Logon v Fanhe (182j5), 2 S & St 284, Leach The domicile 
of the deceased was introduced as the determining fact in lie Bum (1830), 
1 Cr & J 151, 1 Tyr 91, Alexander, Bayloy, Ganow, Vaughan The 
political nationality of the deceased was taken as the determining fact m a 
case, howevei, wheie that criterion and domicile gave the same result Be 
Bruce (1832), 2 Ci A J 436, Lyndhurst, Bay ley But m the same term 
the same couit again took domicile as the deteimining fact, and this time 
in a case where political nationality would not have given the same result 
Jackson v Forbes (1832), 2 Cr & J 382, 2 Tyr 354, Lyndhurst, Bayley, 
Vaughan, Bolland Loid Brougham acted in the Court of Chancery on the 
certificate given by the Court of Exchequer m the last case, and this was 
affirmed by the House of Lords, sub nom Att -Gen v Forbes (1834), 8 B1 
N R 15, 2 Cl & F 48, Brougham, Plunkett , but m the reasons given 
the old authonties 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 weie administered in the United Kingdom previous 
to any such specific appropriation of them as is mentioned m § 99 In 
Logan v Fanhe (1835), 1 JVty & Cr 59, Pepys and Bosanquet (a further 
decision on the case befoie Leach above cited, m which a different view 
of the facts was taken), and Arnold v Arnold (1836), 2 My & Ci 256, 
Cottenham, the doctrine lemained at the point where Att -Gen v Forbes 
had left it Finally, the doctune expiessed m the § was established by 

Thomson v Advocate-General (1845), 12 Cl & F 1, 13 Sim 153, 
Lyndhuist Brougham, Campbell , Tindal delivering the unanimous opinion 
of the judges to the same effect 

Legacy duty is payable on the intei est of the deceased m foreign immov- 
ables subject to conveision into money as partnership property or by 
agreement Foihes v Steven (1870), L R 10 Eq 178, James, Be Stokes , 
Stokes v Ttucioz (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 diffeient name on legacies and shares 



SUCCESSION TO MOVABLES ON DEATH 


141 


of residue left by peisons dying domiciled abioad, so fai as realized out of 
assets administered m Great Britain In lie Wallop (1864), 1 De G J A 
S 656, Turner expressed an opinion m favoui of this contention, which, 
however, was not necessary to the decision see under § 116 In lie Cap- 
devielle (1864), 2 H & C 985, Maitm 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 then personal opinions, as well as that 
of Biamwell The contention was ultimately repelled in Wallace v Att - 
Gen and Jeves v Shadwell (1865), L R 1 Ch Ap 1, Cianwoitn See 
Handing v Commissioner s of Stamps foi Queensland , [1898 j A C 769, 
Hobhouse, and Lambe v Manuel, [1903] A 0 68, Macnaghten 

§ 115 An admmistiatoi undei an English giant is liable to 
account to the crown foi the legacy duty on the wdiole of the 
clear peisonal estate of the deceased, to the extent of the cleai 
suiplus of all such assets as he lurs lecened undei any Bntish 
giant 

Att -Gen v Napiet (1851), 6 Exch 217, Paike and Aldeison It will be 
obseived as to this case that the Acts of Pailiament imposing the legacy 
duty bind dll Bntish couits, though they do not impose the duty foi all 
the British dominions It would be a diffeient thing to hold the adminis- 
tiatoi liable for the duty to the extent of assets leceived by linn under the 
giant of a politically foieign junsdiction, m which he might be accountable 
foi them, and which might ignoie the English tevenue laws 

§ lib We now come to the succession duty when it is me ident 
on settled piopeity and not as ansing on the death of an absolute 
ownei of English leal estate By oui system of settlements 
personal estate tliiough the intei vention of tiustees, and leal 
estate eitliei with oi without the intei vention of tiustees, aie 
tied to go to a senes of peisons m succession one aftei anothei, 
who may be called owuieis to the extent of then limited mteiest^, 
beneficial y ownei s if theie aie tiustees, full owners if theie aie 
not It is from this limited ownership that absolute ownei ship 
is distinguished Thus it continually happens that piopeity, 
full oi only beneficuny, is transmitted on the death of a limited 
ownei and the simultaneous expnation of his ownei ship, the 
devolution not being detei mined by the w 7 ill of the deceased 
ownei, or by tne opeiation of law as on his piopeity, but by the 
terms of the settlement undei which the piopeity is held And 
that settlement may be the will of some foimer absolute ownei, 
a marriage contract, or a disposition inter vivos otherwise than 
on marriage Such cases aie analogous to the division of the 
property into the usufruct and the nuclei projmetas so w^ell 
known on the continent, although a commoner continental mode 
of securing the 3iyjoyment of property by a series of persons m 
succession was by giving to the first taker what was nominally 



142 


PRIVATE INTERNATIONAL LAW 


the absolute property, but (hailed with the duty of preserving 
it and passing it on to a thud peison, which w r as called a sub- 
stitution Undei an English settlement the fiist takei may be 
also the tiustee, and then he has m the one chaiacter the 
teinunable enjoyment of what in the otliei chaiacter he must 
also the tiustee, and then he has m the one character the 
light <.o the enjoyment with the duty of tiansmission, which is 
the essential note of a substitution, does not occui undei English 
law Since, how even, substitutions have been piolubited m 
many countiies as by the Code Napoleon, Ait 896— authois 
and courts of justice have made eftoits to uphold as usufruct and 
nuda p/op/ieta s many dispositions which would foimeily have 
taken effect by way of substitution Now the duties which have 
thus fai been consuleied aie those levied on the occasion of the 
death of an absolute ownei, and we must now consider those 
which by the Succession Duty Act, passed in 1858, aie imposed 
on the tiansmission of peisonal estate at the death of a limited 
ownei whose ownei ship expires with his life These fall within 
the piesent chaptei, the subject of which is the succession to 
movables on death, and they may be conveniently noticed 
immediately aftei the legacy and old probate duties, although 
then i elation in principle to each of the latter is lathei one of 
contrast than of analogy Even a contiast liowevei is instructive 
Fust then the succession duty has no analogy at all to the old 
probate duty On the death of a limited owner the juoperty 
has not to be collected undei public authority it is already 
massed together in the hands of the trustees, oi possesses a 
visible separate existence as leal estate, though with the latter 
case w r e have not now to deal Noi is theie any cpiestion of 
dealing it fiom the debts of the deceased ownei, foi he could 
not bui den it with debt beyond the duiation of his own limited 
ownei ship Secondly, the succession duty on movable property 
is, like the legacy duty, a toll taken by the government on trans- 
mission fiom a dead hand to living hands, but the wealth 
tiansmitted is not the wealth of the deceased — his interest m 
it is not transmitted but has terminated — and therefore his 
dominie would not appeal to be lelevant to its taxation The 
successor derives his title not from him or from the operation of 
law as on Ins propeity, 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 tlie lattei The duty attaches when t lie settlement is a 
Butish one, m the sense m which that teim lefeis to the United 
Kingdom and not to other Bntish countries 

When by a wall, a mainage contract, or any othei disposition 
intei vivos , movable property has been placed m trust for a 
series of peisons m the hands of tiustees personally subject to 
the jurisdn tion of a touit m the United Kingdom, so thcd such 
court by reason of such subjection is the piopei foium for 
deciding on (hums to the successive enjoyment of the propeity, 
sin cession duty will be payable on the devolution of the enjoy- 
ment from one jierson to another urespective of the dominie of 
eithei of them or of the settlor It makes no difference whether 
the settlement (will, contract, 01 gift) itself comjdetelv detei- 
mines the line of devolution, 01 gives to any one the powei of 
determining it, to be exercised in an^ manner If the person to 
whom such a ])ow r ei is given (donee of a powei of appointment - 
see § 91 ) is domiciled out of the United Kingdom and exeicises 
the jrovvei by will, succession duty will nevertheless be payable 
on the devolution so determined, because it is still the c ase of 
a devolution under the settlement and not of a legacy under the 
will of the donee If the settlement be made bv the will of a 
pei son domiciled out of the T tinted Kingdom, the fund, being a 
legacy left by such will, is not subject to legac y dutv on being 
placed in the hands of the trustees, but succession duty will be 
payable on the subsequent devolutions 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 powei by the will of a person domiciled abioad Re Lovdacc (1859), 

4 De G and J 340, Kmght-Bruce and Turnei , Re Wallop (1864), 
1 De G J AS 656, Kmght-Biuce and Tuinei 

Notwithstanding that the settlement was oieated by the will of a testator 
domiciled abioad Re Smith (1864), 12 W R 933, Stuart, Re Badart 
(1870), L It 10 Eq 288, Malms, Att Men v Campbdl (1872), L It 

5 E & 1 A 524, Hatheiley, Chelmsford, Westbuiy, Colonsay , though 
the devolution was to a party domiciled abioad In Li/all v Li/all (1872), 
L It 15 Eq 1, second point, where a testator domiciled m New South 
Wales directed his colonial executors to transmit his lesiduary estate to 
tiustees m England foi investment, but no part of that estate had leached 
the hands of those trustees before a succession took place undei the ti usts 
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 tiustees Theie was therefore a clear distinction on which 
he might have put the decision, but after a long criticism of the judgment 
of the House of L rds m 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 


“ 1 hold that no duty is payable on those funds which constitute the 
residual y estate of the testatoi ” 

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 light to them having howevei been vested m the trustees 
pievious to that date Lyall v Lyall (1872), L R 15 Eq 1, first point, 
liomilly But considei the second point m this case, cited in the last 
paragiaph 

Notwithstanding that the piopeity vested in the English trustees consists 
of the stocks of foieign governments and shares m foreign companies 
Re Cn/ala (1878), 7 Ch I) 351, Jessel, Att -Gen v Felce, [1894] 10 Times 
Law Reports, 337, Mathew and Cave, Att -Gen v Jewish Colonization 
Asso< mtion, [1901] 1KB 123, A L Smith, Collins and Stirling And 
notwithstanding that the piopeity consists of land situate abroad but 
subject to a trust for sale vested m the English trustees Att -Gen v 
[oh n son, [1907 | 2KB 885, Bray 

Notwithstanding that all the trustees ate not peisonally subject to the 
jurisdiction of a court in the United Kingdom, so long as it is practically 
necessaiy foi those who claim as beneficianes to sue the trustees m the 
United Kingdom lie Badait and Att -Gen v Campbell , cited above 
In R( (UyaUi one of the onginal tiustees was an Italian, though at the 
time of the decision all the trustees weie English Tt may be noted here 
that income-tax on the other hand is not payable by tiustees domiciled 
and lesident in England in respect of dividends on shaies m a foreign 
company which they hold on behalf of a peison domiciled abroad, the 
dividends being paid dneot to the beneficial y abioad B illiams v 
Smqer, [1921] 1 A C 65, H L , and [1919] 2KB 108, C A , Swinfen 
Eady, Wamngton, Sciutton, afliiming Sankey 

In seveial of the cases the judges lefei to the settled money being m 
the Butish funds, or in some othei 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 oi one oi inoie of them were not British, and the punciple of 
Re Ciqala , in which the duty was held to attach on the devolution of an 
mtei est m foreign funds held by British tiustees, should apply to prevent 
its attaching on the devolution of an interest in British funds held by 
exclusively foreign tiustees In that case Sir G Jessel said “ This is 
not leal piopeity, but personal piopeity in the hands of English trustees, 
and you cannot get it from them except by an action m England That 
is the tiue test, in older to recover the pioperty you must come to 
England ” 

1 IT Any duty which must be paid abroad cn the assets of 
a peison whose last domicile was in England, will only be paid 
out of his lesidue, if provision to that effect is made m the will, 
so that las particular legatees will not have to contribute to it 
Otherwise it will be paid by the particular legatees on whom it is 
imposed by the law of the country where the property is situate 

Re Scott (N 1), [1915] 1 Ch 592, C A , Cozens-Hardy, Philli- 
more, Joyce, affirming Wairington, J , where a testator domiciled m 
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 undei no obligation to 
pay the French duty, because the words “legacy duty r> were used m 
the strict sense 

The court distinguished the case from two older decisions Fetei v 
Stirling (1878) 10 Ch D 279, Malms, Be Maunct , Brown v Maunce t 
[1896J 75 L T 415, North, where the words of the will were explicit 

Cf too, Be Be Saumarez, [1912] 2 Ch 622, Parker When a testator 
domiciled m England bequeathed certain shares m a foieign 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 pioceeds of the 
shares sold and not out of the general estate 

Since the beneficial interest in the siuplus of the deceased’s 
personal property is governed by the law of his last domicile 
(§ 59), and theiefoie by one law no matter m how many juris- 
dictions the assets mav be found, it might seem to be of no 
importance out of what assets any of the debts aie paid This 
howevei is not always so Let us suppose that the deceased 
had immovable property in a countiy foreign to his domicile, and 
in which the succession to immovables is held to be governed by 
the lex situ s, and that a debt of the deceased is paid by the lien 
of that property, or by a devisee of it taking under a will m 
which no intention as to the incidence of the debt in question is 
expressed Evidently it is only by the ler situs that a debt can 
be charged primarily on immovables m exoneration of the 
peisonalty If therefore by the lex situs itself the heir oi devisee 
has recourse against the personalty foi 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 
m 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 hen or devisee enjoys 
under that law is limited by that law itself to so much of the 
immovable as remains aftei 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 oi 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 lecourse m any other jurisdiction This also 
has been settled in England, and the result is that the right of 
recourse is m 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 recoin se against the peisonal estate in England foi the 
amount of debts of the deceased which he has paid, is detei mined 
by the lea situs of the immovables 

Recourse allowed where it was allowed by the lex situs Bowaman v 
Beevc (1721), Pie Ch 5?7, Macclesfield, apparently the same case as the 
Anonymous one m 9 Mod 66, theie dated as of 1723 Winchelsea v 
Garet/y (1838) 2 Keen 293, Langdale In the foimer case the deceased was 
domiciled in the situs of the immovables, and in the latter in England 

Recourse lefused where it was lefused by the lex situs (case of Scotch 
heritable bonds) Drummond v Drummond (1799), 6 Bro P C 601, 
2 Ves and Be 132 , Elliott v Mmto (1821), 6 Madd, 16, Leach In the 
former case the deceased was domiciled in England, but m the lattei the 
domicile is not stated 

See Be Hewit , Lawson v Duncan , [1891] 3 Ch 568, Romer, where there 
weie immovables in various jurisdictions, and the older m which they and 
the movables were to be applied m payment of debts of various kinds was 
detei mined mainly on the construction of the will 

119 The rate of intoiest with which an executor or adminis- 
trator will be chaiged on assets in his hands is not necessarily 
eithei that usually given in the foium, oi that usually given m 
the domic lie of the deceased, but will be that usually given m the 
countiy wheie the assets have been, supposing of couise that 
there has been no impropei removal of them from one country to 
anothei, oi impioper retention of them m any country 

Malcolm v Men tin (1789), 3 Bio Ch 50, Arden, Baymond v Brodbelt 
(1800), 5 Ves 199, Rosslyn , Bouilu v Bicketts (1804), 10 Ves 330, Grant 
The last case shows that, as a consequence of this mle, wheie there are 
assets and executms in two oi moie countnes, the interest which a legatee 
will get may depend on which country he chooses to sue m 


Distil but ion of the Sut pi us m an Administiation 

The beneficial mteiests aicoidmg to which the clear suiplus 
of a deceased person’s estate is to be distributed are determined, 
whether m the case of testacy oi m that of intestacy, by the law 
of his last domicile This maxim was laid down m § 59, as being 
necessary to the undeistanding of much that had to follow, for 
instance the deference paid to the courts and law of the domicile 
with regard to the giant of probate or administration, and to the 
validity of wills, and m the reinamdei of this chapter we have 
simply to follow out its consequences, being henceforth free from 
the complications which, before a clear surplus was lealized, arose 
out of the authonty over the assets themselves which is allowed 
in England to the situs We may notice m passing a question 
raised by Loid Alvanley, in Somerville v Somerville (1801), 



SUCCESSION TO MOVABLES ON DEATH , 


147 


5 Yes 791 “ what would be the ease upon two eontempoiaiy 

and equal domiciles, it evei there can be such a ease?” It has 
remained a speculative one, so fai as the exjienence of the 
English couits is concerned, but Loid Alvanley’s answei may be 
given “ I think,” he proceeded, ‘‘such a case can hardly 
happen, but it is possible to suppose it A man boin no one 
knows wheie, oi having had a domicile that he has completely 
abandoned, might acquire in the same oi different countnes two 
domiciles at the same instant, and occupy both under exactly the 
same circumstances, both countiy houses foi instance, bought at 
the same time It can haidly be said that of which he took 
possession hist is to.pievail Then suppose he should die at one, 
shall the death have any effect? I think not, even in that case, 
and then ex net essitate the lev loti lei siftv must pievail, for the 
countiy m which the piopeity is would not let it go out of that 
until they know by what mle it is to be distubuted If it was m 
this countiy, they would not give it until it was pioved that he 
had a domicile somewdieie ” Savigny on the otliei hand says 
‘‘ On the death of a vagabond who had no domicile, the law of his 
oiigm deteimmes, and if this too cannot be asceitamed, the law r 
of his last iesulence, that is, of the place wheie he died ”* 

§ 120 The cleai snip! us of an intestate’s personal estate is 
distubutable among the peisons, and m the shares, determined 
by the law of his last domicile 

Ptpon v Pipon (1744), Ambl 25, Hardwicke, Thome v Watkins (1750), 
2 Ves 35, Hardwicke The old Scotch authorities on the subject, which 
appear to have fluctuated, will be found m Biute v Brute (1790), 6 Bio 
P C 566, and Bnlfmu v Siott (1793), 6 Bro P C 550, the appeals m 
which cases settled the rule for Scotland m the same sense m which it 
existed foi England Lord Thurlow’s speech m Brute v Bruce will be 
found m another repoit, 2 Bos & Pul 229, note 

§ 121 Hence if the intestate leaves immovables in a country 
foieign to his domicile, the law of which does not admit the appli- 
cation of the lex do main to the succession to immovables, but 
confers that succession on a peculiar hen, excluding him at the 
same time from a share m the movables except on condition of 
bringing into hotchpot or collating immovables, such heir may 
nevertheless, undei the lex domuiln, claim his share of the 
movables m both countnes without collating the immovables 

Balfour v Scott (1793), 6 Bro P C 550, a Scotch appeal See also 
§ 125 , and see below § 1265 


Sysfc § 375, note (b ) , Guthrie 223 



148 


PRIVATE INTERNATIONAL LAW 


§ 121a Bui bona vacantia situate m this country pass to the 
Crown, and do not follow the law of the last domicile 

Be Barnett's Trusts , [1902] 1 Ch 847, Kekewich 

§ 1216 And property which foims the subject matter of a 
donatio mortis (ansa is subject to the law applicable to gifts 
inter viros 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 Korvme's Trusts, [1921] 1 Ch 363, Eve 

§ 122 The opeiation of his will on the clear surplus of a 
testator’s movables is also determined, so fai 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 572 u s , 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 577, 3 Hagg 
Eccl 415, note, House of Lords, on Scotch appeal See also Thornton v 
Curling (1824), 8 Sim 310, Eldon , Campbell v Braufoy (1859), Johns 
320, Wood When English immovable propeity is left on trust for sale, 
its disposition will be governed by the law of the testator’s domicile 
Be I)e Noailles, [1916] 114 L T R 1589, Eve, where real property m 
England was devised by a testatoi domiciled in France on trust for sale 
for the purpose of maintaining an orphanage , and as the trusts could 
not be exactly earned 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 
Bingham, or Sir Charles Douglas's Case (1796), 3 Ves 202, m Bempde v 
Johnstone , 5 Ves 757, in Somerville v Somerville , 3 Hagg Eccl 414, 
note, 6 Bro P C 550, m head note to Balfour v Seoti^ Loughborough 
and Thurlow on a Scotch appeal 

The domicile of the testatnx 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 m the technical language of 
which, the will was made Anstruther v Chalmer (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 domu tin to the succession 
to immovables, and invalidates a charitable legacy under the circumstances 
of the case, it depends on the law of the domicile whethei such legacy will 
be payable m full so far as the peisonal 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 supei stitious uses also depends 
on the law of the testator’s domicile lie Elliott , Elliott v Johnson , [1891] 
39 W R 297, Noith In Be Ecjan , [1918] L J News 314, Swmfen 
Eady, M R , Wamngton, Duke, L JJ , a bequest for Masses by a 
testator born m Ireland but domiciled m England was held to be void 
because of an English statute (1 Edw VI c 14) declaring all bequests for 
superstitious uses invalid 

('onsti uc tion of Wills 

The subject of construction may best be mtioduced by a quota- 
tion from Loid Lyndhuist’s speech m the Scotch appeal of 
Tiotter v Ti otter, cited undei § 125 “ It was stated at the 

bar,” he said, “ and I see by the papers it was also argued below, 
that m cases of this description it is not unreasonable that when 
any technical points anse in the constiuction of a will of this 
description, the court of session should resoit to the opinion of 
lawyers of the eountiy wheie the will or instrument was executed, 
but that this only applies to technical expiessions, that where a 
will is expressed in oidinaiy language, the judges of the couit 
of Scotland aie as competent to put a proper construction upon it 
as judges or lawyers of the country wheie the will was executed 
But the judges below weie 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 paity making the 
will has his domicile There are certain rules of construction 
adopted m the courts, and the expressions which are made use of 
Hi a will and the language of a will have frequently reference to 
those rules of construction, and it would be pioductive therefore 
of the most mischievous consequence^ and m many instances 
defeat the intention of the testator, if those rules were ti be 
altogether disregarded, and the judges of a foreign court, which 
it may be considered m relation to the will, without reference 
to that knowledge which it is desirable to obtain of the law of the 
eountiy 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 


be productive of another inconvenience, namely that the will 
might have a eonsti notion put upon it m the English courts 
different from that which might be put upon it m the foreign 
couni ry It appeals to me that there is no solid giound for the 
objection, but that wheie a will is executed m a foreign country 
by a pci son having Ins domicile m that countiy, with iespeot to 
that pei son’s piopeity the will must be in tei preted according to 
the law of the (ountiy wlieie it is made It must, if it comes 
into question m any pioceedmg, have the same intei pi etation put 
upon it as would be put upon it in any tiibunal of the countiy 
wheie it was made It appeals to me theiefoie that the judges 
were peifeetly right m dneeting tlie opinion to be taken of 
English lawyeis of eminence with lespect to the impoit and 
construction of this will aecoiding to the law of England ” 

Lord Lyndhurst heie assumed that the w r ill w T as made in the 
testatoi’s domicile If it was made in a different country the 
English authorities aie to the effect that the law of the domicile 
prevails And foimeily it was the law of the testaloi ’s last domi- 
cile that was meant But now, tliiougli I he piovision in Loid 
Kingsdown’s Act that the eonsti notion of a will shall not be 
alteied by leason of any subsequent ( liange of domicile of the 
person making the same- see § 85— it has < ome to be the law of 
the testatoi’s domicile at the time of making his will which must 
be leferred to foi its eonstiuction This I take to be a real 
impiovement, and not to be inconsistent with the general 
authority of tlie last domicile of the deceased ovei the beneficial 
interest in the clear suiplus of lus estate Inteipi etation being a 
question of fact, the law which decides on the validity of a 
bequest when it lias been eonstiued may wadi look beyond itself 
foi aid m (onstiuing it 

Fuithei, the question of construction is not always easy to dis- 
tinguish fiom that of opeiation Thus Ansii ulha v Chalmn , 
quoted undei § 122, might be treated as tinning 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 m the technical language 
of a law under which lapse would not occui tlnough the decease 
of the legatee m the testator’s lifetime And the dearer it is m 
any case that the question is one of constiuctmn as distinguished 
fiom operation, the more open it is to the court to temper the 
general reference to the law T of the domicile by reference to other 
considerations which the paiticulai circumstances may suggest 



SUCCESSION TO MOVABLES ON DEATH 


151 


From all this the following’ rule appeals to result 
§ 123 When the English couit is railed on to construe a will 
of personal estate, and is not aided by any judgment m the 
testatoi’s last domicile, as to which see § GO, it will take as its 
guide the law of the country which was ihe testatoi’s domicile 
at the date of the will, giving eliect to any stiingent lules of 
construction wdnch tlieie exist, and, so fai as no such lilies exist 
theie, having a leasonable legaid to all the cm umstam es, m< hid- 
ing any habits 01 tendency of the eouits of that countiy in the 
mattei of mteipietation which may be pioved by the evident e of 
expei ts Hut this mle will yield to an ex])iess 01 obvious inten- 
tion on the pait of the testatoi 

The currency in which a legacy is given must in genei al be mterpieted 
to be that of the testatoi’s domicile, though the context of the will, or 
the situation of the funds on which the legacy is expressly chaigecl, may 
make a difference Saunders v Drake (1742), 2 Atk 465, Hardwicke , 
Pierson v Garnet (1786), 2 Bio 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 Bio Ch 50, Arden And if a legacy given in the cur- 
rency of a foieign domicile has to be paid in England, so much English 
money must be paid here as it paid in the domicile would theie produce the 
amount m the cuirency of that countiy Cockerell v Baibei (1810), 16 
Ves 461, Eldon, Campbell v Graham (1830), 1 Ru and My 453, Leach, 
with whom Brougham concuned in opinion, as he stated on the appeal 
to the House of Loids, sub nom Campbell v Sand foul (1834), 2 Cl & F 
450 

A will was construed by the law of the testatoi’s domicile, on the 
question whethei a legacy given by it was m satisfaction of a debt under a 
foieign matrimonial contract Campbell v Campbell (1866), L It 1 Eq 
383, Wood And on the question who weie eompnsed m a gift to the 
next of km of a legatee Pe Feu/iutson, r 1902 J 1 Ch 483, Byrne 
Cf however, 1G Bonncfoi (u s , p 132), where a will was constiued 
by the law of the testator’s nationality which was not the law of the 
domicile , but the cncumstances weie peculiar 

See a peculiai case of construction, not inconsistent with the doctrine 
of the present § Bernal v Bernal (1838), 3 M A Ci 559, Tottenham 

A testatoi bequeathing his “estate,” “effects,” oi “ piopeity ” in a 
given countiy puma facie intends to comprise debts due to him fiorn 
persons iesidmg i" that country Nidxt* v Murray (1799), 5 Ves 149, 
Arden, Arnold v Arnold (1834), 2 My A Ke 365, Pepjs, Tyrone v 
Waterford (1860), IT) F J 613, Knight Biuce, p 628, and, less 
distinctly, Campbell and Turnei , Guthrie v Walrond (1883), 22 Ch D 
573, Fry In Be Clark , M'Keclme v Clark , [1904] 1 Ch 294, Farwell, 
bonds were held to pass under a bequest of “ personal estate ” in the 
country where they weie payable, although they were to beaier and were 
m anothei countiy, and shares to pass undei a bequest of “personal 
estate ” m the country where the ceitificaves were and wheie they weie 
tiansfer able, although the company and its head office weie foieign See 
the cases on the incidence of probate, and now of estate duty, under § 112 

All that can be collected from Bradford v Younq (1884), 26 Ch D 656, 



152 


PRIVATE INTERNATIONAL LAW 


Pearson , (1885), 29 Cli D 617, Cotton Lmdley and Fry , appears to be 
that technical terms of a law foreign to the testator’s domicile, occurring 
m a testamentary disposition of movables, may be construed according to 
the law m which they are technical if there is a sufficient indication 
of intention to that effect, but that the higher couit was not disposed to 
be easily led to look beyond the law of the domicile 

Foi 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 Puce, Tomlin v Lattei, [1900] 1 Ch 442, Stilling, referred 
to under § 91 with legal d to the execution of poweis And so too Be 
Simpson , [1916] 1 Ch 502, Neville, and Be LewaVs Trusts (above, 
p 122) And for one m which it was held that there was no intention 
to oust a mle of intei pi etation existing m the law of the domicile, see 
Baring v Is hhuiton (1886), 54 L T 463, Chitty 

Where a will is in a foieign language and a copy of it is deposited in the 
probate legistiy, although piobate is granted only of an English trans- 
lation which appears to be inaccurate, a couit of construction may and 
must look at the original L’Fit v L’Batt (1719), 1 P W 526, Jekyll , 
the report of which case is collected m Be CAiff's Tnists, [1892] 2 Ch 229, 
North In the lattei case doubt was expiessed whethei, if any paity had 
insisted on it, an application must not first have been made to the probate 
division to collect the translation, but in the foimei case this was insisted 
on and the decision was against any such necessity As to what Lord 
Cottenham said in Banal v Bernal (1838), 3 M & C 563, note, that 
“the piobate copy must be conclusively considered as the document upon- 
which the couit was to act,’’ in that case neither the original nor a copy 
of it was deposited in the legistry 

§ 124 Together with § 123 may have to be taken a qualifica- 
tion aiismg out of the maxim that the admissibility of evidence is 
governed by the lex fon which had best be expressed in the words 
of Lord Biougham on a Scotch appeal “ It by no means follows 
that wheie 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 , noi do I think it should be denied its natural and 
legitimate foice But that it must like all other instillments be 
received upon such proof as is requued by the rules of evidence 
followed by the court befoie which it is tendered, I hold to be 
quite cleai It will follow that though a prbbate striking out 
part of a vill would be received, and the court of session would 
have no right to notice the part struck out, for this would be 
level sing or at least disregarding the very sentence of the court 
of ]irobate, yet the non-probate of a person’s will would not 
prevent the court from receiving and regarding that will, if its 
own lules of evidence did not shut It out So too it is unneces- 
sary to decide here what would be the course m the Scotch courts 
in the case of an English will of personalty attested by one 
witness, after an act should have passed requiring two ” — as has 



SUCCESSION 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 witnesses, that being a requisition not 
of form, in order to make the paper evidence, but of substance, in 
order to protect testators on tlieir 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 m England, which 
had not been admitted to probate in England because it had been revoked 
by a subsequent will there pioved, for the purpose of aiding m the con- 
struction of a trust deed, or third will, which seems to have been operative 
in Scotland with legal d to money m a Scotch bank Yates v Thomson 
(1835), 3 Cl & F 544 Since the law of England is remarkable for 
seventy m excluding writings as evidence, it is not likely that the 
English court will be asked to look at a writing excluded by the lex 
domicilii, even if Loid Lyndhurst’s doctnne that a will ought to “have 
the same interpietation put upon it as would be put upon it in any 
tnbunal of the country where it was made,” say lathei “ where the 
testator was domiciled,” should not be thought inconsistent with Lord 
Biougham’s ruling m Yates v Thomson, and of supenoi authority 
Of Be ficholefield, [1905] 2 Ch 408, § 348 

§ 125 If a testator leaves immovables situate in a country 
foreign to Ins domicile, and his will is inoperative as to them, 
but it is contended that by reason of an intention to devise them 
manifested m it the peison who is heir to them by the ler si tvs 
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), 
4B1 N R 502 3 Wils & Sh 407, Lyndhurst , Johnson v Tel fold (1830), 
1 R & M 244, Leach , Dun das v Dundas (1830), 2 D & C 349, 
Brougham, Allen v Anderson (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 relutae 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 
TTmphelby, [1908] A C 224, Macnaghten, Robertson, Atkinson, Collins 
and Wilson 

§ 125a It is immatenal whether the will is inoperative to 
dispose of the immovables situated in the foreign country because 



154 


PRIVATE INTERNATIONAL LAW 


it is defective in foim, 01 because tbe testator by the les situs was 
incapable of disposing of Ins immovable piopeity away from Ins 
legal hens In eithei case the legal hen to whom the testatoi 
has bequeathed m the same will peisonal piopeitv will be put to 
Ins election, if the last domicile of ihe testatoi wms English 

lie Ocjilvie, [1918] 1 Ch 492, Youngei “ It is against conscience 
that a foieign hen given a legacy by the same will should take and keep 
undei piotection of the foreign law land by the will destined foi another, 
without making to that othei out of his English legacy, so fai as it will 
go, compensation foi his disappointment, thus effectuating the testator’s 
whole intention The couit 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 foi which the testatoi could not by the law of the 
domicile validly by will have applied it ” 

The English couits have, however, laid down an exception to this 
pnnciple which can haidly be justified on any logical giound, but which 
is “ too well established to be disputed ” When the will by the law of the 
domicile is mopeiative to dispose of immovables situated in England, the 
English heu-at-law is not put to his election, but will take his benefit under 
the will as well as his part as legal hen ( HearJe v Gteenhank, 1 Ves sen 
298, followed m lie T)e T r ?rfc, Yaiani v JRvghom de Virte, [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 hen l > not satisfactoiy ” (pel Youngei, J , in 
lie 0(jil\n< , us, at p 490) The leasomng by which the doctrine of 
election is suppoited, in oidei that the testatoi ’s whole intention may be 
effectuated, applies equally to the case of a testatoi leaving immovable 
propel ty in England as to one leaving such piopeitv out of England 

125b The lule appeals lo be otheiwise whole the law of a 
foieign eountiy piohibifs a system of succession to immovable 
piopeity, e <) , Ivy devise to tiustoes on tiust foi the hens The 
pel son entitled to sin eeed to immovable piopeitv by the lei situs 
cannot be put to lus election if he is also entitled to other land 
undei the will Ihoun v (heijstm, [1920] A V 866, H L (Hal- 
dane, Fmlav, Dunedin, Moulton, Cave dissenting) A testatoi 
domiciled in Scotland devised land m the Argentine as well as 
land in Scotland on tiust for his children By the law of the 
Argentine no trust is recognized in lespoet of land, and the 
children succeeded to the land ab nitcstato It was held that 
they w T er e not put to then election between taking the shaies of 
the foreign land and the benefits con foiled on them by the will 
“It would be (ontiaiy to the comity foi a foreign court to 
endeavour by its jurisdiction m peisonam to make the land of 
another countiv subject to a system of trusts which its law 
prohibits ” ( per Finlay, p 876) 

§ 126 In the English statute of distributions, and m a bequest 



SUCCESSION TO MOVABLES ON DEATH 


155 


of personalty by a testator domiciled m England, the woid 
“child,” whethei qualified or not by the epithet “legitimate,” 
includes a child who has been legitimated per subsequent nuitrt- 
mo mum m the circumstances deemed necessary m England for 
the recognition of such a legitimation, as to which see above, 
pp 102, 100 

Goodman v Goodman (1862), 3 Giff 643, Stuart (bequest) , Be Goodman 
(1881), 17 Ch D 266, Cotton and James against Lush, leveismg Jessel, 
(1880), 14 Ch D 619 (statute), Be Andros (1883), 24 Ch D 637, Kay 
(bequest) Theie is a contrary decision, Boyes v Bedale (1863), 1 H & M 
798, Wood (bequest) , but Cotton and James dissented fiom it in deciding 
Be Goodman 

The same doctrine will no doubt be held equally to apply to 
the devise of English land The punciple is that m the will of 
an Englishman “child” must be mteipieted according to 
English law, which recognizes legitimation by the appropriate 
foreign law, and this is independent of the peculiar lule that the 
heir ah intestato of English land must have been born m wedlock, 
as to which see below, § 178 

So held in Be Grey’s Trusts , Grey v Stamford , [1892] 3 Ch 88, Stirling 



( 156 ) 


CHAPTER VI 

Bankruptcy 

The principal remaining case, aftei those connected with 
marriage and death, m which property is considered m special 
connection with a person is that of bankruptcy In that term I 
include all the modes m which a concursus 01 competition of 
creditors is formed against the propeity of a living person, or of 
a firm or company having a legal personality, whether the 
technical name m the paiticulai instance be bankruptcy, insol- 
vency, sequestration, ccsno bottom m , winding up, or any other, 
and whether the persons who administer the property for the 
ci editors are technically called trustees, assignees, curators, 
liquidators, syndics or any thing else, all which names may be 
considered as comprised when the term trustees is used And 
m 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 m such competitions, leaving those 
which concern his discharge, usually but not always connected 
with such competitions m 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 m 1849, “has m 
view an adjustment of the claims of a number 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 Imre 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 m 
those countries m which the bankruptcy laws can be applied only 
to traders, it is not generally even the domicile but the principal 

* Syst § S74, Guthrie 209 



BANKRUPTCY CONTINENT 


157 


trade establishment which determines the forum of a bankruptcy 
The other current sets m favour of separate bankruptcies for the 
collection and distubution of the debtor’s property in each juris- 
diction m which he may happen to possess any, and this current 
sets most strongly m 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 ^laim 
the protection of the respective enacting authority 

The management of a bankruptcy from the fiist 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 m bankruptcy 
procuies by lequisition the co-operation of the Piussian 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 aie 
public treaties If there aie none, he must propose to the foreign 
judge to co-operate in the bankruptcy m Prussia, m the same way 
as has already been indicated in regard to Piussian courts If 
this fails the curator has to watch the interest of the ci editors in 
this country” [Prussia] “ m 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 m the other state must be sold, and the proceeds 
handed over to the court of bankruptcy In this all the creditois 
must appear The marshalling (ranking) of the creditors is 
determined for the purely peisonal 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 m different 
European provinces the custom was widely spread of assisting 
each other’s proceedings m bankruptcy as thus indicated by 


* Savigny § 374, Guthrie 213 



158 


PRIVATE INTERNATIONAL LAW 


Savigny, except that tlieie was always a great body of authority 
against allowing the opeiation of a foieign 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 lllustiate For that 
purpose we need not dwell on the Prussian law of 1855, which 
in the absence of treaty gave Piussian creditors a preference 
against the assets m 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 m his 
foreign bankruptcy We may come at once to the bankrupt law 
of the Geiman empire, that of 10th February, 18TT, 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 retoision shall be 
applied to persons belonging to foieign states and then assigns 

§ 5 From the commencement of the bankruptcy [this may be prior to 
any judicial proceeding, and dates as m England from what we call the 
act of bankiuptcy — 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 admims- 
tiator in bankruptcy 

§ 39 Those assets which with regard to execution against them belong 
to the class of immovables are to be applied m separate satisfaction, so 
far as a real oi special right to pieferable satisfaction out of them exists 
The laws of the empire and of its component temtoiies deteunine 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 lattei 
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 empue by a debtor who has no geneial personal forum within 
it [that is, who is not subject to German jurisdiction through political 
nationality oi 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 geneial personal forum 
within the empue 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 m that court m the district of which the 
establishment or the property is situate 

When a bankruptcy has been commenced abroad, no proof of insolvency 
is necessary for commencing the process m the empire 



BANKRUPTCY CONTINENT 


159 


Thus tlie pieference of the home creditoi, whuh maiked the 
Prussian law of 1855, has disajipeaied, excejit by way of reboi- 
sion, but a paiticulai Geiman banhiujitcy is instituted on the 
ground of a business establishment without a geneial personal 
toium, and in the absence of any exeieise by the impel lal chan- 
( elloi and fedeial couiu ll of the poweis ieser\ed to them, by 
which they can give effect to treaties, a foieign bankiupttj- does 
not prevent execution being obtained m Gennany by paiticular 
cieditois Thus the unity of bankiuptcy is not admitted, and, 
as a consequence, extiatemtorial effect on piopeity is not allowed 
to bankiuptcy 

In Fiance the pi active of the courts as conti asted with scientific 
opinion, though the lattei is much divided, may bo summed up 
as adveise to the unity of bankiuptcy, winch neveitheless is the 
principle of tieaties concluded with Switzeiland in 1869, and 
with Belgium m 1899 But even the piaitue of the couits 
secures a eonsideiable measuie of effect to foreign bankruptcies 
by means of the view' of the nature of an adjudication which is 
geneially entertained on the continent This is that it transfers 
no propel ty of the debtor to the tiustee or syndic, but is a judg- 
ment in favoui of the ci editors, opeiating abroad either by its 
own foice as chose jucjee oi, when execution on it is req lined, 
by being declared executoiy as it is teimed, oi clothed with an 
e eecjjuatur, m the same manner as other foreign judgments 
Subject to that condition, the tiustee oi syndic appointed by it 
will be m the same jiosition as those acting under domestic 
adjudications, and, like the Geiman administialoi undei § 5 of 
the law of 10th Februai\, 18TT, will as the icpiesentative of the 
cieditois enjoy the admimstiation of the bankiupt’s estate witii- 
out the lattei being disseised of the pioperty m it, and will be 
empowered to bring on behalf of the creditoi s all the actions 
which the bankrupt could have bi ought French court of cona- 
tion, 12th January, 1875 Having that position, the foieign 
trustee, so long as no separate domestic bankiuptcy intervenes, 
can obtain any pait of the bankiupt’s estate m spite of an 
attempt by a foieign creditor to attach it, but since Art 14 of 
the Code Napoleon gives the French ci editor an absolute light 
to sue his foreign debtor m France, an attachment by him must 
be allowed to proceed, yet again, since Fiench law itself aims 
at the equal distribution of a bankrupt’s estate, no other effect 
will be allowed it than that of a security for the dividends to 
which the French credito. may become entitled m the foreign 



160 


Pill V ATE INTERNATIONAL LAW 


bankruptcy court of appeal of Pans , 13th August, 18T6 Even 
previous to the adjudication being declaied executory the foieign 
trustee, at least if the fact of his being such is not disputed, 
can oppose whatevei might prejudice his eventual lights court 
of appeal of Pans , 7th March, 1878 And he may thus defeat an 
attachment, though he canjiot without the exequatur get an order 
for payment oi delivery to himself court of appeal of Milan , 
15th December, 1876 

The English courts have always been unable to follow pie- 
cisely the continental junspiudence in this matter, because our 
judges nevei co-operate with foreign judges m the manner 
refened 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 chaptei 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 m its own countiy, that of a judgment affecting the 
administiation of the bankrupt’s estate but not disseising him of 
the pioperty m it Again, our system of bankruptcy has no root 
in the Roman law as to the appointment of dilators; it has not 
merely been modified but was founded by statute, and it operates 
by way of statutory assignment of the bankrupt’s pioperty to 
the trustees, so that even were it possible for us to declaie a 
continental adjudication executory, it would not run paiallel 
with our own adjudications There has however been no want 
of substantial liberality on oui part, a foreign adjudication being 
allowed to operate in England as to movables through the fiction 
of its being an assignment m its own country, combined with 
the maxim mobilta sequuntur peisonam Thus it has been 
classed among what m these islands more especially it is usual 
to call universal assignments, and indeed much of the British 
learning on that class is to be found in the cases on bankruptcy 
It was m a Scotch case on bankruptcy that Lo-'d 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 m 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 Cuthbert (1813), 1 Eo e 481, 17 F C 79, 
2 Buchanan 336 



BANKRUPTCY CONTINENT 


161 


liquidator has to admmistei foi the creditors, so that the bene- 
ficial interest in the estate is vntually assigned It might even 
he contended on a similai giound that it is not quite a fiction to 
treat a foieign adjudication ot ban la upt( y as an assignment, but 
theie is a difteieiue between the cases, tiusts and the beneficial 
mteiests to which they gave use not being known on the con- 
tinent as heie The syndic in a continental bankiuptey has a 
duty, and power with which to peifoim it, but they do not sav 
theie that this is attended by any modification of the property 
m tlie things about which his duty is to be peifoimed 

An linpoitant consequent e followed fiom the mode in whith 
British lawyers weie led to appioach the subject When a 
foreign bankiuptey received its effect thiough the fnendlv 
co-opei at ion of the domestn judge, that co-operation might as 
w^ell be accoided m what concerned immovables as in what con- 
cerned movables, the only reason wh) it should not be so act oided 
lay in the stringency which old opinion on pnvate inter national 
law attributed to the real statute Again, when a foieign judg- 
ment is clothed with an eicquatin , it will natuiallv affect 
immovables, as w T ell as movables, subject to any real lights of 
security wdiich creditors mav have obtained in them But when 
the efficacy of a foreign bankruptcy is held to depend on its being 
a univeisal assignment, and in its turn the efficacy of a universal 
assignment is held to depend on the maxim mobilui sequunhu 
personam, it needs no stringency of the real statute to exclude the 
operation of the bankruptcy on immo\ aides, there is nothing to 
give it such an operation Hence British law vers seem ne\er to 
have so much as entertained the question wdiefhei a foreign 
bankruptcy can operate on immovables 

With regard to companies having legal peisonalitv, either the 
junsdiction from the law of which they derive such peisonalitv, 
or that m which they have the principal se.it of then operations, 
which is s emble then domicile, each furnishing a geneial forum 
against them, mav 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 bankiuptev In ease 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 ga^e 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 aie (ontmually made bankiupt, and that, as in the 
ease of individual tiadeis, men although they may have m the 
eoimtiv only a setondaiy plate of business Examples aie the 
eases of the F reeht Fancier Suisse, having its puncipal establish- 
ment in Fiance, tribunal of eommercc of the Seme , 5tli Maich, 
1874, a Belgian company foi canying on a foundiy in Fiance, 
court of appeal of Nancy , 8th May, 1875, the < ouit at the same 
time lefusmg to giant an exequatur to a Belgian adjudication 
of bankiuptcy against the same (ompany, and a Spanish (om- 
pany foi making lailways m Spam, wludi had an oth( e and a 
committee at Pans and had negotiated loans tlieie, court of 
appeal of Fans, 17th July, 1877 And wheie Hoftmann, a 
London meichant with bi ant h houses at Hambmg, Lilian, and 
Pans, had been adjudnated bankmpt m England, he was 
dedaied bankni])t in Fiance m spite of the opposition of the 
English tiustee, who demanded m a am an c ne/uatur foi the 
English adjudication, court of appeal erf Fans , 7 1 h Maieh, 1878 
But in the t ase of tile same debtoi the court of appeal erf Milan, 
15th December, 187b, dedaied that it did not hesitate to adopt 
the piiiujple of the uqneisahly of tlie bankiupbv m the clmm- 
( lit*, and at the instance of the English tiustee deputed <i tieditoi 
of the fiuits ot an execution m Italy see above, p 1(>0 The 
most mteiestmg of these cases is peihaps th.it of the Cn'eht 
Fancier Suisse , the Fieneli decision in which was stiongly 
giounded m the Fianco-Swiss tieaty of 1869, which piovnled 
that the bankiu])tc\ of a Fienchnmn ha\mg his commeicial 
establishment m Switzeiland might be dedaied by the tnbunal 
of lus lesidence m Switzeiland, and nee rersa The company 
had been dedaied bankmpt at Gene\a, its domicile, two days 
eailiei than at Pans, and this was ii])held by the ecru it erf appeal 
erf the ('an tern erf Gene i a, but finally icveised by the Sin ss 
federal count rl , 21st Januaiy, 1875, on the ground that the tieaty 
had the unity of bankiuptcy foi its object, and that theiefore, 
though both bankruptcies wde lawful nuclei n, only the one m 
the countiy wheie the company had the puncipal foeus of its 
operations ought to be maintained The council added “ but 
that bankruptcy will lecognize the competence of the Genevese 
tribunals foi all the actions founded on engagements contracted 
at Geneva by the said Chedit Fonciei Suisse ” M Chailes 
Brochei, piesident of the couit of cassation of Geneva, consideied 
the decision aimed at by the federal council to have been equit- 
able and convenient, but not legal Clnnet , Journal du Droit 



BANKRUPTCY C0NTINEN1 


163 


1 n te / national Pure , 1 2, p 4G1 It must therefore be boine ;rn 
mind that the libeial puneiples which have been noticed as being 
applied in Plane. e to foreign biankiuptc les aie theie applied only 
A\hen theie is no conciuient Fiench bankiuptcy, and that the 
nationality oi domicile of the debtoi or company will not pi event 
the institution of a coneiiirent French bankiuptcy 

The woikmg ot conciuient bankiuptcies gives use to difficult 
questions much discussed by the old wnteis Some local statutes 
piovided foi bankiuptcies not founded on domicile, and theie 
weie not wanting those who defended them on the giounds that 
ciedit was not given to the person ot a foieign meichant so much 
as to his piopeity, and that the stint i ules of jurisdiction ought 
to be i el axed m favoui of commeice Fumy the foimei aigu- 
ment some even concluded that piefeience should be given against 
the local assets to the oeditois whose debts had been conti acted 
in the 1 oc I it > The leader may lefei foi the contro\eis\ to 
tit 2, pait 1, c 5, s 1() of Uoclenbuig’s tieatise J)c jmc (jttol 
oiitiu e statulo/ tun dn < / sitale That autlioi, agreeing with 
Buigumdus, decides in favoui of the unity of banluu])t( \ ev en 
when the debtoi has equal houses of business m ditfeient ])laces, 
unless be is also domiciled at each-see above, p 147, as to 
equality of domiciles — in any othei case the oidei of pnontv of 
the cieditois should be decoded bv the law of the domicile, and 
executions elsewhere should not be allowed But those old 
authorities aie now quite ovei shadowed h\ the mass both of 
judgments and of theoietical literature whic h has been piled up, 
and much of which turns on points of pioceduie to wdnch the 
English analogies are not close enough to make it wmith while 
even to summarize the mass 

^ 12T The bankiuptcy law of England* may be applied to a 
debtoi eitliei cm his own oi on a cieditoi’s petition, leading m 
the fust instance to a receiving oidei, after wdnch, m the circum- 
stances appearing m the Bankiuptcy Act, 1914, st ! A 5 Geo 6, 
e 59, the debtoi may be adjudicated a bankiupt In oidei to 
be subject to this process at the hands of a ciedifoi, m addition 
to ceitam conditions having no international beaiing and which 
do not restrict the application of the process to traders, a debtoi 
must satisfy one oi othei of the following conditions (1) He 
must be “ domiciled m England,” winch means that he must have 
there such a full domicile as is required foi peisonal capacity or 
in testamentary c sos Or, (2), he must oidmarily reside oi 
* The Statute of 1914 has replaced that of 1883 refeired to m earlier editions 



164 


PRIVATE INTERNATIONAL LAW 


have a dwelling-house 01 place of business m England, 01 , (3), he 
must within a yeai befoie the piesentation of the petition have 
“ ordinarily iesided 01 had a dwelling-house 01 place of business 
m England, 01 , (4), except m the ( ase of a peison domiciled m 
Scotland oi Ii eland or a him oi paitneiship having its pnncipal 
place of business m Scotland oi Iieland, he has earned on busi- 
ness m England, peisonally oi by means of an agent oi manager, 
oi, (5) (except as afoiesaid), is oi within the said penod has been 
a member of a him oi paitnership of peisons which has earned 
on business m England by means of a paitner or paitners, oi an 
agent or managei * Oi again, (G), he may be a judgment debtoi 
who might be committed undei the Debtoi s Act, 1869, s 5, m 
which case, instead of his being so committed, a receiving ordei 
may be made against him with the consent of the judgment 
neditoi, and theieupon adjudication may follow" t Fuithei, if 
the pioceedmg m bankiuptcy is intioduced by a cieditor’s 
petition, that petition must be giounded on an a< t of bankiuptcv 
committed by t lie debtoi w T ithm thiee months befoie its 
piesentaiion ITndei the Bankiuptc y A(t of 1883, it was held 
that an ait of bankruptcy cannot be committed by a him as 
such, but must be the peisonal act oi default of the peison to 
be made a bankiupt Exp Main , u Sairers (18T9), 12 Oh D 
522, James, Biett and Cotton , quoted with approval by Lord 
Davey in Coo\e v Charles A Vogelet Company, [1901] A C 
113 The provisions of s 4 (l) d of the new Act expiessly 
reveised the pnnciple laid down in these cases, which was stated 
a* follows m Coole v Charles A Vogelet Company , [1901] 
A 0 102 “ A foieignei, who has nevei been m this countiy 
and has himself peisonally done no act within the junsdntion 
of the bankiuptcv couit of this countiy, cannot be made bank- 
rupt by leason of his having Laded tliiougli an agent in this 
countiy, and having done an act in his ow r n countiy which, if he 
had done it hoie, would undoubtedly be an act of bankiuptcy ” 

In Re Pearson, Ex parte Pearson, [1892] 2 Q B 263, Esher (Brett), 
Fry and Lopes, it was held that the couit cannot give leave to serve a 
bankiuptcy notice on a foreigner out of the jurisdiction, but the term 
“ foreigner” is presumably to be understood with regard to domrcrle and 


* Bankruptcy Act, 1014 Art 1 (5) 

f The debtor’s qualifications (1) to (5) for an English bankruptcy are laid 
down in the Bankruptcy Act, & 4 (1), (2) being intern'd from or comprised in (3) 
The qualification (0) 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 an 1 Collins, followed m Re Hallman , 
erp Ellis and Collier, [1909] 2KB 430, Plnllimore 



BANKRUPTCY ENGLAND ADJUDICATION 


165 


not to nationality A bankruptcy notice may be served in England on a 
debtoi who was out of England when it was issued, subject to the question 
what it may be woith Be Clark, Ex parte Beyer , Fcacock A Co , 7am , 
[1896] 2 Q B 476, Lmdley, Lopes, Rigby An oidei for substituted 
service of a bankruptcy notice oi petition may be made if the couit is 
satisfied that the debtoi went out of the jurisdiction m order to avoid 
seivice Be TJrquhart, Ex parte JJiquliart (1890), 24 Q B D 723, 
Esher, Fry, Lopes 

If the debtoi ’s English domicile is relied on and disputed, the burden 
of piovmg it lies on the petitioning creditor Ex parte Cunningham, Be 
M it (hell (1884), 13 Q B D 418, Baggallay, Cotton, Lmdley, Bf Barne 
(1886), 16 Q B D 522, Eshei, Lmdley, Lopes 

A dwelling-house abandoned as such is not within the Act, though it still 
belongs to the debtoi Bi Not dr nfclt, [1895] 1 Q B 151, Eshei, Lopes, 
Rigby 

A petition by a cieditoi foi the admmistiation accenting to the law of 
bankruptcy of the estate of a deceased insolvent ought, if the debtoi was 
not lesident in England, to be pit suited to the high couit of justice Be 
Evans, Er jrarte Evans, [1891] 1 Q B 143, Eshei, Lopes, Lmdley 

Thus the English system lejects the unity ot bankruptcy By 
gu anting bankruptcies m eases other than those of full domicile 
oi puncipal tiading establishment, it moms the chance that 
English bankiuptcies may be c (moment with foieign ones based 
on principles which it admits for itself 

Whole a debtoi has earned on business as a mernbei of an English film 
and also as a member of a him carrying on business abroad, and adjudica- 
tions have been made both in England and abroad, the court has power 
to sanction a scheme foi a concur lent administration In re P Macfadyen 
A Co, Er parte Vizianagararn Co , Lim , [1908] 1KB 675, Bigham 

§ 128 By the Bankruptcy Act, 19 14, s G, the presentation 
of a bankruptcy petition by a debtoi is itself an act of bank- 
ruptcy, and “debtor” is defined in section l (2) to include 
any peison, whethei a British subject oi not, who, at the 
time when any at t of bankniptf} was done oi sutteied by him, 
(a) was personally present in England, oi (b) ordmaiily resided 
or had a plate of residence m England, oi (c) was eanying on 
business m England, personally, oi by means of an agent or 
manager, oi (d) was a mernbei of a film oi paitneiship which 
earned on business m England 

This definition of debtoi is somewhat widei than the class of 
debtor against whom a tieditoi can proceed, as laid dowin m 
section 4 (l) 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 Ins debt was contiacted, and whethei lie is domiciled, 



166 


PRIVATE INTERNATIONAL LAW 


lesides 01 trades m England, and m any case it is immaterial 
whetliei ilie debtoi is subpn t lo bankiuptcy by tlio law of lus 
dominie, if that is not in England, and whetliei he is in England 
when the petition is piesented 

The ancient cases take a distinction between tiadmg m and tiadmg to 
England One who had a house of business m England, 01 who was in 
the habit of tiadmg pcisonally time, though only on shoit visits to the 
country, was said to tiade m England, but one whose house of business 
was abioad, and who meiely sent goods to England fen sale and pur- 
chased goods time tluough an agent <n by coiiespon elence, was said to 
tiade to England At that time only tiadeis were subject to the English 
bankrupt laws, and the ad of bankruptcy could only be committed m 
England, and the lesult of the decisions was that any one who traded 
eitlu 1 in 01 to England eould be made hankiupt Dod'moi th v Andnson 
(1681), T Jones, 141, King’s Bench, peisonal tiadmg m England on 
shoit visits, Bud v Stdifuuh (1693), 1 Sal 110, King’s Bench, tiadmg to 
England, Ej p<ntt> Smith (1737), cited fiom P C Webb’s notes in AUx- 
andn v l avifhan, C\>wp 399, A< The last was also a ease of tiaclmg to 
England, and Loid Haidwicke appeals to have decided it reluctantly on the 
authontv of Bud v Sidijuuh, saying, “ if the act of bankiuptcy had been 
committed abioad, to be sine no commission ought to go against him for 
that act ” The woidmg of this is strange, and probably due to the lepoiter, 
foi at that time no commission of bankruptcy could go against any one 
for an act committed abioad, but tbc meaning clenilv is that if was only 
by reason of the commission ot the act of bankruptcy in England that the 
debtor who tiaded to England was subject to the hankiupt- laws Ex 
jHii t c B illicimson (1751), 2 Ves Sen 249, 1 Atk 82, is anothei case of 
the bankiuptcy of one who bad haded lo England, before the same judge 
Tlio tiadei, as also in Doilsu <n th v A ndn ion, was domiciled m Ireland, 
where time weie then no hankiupt laws, so that these cases established 
the immateriality of the debtoi ’s being subject to bankiuptcy pioccss by 
the law of Ins domicile In the report m Atkvns Lord Ilardwicke is made 
to mention, as an element, the debtoi ’s having earned on a trade m a 
kingdom belonging lo the Clown of Cheat Britain, but in the repoit in 
Vescy he is more eorrtetlv made to sav, “whore a man residing in one 
pail of the' lealm or m other courrtrres contiacts debts here” In fact 
the debtor in lind v Sidquuh resided in Poitugal By “contracting 
debts beio ” it was only meant to refei to the debtor’s trading to England, 
not to limit the benefit of tiro English hankiupt laws, when his subjection 
to them was established, to ueditois whose debts were coutr acted m Eng- 
land All these cases were reviewed and iccognized by Loid Mansfield m 
Alciandn v Vauqhan (1776), Cowp 398 In AUtn v Cannon (1821), 
4 B A A 418, Abbott and ( ?), it was decided that the habit of puichas- 
mg gtxids while on short visits in England was sufficient to constitute 
tiadmg in England without cvei selling tlieie 

After the cases above erted the English bankrupt laws were extended to 
non-tiadeis, with some distinction between the things which were acts of 
bankruptcy when done by tiadeis and those which weie such when done by 
non-tiaders, and ceitam things done abroad were made acts of bankruptcy, 
but none of them weie among those which were such acts only when done 
by traders In this state of the law it was decided, m accoidance with the 
principles expressed by Loid Hardwicke in E r paite Smith , that no one 
who was neither domiciled m England nor tiaded personally in England 



BANKRUPTCY ENGLAND ADJUDICATION 


167 


could be made bankrupt on anything done by him abioad, also that any 
peison whatevei might be made bankiupt on a non-tiadei’s act of bank- 
ruptcy committed by him in England Er pmte Crispin (1873), L R 
8 Ch Ap 374, Meilish and ttelbome In the same state of the law, Ex 
jxute Fastal (1876), 1 Ch D 509, James, Meilish and Baggallay, showed 
that a debtoi summons might be seived in England on any one however 
tiansiently thcie, as a foundation foi an act of bankruptcy , while that 
it could not be served out of England was shown b\ IF parte O’Loijhlen 
(1871), L R 6 Ch App 406, James and Meilish 

The following cases aie still applicable The same cn cumstances which 
m the case of one lesidenl in England, ot having a house of business 
theie, would lead to the conclusion that lie had (ommitted an act of bank- 
ruptcy by depaiting fiom that count ly oi lemaimng out of it with intent 
to defeat oi delay his cieditois, may not lead to that conclusion in the 
case ot any otliei peison IF jxirti ('rispm, as above , E i parti Cutmuz 
(1879), 11 Ch D 298, Jessel, James and Biamwill , Er jrarti Brandon 
(1884), 25 Ch D 500, Selboine, Cotton and Fiy 

Ei partr Crispin fuithei shows the immatei lalitv of the debtoi ’s being 
m England whim the pitition foi ad|udn ation is presented, and the 
immatei lality of the place where the petitioning cieditoi’s debt was con- 
tiactcd is shown Ivy Ei paitr Fasuil, as above 

^ 110 That Lankiuptc y pioc eedings against the same debtoi 
aie pending* m anotliei (ountiy is not a (onilusive leason against 
making an adjudication m England The English (ouit will 
adjudicate if it appeals that to do so eitlioi is oi may lie foi 
the inteiest of the cieditois, lint e\en attei adjudication the 
pioceedmgs may be stayed if it appeals that they aie useless, as 
foi instance' bee ausp all the assets aie abioad and m ionise of 
distiibution by a foieign couit 

\djudiCcition g? anted on a petition which would ovti reach a prior Irish 
adjudication, and might theietoie bung m moil assets 7 {< Md'ulluih 
(1880), 14 Ch D 716, Bacon, afhimed b\ Janies, Cotton and Thesigei 
Adjudication lefused win io thcie was a pending sequestiation in Scot- 
land, and no debts contiacted sum its commencement, nor .in’s assets in 
England lie ltnbinsan (1883), 22 Ch D 816, Jcssil, Baggallay, Lindley 
As to staying the Englisli piocec clings, see what was said by James in 
Er parte Fasial (1876), 1 Ch D 512, and in 1U McCulloih, us, p 723 

It is no ground foi staying pioceedmgs m an English bankruptcy that 
theie is a pilot adjudication of bankruptcy against the same debtoi in a 
foieign country w licit is not that of his domicile, if the jmoi adjudica- 
tion had been m the domicile, qua re Ft Attala II( manias, IF parte 
Andre Chdle (1890), 24 Q B 640, Colctidge and I ly 

§ 111 A company which domes its inc oi poiation oi oihei 
legal eastern e fiom the law ot England, oi fiom Bntish law 
as connected wit li England lathei than with any othei part of 
the empiie, is subject to be wound up m England wheievei its 
business may be, and if all its business is abroad, that nia\ he 
an additional leason foi winding it up 



168 


PRIVATE INTERNATIONAL LAW 


Be Madrid and Valencia Bailway Co (1849), 3 D© G & S 127, 
Knight-Bruce , affirmed by Cottenham (1850), 2 M & G 169 Be Fact aye 
Fansien , Lim (1864), 34 L J (N S ) Ch 140, Romilly Be Feruvian 
Bailway s Co , Lim (1867), L R 2 Ch Ap 617, Cairns and Turner 
affirming Malms Be Gnieral Company for the Promotion of Land 
Ci edit, Lim (1870), L R 5 Ch Ap 363, Giffard , affirmed mb nom 
Princess of Beus s v Bos (1871), L R 5 E & I A 176, Halherley, 
Colonsay, Can ns The last case is the authonty foi the latter part of 
the § Giffard and Hathciley appeal to have oonsideied that no business 
carried on abioad could be taken into account under the provision m 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 mcoi- 
poiation, oi suspends its business foi the space of a whole year ” But 
this would be going too far, as may be seen fiom the numerous companies 
legisteied in England in older to woik foreign undertakings And 
wheie a company was legisteied in England m oidei to cairy on business 
both theie and abioad, its not having commenced business in England 
dining the hist jear, while it had done so abroad, was held to be no 
leason foi winding it up undei that provision Be Capital Fire Insurance 
Association (1882), 21 Ch D 209, Chitty In Princess of Beuss v Bos, 
Canns consideied that, independently of the piovision leferred to, a com- 
jwm\ which earned on and intended to cany on business only abroad 
was one which it was “ just and equitable should be wound up,” within 
the spmt of the same act Malms in that case had lefused to make an 
oidei foi winding up, as a m&ttei of disci etion I piesumc that business 
in Scotland oi Iieland would satnhy whatevei may be necessaiy under 
the Companies (Consolidation) Act, 1908, 8 Edw 7 c 69 , and prevent 
the doctnne of the latter pait of this § applying see what was said by 
Jessel, alio intuitu, m Be International Pulp and Paper ('o (1876), 

3 Ch D 594 

$5 132 A company winch does not denve its mooiporation 
fiom the law of the United Kingdom may lie subjected to 
winding up pioceedmgs m England if it has an office there, 
and has earned on business and has assets m England, though 
those pioceedmgs cannot be earned so fai as to dissolve the 
t ompany 

Section 268 of the Companies (Consolidation) Act, 1908 

Be Commnrial Bank of India (1868), L R 6 Eq 517, Romilly, Be 
Matheson Brotheis, Lim (1884), 27 Ch D 225, Kay, 1?^ Commercial 
Bank of South Australia (1886), 33 Ch D 174, Peais >n and North, Be 
Mercantile Bank of Australia, [1892] 2 Ch 204, North Be Fnqlish, 
Scottish, and Austialian Chartered Bank, T 1893] 3 Ch 385, Vaughan 
Williams, affirmed by Iandley, Lopes, A L Smith, Be Fedeial 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, thud and sixth 
cases show that the pending of wmdmg-up pioceedmgs m the company’s 
domicil© is no objection to an ancillary wmdmg-up here 

If the company were incorporated by legistiation m 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 1 up oidei cannot be made m England against 
a company mcorpoiated abioad if it has no office m England, 
though it caines on business theie by means of agents 

Be Lloyd Gennale Italiano (1885), 29 Ch D 219, Peaison It was not 
necessary to consider this point in lie TJnion Banlc of Calcutta (1850), 3 
De G & S 253, Knight-Biuce, the winding-up oidei there being lefused 
as a matter of discretion 

§ 134 Curatois, syndics, oi otlieis who undei the law of a 
countiy wdieie a debtoi is domiciled, o / , if the (Jetjtor has himself 
been a party to the pi oc eedings, viulei the law of the (ountnj 
wheie he is i evident , aie entitled to admin istei his piopeity on 
behalf of his cieditois, aie entitled as such to his chattels 
pei bona 1 and ehoses m aclion m England 

[ Note the woids in italics ha\e been added to the foimei statement of 
the mle in view of the thiee cases cited below, which have been decided 
since the last edition J 

Solomons v lloss (1764), 1 II B1 131 note, Justice Bathuist sitting foi 
Loid Chancelloi Noithington, JolLt \ Deponthan (1769), 1 II B1 
132 note, Camden In Nutl v (Nottingham (1764), 1 H B1 132 note, 
Bowes, Loid Chancelloi of Ireland, made a coiiespondmg decision m 
favoui of English assignees, with the appioval of several of the Irish 
judges In all these cases the title of the curatois or assignees came into 
conflict with that of an attaching cieditoi, judgment m the attachment 
suit not having been signed till aftei then appointment Dui mg the 

argument m Folliott v Ogden, 1 II B1 132, Lonl Loughboiough 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 curatois 
of desolate estates in Holland was an assignment foi a valuable 
consi delation ” 

In AUvon v Fur nival (1834), 1 Ci M A R 277, 4 Tvi 751, Parke 
and ( ?), which was an action b} Fiench syndics foi a debt due to their 
bankrupt, the title of the plaintiffs as mandatories without an assignment 
was recognized, and although tluce had been appointed two were allowed 
to lecovei, on pioof that they could sue m Eiance without the thud 

The lust English case m which the necessity of domicile as a foundation 
for the foieign title seems to have been consideied is lie Bltthman (1866), 
L R 2 Eq 23, a contest between the assignee in a colonial insolvency 
and the executnx of the insolvent, wheie Romilly held that the title of 
the former depended on whether the insolvent was domiciled in the colony 
This was followed in Be TTayuaid , llayuaid v Haynaid, |~1897] 1 Ch 
905, Kekewich, who cited this § with approval But in Be Davidson 
(1873), L R 15 Eq 383, James decided m favour of the assignee against 
the debtor whatevei might have been the domicile, because the latter had 
been declaied insolvent on his own petition , and this was followed in 
Be Lawson's Trusts, [1896] 1 Ch 175, Noith In Be Andeison, [1911] 
1KB 896, Phillimore decided that personal propeity m England passed 
to the assignee m a colonial bankruptcy which was pfioi in date to the 
English bankruptcy, although the debtor was domiciled m 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 


ovenuled by Be Davidson and lie La a son's Tiusts, but this pait of the 
decision at least appeals to be m dnect conflict with lit Blithman and 
lie lla\f ward His decision, however, was followed in Be Ciauj , [1916] 
86 L J Ch 62, Eve, wheie it was held that a leversionaiy interest 
m a fund in couit passed to the tiustee in a colonial bankiuptcy, though 
the debtoi was not domiciled in the colony The debtoi had submitted 
himself to the colonial junsdiction by piesentmg a petition So, too, m 
Be Bui he, 148 L T 175, Astbuiy, when the assignee was appointed m a 
foieign pioceedmg, he was held to be entitled to assets in England though 
the debtoi was not domiciled m England The debtoi had jnesented a peti- 
tion to the foieign couit asking foi judicial liquidation undei the foieign 
law And this decision again was followed in Beget em v Maish , [1921] 
151 L T 264, Bailhache, wluie a Belgian tiustee in bankruptcy was held 
entitled to all the assets of an Englishman domiciled in England who had 
been a paitnei in a film in Belgium and declared insolvent with his 
paitnei in Belgian pioceedings The <n iginal deciee had been made m the 
defendant’s ahsence , but he was subsequently notified of it, and appealed 
unsuccessfully to contest its validity, and this was held to be submission 
to the juiisdiction The English piactice, as laid down in these later 
cases, justifies the asseition oi a punciple that a commeicial domicile is 
a sufficient basis foi junsdiction in bankiuptcv In Dulaney v Meny 
and Son , [1901] 1 K B 536, Channell held that the title of the tiustees 
of a Mainland deed of assignment foi the benefit of cieditois, who had 
been ompoweied by the couit of that state to adnunistei then ti list under 
its authontv, was supciioi to that of an execution cieditoi, lelymg on 
the doctiim* mobiha sequuntui petsonmn , the Deeds of Anangement Act, 
1877,* undei which the deed had not been legisteied, not applying to the 
case 

The Scotch authoiities had fluctuated with legal d to the doc time of 
§ 134, but the supciioi title of the assignees in the English bankiuptcy of 
a pei son domiciled in England, to that confened by an anestment in 
Scotland not completed by den net befoie the assignment to them, was 
established by the couit of session in Stiothei \ Head (1803), 13 Eac De 
253 11ns was followed hv Boyal Bank of Scotland v Cuthbeit , or v 
Stan's assignees (1813), 17 Eac De 72, 1 Rose 462, in which the same 
court held that the bankiuptcy m England of foui paitners having as such 
houses of business both in England and in Scotland, but of whom two were 
domiciled m England and two in Scotland, passed the movable estate of 
all m Scotland, so as to piedude a subsequent sequestintion in the lattei 
countiy fiom having anv operation not only on the joint estate of the 
foui, but even on the separate estate of the two whose domicile was 
Scotch, and who earned on a sepai ate business in Scotland Afterwards 
the House of Loids in a Scotch appeal, Selktig v Davis (1814), 2 Rose 
291, 2 Dow 230, Eldon , similaily held that an English bankiuptcy was 
pai amount to a subsequent Scotch sequesti ation, wheie the bankrupt was 
domiciled in Scotland but traded both in England and in Scotland It 
is iinfoitunately difficult to discover the piecise ground foi the decision m 
Selhng v Davis, <n foi that pait of the decision in Boyal Bank of Scotland 
v f uthbeit with which Selktig v Davis cones ponded It can liaidly be 
doubted that in some way <>i other the ground was the impel lal character 
of the legislation on winch an English bankiuptcy depended, and that 
these cases cannot be quoted as authoiities foi allowing Scotch movables, 


Now icpc dtd and reenacted by the Act of 1914 



FOREIGN BANKRUPTCY El FECT IN ENGLAND 


171 


01 theiefoie English, to pass by a bankiuptcy taking place neithei in the 
United Kingdom noi m the debtoi’s domicile But since at that time it 
was agieed that the English bankiupt laws did not design to pass Scotch 
immovable property, then design to pass Scotch movables could not be 
in fence! fiom then powei to do so, and if it was piesumed that they 
designed to follow the maxim mohiha uquuntm pnsonam, that aigument 
would not ap])ly whcie the domicile was not English Foi the lest, fiom 
Sdhny v Davib and St} other v lit ad it fuithei appeals that the intima- 
tion of tho assignment to the debtoi, which by Scotch law is generally 
necessaiy in oidei to complete an assignee’s title to a debt, is not lequned 
m Scotland fiom peisons deiivmg title to a debt undei a foicign bank- 
l uptcy 

Wheie the oidei of dates was this 1 act of bankiuptcy, to which the 
English commission lelated, 2 application foi sequestiation, to which the 
Scotch awanl lelated, 3 English commission (now it would be adjudica- 
tion) of bankiuptcy, 4 Scotch awaul of sequestiation it was held by 
tho House of Loids on a Scotch appeal that the sequestiation was pnoi 
(hddt s v Mount (1824), 1 Ol & J 414, Giffoid 

§ Id j Rut wheie a particular foi nr of conveyance is nemos- 
saiy, as m tlie ease of money in the public funds, oi m that of 
a legal cliosc m action only assignable pursuant to tlie Judicature 
Act, 1873, s 25, sub-s 6, tlie foreign law undei which tlie 
cuiatois, syndics oi otlieis aie entitled cannot supply the want of 
such conveyance, though it binds tlie beneficial light 

A Scotch sequestiation, though undei a Bntish act of pai Lament, did 
not enable the tmstee to sue foi a le«>;al chose in action in his own name 
Jeffeiy v MiTatppul (1817), 6 M AS 126, Ellenboiough and Abbott 

Thus also an English bankiuptcy, passing immovable pioperty m a 
colony wheie registration is necessary to complete the title, does not super- 
sede the necessity of such legislation pc/ Jessel m i par ft Boyers 
(1881), 16 Ch D 666 The bankiupt is compelled by section 22 (2), of 
the Bankiuptcy Act, 1914, to aid in the realisation of his propeity, and can 
theiefoie be called on to legistei a»v tianstci nece^saiv 

The words in the Bankiuptcy Act, s 1, that a debtoi commits an 
ac of bankiuptcy if, “in England oi ehnihen,” he makes a conveyance 
etc of his piopeity does not altei the old law that the conveyance must 
be intended to operate accenting to English law , and, theiefoie, a convey- 
ance of piopeity in England must be earned out according to English law, 
to be an act of bankiuptcy 

§ 13G A cm at oi, syndic, oi assignee in a foieign bankiuptcy 
is not accountable in tlie English couit meiely because he is m 
England with funds of the bankiupt' v m his hands, nor will 
the English couit interfere with him unless it be shown that his 
absence fiom the countiy of the bankiuptcy prevents redress 
being had there 

Smith v Moffatt (1865), L R 1 Eq 397, Wood 

See as to the paiallcl cases concerning foreign admimstiatois of the 
estates of deceased peisons, §§ 99 — 101, above 



172 


PRIVATE INTERNATIONAL LAW 


§ 137 It was foimeily tlie law that an English bankruptcy, 
or the winding up of a company me oipoiated in England, carried 
all the real 01 immovable propeity of the bankrupt or company 
in any part of the British dominions This was expressly laid 
down m the Bankiupt Law Consolidation 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 lested on the word “ all " as desciibing the piopeity 
of the bankrupt dealt with by the statute Foi such an inter- 
pretation there weie two gi ounds besides the simple meaning 
of the word, one that the intention of Parliament was to be 
measuied by the extent of its powei, the other that a change m 
the law fiom that laid down by older legislation in pan nuitema 
must not be presumed without its distinct expression But 
notwithstanding the acquiescence with which the intei pietation 
has geneially been leeeived, cause for reflection has been given 
by what w r as said by Loid Hohhouse in delivering the judgment 
of the judicial committee (Lords Watson, Hohhouse and Moms, 
Rir R Couch and Loid Sliand) m Callender , Spies S, Co v 
C olonial Sea eta n/ of Laqos and Danes and Williams v Dane s, 
[1891] A C 460, at p 466 “ It is tine that the law^s of eveiy 

country must prevail with lesjiect to the land situated theie 
If the laws of a colony are such as would not admit of a transfer 
of land by mere vesting older or mere appointment of a trustee, 
questions may anse which must be settled according to the 
ciicumstances of ea( h case Sin h questions aie specially likely 
to anse in those colonies to which the imperial legislature has 
delegated the powei of making law’s foi themselves, and m which 
laws have been made m reference to bankruptcy ” This preg- 
nant lemaik, which equally applies to the interpretation of the 
general words in the Companies Acts, suggests that the change 
of language made by pailiament m 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; et property ” is more distinctly defined to include “ every 
description of projierty whether leal or personal and whether 
situate m England or elsewhere ” (s 167) These words would 
appear to embrace m an English bankruptcy leal property 
abroad But the idea that land is subject to the local law m a 
peculiar measure is so deeply seated in the English system of 



ENGLISH BANKRUPTCY EFFECT ABROAD 


173 


private international law that it is difficult to suppose that the 
mother country, while establishing what have been called sister 
states, intended any longei to affect land' in them by hei own 
legislation No theoiy ot the unity of bankiuptcy could be cited 
m suppoit of such a supposition, because the unity of bankiuptcy 
is not adopted by the English system It w r ould not be enough 
to say that wdieie an English bankiuptcy or winding up is later 
m date than a sinnlai pioceeding undei the law of a self- 
governing colony, pai Lament cannot have intended to displace 
a disposition of the local immovables already made in 01 by the 
latter It would seem scarcely enough to say that even wheie 
the English pioceeding is the eailiei 01 the only one, pai Lament 
cannot intend to withdraw land m such a colony Lorn the future 
operation ot laws which “ have been made ” in it m lefeience to 
bankiuptcy The piobable intention of par Lament cannot, 
surely, depend on whethei a bankiuptcy law has been made m 
a given colony, but must tum on wdiethei the colony is regarded 
as having attained the degiee of sepaiate existence to which 
English ideas attach the consequence that land in it shall not be 
affected by the law* of another political unit * Wheie that is 
the case, 1 now submit that t lie leal 01 immovable property of 
t lie bankiupt 01 company in the colony m question cannot be 
deemed to pass by an English bankruptcy or winding up, 
through the mere toice of Butish legislation, though it may be 
brought under the pioceeding through the view r which the courts 
of the colony take ot its international effect In the case of all 
othei British dominions the local immovables will still be earned 
by the British legislation 

Wheie immovables m a British colony 01 dependency are com- 
prised m an English bankiuptcy or similar proceeding, the title 
to them must be completed m accordance with the local law 
This will often be applicable m the case of a winding up, since 
the Companies Act does not divest the company of the piopeity 
m any of its assets, but impresses the whole of the assets with a 
tiust foi the creditors 

§ 138 An English bankiuptcy, oi the winding up of a com- 
pany incorporated in England, carries all the personal or 
movable pre perty of the bankrupt or company situate oi recover- 
able m any part of the British dominions 

*Dumouhn’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 
afft'eted by the decision of the second case of De Ntcols v Curlier in accordance 
with that doctrine See above, p 74 



174 


PRIVATE INTERNATIONAL LAW 


See Ejl parte Robertson (1875), L R 20 Eq 733, Bacon, in which a 
creditor domiciled m Scotland was ordered to pay over to the trustees in 
an English liquidation a sum which aftei its commencement he had 
received fiom the liquidating debtor on account The judge put it on 
the giound of the ci editor’s having pioved for the lesidue of his debt, 
treating proof as a contract that the whole estate should be administered 
m the liquidation ox bankiuptcy 

In Re Oriental Inland Steam Company, Ej parte Scmde Railway tym- 
pany ^1874), L R 9 Ch Ap 557, James and Mellish affirming Malms, 
and Re Inter national Pulp and Paper Company (1876), 3 Ch D 594, 
Jessel, ci editors of a company m course of winding up m England were 
restrained, in the foimer case fiom attaching its property m India, and 
m the lattei fiom suing the company m Ireland If an Indian oi Colonial 
company weie subjected to a winding up piocess m England under the 
doctune of § 132, it is difficult to suppose that eithei its movable or its 
immovable piopeity situate out of England could be stnctly consideied as 
passing by such winding up, though it might veiy likely, for convenience, 
be administeied m the English couit as long as there was not a concurrent 
winding up in the company’s domicile 

§ L‘59 But when a debtor to one who is a bankiupt m 
England has paid Ins debl sime the ( omnienc enient of the bank- 
ruptcy undei piocess of law m any <ounti\, Biitisli oi foreign, 
the trustees m the bankiuptcy cannot make him pay it over 
again, though the cieditoi who compelled the payment by piocess 
of attachment may be accountable foi it to the trustees 

Le Chevalier v Lynch (1779), 1 Doug 170, Mansfield 

§ 140 It was foimeily held that a bankiupt in England 
cannot be compelled to make to the tiustees an assignment of his 
immovable piopeity outside the British dominions, or even of Ins 
movable piopeity situate oi leeoveiable m any country m which 
the title of the tiustees to such piopeity is not as fully recog- 
nized as m England 

Er parte Blokes (1787), Cox, 398, Thuilow, foreign debts, Eldon, m 
Sellnq v Davis (1814), 2 Rose 311, 2 Dow 245, propeity both immovable 
and movable And it would be impropei to compel the bankrupt 
indnectly, by withholding his ceitificate till he had conveyed his foreign 
immovables Paike, in Coderell v Dickens (1840), 3 Mo P C 133 

Section 22 of the Bankiuptcy Act, 1914, howevei, provides 
that the deldor shall execute such conveyance deeds and instru- 
ments as may be reasonably required by the trustee This would 
not, indeed, af¥e< t immovable propeity in a foreign country 
which by the lev situs would not pass to the trustee m bank- 
ruptcy, but it would affect the assignment of all movables 
But now let us suppose that a ci editor of one who is a bank- 
rupt m England has since the commencement of the bankruptcy 



ENGLISH BANKRUPTCY EFFECT ABROAD 


175 


obi dined payment outside the Bntisli dominions, eitliei out ot 
immovable piopeity, 01 out of movable piopeity the title ol the 
English tiustees to which was eitliei not put foi w aid 01 was not 
leeognized m the country wheie it was situate 01 lecoveiable 
The doctune applicable to such cases is laid down m the judgment 
of the pi ivy council on an appeal fiom Calcutta with lefeience to 
an Indian insolvency, which was confessedly governed by the 
same pi maples as an English bankiuptc y “ If the leal estate m 
Java did not pass by the assignment undei 9 Geo 4, c 73, s 9 ” 
— the act foi Indian insolvencies — “ noi could m any way lie got 
hold of and made available by the assignees foi the payment of 
the geneia] cieditois, any individual cieditoi who could obtain 
it by due course of law would have a light to hold it , and if lie 
duly pioved the debt due to him befoie lie had been paid any 
pait of the debt so pioved by means of that estate, he would lie 
entitled to leteive the dividends undei the insolvent estate until 
he had been paid altogethei twenty shillings in the pound, 
exactly in the same way as if a cieditcu had had a secunty on 
the leal estate oi peisonal cieclit of a tlmd peison In this case 
he could neithei be compelled to lefund the money obtained by 
means of the leal estate oi the dividends leceived on the debt, oi 
be lestiamed fiom leceivmg those heieafter to become clue 
The pnnciple is that one c 1 editor shall not take a pait of the 
fund which otheiwise would have been available foi the payment 
of all the creditors, and a t the same time be allowed to come m 
pan passu with the othei cieditois foi satisfaction out of the 
remamdei of that fund and this pnnciple does not apply wlieie 
that cieditoi obtains by his diligence something which did not 
and could not fonn a pait of that fund ” C odercll v Dulens 
(1840), 3 Mo P C 132 This extiact fully sets out the doctune 
relating to a fund whic h even if not taken by the paitieulai 
cieditoi w T ould not have been available foi the cieditois genei- 
ally, but it was not necessaiy to state as fully the doctune 
relating to a fund which might have been so available The 
paitieulai cieditois weie aliens lesulent out of the jui iscliction 
They had not only obtained partial payment out of the insol- 
vent’s real estate in Java, but had also commenced pioceodmgs, 
though they had not so far derived any fi mts therefrom, against 
debtors to the insolvents at Bencoolen, anothei settlement m the 
Dutch East Indies The assignees at Calcutta, in accordance 
with what is said in the passage extracted, succeeded m stopping 
their dividends in the insolvency theie 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 
aiisen whether the assignees might not have asked to have those 
fruits paid over, as foimmg pait of the fund which might have 
been available foi ihe 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 oi alien, may letam any pay- 
ment which he can obtain out of the non-British immovables of a 
bankiupt 01 company being wound up, and if it is only partial 
may receive dividends m the bankiuptcy or winding up on the 
residue of his debt pan passu with the other creditors 

Coeleiell v Dickens (1840), 3 Mo P C 98, Paike In Be Central 
Suyai Factories of Biazil , Flack's Case , [1894] 1 Ch 369, Noith, a creditor 
was lestiamed fiom pioceedmg fuithei against the Brazilian immov- 
ables of an English company, wheie his doing so would have mteifeied 
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 doetime is thus bioadly stated m the English authorities 
on the assumption that a foreign bankiuptcy would in no country 
be allowed to opeiate on immovables but since this is not quite 
the fact, the principle laid down in V ockeiell v Dickens should 
lead to the proposition being lestncted to payment obtained out 
of immovables situate in eountnes w r here the English trustees 
would be unable to get the benefit of them 

The doctnne of the § applies also to payment obtained abioad 
bv a judgment in rem against movables 

Minna Craiq Steamship Comjxiny v Chartered Mercantile Bank of 
India London and China, [1897] 1 Q B 55, Collins 

Coming to the general < ase of movables, let us suppose a 
country, not where the title to them of the trustees m an English 
bankiuptcy is absolutely unrecognised, foi theie is perhaps no 
such country, but wheie 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 otlieiwise 
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 m 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 oi the 
latter class m the particular instance, but the couits have not 
embarked in such an inquiry, and have rathei pioceeded on lines 
which may probably be described as m the next two § § 

§ 142 A British creditor, or one domiciled m England, or one 
who m his charactei of creditor must be regarded as English 
because the debt is owed to a house of business in England of 
which he is a membei, and who after the commencement of an 
English bankruptcy or winding up, and not by vntue of any 
charge prior to the bankiuptcy or winding up or of a judgment 
in rem, obtains payment out of the bankrupt’s or company’s 
movables m a non-British country, must pay over the amount 
to the trustees m the bankiuptcy or the liquidatoi, whether or 
not he seeks to rec eive 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 m such proceedings if any And such a ci editor 
will be restrained from proceeding abroad to obtain such 
payment 

Be South-Eastern of Poituqal Bailnay Co (1869), 17 W R 982, Malms , 
Be Noith Carolina Estate Co (1889), 5 T L R 328, Chitty , and Be 
Belfast Shipounei s’ Co, [1894] 1 I R 321, Chatteiton, affiimecl by 
Walkei, Pallet, Fitzgibbon , are authorities foi restraining a creditor as 
mentioned 

§ 143 A ciechtor not being such as is described in the last §, 
who aftei the commencement of an English bankruptcy or wind- 
ing up, and not by vntue of any chaige pnoi to the bankruptcy 
or winding up oi of a judgment in rem , obtains payment out of 
the bankrupt’s oi company’s movables m a non-British country, 
must account for such payment if he seeks to leceive dividends 
on the residue if any of his debt, but may otherwise letam 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 m such proceedings if an} 

The leading cases a.e Hunter v Potts (1791), 4 T R 182, King’s Bench, 
judgment of court delivered by Kenyon, Sill v Worswick (1791), 1 H B1 

12 


W I L 



178 


PRIVATE INTERNATIONAL LAW 


665, Common Pleas, judgment of court delivered by Loughborough, and 
Philips v Hunter (1795), 2 H B1 402, Exchequer Chamber, Macdonald, 
Hotham, Perryn, Heath, Thompson and Rooke, against Eyre , m all which 
the assignees in English bankruptcies recovered from creditors the 
amounts which they had obtained by attachments abroad In Hunter v 
Potts , wheie the attachment was m 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 m 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 m § 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 doctune 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 understood that it 
follows as a oon sequence fiom 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 m 
an adverse suit with the assignees, he would) clearly not be liable But if 
the law of that countiy preferred him to the assignee, though I must suppose 
that determination wiong, 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 paitner in a firm whose only house of business was m 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 m 
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 m their own country ” I have ven- 
tured m framing the § § to disregard the plaoe of contracting the 
bankrupt’s debt, and the state of circumstances at the time of contracting 
it, for those, according to ettled 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 m an English 
bankruptcy had a superior title to that gained by arrestment m Sootland 
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 m which is reported 
sub nom Richardson v Bradshaw (1752), 1 Atk 128, but in which Lord 
Loughborough’s account in Sill v Worswick , 1 H B1 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 prius that a creditor resident in England oould hold against the 
assignees in an English bankruptcy the fruits of an execution obtained 
by him after the bankruptcy at Gibraltar Waring v Knight C765), 
Cooke’s Bank Laws, 300 And the court of sessions fluctuated as mentioned 
on p 179 so the whole subject was at sea till the decision of the three 
leading cases above reviewed 

In Ex parte Dobrce and Ex parte Le Mesuner (1803), 8 Ves 82, Lord 
Eldon allowed the hour of the day to be inquired into, for the purpose of 
determining the pnority between an English bankruptcy and attachments 
in Jersey 

The doctrine of § § 142 and 143 does not apply between 
English receivers foi debentui e-holders and unsecuied creditors 
obtaining or seeking payment abroad There is no equity m 
favoui of the debenture-holdeis against the unsecured creditors 

Re Maudslay , Sons and Field , [1900] 1 Ch 602, Cozens-Hardy 

§ 144 Where the property of the same peison, 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 ci editor who has received a dividend in 
the foreign bankiuptcy can leceive nothing m 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 Wilson (1872), L R 7 Ch Ap 490, James and Mellish , Ex 
parte Banco de Portugal (1879), 11 Ch D 317, James, Baggallay and 
Biamwell, affirmed sub nom Banco de Foitugal v Waddell (1880), 5 
Ap Ca 161, Cairns, Selbome, Blackburn It was said m Ex parte 
Wilson that this case was the same m 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 m 
Ex paite Wilson were not English 

On the same principle, where a British ship which had been m collision 
was sold under the decree of a foreign court and the proceeds distributed, 
and a suit was brought in England for the distribution of the amount 
paid by the owners under their peisonal liability, Gorell Barnes, J , 
provided for the claimants who had not appeared m 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 m Re P 
Macfadyen & Co , [1908] 1KB 675, Bigbam 

§ 145 Where a person is a bankrupt m England, and his 
partners reside abroad, whether m 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 
abioad, and if such payment is only paitial may receive divi- 
dends m the bankruptcy on the residue of his debt pan passu 
with the other creditors 

Bn kuood 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 m England, 
and the property of a firm m which he or they are partners 
together with others is also under administration m 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 paitnei or the smaller firm m England is to 
be decided according to the English rules as to double proof 

Ex paite Chevalier de Mello Mattox, Be Va nzellei (1834), 1 M & A 
345, Brougham affirming court of leview, Ex parte Goldsmid (1856), 1 
D J 257, Kmght-Bruce and Turner, and 1857, Turner Knight-Bruce’s 
diffeience m 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 enteied 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 Holthausen (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 m which 
it ranks m bankruptcy administration depends on the law of the 
bankruptcy, lex loci concursus or lex fon 

Ex parte Melbourn (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 toncursin, by which the 
title of the trustee is made to relate back to some date prior to 
adjudication, cannot affect securities or priorities m respect of 
property situate or debts recoverable in another jurisdiction 



BANKRUPTCY EQUITIES . PRIORITY 


181 


obtained in accordance with the local law before tbe date of 
adjudication 

Galbraith v Gnmshaw, [1910] A C 508, Loreburn, Macnaghten, 
James of Hereford, Dunedin, affirming Farwell, Buckley, Kennedy, and 
overruling Ridley 

Tbe English doctrines which have thus been passed m review 
will be found to piesent much similanty 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 oi attachment, and, in the absence of a 
domestic bankruptcy, as carrying the debtor’s pioperty in the 
respective country, though in England with an exception as to 
his real estate But m each country it is a matter of daily 
occurrence to declare the banluuptey of a debtor not domiciled in 
it, and m Fiance the cases where this may be done are not 
limited by the condition that tlieie 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 
Fuither fiom eithei 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 efforts made in Italy to maintain the unity of bank- 
ruptcy as advocated by Burgundus, llodenburg, and Sa vigny 
It may be found surprising that the English system should have 
gone as far as it has m support of the authority of the domicile 
m this matter, when it is remembered that m the matter of suc- 
cession on death, m 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 m 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 m bankruptcy the ecclesiastical courts 
were not piesent to lay hold of bona notab'iha , and commercial 
convenience was present to plead m 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 m *this country Regulation m 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 m fact order 
can only be established by international treaties and national 
legislation to give effect to them 



( 183 ) 


CHAPTER VII 

MOVABLES 

We have now gone through mamage, death, and bankruptcy, 
the three puncipal cases in which the conception of a person’s 
fortune, or at least the movable portion of it, as an entirety, and 
necessarily theiefore as connected with his person, is forced on 
us by circumstances We must now consider the rights enjoyed 
m individual articles of pioperty, 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 ownei, 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 lias 
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 m the 
maxims nomina creditons ossibus inherent, and mobiha 
sequuntur personam The formei, on the face of it, contem- 
plates only debts, with legard to which, when we speak of the 
property in them, all that can be meant is the right of action for 
them, whether vested m the ownei by their original creation or 
by their voluntary or involuntary assignment Now such lights 
have always been considered to depend mainly on the lev loti 
contractus or sointioms , with perhaps some modification from the 
lev fon Therefoie such a maxim as nomina creditons osszbus 
inherent can hardly have been intended to assert any connection 
between the species of property it deals with and the owrer’s 
person, except for the purpose of those cases which suggested 
dealing with his fortune as an entirety It amounts to no moie 
than saying that m such cases, whicn are those of the so-called 
universal assignments, debts fall under the personal and not 
under the real statute, and it cannot be quoted m support of any 



184 


PRIVATE INTERNATIONAL LAW 


doctrine as to the law governing- particular assignments of 
movables 

The other maxim, howevei, mobilia sequuntur personam , cer- 
tainly may apply and has been intended to apply to corporeal 
chattels, and to assert that the transfer of property m 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 legard 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 
aie of opinion that such laws aie peisonal, because movables have 
m contemplation of law no situs, and are attached to the person of 
the ownei wherever he is, and, being so adherent to his person, 
they aie governed by the same laws which govern his person, that 
is, by the law of the place of his domicile ” ( Conflict 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, ti eating the doctune that movables 
follow the pel son not as assigning them a fictitious locality, 
either m the owner’s domicile or m the place wheie he may 
happen to he, but as denying to them all locality “ It is a clear 
proposition,” he said, “ not only of the law of England but of 
eveiy countiy in the world where law has the semblance of 
science, that personal propel ty has no locality The meaning of 
that is, not that peisonal 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 m any countiy may 
dispose of Ins personal pioperty If he dies, it is 1 not the law of 
the countiy 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 m the funds here dies, 
that piopeity is claimed according to the right of representation 
given bv the law of his own country ” (Sill v WorswicJc (1791), 
1 H B1 690) The laiger part of these remarks applies to the 
so-called univeisal assignments, and the case of succession 
furnished a very unapt parallel for any operation of the personal 
law on particular assignments, since the Engbsh rules on that 
case, as we have seen, limit the authontv 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 m 
accordance with the law which governs m their situation But 
m spite of this, it is plain that Lord Loughborough intended to 
assert the law of the person as the lule for the disposition of 
particular movables 

A rule which has been leached by such various technical roads 
may be supposed to be dictated m 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 
majonty of the court in Philips v Hunter (1795) (2 H B1 406) 
In the summaiy of their reasons which is given us, after noticing 
the claim of the lev 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 pioperty, 
has a right to regulate his conduct relating to that property 
This protection, afforded to the property of a lesident subject 
which is situated m a foreign country, is not imaginary but real 
The executive power of this kingdom protects the trade of its 
subjects m 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 rediess ” 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 m 
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 theiefore 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 Karnes “ The will of a pro- 
prietor or of a creditor is a good title jure gentium , that ought 
to be effectual eveiywheie ” {On Equity , b 3, c 8, s 4) But 
Lord Karnes, although he thus mentions proprietors as distinct 
from creditors, scarcely applies his view to more than the assign- 
ment of debts And by the jus gentium he meant very much 
what the Homan prsetor meant, a selection of elements common 
to different national laws, so that the reason he gives does not 
follow the track which is followed m 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 m favour of the validity of ail alienation made m the 
manner prescribed by the law of the alienor’s domicile, but not 
less so m favour of the validity of one made m the manner pre- 
scribed by the law of the place of sale Indeed, notwithstanding 
the frequent assertions of the lex domicilii as governing 
movables, 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 oftenest at issue is whether a title is fully created 
without delivery On the one hand, under the Code Napoleon, 
Art 1138, the property is transfened by the contract of sale, 
and by the law of England, followed m 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 aftei their arrival m 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, aw T ard the property to the one who hist gains possession 
on a lawfful title, without legaidmg the pnonty of the titles, or 
whether laches is imputable to the claimant who has been out- 
stripped Again, a mortgage, by English law 7 , is usually created 
m the form of a transfer of property, defeasible or redeemable on 
payment of the debt, but m most otliei laws mortgage is a 
proceeding quite different from the tiansier of property Hence 
it may not only be discussed whether, in countnes w T here delivery 
i^ necessary to complete a sale, a foieign sale can be complete 
without deliveiy, but also whether, even if that be so, a foreign 
mortgage can give a good title without delivery through being 
m the foim of a sale Now Story says that to hold delivery to 
be pecessary 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 m the universal validity of the title acquired under a 
bill of lading 99 (§ 394) But when bills of lading and dock 
warrants are regarded as negotiable representatives of the 



MOVABLES 


187 


chattels to which they relate, the lex situs is not waived m favour 
of the lex domicilii , but if it is waived at all, it is so m favour 
of the lex loci actus , as governing the transfer of such instru- 
ments by indorsement or otherwise 

On the whole, the arguments which have been used m support 
of the maxim mobiha sequuntur personam , undei stood 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 m the nineteenth century the cunent of 
authority, out of England, has set strongly towards the applica- 
tion of the lex situs to movables as well as to immovables, m (ill 
cases except those of the so-called universal assignments How 
fai the same may be said of the English authorities will be 
afterwards considered, but it will be convenient to introduce ihe 
foreign view by a quotation from Foelix, on account of the very 
piactical character of that writer “ We have seen,” says Foelix 
— Traite du Droit International Drive, § 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 lule cannot 
be applied except to those circumstances or acts in which 
movables only appeal as an accessoiy of the person, for example, 
to the case of succession ah mtestato i to that of dispositions 
made by last will, or to that of such dispositions inter vivos as 
express or tacit mainage contracts The rule does not apply to 
any case m which the movables have no intimate relation to the 
person of the owner, for example, when the property m movables 
is claimed and disputed, when the maxim that en fait de meubles 
possession vavt titre 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 cases the 
law of the place where the movables are actually found must be 
applied, for the fiction which has been mentioned gives plac^ to 
the fact ( cesse par le fait) For example,” continues Foelix m 
a note, “ a contract concluded abroad, by which the owner of a 
movable actually m France should grant a right of pledge over 
it (art 2073 and following ones of the Code civil), would have 
no effect m France if the pledge had not been delivered to the 



188 


PRIVATE INTERNATIONAL LAW 


creditor (art 2076), although this condition might not he 
required by the law of the owner’s domicile ” Thus the dis- 
tinction is plainly drawn between the cases m 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 aie 
separately considered 

Tne 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 m things 
of many kinds,” of which he gives as an example “laws 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 
tiansnnssion of pioperty to another person — veiy different rules 
of law occur, and on the principle above considered we must 
apply the rule of law m foiee 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, m Roman law, alienation depends on the 
delivery of the thing, m 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 Pans, the pioperty 
is transferred only by tradition, but if, conveisely, a Berliner 
sells his goods situated m Pans to a Berliner m 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 m every case the 
transfer of the property depends on a momentary act, and there- 
fore fills no long space of time It will be diffeient m 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, m being effected not by a momentary fact but by one 
extending over a longer penod of time In regard to immovable 
things, the application of the law of the place where the thing 
i,5 situated is quite undisputed On the contrary, opinions are 



MOVABLES 


189 


very much divided m respect to the prescription of movables 
But here the question is specially important, because the laws of 
different countries vary exceedingly The Homan 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 foimei owner,* with an 
exception m the case of lost and stolen things, the protection of 
which however ceases with the expiry of thiee years By this 
last rule the French law, in its practical results, appioximates 
to the Roman It is here precisely that the application of the 
lea rei sitcr appears especially certain, from the circumstance 
that the foundation of all prescuption is continuing possession, 
but possession, as being essentially a 1 elation of facts, is, with 
even less doubt than any real light, to be judged by the lex rei 
si tee A question may still arise where the situation of the 
movable things, during the penod of prescription, has been 
wutliin different territories There can be no doubt that all these 
penods 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 lit every other 
country, although the law of that country should lequire a longer 
period ”t 

The doctrine of Foelix and Savigny is also that of both the 
supreme and the state courts m 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 
m the United States that an assignment made in one state of 
personal property situated m another, such pioperty not being 
m transit or following the owner’s person, passes no title to such 
property as against attaching creditors of the assignor, such 
creditors being domiciled m the latier state, when such assign- 
ment is invalid by its laws ” § 353 The exception of property 
m transit or following the owner’s person is not to be found, m 
the cases cited by Wharton, but has been introduced bv him m 
imitation of the exception which we have seen admitted by 
Savigny, where “ the present situation of the things is so mdeter- 

* En fait de meubles, la possession vaut titre Cod Nap , Art 2279 

t Syst § 367, Guthrie, 138—141 



190 


PRIVATE INTERNATIONAL LAW 


minate that the persons acting cannot be held to have any certain 
knowledge of it ” Neithei do the American judges seem to 
lay any stress on the domicile of the attaching creditor, though 
m the leasons which they give for adopting the lex situs for 
movables the piotection of the citizens of their own states holds 
a piomment place The leading authonty is the Louisiana one 
of Chvier v Townes (1824, 2 Martin, N S , 92), m 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 debtoi before it was transfened by sale and 
delivery,” this being a remedy to which a creditor would m that 
state of facts be clearly entitled by Louisiana law “ But,” 
continued the judge, “ the position assumed m the present case 
is that by the laws of all civilized countries the alienation of 
movable piopeity must be determined according to the laws, iules 
and regulations in foiee wheie the owner’s domicile is situated 
hence it is insisted that as by the law existing m the state where 
the vendor lived no delivery was necessary to complete the sale, 
ft must be considered as complete 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 is the language of the English book 
to which we have been referred ” It is unfortunate that the 
rourt did not rather deny the general doctrine contended for by 
the appellee In doing so they would have been m harmony 
with the main current of legal opinion m the world, and their 
decision in favour of the attaching creditor would probably not 
have excited the antagonism which has been expressed to it m 
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 possible application from the rule which it 
nominally admitted, and this avowedly for the convenience of 
the citizens of Louisiana Yet the judgment is not without a 



MOVABLES 


191 


trace of tlie tiue distillation between the cases, as those of succes- 
sion, m which propei ty is grouped lound the peison of its ownel 1 , 
and those, as of alienation 01 of special claims against it, m 
which it is considered independently of its owner After noticing 
that “ personal property must be distributed accoidmg to the 
law of the state where the testator dies,” the learned judge 
added, “ but so far as it concerns creditors it is governed b} the 
law of the country where the property is situated If an 
Englishman or Fienchman dies abroad and leaves effects here, 
we legulate the oidei in which his debts aie paid by our juns- 
piudence, not that of Ins domicile ” 

It will be found that the weight of later English authority 
is m favour of the doctune of Eoelix, Savigny, and the United 
States courts, but befoie examining the cases fiom which that 
conclusion may be drawn, anothei law 01 supposed law must be 
mentioned which in the case of one class of movables, ships, has 
sometimes been regaided as pai amount to all those yet con- 
sidered, lex situs , lex domicilii , and lex loci contractus or loci 
actus This is the geneial 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 mastei of the 
royal navy to bring to Liverpool Having suffered considerable damage, 
he put into the island of Eayal, and petitioned the director of the customs 
for an official survey Three were made The Report was to the effect 
that the ship could be repaired for about £300 The master being dis- 
satisfied obtained a pnvate suivey, which resulted in a report that the 
ship was unseawoithy 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 theieof 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 bond fide , can be justified only by urgent necessity 4 With 
respect to ships, the lex loci contractus cannot pievail if opposed to the 
law maritime 5 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 Seqrcdo , otherwise Eliza Cornish (1853), Spinks, Eccl & Adm 36, 
Lushmgton 

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 accuiacy, because the law 
of almost every foieign country in some part differs from that of 
othe^ foieign countries Still it is an expiession in common use, 
and I appieliend it is intended to convey the meaning that it is 
the law which generally is practised by maritime nations ” 
(us, p 45) And the learned judge pioceeded to distinguish 
it from the respective laws of England and of the island of 
Fayal Fuither on, he lefeired to it as “ the present maritime 
law of the civilized world ” (us, p 56) The learned judge 
then asked himself whetliei 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 m the case of a sale of a ship 
entitle itself to be so admitted? If such geneial proposition 
could be entertained, the law T relative to the sale of ships would 
be a law vaiying with the law of each individual countiy where- 
evei the sale happened to take place, in fact tlieie 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 m our own 
colonies, another in Demerara, another m Trinidad, another m 
French colonies, another m 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 conti actus , save indeed m one case 
only, where the title is derived fiom the decree of a competent 
court administering the law in its own jurisdiction, and by its 
decree confeiung 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 99 (U S , p 57) 

After enlarging on the last point, Dr Lushington concluded 
his argument on it thus “ I wish it to be undei stood that m 
the event of a title being given by an admiralty court 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 


193 


should hold a good title, if such a case should oceui Supposing 
a vessel sold m a foieign country under the law pievailing in 
cases of insolvency 01 bankiuptcy, I should hold that also to be 
a good sale But I wish it to be undei stood that I go on the 
ground that nothing short of that appeals capable of justifying 
a sale and making a good title ” And aftei expiessmg his 
consent to the principle “that the lea loct (ontiactu s qeiiemllg 
governs the validity of every contract,” he lefened foi ceitam 
exceptions to a note of Mr Biodie m his edition of Loid Stan’s 
Institutes “ There appear to me/’ said Lushmgton, “ accoi cl- 
ing to his,’’ Brodie’s, ‘‘judgment, several reasons why the lex 
loci contiactus is not always applicable He says this ‘ A dis- 
tinction is evei to be attended to between the case of a party 
casually entering a foieign countiy and that of one who resides 
in it, and the distinction is paiticularly strong in regard to an 
individual who, as master, has the charge of a vessel m 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 anothei distinction, and that 
by far the most important ‘ The contract/ says Mr Brodie, ‘ m 
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 Ins authority Now it is tiue 
that as a person who has been appointed to an office must be 
presumed to be invested with the usual poweis, so lestuctions 
upon the ordinary authority will not be effectual against another 
party who lias not been apprized of them, yet it will be observed 
that since it is the duty of those who deal wutli an agent to make 
themselves acquainted with the extent of his powers, whether 
expressed or fanly implied from his office, so the piesumed 
mandate heie must be measuied either by some general pnncijile 
of maritime law, or by the law of the countiy to which the ship 
belongs Such a general principle of maritime law would of 
itself, though m a different w r ay, tend m my apprehension to 
exclude the lex loa , but there is no such universally received 
principle, and the more positive exclusion of the principle of 
the lex loci is the consequence; * and tnen he goes on to state 
what the English law of hypothecation is, and how w T e should 
apply it 99 (us, pp 58, 59) 

The opinions expressed by Dr Lushmgton m the case of the 
Segredo may therefore be summed up as follows (1) A decree 
m rem of a court of admiralty or of common law, or a sale made 

13 


W I L 



194 


PRIVATE INTERNATIONAL LAW 


in a bankiuptcy, binds the title to a ship as well as to any other 
niovable, the jurisdiction of the comt of bankiuptcy, oi of the 
couit deneeing in /cm, being of couise assumed to be established 

(2) The authonty of an agent to sell 01 hypothecate a ship cannot 
be denved from the lev situ , s 01 leu loi i contractus , but may be 
denved not only from Ins nistiuctions, or fiom the law of the 
cou itry to which the ship belongs, but also fiom the law mari- 
time, contiaiy to Mi Biodie’s opinion, who held that no such 
law can be appealed to, as none is universally leeeived 

(3) Except in the cases mentioned uiulei (1), to which the learned 
judge would no doubt have been leady to add that of a sale 
under the authonty of a <ouit of probate oi administration, a 
sale under public authonty in the situs leaves it still necessary 
to examine the authority of the person wdio assumes to sell 
The other paits of these piopositions will have to be further 
consideied in due place, but with legaid to the notion of a 
general maritime law as actually m vigoui for any purpose, the 
opinion of Mi Btodie may at once be accepted If the idea 
were admitted, the actual determination of such a law would 
encounter the difficulty wdnch theologians have found in apply- 
ing the maxim quod semper , quod ubique , quod ab omnibus 
In fact, however, the conception which has almost universally 
been formed of pri\ate international law is that of choosing m 
each case between different national laws, not that of setting 
up a body of doc time in the form of a law but without any 
national legal sanction When “ the geneial law maritime, as 
it is administered in England by eouits of admiralty,” is men- 
tioned, those terms must be taken to describe a certain pa it of 
the law of England, not denved fiom any specially English 
custom or legislation, but which, so far back as it can be tiaced 
m our law, possessed legal sanction ovei 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 oh England ” — said 
Justice Willes, delivering the judgment of the couit of appeal 
m Lloyd v Gvibert (L R , 1 Q B 125) * The subject will 
b^ fui tlier 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 m movables, 


* The law maritime, or admiralty law, is the same in Scotland as in England 
Currie v McKmght, [1897] A C 97, Halsbury, Watson, Herschell, Morris, Shand 



MOVABLES JUDGMENTS IN BEM 


195 


the earlier editions began with that of judgments m rem , 
because it then appeared to be better settled than was ihe case 
with questions about the effect of laws which m the particular 
instance have not been embodied m any such judgment, not that 
the authonty of a judgment m iem appealed to lest on any 
punciple not involved in that of a law The practical identifi- 
cation of the two classes of questions, as both resting on the 
disposing powei of the sovereignty of the situ s, has since received 
further suppoit, but the ordei 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 doc tunes 

§ 149 The propeity m a movable will be held m England to 
be such as the judgment in iem of a couit within the jurisdiction 
of which the movable was situate has dec lded it to be The 
distinctive maik of a judgment m iem on a movable is that it 
disposes of the thing itself, and not merely of the interests 
which any parties ha\e in it 14 is immaterial whether the 
judgment does this (1) In vesting the projrerty at once m a party 
as against all the woild, as a condemnation in a revenue cause 
vests tlie pioperty in the crown, oi the sentence of a court of 
admualty in a matter of prize vests the propeity m 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 inteiests of any 
parties m it, or (3) by decreeing or confirming the sale of the 
movable by way of administration, in matters of bankiuptcy or 
succession on death The second case is easily distinguished 
from that of a sale undei execution, m which only the interest 
of the debtor is intended to be disposed of , and the characteristic 
of the thud 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 m and take the 
benefit of the proceedings 

The leading authority is Castnque v Imiie (1860), 8 C B (N S ) 1, 
Erie, Williams, Willes, Keating, leversed (1860), 8 C B (N S) 405, 
Cockburn, Wightman, Channell, Hill, Blackburn, Martin, Bramwell , 
reversal affiimed (1870), L It 4 E & I A 414, Hatherley, Chelmsford, 
Colonsay, m accordance with the opinion of Blackburn, Bramwell, Mellor, 
Brett and Cleasby, and of Keating, who dej>arted from his previous 
opinion in deference to the judgment on appeal m Cammell v Sewell 
The last-named case was decided m 1858, 3 H & N 617, by Pollock, 
Martin and Channell , and affirmed in 1860, 5 H & N 728, by Cockburn, 
Wightman, Williams, Crompton and Keating, Byles dissentient The 



196 


PRIVATE INTERNATIONAL LAW 


definition given in the § of a judgment m lem on a movable is m accord- 
ance with all the judicial opinions m Castnque v Imne, except that the 
French judgment there in question was held by Williams, Willes and 
Keating not to be m rem } meiely from then taking a diffeient view as to 
the facts of the French pioceedings The thud case of judgments in iem 
mentioned in the § was noticed, so fai as concerns sales in bankruptcies, 
by Lushmgton m The Sa/icdo see above, pp 191 — 194 In Cammell v 
Sewell tile question was about the light gained to some deals, the cargo 
of a vessel wrecked on the coast of Norway, by pui chase at a sale m that 
country held under the authority of the captain, and confirmed m the 
same country in a suit brought by the agent of the underwi iters to have 
the deals delivered up m specie The case was decided in the lower court 
on the giound 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 m lem on account of the piayer foi specific deliveiy , 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 m rem is conclusive against all the woild On the appeal a 
clearer view was taken of the nature of judgments, and the decision in 
favour of the purchaser was put on the giound of the sale being a good 
transfer by the law of Norway, which was the ntu s of the deals Black- 
burn, delivering the opinion of the judges in Castnque v Imne , said 
“ We may observe that the words as to an action being m rem or m 
personam , and the common statement that the one is binding on third 
persons and the other not, are apt to be used by English lawyers without 
attaching any very definite meaning to those phiases We apprehend the 
tiue punciple to be that indicated m the last few words quoted fiom 
Story We think the inquiry is first, whethei the subject mattei was so 
situated as to be within the lawful control of the state under the authority 
of which the court sits, and secondly, whethei the soveieign authority of 
that state has confeired on the couit jurisdiction to decide as to the 
disposition of the thing, and the couit has acted within its junsdiction 
If these conditions are fulfilled, the adjudication is conclusive against all 
the woild” (L R, 4 E & I A 429) These woids aie valuable as 
expressing the principle on which the international validity of a judg- 
ment m ? cm rests, as well as the condition for such validity, namely that 
the movable shall have been within the tern tonal jurisdiction of the coiut 
pronouncing it 

In Simpson v Fogo ( (1860), 1 J & H 18 , (1863), 1 H & M 195 , 
Wood) a New Oileans judgment came undei consideiation in peculiar 
circumstances A British ship, belonging to Liveipool, was moitgaged m 
English fonn 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 moitgage Afterwaids unsecuied creditors 
of the mortgagors attached her at New Orleans, where delivery is neces- 
sary to perfect a real right m 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 
i ©covered her , the purchaser however being allowed a lien for what, m 
the distribution of the proceeds of sale at New Orleans, had been paid to 
certain creditors who had a real right under the 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 sold m a suit commenced by 



MOVABLES LEX SITUS 


197 


their ai resting it, the pioperty would have passed 1 H & M 248 hull 
justice was therefore done to the leal rights confened by the lex situs, 
or recognized by the court of the situs The sale under decree in an 
attachment suit passed only the debtoi’s intei est m the movable, and 
whatever oontroveisy might be raised as to its validity against the mort- 
gagee on the giound of his intervention, it at least had no validity against 
him on the footing of a judgment m rem See Blackburn’s remaiks in 
Castuque v Imne, L R 4 E & I A 436 

We now tome to the efiect of laws independent of their embodi- 
ment in judgments in ?em 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 piepaied to find an equal lespect paid to the will of the 
same authority when manifested m the simpler foim of a law 

§ 150 Questions as to the tiansfei oi acquisition of property 
m corpoieal movables, oi of any less extensive real lights in 
them, as pledge oi lien, are geneially to be decided by the lex 
situs 

Tf the question lefeis to a ship which was at sea at the moment 
of the alleged tiansfei or acquisition, it must be decided by the 
personal law of the owner, that is, of the person fiom oi against 
whom the transfer oi acquisition is alleged to have taken place 
that law will operate eithei as the lei situs , on the giound of 
the fiction which makes ships a part of the territory ascei tamed 
by their flag, oi in its owm character of the personal law, m 
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 doctune so as to bring in the law 
of a casual and temporary situs , not contemplated by either 
party m the dealing under consideration, as m the case of goods 
which at the moment of the dealing may be on board a ship of 
a third country, or temporarily warehoused m a port of a third 
country See Savignv as to this above, p 188 

“ A delivery by the consignoi of goods on board a ship charteied by the 
consignee is a delwery to him, and the consignor cannot afterwards stop 
them m transitu But where the delivery was made on board such a ship 
m 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 here 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 U sherwood (1801), 1 East 515, Kenyon, 



198 


PRIVATE INTERNATIONAL LAW 


Grose, Lawience, Le Blanc Kenyon and Lawience spoke of “ the trans- 
action ” being in Russia, which might have lefeired to the conti act of 
sale, but Giose said “ the delivery heie was made m Russia,” thus bearing 
out the refeience to that point m the maiginal note which I have copied 
verbatim No judge alluded to the vendoi’s domicile It appears there- 
fore that the question, at what moment the piopeity in the goods was 
mdefeasibly tiansferied, was decided on the lex situs 

“ The captain of a ship has no authority to sell the caigo, except in 

cases of absolute necessity , and theiefoie, wheie in the couise of a voyage 

from India the ship was wiecked 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 authonty of the captain acting bond fide 

according to the best of his judgment foi the benefit of all persons con- 
cerned, but the jury found theie 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 countiv, the original owneis weie entitled to 
recovei its value ” Fireman v Fast India Company (1822), 5 B & Aid 
617, Abbott, Bay ley, Holroyd, Best Best said, speaking of the puichasei’s 
knowledge of the oiicumstances, “ Supposing the law of Holland,” which 
was m foice at the Cape, “to be, as it is stated to be, the same as the law 
of England, this knowledge will pievent the puuhasei piotecting himself 
undei a sale m maiket oveit ” On this Mi Justice Ciompton lemaiked 
in Cam mell v Smell, “ In the case of Fireman v The Fast India Com- 
pany the couit of king’s bench appeal to have assented to the pioposition 
that the Dutch law as to maiket oveit might have had the effect of 
passing the piopeity m such case, if the cu nun stance* of the knowledge of 
the tiansaction had not taken the case out of the piovisions of such law ” 
5 H AN 745 

Cammed v Smell has already been noticed above, p 195 In the court 
below, Pollock said, although lus opinion in that lespect was not adopted 
as the giound of the judgment “ If peisonal pioperty is disposed of m a 
manner binding accoidmg to the law of the country wheie it is, that dis- 
position is binding every wheie ” 3 II A N 138 On the appeal Crompton, 
deliveimg tho opinion of all the couit except Byles, said “ Many cases 
were mentioned in the couise of the argument, and more might be 
collected, in which it might seem hard that the goods of foieigners should 
be dealt with accoidmg to the laws of oui own oi of other countnes 
Amongst otheis oui law as to the seizure of a foieignei’s goods for rent 
due fiom a tenant, oi as to the title gamed m them, if stolen, by a sale 
in maiket oveit, might appeal harsh But wc cannot think that the 
goods of foieigners would be piotected against such laws, oi that if the 
property once passed by virtue of them it would again be changed by being 
taken by the new ownei into the foieigner’s own country ” He then 
quoted with appioval Pollock’s datum in the couit below, and added 
“ We do not think that it makes any diffeience that the goods weie wiecked, 
and not intended to be sent to the countiy where they weie sold We do 
not, think that the goods which were wiecked here would on that account 
be less liable to our laws as to maiket oveit, or as to the landloid’s right 
of distress, because the ownei did not foresee that they would come to 
England ” Byles did not dissent on the giound of the owner’s lex 
domicilii , but because the “ alleged law of Noiway ” seemed to him to be 
“of an alarming natuie,” “ and at vanance with the general maritime 
law of the world, at least as understood in this country ” Cockburn added 
to his concurrence in Crompton’s judgment a remark which, as to the last 



MOVABLES LEX SITUS 


199 


mentioned law, placed him on the side of Biodie as against Lushington 
“ The law of nations cannot deteimine the question, foi the international 
law is by no means uniform as to the powers of a mastei, as abundantly 
appealed fiom the various codes which weie brought to our notice during 
the argument ” 5 H & N 744, 5, 7, 50 Pollock’s dutum was quoted 

with appioval by Biamwell in ('antique v Imue , 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 Seuell, 
a more general principle was laid down, namely, that ‘ if peisonal pro- 
perty is disposed of in a mannei binding accoidmg to the law of the 
country wheie it is, that disposition is binding eveiy where ’ This we think 
as a geneial rule is collect, though no doubt it may be open to exceptions 
and qualifications, and it may veiy well be said that the rule commonly 
expiessed by English lawyeis, that a judgment m rem is binding every- 
where, is m truth but a branch of that more geneial principle ” L LI 
4 E & I A 429 

In ('hjdcsdale Bank, Lim v Schioeder 4 Co , r 19X3] 2 K B 1, Biay, 
it was held that money paid under the compulsion of process of the court 
m a foieign countiy was not tecoveidble subsequently by a suit in Eng- 
land on the ground that the payment was made by duress The money 
was paid unclei protest to lelease a ship from anest by piocess, and the 
foreign piocess m inn could not be queslioned heie When a donatio mortis 
(ansa valid by the English law was made b\ a foieign sirlqect of pro- 
perty m Fmgland, 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 
IB Koivme ’s Trust*, [1921] 1 Ch 343, Eve 

In ('oote v Jrrks (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 m England by an English debtor to an English cieditoi 
And this was followed as to goods in Ireland m Brooke s v Harrison 
(1880), 6 L R Ii 85, Moms and Harrison 

In Liverpool Marine ('redit Companxf 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 lestiamed from attaching ships at 
New Orleans because justice will not be done there to domiciled English 
mortgagees, and that bonds given by such moitgagees at New Orleans foi 
the purpose of obtaining the release of the ships may be sued on in Eng- 
land It must be observed that acooidmg to the allegations made m this 
case and m Simpson v Foqo (above, p 196), the couits at New' Oi leans 
go so fai beyond the doetnne mentioned above, pp 190, 191, as to disregard 
tiansfers and pledges of movables made without dcliveiy, although com- 
plete befoie the ai ival of the movables in Louisiana Foi the present 
purpose, attention must be drawn to Wood’s expression in respect to 
foreign statute law, “however harsh and arbitrary it rnav be,’ though 
he “ was particularly anxious to diaw a distinction between judicial pio- 
ceduie and the statute law of a foreign state ’’ L R 4 Eq 68 Also to 
Chelmsford’s reassertion of the old doctrine of Loughboiough, in these 
teims “ The transfei of peisonal piopeity must be legulated by the law 
of the owner’s domicile, and if valid by that law ought to be so legal ded 
by the courts of every other country wheie it is brought into question ’’ 
L R 3 Ch Ap 483 It alieady seemed impossible, m the face of the 
other authorities here collected, to accept this rule furthei than it has 
been admitted in framing § 150 , and the § has since been supported by 



200 


PRIVATE INTERNATIONAL LAW 


City Banl v Bauou (1880), 5 Aj) Ca 664, Selboine, Hatherley, Black- 
burn, Watson Lord Blackburn said “ The pledge upon which the defen- 
dants claim was made m Canada m respect of goods then m Canada I 
take it theiefore 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 m the court of appeal, and all the noble loids 
went on the law of Canada as they respectively undei stood it to be, 
although the owners of the pledged goods weie an English house, thus 
disregarding the law of the ownei’s domicile In Inghs v Bobertson, 
[1898] A C 616, Halsbuiy, Watson, Heischell, Maenaghten and Morns, 
Scotch law was held to determine the validity of a pledge of goods in 
Scotland by a domiciled Englishman 

But the question whetliei a pledgee may ledelivei the goods to the 
pledgor for a limited purpose without thereby losing his rights under the 
conti act of pledge, those paities having a common domicile m a countiy 
differ ent from the situs of the goods, was considered to be deteimmable by 
the law of that domicile as belonging to the tiansaction between them 
(Herschell), as affecting title to pioperty admittedly belonging to one oi 
othei of them (Watson) Noith-Western Bank v Poyntei , [1895] A C 56 

Siinilaily the decree of a foieign government disposing of movable pro- 
pel ty within its ten ltoiy will be held to be binding in the English courts, 
provided the foieign government has leceived lecognition as a sovereign 
authority , and the oouits here will not enquire whethei the decree is con- 
fiscatory oi conti ary to pnnciples of natural justice 

Comjxuny for Woodwork A M Luther v J Sago) <1 Co , [1921] 1 
K B 456, 474, Bankes, Scrutton, reversing Roche, but only on the question 
whether the Soviet Government of Russia had been lecognized by the 
British Government 

Similar decisions have been given by the American couits recently m 
cases ansmg out of the Mexican Revolution*? Oet)en v ('entral Leather 
Co , [1917] 246 U S 297, Bicaud v Amencan Metal Co , lb , 304 

§ 151 A distinction may now he noticed winch was not 
adveited to in The Set) redo (above, p 191), and possibly may 
not have arisen on the facts of that ease, the law of Fayal having 
been veiy imperfectly proved in it A law by which the owners 
are not bound cannot confei an authority on an agent as against 
them, but notwithstanding this the le,r situ* may, if it pleases, 
confei a title on the puichasei or pledgee of a movable by reason 
of the agent’s acts The question of an agent’s authority belongs 
to the law of contiact, the question of a purchaser’s or pledgee’s 
title belongs to the law of pioperty, 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 pnnciples applicable to contract, an element m 
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 owneis of the caigo, justify the sale, but that he lemamed 
liable to them foi a sale not justified undei the cn cuinstances , whilst on 
the othei hand an innocent puichaser would have a good title to the pro- 
perty bought by him from the agent of the owners It does not apjieai 
to us that theie is anything so baibarous or monstrous m this state of the 
law as that we can say that it should not be lecognized by us Our own 
law as to market oveit is analogous, and though it is c nd that much 
mischief would be done by upholding sales of this natuie, not justified by 
the necessities of the case, it may well be that the mischief would be 
greatci if the vendee weie only to have a title m cases wheie the mastei 
was stuctly justified in selling as between himself and the owneis If 
that were so, puichaseis, who can seldom know the facts of the case, would 
not be inclined to give the value, and on jnoper and lawful sales by the 
mastei the propeity would be in gieat danger of being sacuficed ” 

5 H & N 743 

When a foieign ship is sold under such cncumstances that the puichasei 
does not get a good title independent of a personal equity against the 
vendoi, the Lx loci conti actus must deteimme whethei the foieign ownei 
has so acted as to pievent his disputing the puichasei’s title Hooper v 
Cumm, M'Lellan v Cumm (1867), L R 2 Ch Ap 282, Chelmsford and 
Turnei, in the latter case affiiming Wood, m the foimei leversing him on 
the question of fact A foreign mastei of a ship can bind the owners of 
the vessel by a conti act of indemnity given to the English owners of cargo 
m England The Luna , [1920] P 22, Hill 

The title to ceitificates of Amencan railioad shaies, those certificates 
being in England and the title to them depending on dealings m England, 
must bo decided by English law , but the consequences of the title to the 
certificates, with regard to the title to the shaies, must be decided by 
Amencan law Tf illiams v Colonial Bank , Williams v London Chartered 
Bank of Austiaha (1888), 38 Ch D 388, Cotton, Lindley, and Bowen, 
agreeing so far with Kekewicli , (1890), 15 Ap Ca 267, Halsbury, Watson, 
and Herschell, Bramwell and Morris agreeing m the judgment but silent 
on the choice of law 

§ 152 The forum foi the recoveiy of a debt piesents much 
analogy with the situ s of a coiporeal movable, and notice to the 
debtor of the assignment of a debt presents much analogy with 
the delivery of a eoipoieal movable to the tiansferee of it As 
theie aie laws by which delivery is not necessaiy to complete the 
transfer of a corpoieal movable, so there are laws, like that of 
England, by which, although the debtoi will be disehaiged if he 
pays the assignoi of a debt before leceivmg notice of the assign- 
ment, and although the assignee, suing for the debt befoie such 
notice has been given, peihaps m a certain foim, 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 life 
will prevent the debt from being recoveied by a posterior 
assignee oi 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 theie aie laws, like that of Scotland, by which the 
assignment of a debt without notice to the debtor is so ineffectual 
that notice pendente life comes too late Consequently opinions 
analogous to those on the law which should govern the tiansfer 
of a cor poieal movable have been entertained on the law which 
should govern that of a debt Loid Karnes (see above, p 185) 
and Stoiy ( Conflict of Laws , § 897) held that the assignment 
of a debt, complete without notice by the law of the creditor’s 
domicile, must be held complete eveiywdieie, but it is established 
m England that the assignee who has aequued a good title by 
the law of the fomm foi the leeoveiy of the debt must pievail 

This is the effect of Be Queensland Mercantile and Aqincy Co , Ex parte 
Australasian Investment Co, Er par ft Union Ttanlx of Australia, [1891] 
1 Ch 536, Noith , affirmed, [1892] 1 Oh 219, Liudley, Bowen, Fry 

The assignment of a leveisionary mteitst in an English tiust fund 
having been notified to the trustees before an eailiei assignment of the 
same intei est had been notified to them, the foimei pi «. vails notwith- 
standing that the eailiei one was made m the assignor’s domicile, by the 
law of which notice to the trustees was uniucessaiv to complete it Kelly 
v Selui/n, [1905] 2 Ch 117, Warungton The ratio dtcrdindi was “the 
law of the court which is adminrstei mg the fund ” (p 122), which is 
equivalent to “ the law of the forum foi the recoveiy of the debt ” men- 
tioned in the text 

Where a right is claimed by way of leal privilege oi lien on a 
chose in action, it seems clear that its existence must depend 
on the law of the forum foi the leeoveiy of that (‘hose m action 

A citizen of the United States shipped at San Fiancisco 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 m the couit 
of admiralty against the freight foi wages due to him, it was held that 
his claim was governed by the lea fori and not by the lex Ion contractus 
of his engagement as mate, and that the formei was to be found in the 
Merchant Shipping Act and not in the law maritime as previously admin- 
istered in England The Milford (1858), Swabey 362, Lushington The 
same gieat lawyer expressed Ins adherence to that judgment in The 
Jonathan (loodhue (1859), Swabey 526, but Phillnnore, in The Halley 
(1867), L R 2 A & E 12, remarked “ I must say t,iat 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 Mi Clarkson the learned judge expressed himself 
willing to leconsider 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 ler 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 recording to the law of the for am m which 

it is sought ” Swabey 366 But that rule, m its other and more familiar 
applications, refeis to the form of the remedy, or at the utmost to its 
existence as depending on laws of procedure, which statutes of limita- 



MOVABLES BRITISH SHIPS 


203 


tion are generally consideied m England to be, not to its existence as 
depending on that of a light To apply the rule in the mannei m question 
m The Milford was leally to attribute to the forum foi an rncoipoioal 
real right a legal weight corresponding to that of the situs foi corporeal 
movables The Milford was followed m The Taqus , [1903] P 44, W 
Phillimoie, who noticed, but did not adopt, the aigument to the conti ary 
from the Merchant Shipping Act, 1894, s 265 

In a case wheio the assignment of an English policy of life msuiance to 
the wife of the assignor was not peimitted by the law of the place of 
assignment, where both the assignoi and assignee weie domiciled, it was 
held to be void m England Lee v Ahdy (1886), 17 Q B D 309, Day 
and Wills See Loid Herschell’s opinion in Xoith-Wester n Bank v 
Foqnter, quoted on p 200 When a judgment of a foieign couit gi ant- 
ing maintenance to an illegitimate posthumous child was sued on m Eng- 
land, it was held that it was not enfoiceable against assets m England, 
because the cause of action was not lecognized in England The judgment 
was in pci sonant so fai as legaided the assignment of the maintenance , and 
the ler situs did not recognize any legal liability m the defendant lie 
Macartney, [1921] 1 Ch 522, Astbtny 

A gainishee ordei was lefused m case of a debt properly recoverable 
abroad, on the giound that payment undei the oidei would not have been 
recognized m the foieign country Martin v Nadel , [1906] 2KB 26, 
Vaughan Williams and Stilling ovenulmg Sutton 

The doctrine that a restraint on anticipation annexed to the gift of pro- 
perty by an English settlement is valid whatevei may be the personal law 
of the wife (Feillon v Btoohmq (1858), 25 Beav 218, Romilly), taken m 
connection with the test of a settlement being English (§ 116, p 141), is 
an example of the piopeity in movables being governed by the lex situs , or 
what is equivalent thereto m the case of incorporeal lights 

Hut foi the purpose of a duty chained on it a debt is property 
m the situs of a senility held foi it, although the dehtoi be 
domiciled and the debt be lecoveiable elsewheio, only the value 
of such piopeity, as depending on that of the seeunty, may be 
less than the amount of the debt, and, if collateial set unties are 
held elsewheie, it may be light to take them into account in 
valuing the piopeity foi the purpose of the duty 

Walsh v The Queen , [1894] A C 144, Watson, Her Schell, Hobhouse, 
Macnaghten, Shand, Couch 

§ 153 The nile that the ler sitvs governs the pioperty in 
movables, as developed m the preceding pait of this eliaptei, 
applies in general to the beneficial intei est as well as to the legal 
piopeity, but in cases falling undei the so-called universal 
assignments the peisonal law may bind the beneficial mteiest 
while the lea' situs must be complied with as to the legal 
propei ty, as m the case of § 135 The English rules as to 
succession on deith piesent a thud variety, the personal law 
not being allowed to govern even the entire beneficial interest 



204 


PRIVATE INTERNATIONAL LAW 


m the movables, but only that m 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 teintoiy so long as she is 
sailing on the high seas, or in a foieign tidal river below all 
budges, although in the lattei case, if she is a private ship, 
the state to which the uvei belongs may have concurrent 
jurisdiction If she belongs to an English poit, the law 
applicable m consequence of hei being British teintoiy is that 
of England 

Beq v Lopez (1858), ID & B 525 , Beg v Battler (1858), 1 D & B 
539, decided together by Campbell, Cockbuin, Pollock, Colei ldge, Wight- 
man, Eile, Williams, Martin, Ciompton, Crowder, Willes, Watson, 
Channell and Byles The Queen v Anderson (1868), L R 1 C C R 161, 
Bov ill, Channel], Byles, Blackburn, Lush These were cases of crimes 
committed on board British ships, and in the last case the ship was sailing 
m a foreign tidal liver The statement in the § is equally true although 
the ship is moored to a quay in a foreign nvei , and not only her ciew but 
all persons coming on board of her in any manner aie subject to British 
cuminal jurisdiction The Queen v Cair (1882), 10 Q B D 76, Cole- 
ridge, Pollock, Lopes, Stephen, Watkm Williams 

Marshall v Muigatroyd (1870), L R 6 Q B 31, Blackburn and 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 m sending the crew 
home The Livietta (1883), 8 P D 209, Hannen 

^ 154a Negotiable instruments aie within §§ 149 and 150 
Their transfer will affect the beneficial rights m the choses m 
action secured by them in accordance with the law of their situs 
at the time of the transfer 

Alcock v Smith , [1892] 1 Ch 238, Romer, affiimed by Lmdley, Lopes, 
Kay Bmbincos v Anglo- Australian Bank } [1904] 2KB 870, Walton, 
affirmed, [1905] 1KB 67^, 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 m the United Kingdom 
Baring v Commissioners of Inland Bevenue , [1898] 1 Q B 78, A L 
Smith, Rigby and Collins affirming Wright and Ridley, affirmed, sub 
nom Lord Bevelstoke v dec , [1898] A C 565, Halsbury, Macnaghten, 
Morris, and Shand 



MOVABLES BRITISH SHIPS 


205 


§ 1546 A patent or a sliare in one, oi a licence to rise a 
patent, is not piopeity situate m the country wlieie the patent 
rights exist — at least, within the meaning of a levenue law 

Smelting Company of Australia v Commissioners of Inland Revenue, 
[1896] 2 Q B 179, Pollock, Biuce concurring on another ground, 
affirmed, [1897] 1 Q B 175, Esher, Lopes, Rigby 

But m Rey v Lecoutui iei , [1908] 2 Ch 715, affiimed, [1910] A C 262, 
the tiademaik 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 foieign penal law has no effect in 
England 

But the goodwill of a business, with the benefit of ceitam con- 
tracts as ancillary thereto, is within the meaning of levenue laws 
property situate in the country where the business premises are 

Muller A 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 Lmdley, Halsbury dissenting 

And shares in a company registered m England for the 
purpose of acquit mg a business earned on abroad, are property 
situate m England within the meaning of revenue laws 

Commissioners of Inland Revenue v Maple A Co (Vans), Limited, 
[1908] A C 22, Macnaghten, Ashbourne, James of Heieford, Atkinson, 
reversing Moulton and Farwell (Collins dissenting on another point) who 
upheld Walton 

A personal obligation, however, is not within the meaning of 
revenue laws piopeity in the foiurn foi enforcing it 

Vanubiari Sugar Factories v Commissionei s of Inland Rrvtnue, [1901] 
1 Q B 245, A L Smith, Collins and Stilling, reveismg Ridley and 
Dailmg 

Book debts included m the assets of a business are a peisonal obligation 
for this puipose, and are therefore not propeitv locally situate in the 
forum for enforcing them, and aie subject to English duty, payable on the 
sale m England of foreign business Velasquez, Limited v Commissioner s 
of Inland Revenue, [1914] 3KB 458, Cozens-Haidy, M R , Pick- 
ford, L J , Swmfen-Eady, L J , affiimmg Scrutton, J 

§ 154c* Receivers of foieign property, movable oi immovable, 
are often appointed by the English court, but until their 
authority has been established in accordance with the local law 
no one not a party to the English suit, not even though lie is 
a British subject, becomes guilty of contempt of court by taking 
proceedings abroad calculated to interfere with the possession 
of such receivers 

Re Maudslay, Sons A Field, [1900] 1 Ch 602, Cozens-Haidy 



206 


PRIVATE INTERNATIONAL LAW 


§ 155 Although a foreign soveieign or state is ceitamlv 
entitled to piotection in Eng land foi civil lights, whether of 
pi opei ty 01 of obligation, and whether, in the case of a sovereign, 
they belong to him in his pnvate oi m his public chaiactei, 
it is doubtful how far a foreign soveieign 01 state is entitled to 
piotection m England foi political lights, even though pecumaiy 
profit may be denvable fiom them In othei woids, it is 
doubtful whether a politn al light can be considered in England 
as a chattel 01 movable, on the giound that pecumaiy piofit 
may be denved fiom it In ft m pc /or of Austria v Day and 
Ko^uth, 1801, 2 (lift 028, Stuait, 8 I) F J 21T, Campbell, 
Knight-Biuce and Tuinei , this question aiose on the Empeioi’s 
seeking an injunction to lestiain the infringement of his 
exclusive light of issuing papei cunency to cn culate within his 
dominions Stuait gi anted the injunction as in suppoit of a 
light, without thinking it necessaiy to found it on the pecuniary 
value of thal light, but all the judges on Ihe appeal differed 
fiom him as to this Campbell and Knight-Biuce sustained 
the injunction on the giound of the pecumaiy value of the 
light to the plaintiff Tumei thought it not sustainable on 
that giound, but sustained it on the giound of “ the mjuiy to 
the subjects of the plaintiff by the mtioduction of a spunous 
cn (‘illation ” Loid Campbell noticed as follows anothei kind 
of political lights productive of pecumaiy piofit, which will 
meet us again when consideung the international validity of 
conti acts “ A moie specious objection was lested on the class 
of cases m which it lias been held that we take no notice of 
the ‘ revenue laws ’ of foreign countnes, so that an injunction 
would eeitamly be refused to a foreign soveieign who should 
apply foi one to pi event the smuggling of English manufactures 
into his dominions to the gnevous loss of his fisc But although 
fioni the comity of nations the lule has been to pay respect to 
the laws of foreign countnes, yet, for the geneial benefit of 
free tiade, ‘ levenue laws’ have always been irade the excep- 
tion , and this may be an example of an exception proving the 
rule ” (us, 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 pm ate 
international law, and dec Lues (Preliminary Article 7) that 
“movables are subject to the law of ihe propnetor’s nation, 
except so fai as the law of the country vheie they aie found 
may contain eontiaiy dispositions,” adds that “ immovables aie 
subject to the laws of ihe place vheie they aie situate ” And 
it has all eddy been noticed, p 9, that the punciple of the lex 
situs, oi of the leal statute, was eageily seized on m England 
m its application to land, and received theie its utmost develop- 
ment m that lespect Accoidingly, in stating the English 
doctnnes on the subject of immovables, we shall meiely have to 
expand that punciple into a senes of propositions suppoited by 
authonties among which theie is little conflict What doubt 
theie is turns more on the question of jurisdiction than of law 
The principle of the fo/um situs, in its application to the land 
itself, is incontrovertible Since only the authonties that exist 
on the spot can employ force to give possession oi 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 pioperty 
m 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 ai +honty to employ those possessory or proprietary 
rights which he possesses m 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 ground of the peisonal jurisdiction, 
but 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, and 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 m the application of this pimciple theie may be some 
amount of delicacy, and then there aie the cases which anse 
when the immovable light m question is not one to the propeity 
01 possession of the land itself 

§ 15G All questions concerning the pioperty m immovables, 
including the foims of conveying them, aie decided by the lex 
situs See above, p 10, as to the rejection m England of the 
lex loci actus for the foim of conveyance 

The necessity of a seal to the conveyance of an immovable right depends 
on the lex situs Adams v Clutteibuck (1883), 10 Q B D 403, Cave 


§ 157 Interests in land which aie limited in duration, 
whetliei for teims of years, foi life, or otherwise, interests m 
land which are limited in their nature, as legal (ex jure 
Quint mm — Gaius) or beneficial (in bonis — Gaius), servitudes, 
charges, liens, and all othei dismemberments of the pioperty m 
land, are immovables as well as the land itself 

§ 158 Money substituted for an immovable by the lex situs 
i,> subject to the same lights as the immovable, but, when an 
immovable is sold undei a disposition made by the ownei or m 
consequence of a dealing with it by the owner, the rights to 
which it was subject as an immovable do not affect its pioceeds 
unless kept alive against them by the will of parties oi by the 
lex situs 

The fust pait of the § is illustrated by the fact that the compensation 
awarded under the Act for the abolition of slavery was subject to the sime 
lights to which the slaves were subject See Forbes v Adam s (1839), 9 
Sim 462, Shadwell In Be James Bea } Bea v Bea } [1902] 1 I R 451, 
Porter, an intestate had died domiciled m Ireland without issue, leaving 
a widow and an estate of moie than £1,000 value, including land in 
Vietona (Austialia), by the law of which countiy the widow in those 
cncumstances is entitled to a charge of £1,000 on the estate and the 
residue is divisible between the widow and the next of km The Victonan 
admimstratoi sold the land and i emitted the proceeds to the widow, who 
was the administratrix m 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 geneial estate, followed from the doctrine of the hist 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 Deen 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 undei a trust for sale in a 
will Legacy duty is then payable out of the proceeds Foibes v Steven, 
Mackenzie v Foibes (1870), L R 10 Eq 178, Janies, lie Stokes, Stokes 
v Dutroz (1890), 62 L T 176, Noith 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 Vieny, Whit wham v Piemj , [1895] 1 Ch 83, North 

A beneficial mteiest under a settlement, by which real estate m England 
was held on tiust to sell and to divide the proceeds of sale, has been held 
to be peisonal propel ty, and thetefoie to pass by a will in foieign foim, 
which was a valid will for peisonal piopeity according to Loid Kmgs- 
down’s Act Be Lyne's Settlemnit T lusts, L1919] 1 Ch 80, Swmfen 
Eady, M R , Duke, L J , Eve, J , leversing Peterson 

But wheie a testatoi domiciled in Scotland had a geneial powei of 
appointment ovei the pioceeds of sale of lush land, which was settled on 
trust foi sale, and by a will executed m Scotland, which was invalid by 
Scotch law, but valid accoicling to the Wills Act, gave the residue of his 
piopeity to his wife, it was held that the disposition was good, because 
the interest in the pioceeds of sale was land, and the disposition was 
good by the Ux situs Munay v Champunoum, [1901] 2 I R 232 
It is doubtful whethei this decision is consistent with that in the case of 
Be Lyin' s Tiusts But the will might have been held good undei Loid 
Kmgsdown’s Act, and there foie effective to pass the piopeity supposing 
it was deemed to be personalty The point, howevei, was not considered 
b> the couit, and the actual decision that land on tiust foi sale passes as 
land is of doubtful validity 

These tlneo §§ contain the geneial English doc tune on the 
subject of the law which must govern immo\ables The applica- 
tions which aie made of that doetune in England to paitieulai 
questions will be pi evented in sepaiate § § , on account of then 
vauety and impoitance 

§ 159 A lent charge issuing out of land in England is an 
immovable, and when a Entish statute makes it liable to legacy 
duty as peisonal estate it is liable to such duty notwithstanding 
that the deceased ownei w r as domiciled abioad, and the movables 
left by him aie eonsequentlv not liable to such duty 

Chat fit hi v Beichtohlt (1872), L R 7 Ch Ap 192, James and Mellish, 
reversing Bacon (1871), L R 12 Eq 464 

§ 160 When secuuty is given on immovables foi a debt wdiich 
is also personally due, the lev situs of the immovables decides 
whethei 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, oi as a mere debt with collateral security 

In a case of a mortgage debt secured on land m Canada Swinfen Eady 
cited this § with approval ([1910] 2 Ch p 341) , and the Court of Appeal 
(Cozens-Hardy and Harwell, 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 Jaqcj, [1911] 1 Ch 179 but the lex situs which was applied was 
treated as being the same as English law, m which case the division of 
property into movable and immovable has no operation ub sup at p 185, 
Faiwell 

The case was presented by a Scotch hentable bond, in which the debt, 
though personally due as well as secured on the land, descended to the 
cieditoi’s hen of immovables, and the debtoi’s hen 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, Jeimnqham v 
Herbert (1829), 4 Russ 388, Tam 103, Leach, Allen v Anderson (1846), 
5 Ha 163, Wigiam And where the debtor was domiciled in England, 
his Scotch heir was still unable to claim exoneration out of his personal 
estate Diummond v Diummond (1799), House of Lords on Scotch appeal, 
Robertson on Personal Succession, p 209 , Elliott v Mmto (1821), 6 Madd 
16, Leach See above, § 118 

But now, by st 31 A 32 Viet c 101, s 117, Scotch heritable securities 
aio movable as regaids the succession of the creditor, subject to certain 
exceptions 

§ 161 Only if a separate secunty be taken m another countiy 
for the same debt, the last § will not apply, because the lei situs 
of the immovable secunty will be unable to affect the entire 
character of the debt 

Where an English secunty 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 Buecleuqh v 
Ifoare (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 Ooimg (1854), 18 Beav 383, Romilly 

§ 162 No law as to the mode of satisfying debts and legacies 
which may prevail in the country wheie the estate of a deceased 
person is being administered, not even if he was domiciled theie, 
can tlnow on his immovables a heavier burden in respect of his 
debts or legacies than is thrown on them by the lev wtv 9 

Hairison v Harrison (1872), Selborne, James and Mellish, and (1873), 
Selbome and Mellish, reversing Romilly (1872), whose attention had not 
been called to the point L R 8 Ch Ap 342 In Hevnt , Lawson v 
Duncan, [1891] 3 Ch 568, 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 Harnson 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 yeais m land, though personal estate by the 
English or other personal law of their owner, are recognized m 
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 m 
England by a testator domiciled m Ireland Freke v Carbeiy (1873), L R 
16 Eq 461, Selborne The succession to leaseholds for years in Ii eland, 
on the death of an owner domiciled in Italy, depends on the law of Ireland, 
and administration will be granted accoidmgly lie Gentih (1875), Ir 
L R 9 Eq 541, Allen Similarly where the situs was the Transvaal Be 
Moses , Moses v Valentine , [1908] 2 Ch 235, Swmfen Eady 
The Moitmam 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 executor as 
to English leaseholds Hood v Laid Bamngton (1868), L R 6 Eq 218, 
Rom illy 

§ 165 All questions concerning a restraint on the alienation 
or disposition of immovables are to be decided by the let situs , 
whether the restiamt be general or special, and, if special, 
whether directed against alienation or disposition m 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 m restraint of the disposition of English land, 
even though the charitable purpose 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 
Hoyles, Bow v Jagg, [1911] 1 Ch 179, Cozens-Hardy, Moulton (doubting) 
and Farwell, affirming Swmfen Eady 
It may here be mentioned, though not falling strictly under the §, that, 
m administering the estate of a testator domiciled m Scotland, the English 
couit refused to give effect to a bequest of personalty tending to bring 
English land undei a charitable tiust contrary to the Mortmain Act 
Att -Gen v Mill (i827), 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 
m Att -Gen v Mill the testator was not regarded as domiciled m Scotland, 
contrary to the language of the reports and of Lord St Leonards ( Law of 
Property , p 419), who was a counsel m the case Mayor of Canterbury v 
Wyburn, [1895] A C 89, ]udgment of himself and Selborne, Watson, 
Macnaghten, Morris, Shand and Couch, delivered by Lord Hobhouse 
In a more recent case, however, a charge of charitable legacies on 
debentures m an Australian company, which possessed certain leasehold 
property in England, was held to be invalid, because the leasehold interest 



212 


PRIVATE INTERNATIONAL LAW 


uqdei the English Mortmain Act could not be bequeathed for charity 
The Australian law, which was the law of the testator’s domicile, permitted 
a charge on land by will for charitable objects, but the letter of the law 
m the lex situs invalidated the whole bequest because of the scintilla of 
real property intei est Ile Dawson, [1915] 1 Ch 626, C A , Cozens- 
Hafdy, M R , Phillimore, Joyce 

Foieign immovables are legarded by the English court as puie personalty, 
for the purposes of the Mortmain Act Beaumont v Ohviera (1868), L R 
6 Eq 534, Stuart, (1869), L R 4 Ch App 309, Selwyn and Giffard 

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 foieign immovable “ Note 
also m this case 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 Robinson (1681), 2 Ventris 358, Nottingham 

In a more recent case this doctrine has not been followed foi the pui pose 
of paying legacies , it was held that a testamentary chaige of legacies on a 
fund of land and chattels m the Argentine did not put the land and chattels 
on equal terms foi 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 foieign land the doctrine applicable to English land 

§ 1G5<7 The capacity of a peison to contiact with icgaid to 
immovables is governed by the lex situs 

A contract made in England by a married woman domiciled in England 
relating to land abroad will not be enfoiced if by the lex situs of the land 
such a contiact by a married woman is void Bank of Afnca Limited v 
Cohen, [1909] 2 Ch 129, Buckley, Kennedy, Cozens-Hardy, affiiming Eve 

§ 1656 As legaids the interpretation of a contiact i elating 
to land, howevei, the piopei law ot the contiact and not neces- 
sarily the lei situs pievails British South Africa Company v 
])e Beers Consolidated Mines, Ltd ([1910] 2 Ch 502, see latei, 
j, 217) 

§ 106 No guardian, cuiatoi, committee of the estate, or 
assignee in bankiuptcy, either appointed by a foieign jurisdic- 
tion or holding the office by virtue of a foieign law, has any 
authonty with legard to the English real estate of his minor, 
lunatic oi bankrupt 

The proceeds of land belonging to a Chilian lunatic, sold under the 
Partition Act, 1868, weie not payable to his Chilian curator ad bona 
Gnmuood v Bartels (1877), 46 L J (N S ) Ch 788, Hall 

A Victorian Insolvent Ac' 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 Bmgley 
(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 


expiess contract to that effect, the lev situs will not govern the 
rights of eithei (onsoit in English real estate belonging to 
them See I)e Nuols v Curlier ([1900] 2 Ch 410, us 
pp 74 — 75) But m othei cases the English law alone wlII 
apply to English real estate of the spouses, whether acquued 
before or during mamage 

§ 1G8 English real estate descends on intestacy according to 
English law, whatever may have been the personal law of the 
intestate See §§ 178, 179 

§ 1G9 No limited mteiest, charge, or otliei dismemberment 
of the piopeity m English land can be created, noi any English 
immovable, including a teim of yeais, conveyed inter vivos, nor 
anv English leal estate devised by will, except in the foim 
required by English law foi such inspect ive puipose 

The Land Tiansfei A(t, 1897, makes the exe< utoi or admmis- 
tiatoi a leal lepi esentative, on whom all English “ leal estate, 
vested m any poison without a light m any othei poison to take 
bv sui vivoislnp, shall on his death, notwithstanding any testa- 
mentaiy disposition, devolve ” Such lepi esentative will have 
to administei the leal estate foi the payment of debts and 
legacies, and, subject to that, will hold it m tiust “foi the 
pei sons by law beneficially entitled theieto ” The Wills Act 
of couise lemains the lei situs detei mining the foim of a wall 
that shall govern the beneficial interest in English fieeholds 
the legal estate of tlie lepi esentative will have been, as it weie, 
intercalated 

As to the tiansmission on death of teims of years in English 
land, the legal estate in them passes by, and only by, the 
piobate oi giant of administration, so that every question as 
to the foi ms necessary for the transmission of such legal estate 
has been answeied in explaining the conditions necessary for 
obtaining piobate oi a grant of administration It is only with 
the tiansmission of the beneficial intei est that we now have to 
do, and the form of will necessaiy for that puipose, accoidmg 
to English view’s of pnvate inter national law, must depend on 
the lev s itus Ileie, however, we encountei a difficulty arising 
out of the fact that English leaseholds possess the tw’o characters 
of immovables and personal propeity, to the foimei of wduch a 
proper lev si tit 6 belongs and 1 should be independent of all 
peisonal 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 theie is m fact no such 
lex situs m the matter as there is for English freeholds A 
solution as little arbitrary as is possible m the situation is to 
take either the Wills Act simply, or such a combination as the 
WilL Act and Lord Kmgsdown’s Act together may furnish m 
the given circumstances, as the lex situs for the foim of a 
will of English leaseholds, and the Statute of Distributions as 
the lex situs foi the beneficial intei est m them m case of 
intestacy The last has been done, see Duncan v. Lawson , 
quoted under § 164 But the cases as to the other selection 
must be examined 

In Ve Fogassenas v Dupoit (1881), 11 L R Ii 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 purposes of private international law, and, this being 
satisfied, administration with the will annexed, limited to chattels real m 
Ireland, was granted in order that the will might operate on the beneficial 
interest in them The testator was a Fiench subject domiciled m France, 
and his will was not in tho form of his domicile eithei at the date when 
it was made or at his death, so that it had no claim to probate oi grant of 
administration except under private international law, and Lord Kmgs- 
down’s Act, which could give it no help, was not mentioned as entering into 
the test In Fepm v Bruyire, [1900] 2 Ch 504, Kekewich , affirmed, 
[1902] 1 Ch 24, Vaughan Williams, Romer, C'ozens-Hardy , the will was 
m the form of the testatoi’s domicile at his death, and letteis 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 m the 
English leaseholds bequeathed by it went to the next-of-km Conversely, 
the will of an Englishman, domiciled m Chili, which was good according 
to Chilian law, was held valid to pass English real estate when it was 
signed and attested in such way as to be a good execution according to the 
Wills Act Be Nuholls, Hunter v Nicholls, r 1921] 2 Ch 112, Eve 

In Be Grassi, Stubbei field v Giassi , [1905] 1 Ch 584, Buckley, the 
testator, a British subject, had made his will not in the form of the Wills 
Act but m that of the place where it was made, and it was admitted to 
probate under Lord Kmgsdown’s Act, si It was held to pass the beneficial 
interest in English leaseholds, on the ground that “ the section says, m 
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 Pepm v Bruy ere, 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 wi f h both Pepm v Bruyere and the Irish 
case, if we take the lex situs to be the combination which the Wills Act and 
Lord Kmgsdown’s Act together furnish in the given circumstances That 
reference to what the law of England would do m the circumstances is not 



IMMOVABLES EQUITIES 


215 


further removed from a true lex situs, and m my judgment not less reason- 
able, than the refeience to what the law of England does m the case of a 
person dying domiciled in England, which is involved m 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 thiee witnesses, when 
that was the English form for the purpose, although the will was made 
beyond sea Coppin v Coppm (1725), 2 P W 291, King 

See also Adams v Clutteibuck, quoted under § 156 

§ 170 No general rule can be laid down for the construction 
of contracts, wills, or other dispositions concerning immovables 
A stringent rule of construction existing by the lea; situs of 
the immovables concerned will of course prevent any mstiument 
from affecting the immovables except m accordance with it, but, 
otherwise, a reasonable regard must be had to all the circum- 
stances, including the locus contractus or actus, and the national 
character oi domicile of the parties, testator, or other disponer 

Where a Scotchman by will, in Scotch foim, devised Scotch and English 
immovables to his son “ and the hens male of his body,” it was held 
that the words cieated an estate tail m the English property, though they 
were not apt to create it over the Scotch propeity The stungent rule of 
constiuction m the English lej situs prevailed, and the incidents of an 
estate m English land must be deteimmed by that law JRe Millei, [1914] 
1 Ch 511, Warrington But in tftudd v Cook, 8 App Cas 571, 
Selborne, Watson, Fitzgerald, when a testator domiciled in England left 
land both m 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 cieated in the Scotch as well as the English immov- 
ables 


The following cases have ansen, wlieie not otheiwise men- 
tioned, as to the currency or place of payment intended, oi 
the i ate of mteiest due, wdiere a will or settlement has charged 
money on land situate m a country different fiom that m which 
the will or settlement was made, oi in which the testator oi 
settlor vas domiciled 

Phipps v Anglesea (1721), 1 P W 696, 5 Vm Abr 209, Parker, Wallis 
v Bnghtwell (1722), 2 P W 88, Macclesfield, Lansdoune v Lansdoume 
(1820), 2 B1 60, Eldon and Redesdale In all these cases the decision was 
m favour of the currency of the testatoi’s oi settlor’s domicile, but the 
payment to be in the situs of the land charged In Jlohius v Holmes 
(1830), 1 Ru & My 660, Leach, the testator was domiciled at the date of 
his will in the same countiy in which th^ land he charged with an 
annuity was situate, and the decision was m favoui 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 m England, th« parties also being apparently 
either English or Scotch, it was held that in the absence of expression m 
the settlement to the contrary the Irish rate of interest must be allowed 
Balfour v Cooper (1883), 23 Ch D 472, Baggallay and Lmdley , cited 



216 


PRIVATE INTERNATIONAL LAW 


with approval by Cozens-Hardy, L J , m Be Bra: v, Savile v Brax , [1903] 
1 Ch at p 796 

The following cases have aiisen on the question whethei 
slaves, live stock, and othei movables necessary to the enjoy- 
ment of an estate passed by a devise in which the testatoi only 
mentioned the estate, and it was held that they did so, con- 
foimably to the undei standing pi evading m the eountiy wheie 
the estate was situate 

Lushmqton v Sewell (1827), 1 Sim 435, Halt, Steuait 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 teim of pi abruption with legaul to the piopeity 
in immovables depends on the lei situs 

Beilcf aid v Wade (1805), 17 Ves 87, judgment of Pi ivy Council 
deliveied by Giant no exception in favoui of absentees, even though they 
have nevei been m the situs, unless expiess In Be Beat (1869), L R 7 
Eq 302, James, money ansing fioin the sale of land m India, and in 
Vitt v Bane (1876), 3 Ch D 295, Hall, rents and piofits of land in 
Jamaica happened to be admimstrable in the English court, and claims on 
them weie deteimined according to the law of piescuption of the situs 
whence they had been pioduced 

172 A piopnetoi of foieign immovables, oi peison 
intei ested in such, may be compelled by the English couit, if 
it has peisonal junsdietion ovei him, to dispose of his pioperty 
oi mtei est m them so as to give effect to any obligation i elating 
to them which aiises fiom, oi as fiom, his own contiact oi tort, 
and that obligation will not be measuied bv the leu situs of 
the foieign immovables to which it i elates, but in aeeoi dance 
with the mles of pnvate international law on obligations ansing 
fiom, oi as fiom, contiact oi toit “ If indeed the law of the 
eountiy wheie the land is situate should not peimit, oi not 
enable, the defendant to do what the couit might otherwise 
think it light to detiee, it would be useless and unjust to direct 
him to do the act, but when theie is no such impediment the 
(ouits of this eountiy, in the exeicise of their junsdietion ovei 
(ontiaits made lieie, oi m administeimg equities between parties 
lesuhng lieie, act upon their own rules, and are not influenced 
by any consideration of what the effect of such conti acts might 
be m the eountiy wheie the lands are situate, oi of the manner 
m which the couits of su<h countries might deal with such 
equities ” 

The quotation in the § is from Lord Cottenham’s judgment in Ex parte 
Bollard (1840), Mont & Ch 239 (j) 250), 4 Deacon 27 , in which case a 



IMMOVABLES EQUITIES 


217 


contract for security on land m Scotland, in the form called m England an 
equitable moitgage, was enforced against the debtor’s assignees in bank- 
ruptcy, as lepresenting his person, although ineffectual in itself by Scotch 
law But note what was said by Loid Macnaghten m Concha v Concha, 
[1892] A C at p 675 “ Theie is peihaps some danger of doing injustice 

if the stnct rules which the English Couit of Chancery has applied to 
dealings with trust pioperty are applied to a case between foieigners under 
foieign law, whose lelations aie not exactly those of trustee and cestv y i que 
trust ” 

Arglasse v Mnschamp (1682), 1 Vein 75, Nottingham, bill to be 
relieved of a chaige on plaintiff’s land in Iieland obtained by fraud 
Angus v Angus (1737), West’s cases temp llaidwicke, Haidwicke, bill for 
possession of land in Scotland, on giound of fiaud Venn v Baltimore 
(1750), 1 Vos Sen 444, Haidwicke, specific peiformance of agieement for 
settlement of buundanes in the Amencan colonies Cianstou n v John- 
ston (1796), 3 Ves 170, Arden, Jackson v Vetue (1804), 10 Ves 164, 
Eldon, Whitt v Ilall (1806), 12 Ves 321, Eiskine, bills against cieditors 
chaiged with fraud in obtaining judicial salevs, in the foium situs , of 
estates m tho West Indies In the fiist case, Sn R P Aiden made the 
deciee deelanng the defendant a tiustee of the estate he had acquned, 
** without saying that this sale would have been set aside eithei in law or 
equity theie,” that is, in the fonnn situs , and added, “ 1 will lay down the 
rule as bioad as this this couit will not peimit him to avail himself of 
the law of any othei country to do what would be gioss injustice ” 3 Ves 
183 Cood v Cood (1863), 9 Jur (N S ) 1335, Romilly a pioprietoi of 
land in Chili deuced a tiustee, and to do all things necessaiy toi giving 
effect to a conti act of sale which the Chilian couits had adjudged not to 
exist, and enjoined fiom fuither proceedings in those courts Mercantile 
Investment and (leneral Trust Compang v Biver (date Trust Loan and 
Aqencg Compang, [1892] 2 Ch 303, North , suit enteitamed wheie the 
defendant company had taken foieign land subject to an equity cieated by 
its jnedecessoi m title Dueler v Irnsterdamsch Trustees Kantoor, [1902] 
2 Ch 132, Byine, equitable chaige on land in Brazil British South 
Africa Compang v De Beers Consolidated Mines Limited, [1910] 2 Ch 
502, Cozens-Haidy, Faiwell and Kennedy affirming Swmfen Eady (over- 
mled on the English law, 8 C , [1912] A C 52) , 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 foi execution 
of a legal moitgage by executors in England was made m a case where the 
testatoi, by English deed, had chaiged his share m immovable piopeity 
abioad, to secure repayment of a loan, and had covenanted to execute a 
mortgage when called on The law of the foreign countiy did not tieat the 
chaige as a vahu encumbrance, but the conti act 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, wheie an English agreement for the sale of land in Fiance pio- 
vided that the vendor’s title should be accepted without requisition, and, if 
desired, the property should lcmain registered in the vendor’s name, and m 
that case the vendor should execute a declaration of tiust for the pui chaser, 
it was held that, though by French law no conveyance was necessary, 
something lemained to be done by English law, and therefoie, the court 
could not entertain an action for the balance of the purchase money 
Halford v Clarke, [1915] 56 L T 68, Shearman In Black Point Syndi- 
cate v Eastern Concessions Limited , [1898] 79 L T 658, 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 cany the tiusts 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, leceivers will be appointed over the foreign immov- 
ables Hainson v Gurney (1821), 2 Jac & W 563, Eldon, Clarke v 
Ormonde (1821), Jac 116, 121, Eldon In Harrison v Gurney the trustees, 
after decree m England, were restrained from proceeding 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 
authonse a sale of the trust propeity He Georges , [1921] W N 41, 
Sargant Where persons had contracted m 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 wilt, commenced proceedings in New York about the contract 
British Conti oiled Oilfields Limited v Stagg, [1921] W N 319, Sargant 

In Jenney 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 following cases illustrate the latter part of this § A covenant in 
an English marriage settlement to settle aftei -acquired propeity was not 
enfoiced so far as it related to land m Jersey, wheie by the lex situs a 
conveyance to the trustees without adequate pecuniary consideration would 
have been \oid, He Hearse's Settlement , Hearse v Hearse , [1909] 1 Ch 
304, Eve, and Bank of Africa Lim v Cohen, [1909] 2 Ch 129, cited under 
§ 165a 

§ 173 But where the relief which might affect the foieign 
immovables is not sought on any ground falling under the last §, 
the English court will decline to make its meie peisonal juris- 
diction over the defendant a giouiul for detei mining the light 
either to the pioperty or the possession of foieign immovables, 
but may perhaps assume to determine such right on the ground 
of movable propeity being mixed up m the same proceedings 

An action will not lie in England for the partition of foreign land 
Carteret v Hetty (1676), 2 Sw 323, note, 2 Ch Ca 214, Finch Or to try 
the validity of a will of foreign land Hike 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 m which he was neither party nor privy Norris v Chambres 
(1861), 29 Beav 246, Romilly , 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 Re Haw- 
thorne, 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 Mozambique 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 Deschamps v Miller , [1908] 1 Ch 856, Parker Pnma 
facie , an injunction cannot be obtained against proceedings m 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 m Archer v Preston, cited with approval by Nottingham in 
Arglasse v Muschamp (1682), 1 Vern 77 , Kildare v Eustace (1686), 
1 Vern 419, Jeffreys, Beddmgfield and Atkins, and Lend Anglesey's Case, 
mentioned by Hardwicke as a decree of his own settling boundaries m 
Ireland, in Penn v Baltimore, 1 Ves Sen 454 Something may have been 
due in these decrees to the superior authority which the English courts 
then exercised over Ireland, to lands in which they all related , but in Foster 
v V assail (1747), 3 Atk 589, Haidwicke put the colonies on the same 
footing as Ireland, and Nottingham had decided Carteret v Petty, which 
also related to land in Ireland The repoit of Boberdeau v Bous (1738), 
1 Atk 543, Hardwicke, is scarcely intelligible except as to the point men- 
tioned under § 176 

With regard to the last clause of the § in Bunbury v Bunbury (1839), 
1 Beav 318, Langdale affirmed by Cottenham, the defendants were taking 
proceedings m Demeraia to establish there a claim to a certain interest m 
land there, contending that the land had been biought by the lex 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 m the land, should be carried into 
execution with regard both to the land as a whole and to some movable 
property And they succeeded m getting the defendants lestramed from 
prosecuting any proceedings in Demerara In Hope v Carnegie (1886), 
L R 1 Ch Ap 320, Turner affiimmg Stuart, and Kmght-Bruce dissent- 
ing, where also both movables and foreign immovables were involved (see 
above, § 107), the proceedings as to the latter m 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, Kmght-Bruce, a 
decree appears to have been made foi payment of legacies and annuities out 
of land in Jamaica, and that for that purpose the boundaries of the 
testatrix’s estates m Jamaica might be ascertained, and if necessary 
settled by commissioners appointed by the English court of chancery 

See also Giey v Manitoba and North-Western Bailuay Co of Canada, 
[1897] A C 254, Judicial Committee, and Be Clinton, Clinton v Clinton, 
[1903] W N 20, Joyce, wheie the English court exercised jurisdiction 
over so much real propeity 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 moitgages 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 fiom him, m any court having 
personal jurisdiction over him Nor would it be inconsistent 



220 


PRIVATE INTERNATIONAL LAW 


with § 173 that on payment by the debtoi of the amount found 
due from him, the ei editor should be decreed, by any court 
having personal jurisdiction over lam, to leconvey the land or 
otherwise clear it of the mortgage But that foreclosure should 
be dec iced on the debtor’s failure to pay would appear to be 
contrary to § 173, and it can haidly be supposed that the forum 
situs of the security would allow any authority to such a decree, 
if by the lei situs the mortgage was still redeemable, and pro- 
ceedings were taken to redeem it Nevertheless, the practice m 
England is to decree foreclosure of mortgages of foreign lands 

Toilet v Caiteiet (1705), 2 Vein 494, Wnght, Vciqet v Ede (1874), 
L R 18 Eq 118, Bacon 

A bill foi the redemption of a mortgage of foreign land has 
not only been entertained, but an injunction granted m support 
of it against a proceeding to foreclose the mortgage m the forum 
situ s, on the ground that the accounts could be more conveniently 
and satisfactorily taken m England 

Bedford v Kemble (1822), IS & St 7, Leach 

And Sir L Khadwell expressed the opinion that, on a bill for 
redeeming a mortgage of foreign land, the lea situs should be 
applied 

In Bent v Young (1838), 9 Sim 180, at p 190 

This seems to be generally collect, for otherwise the baie 
peisonal jurisdiction might take fiom the defendant immovable 
pioperty indefensibly vested m 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, wheie the defendant was bound by some special 
contiact, not meiely 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 undei any obligation relating to them 
from, or as from, his own contiact oi tort, and yet the juris- 
diction is entertained, it must be determined according to the 
lex situs whethei he is bound to give effect out of his property 
or intei est to any contract relating to them, or attempted 
disposition of them, of or by third parties, on the ground of his 
having acquired his property or interest with notice of such 
contiact oi attempted disposition, or on any other ground 



IMMOVABLES VARIOUS QUESTIONS 


221 


In Martin v Martin , Bell v Martin (1831), 2 Ru & My 507, Leach r 
a contract on mainage, in Waterhouse v Stans field (1851), 9 Ha 234, 
and (1852), 10 Ha 254, Turner, a contiact foi secunty, and m Hicks v 
Powell (1869), L R 4 Ch Ap 741, Hatherley affirming Giffard, an un- 
registered conveyance, were held to be not enforceable against third 
parties, because not enfoiceable 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 whethei a contract foi 
security on foieign land was enforceable against third paities depended 
on the lej situs, but also that the pendency of a suit in the situs m which 
the question might be detei mined was a conclusive objection to entertain- 
ing the claim 

In Nelson v Bndport (1846), 8 Beav 547, Langdale, an attempt had 
been made to dispose of foieign immovables by will in a line of settlement, 
thiough the device of charging the successoi named by the will with a 
tiust He was compellable to execute the timt as fai as was possible con- 
sistently with the let situ s, being bound quasi ci lontiaitu by his accept- 
ance of the succession , but having done so, and having theieby acquired 
a limited mteiest which by a change in the let situ s was made an absolute 
one, he was not compellable to employ that absolute mteiest m executing 
the ti u&ts any fuithei, but might ittain it foi himself 

17(> Wheie a money demand is made in a rouit having 
peisonal juiisdiction ovei the defendant, it is no objection to the 
demand that it is m any way connected with foieign immovables. 

('alter et v Bitty (1676), 2 Sw 323 note, 2 Ch Ca 214, Finch, account 
of waste between tenants in common of lush land Bober dean v Bous 
(1738), 1 Atk 543, Hatdwicke , account of lents and piofits between tenants 
in common of land in St Chustophci’s Bctyley v Edwards (1784), 
Thurlow, stated m anothei case of the same name, 3 Sw 703 , account of 
produce of land in Jamaica dunng possession undei a will Batthyanq 
v Watford (1886), 33 Ch I) 624, Noith, successor in an Austro- 
Hunganan fidei-commiss allowed to lank against piedecessoi’s estate in 
an admimstiation action foi what he should establish in Austna-Hungaiy 
to be his claim on the balance of the detei loiations and impiovements 

But this lule does not apply wheie the demand is a tax oi late oi in 
the natuie of such Municipal Council of Sydney v Bull, [1909] 1KB 
7, Giantham If the lemaiks of the judge m this case can be taken as 
supporting the second giound mentioned in the head-note, viz , that an 
action would not lie against a defendant m England when money was 
chaiged on foieign immovables, the} aie, it is submitted, inconsistent with 
the authonties cued above 

Lastly, some points which lathei belong to English law in the 
special sense than to pnvate international law, even as forming 
a part of English law, may be conveniently mentioned m this 
chapter 

§ 177 The British sovereign oi government must be deemed 
to be present m every pait of the Bntish empiie, so that the 
fact of the soveieign or of a department of government being a 



222 


PRIVATE INTERNATIONAL LAW 


necessaiy party cannot found jurisdiction m England for a suit 
concerning land m any othei part of the empire 

Be Holmes (1861), 2 J & H 527, Wood, Berner v Salisbury (1876), 
2 Ch I) 378, Malms 

§ 178 In oi dei that one may inherit English real estate, he 
must both be legitimate m accordance with the doctunes of 
pnvate international law with legard to legitimacy, as to which 
see above, pp 99 — 104, and have been born after an actual 
mainage between his parents, as distinguished fiom a mainage 
antedated by a piesumption or fiction of law, that is, he must 
not have been legitimated pet tubsequens matnvwnium , even in 
a country wheie such legitimation pioceeds on a presumptive or 
fictitious antedating of the mainage 

Birtwhistle v Vaidill (1826), 5 B & C 438, Abbott, Bayley, Holroyd, 
Littledale, (1830), 2 Cl & F 571, 9 B1 N R 32, opinion of judges to 
same effect delivered to House of Loids by Alexandei (1835), 2 Cl & F 
582, 9 B1 (N S ) 70 , opinion of Brougham delivered to the effect that the 
status of legitimacy is sufficient, Lyndhurst and Denman reseivmg their 
opinions, and appeal oidered to be further argued before the judges 
(1839), 7 Cl & F 895, opinion of Tmdal, Vaughan, Bosanquet, Patteson, 
Williams, Coleridge, Coltman, Maule, Parke and Gurney delivered to 
House of Lords by Tmdal, 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 Livmqstone (1859), 3 
Macq 497, Brougham, Cianwoith, 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 vntue of that maxim, it is said, he who will inherit English 
land must piove himself hen by the law of England m the 
special sense, and therefoie legitimate by the law of England 
m the special sense, which law knows nothing of legitimation 
per subsequent matnmonnnn Were succession to personal 
estate m question, he need only prove himself legitimate by 
the law of England in the larger sense, which, by virtue of 
the maxim mobilia seqnuntur personam , refeis legitimacy when 
movables are concerned to the personal law, and so m that case 
adepts as a part of itself the legitimation per subsequent matn- 
momuvi which the personal law confers This is very plausible, 
but on examination two serious difficulties will be found m it 
First, as already pointed out on p 99, it is thinking m 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 national chaiactei 01 domicile, on which his 
peisonal law depends The question of legitimacy always turns 
on the legal appieciation of vanous facts, and what alone private 
international law gives or can give is an appiopnate lule foi 
the legal appreciation of each of those facts sepaiately Next, 
if it be laid down tha£ when immovable piopeity is under 
consideiation legitimacy is to be ref ei red to the lex situs, it 
follows for the same leason that this can have no othei meaning 
than that all the various facts on which it depends aie in that 
case to be appi eciated by the lex situs But then we aie led 
fai beyond the question of buth befoie 01 aftei actual mamage 
The validity of a mairiage even pieceding the buth is a necessaiy 
element of legitimaty, and this in its turn may depend on the 
validity of a divoice fiom an eailiei mamage, so we aie obliged 
to ask, wheie can we stop in applying the led situs 1 ** Thus 
the plausible theoiy which has been mentioned turns out to 
be unsatibfac toi v in its application both to peisonal and to leal 
estate Loid Biougham was deeply impressed with the impossi- 
bility of stopping at any given point m the application of the 
lex situs to the circumstances on which legitimacy depends, and 
urged it stiongly in Birtwhistle v Vaichll as a leason for 
lequiimg no othei quality of legitimacy in an English heir of 
real estate than that which forms a pait of his purely personal 
status 

The truth appeals to be that there neither is, nor with any 
convenience can theie be, any such thing as legitimacy by the 
lex situs or by any one other law; that what private international 
law gives is, and unless excessive difficulties are raised must only 
be, a peisonal status of legitimacy, depending on the total result 
obtained by appi eciating each fact in the case according to the 
law appiopnate to it And that theiefoie it is a misleading 
conti ast, when the question is put as between determining 
legitimacy by this or that law, that the true contiast is between 
accepting and i ejecting the personal status of legitimacy as 
sufficient when the mhentanee of English land is m dispute 
Birtwhistle v V archil should therefoie be consideied 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 pnneeps , says he, legitimat personam 



224 


PRIVATE INTERNATIONAL LAW 


ad s uccedendum in bona altering teiritoni Comm m Patnas 
Rritonum Leges, ait 218, gl 0, No 20 The iule is not the 
same, foi the canon law on legitimation was too widely leceived 
foi a rule intended to meet a conflict of lavs ansing out of its 
rejection to be flamed m such geneial teims The context 
shows that d’Aigentie was thinking of the effect of a foieign 
judi/ lal senteiue of legitimacy, but the ( ase is sufficiently 
analogous Supposing, howevei, that the feudists of all 
eountnes weie agieed that eitliei a foieign sentence of legiti- 
macy, oi a foieign legitimation not ansing fiom any law 
equally existing in the situs, should not entitle any one to 
succeed to immovables, this, notwithstanding the agieement, 
would fiom its natuie be only a iule of the special law’ of 
each (ountiv, and not a iule foi choosing between cliffeient 
special law’s, oi theiefoie a iule of pnvate mteinational law as 
we undei stand it 

The view 7 of the subject heie taken furnishes the answer to 
a question which has been iaised m the Lou (juaitiihj Iteneu, 
\ol 5, p 442 If teims of yeais in English land aie to be 
tieated as immovables foi the pui poses of pnvate mteinational 
law (above, § 1G4), must not legitimacy foi the puipose of 
succession to them be deteimined by the lei situs, and will 
this be consistent with the iule that foi succession to English 
peisonalty a child is legitimate who lias been legitimated pei 
subsequent matr nnomum in the countiy of which the law is held 
to govern such legitimation (above, § 126) ? The answei is that 
even m the case of English leal estate the legitimacy of the 
hen is not refened to the le.v situs m the sense intended in 
the question, but the mhentance is subject to a iule of English 
law which does not exist foi teims of yeais, so that the lattei 
will go to the legitimated next of km without violating the 
rule m § 164 

§ 179 A person who by vntue of § 178 is unable to mheiit 
English leal estate is also incapable of transmitting English 
leal estate by mlieiitance except to his own issue 

Be Don (1857), 4 Drew 194, Kindersley 



( 225 ) 


CHAPTER IX 

GUNDRAL NOTIONS ON JURISDICTION 

In the eouise by which, commencing with Chapter III, we 
have hitherto travelled through the English doctrines on private 
international law, we have fiist considered the status of peisons, 
then the cases which bring prominently foiwaid the conception 
of various lights of propeity and obligation as foirnmg a gioup 
with the person of their owner as its centre, and lastly rights 
of property themselves In other words, we have coveied the 
proper ground of what m the ancient nomenclatuie of the science 
are called the peisonal and leal 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 mained or legitimate by leason of 
his or his parents’ having gone through a certain ceremony, 
or which disposes of things, including mcorpoieal lights, 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 01 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 m relation to the thing is merely the negative one 
of not disturbing the enjoyment of its piopeity by the peison m 
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 — daie, facere , yrcvstare — is imposed on the party 
The laws which deal with the former cases proceed on the ground 
of an authority m 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 m that term the party who 
is guilty of an omission to act But where authority over an 
agent is concerned, law and jurisdiction are but two aspects of it 

15 


W I L 



226 


PRIVATE INTERNATIONAL LAW 


We have seen, p IT, that international rules of law w r ere often 
deduced fiom international rules of junsdietion by foice of the 
maxim si ibi forum , ergo et jus The justification of that pro- 
ceeding may be put as follows First, ti adit ion, convention, or 
the necessity of the case, points out the jurisdiction in which a 
deteimination ought most pioperly to be had, or can only be had 
effectively, secondly, the persons who are concerned in the detei- 
mination have not, in geneial, any leason for claiming that that 
junsdietion should follow any law but its own, tlindly, if the 
mattei anses incidentally in anothei junsdietion, the certainty 
which is so impoitant in law lequires that it shall be deter- 
mined as it would be detei mined in what may be called the 
pninary jurisdiction This statement suits all the cases, but 
the second link may be put more stiongly m the case of an 
obligation than in that of a condition oi 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 winch is 
the primal y junsdietion for enforcing it That conclusion is 
involved in the jurisdiction being the pnmaiy one If the 
authority to which the defendant is nghtfully sub]ect under the 
circumstances does not consider him to be liable, he is not liable, 
and there is no moie in the case Of course this must be taken 
with the qualification that mles for the choice of law on questions 
of obligation may still suivive through the foice 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 junsdietion 
out of which they aiose Such consequences flow natuially from 
the leeognition 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 enter ing on the rules for the 
choice of a law with regard to obligations, the student should be 
introduced to the history of the doctnnes which have prevailed 
m Europe about jurisdiction In that j}ait 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 m suit m the forum rei , the 
personal forum of the defendant This was, for an Italian, 
either that of the civitas or resyubhea of which he was a 



JURISDICTION IN ROMAN LAW 


227 


mnmceps ,* oi 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 eveiy Italian was a member by 
municipal citizenshiji, which involved subjection to the jurisdic- 
tion of that community — forum or igmis -—although he might be 
domiciled m another such ( ivita* or in a province, and if he were 
so was subject also to the junsdiction of his domicile In prin- 
ciple, the plaintiff had his choice whethei to sue in the forum 
origin? $ or the foiurn domicilii of the defendant, but it is likely 
that by some express provision, now lost, he was precluded from 
choosing the former except when the defendant was to be found 
in the temtory to which he belonged by on go Even however 
if this was not so, the plaintiff must geneially have preferred the 
forum domicilii , for his own convenience 

But since the provinces, being subject to the imperial 
governors, did not contain mutate s with original jurisdiction, at 
least until in late times something of the kind arose m the 
authority of the defensor e s, a provincial had no other personal 
forum than his domicile, except so far as he had a forum onqims 
at Home, through the edn t of Caracalla which extended the 
Homan citizenship to all the free subjects of the empire The 
Homan citizenship had long before been enjoyed by all Italians, 
through the le.r Julia , so that for such of them as did not belong 
immediately to Rome, but pnmaiily to some other Italian 
respublu a, 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 Juris show that they could not be sued at Home m virtue 
of their citizenship unless actually there, and even then with 
many exceptions, known collectively as the jus domum revocandi , 
which is the ground for piesummg, 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 foium iei f the Roman law allowed to the plaintiff 
the option of suing m the proper jurisdiction of the obligation, 
for which forum ( ontr actus and rei qestcr are modern terms 
applied more widely than to the particular cases they would seem 
to indicate “ This jurisdiction,” savs Savigny, “is to be held 
as founded in the following cases — 


* Chvis is only used of a Roman citizen, in opposition to lattnus and pcreqnnus , 
but muntcep<} is used 01 every municipal citizen, whether of a municipium or of a 
colonia, either being a respubhca A coloma however is not included m municipium 



228 


PRIVATE INTERNATIONAL LAW 


“ I At the place which is specially fixed for the fulfilment of 
the obligation by the intention of the parties, whethei it be so 
fixed by the verbal indication of some place or othei,” as m the 
famous law contrcunsse uninqinsque in eo loco mtelligitur in quo 
ut 6ohcret se obhgavit — Dig 44, 7, 21 — “or because the act 
which is to be brought about by the obligation can possibly be 
pertoimed only at a single place,” as m a contract foi the sale 
or lease of land oi houses, which implies the delivery of 
possession 

“ II Tailing the appointment of a place of fulfilment/ this 
junsdiction may be founded by the fact that the obligation arises 
out of the debtor’s course of business, which is fixed at a 
paiticulai place ”* Examples The tutela over peisons not sui 
pins, and every kind of curatela The management of another 
person’s affairs whethei 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 — ojierrr locatcr, or mandatum not having for its object a 
single transient affair, or quasi ex conti actu, as proceeding from 
the will of one paity only — negotiomm gestio , also when not 
having a single transient affair for its subject Lastly, one’s 
own regular banking and commission business — argentana In 
many cases falling under this second head the junsdiction 
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 debtoi’s lemovmg 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 

“ IY 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 m 


* 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 spot ’ 



FORUM CONTRACTUS IN ROMAN LAW 


229 


doing so makes arrangements from which it may be inferred that 
he will deliver the goods which he there sells m the same place 
He thus subjects himself to the special forum of the obligation 
at the place wheie the contract is entered into This is laid 
down minutely by Ulpian, 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 peison who enters into a contract while 
on a journey, and of whom it certainly will not be asserted that 
he subjects himself to junsdiction at the place of the contract * 

“ But such a trading relation is to be legarded only as an 
example, not as the exclusive condition, of a forum of the 
obligation For if contiacts are concluded during a residence 
away from the domicile, it is necessary to deduce fiom the sub- 
stance of them what notions as to their fulfilment the parties 
may probably have entertained If therefoie a public officer 
m 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 foium of the obliga- 
tion So likewise if debts aie 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 affans 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 probable purpose of the 
parties, a veiy 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 eveiy one Thus everything 
depends on the relation m which the natuie and length of the 
residence stand to the substance of the obligation ” 

“ V If none of these conditions exists, the forum of ihe obli- 
gation is at the domicile of the debtor ” Examples Contracts 
made by persons travelling, so far as they do not fall under IY 
The action for restitution of the dot, which must be brought at 


* The reference is to Dig 5, 1, 19, § 2 Dunssimum est quotquot locis quts 
navigans vel iter faciens delatus est, tot locis se defendi At si quo constitit , non 
dico jure domicilii , sed tabernulam , perqulam , horreum y armarium , offiemam 
conduxit, ibique distraxit, egit , defendere $e 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 oiders, 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 Homan law put the 
ancle at the risk of the buyer, although the property, requiring 
delivery foi 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 pnnciple 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 — Y) 
In both cases a voluntary submission of the defendant to this 
jurisdiction is to be assumed, unless an express declaiation 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 geneial acceptance that it was afterwards, even 
in positive enactments, placed m the same rank as the forum 
domicilii, contractus , rei sitcr It would be a mistake however to 
regard this foium as merely a paiticular form of the foium of 
the obligation, of the so-called forum contractu ? Foi the forum 
delicti does not arise by a presumptive voluntary subjection, and 
therefore the limitations above laid down for the forum of the 
obligation do not hold good in respect to this To found this 
jurisdiction neither domicile nor any other external accessory 
circumstance is necessaiy, but it arises from the commission of 
the delict itself, even at an 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 consequence 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, 8yst 
d heut Bom rechts, § 370 The passages within inverted commas are as in 
Guthrie’s translation, pp 160 — 164 



FORUM CONTRACTUS IN ROMAN LAW 


231 


natural development of the obligation, and therefore lead to its 
fulfilment, 01 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, and in the smaller numbed 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 temtory or possesses property 
there, m which last case the decree against linn will be enforced 
by mnsio in possessionem By the older Roman law this alterna- 
tive condition is unquestionable By the tenns of a law of 
Justinian we might legar d it as abolished But this law is 
expressed so geneially and indefinitely, and mixes up the various 
jurisdictions so indiscriminately, that the intention to change 
the former law cannot with any certainty be infer led Hence 
too a decretal has paid no regard to it, but adheres to the oldei 
Roman law, even to the very phrases The prepondeiance of 
modern practice ’ ’ — Savigny is not speaking of the practice under 
modern codes oi 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 m practice is the one, commonly 
diffused m the middle ages, that the place of contracting an 
obligation— locus celebiati i ontiactm , or ubi veiba proferuntnr — 
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 TTlpian’s were cited piomde et si merres 
vendidit certo Jon , rel dnposuit , vel c om[mravit , ridetur , nisi 
alio Ion ut defendeiet coniemt , ibidem se defendere Dig 5, 
1, 19, § 2 But this is only the conn lencement of the passage in 


Savigny, Syst § 371, Guthrie 171 — 174 



232 


PRIVATE INTERNATIONAL LAW 


the couise of which TTlpian warns the reader against the uncon- 
ditional interpretation of those words, and more fully develops 
Ins thought as quoted above, p 229 Anothei citation made 
with a similar purpose was a fragment of the work of Gams on 
the edictum provinciate At ubi qnisque contraocent Contrac- 
tum autem non vtique eo loco intelh gitur quo neqotunn gestum 
sit, bed quo solvenda est pecuma Dig 42, 5, 3 The latter pait 
of this fiagment is identical m effect with the law contia.risse , 
quoted above, p 228, and it must be taken as a commentary 
explaining the foimei part, at ubi quisqne continent But the 
whole came to serve the opinion m favour of the locus celebrati 
contractus thiough treating the foimer part as laying down a 
rule, and the latter part, with the law contraxxsse , as merely 
providing an exception to that rule in the case of an express 
contract to pay money m a certain spot, locv. s solutionis The 
general Piussian law of civil piocedure was drawn up in accoid- 
ance with these ideas, and laid down that the forum contractus 
was at the place, when theie was any such, determined by the 
contract for its fulfilment, if theie was none so determined, 
then at the place where the contract acquired its binding force 
part 1, tit 2, § 149 The opinion howevei has gained ground 
that the place of fulfilment, whether detei mined by the contract 
or only to be inferred fiom the nature of the case, furnishes the 
true f oi uin of the obligation, and the law of civil proceduie 
enacted in 1876 for the German empire establishes it- without 
distinction as the proper alternative to the forum rei § 29 
There was on the continent one great exception to the Roman 
system The foium contrai tus, whether loci celebrati contiactus 
or loci solutionis , was not received in France dunng the middle 
ages The seigneurs had patiimomal rights of administering 
justice, and m the royal courts the emoluments of justice were 
consideied as forming for the judges a kind of propeity, on 
account of the venality of their offices Consequently the trial 
m the defendant’s domicile, being less the right of the defendant 
than of the judge, could not be waived by the former, either 
thiough 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 tnbunal seised of the cause was incompetent on the 
ground of domicile alone, being by Roman jinnciples competent 
m respect of the matter The disregard of the interest of the 
parties which was thus shown was covered by a maxim of 



FORUM CONTRACTUS 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 m actions within the attributions of the juges et 
consuls , the plaintiff being allowed his choice between the domi- 
cile of the debtor, the jdace where the piomise was made and the 
goods supplied, and that wlieie 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 matteis which 
m France are called civil the forum contractus is still unrecog- 
mzed by legislation, except so fai as an indirect iccognition may 
be found in the powei 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 tiue domicile Code Nap , art 111 On the other 
hand, the Code Napoleon, ait 14, authorizes Frenchmen to sue 
foreigners in Fiance, even though not lesiding theie, and even 
on obligations contracted abioad, 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 legard to 
the forum contractus , Boullenois points out that the maxim 
of the lea loci contractu ? did not tlieie possess that which else- 
where was its chief base, and, instead of admitting it as a mle, 
he prefers to considei separately the motives of decision for 
each of the cases 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 presumed intention Yery naturally, m 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 Digesi says, si fundus vc merit, ei consvetudme ejus 
region? s in qua negotiant gestnm est pro evictions c avert oportet 
21, 2, 6 This was generally understood of the custom of the 
place of sale, but Dumoulm denied the application of the rule to 
a vendor and purchaser of one country who happen to contract m 
another, and considered that the custom of then common domi- 
cile, as being that of which they v^ere both aware and which 

* Henrion de Pansey, de l’Autorit^ Judiciaire en France, 3me Edition, t 1, 
pp 370, 371 



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 oursel\es 
m the midst of quite a different state of things At the com- 
mencement of legal memory the supenor courts alieady pos- 
sessed an original junsdiction coextensive with the realm there 
were no such local jurisdictions within England as could require 
any rules by which to distinguish, on the giound 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 consideiations in determining what causes the one 
national or royal jurisdiction would entertain, as contrasted with 
those which it would hold to belong only to foieign courts, but 
certain veiy peculiai doctrines prevented their being much 
attended to At common law, it was necessary that the vnt 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, tlieie were no means of obtaining a judg- 
ment against him on the ground of his domicile oi allegiance 
being English On the othei 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 legal ded 
as a sufficient foundation for the forum ret Thus domicile, a 
subject of such importance m the eyes of the Roman, and on the 
continent of the mediaeval lawyer, had no place at all within the 
purview of the English common lawyer, nor was it taken into 
account when the processes of distringas and outlawry weie 
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 tne defendant’s 
dwelling-house to some 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 Ins domicile 
Thus a suit m chancery was free from the necessity of personal 
service, which had been found so inconvenient m actions at law, 

* See Boullenois, Traits de la personnaht^ et de la r^alit^ des Lois, t 2, p 456 
et seq 



COMPETENCE IN ENGLAND 


235 


but the conception of domicile was as far from being entertained 
as befoie, eithei to restrict the power of proceeding against 
persons casually present or having a dwelling-house m England, 
or to found a powei of proceeding against persons domiciled m 
England but neither present nor having a dw T ellmg-house there 
Not every action however, foi 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 supenor 
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 thev did 
occur The venue for actions of this class was the county (in- 
cluding of course the city of London, though not originally a 
countv) m 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 
Transitoiy 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 theiefore might have been abroad, 
quite as well as in a different county from that m which the venue 
was laid, and, if the writ was personally served in England, there 
was no further condition to satisfy In chanceiy as there was 
no jury there was no venue, and no formal requisite the necessity 
of complying with which might restrain 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 m § 173, that its mere personal jurisdiction 
over the defendant ought not to be made a giound 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 m two 
ways only One was the establishment m 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 legal d to matters and defendants m 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 heie, because it was not con- 
connected with the giowtli 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 ihi forum ergo et jus The 
general notions on jurisdiction which have been surveyed in the 
present chapter will illustrate that piocess 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 m England, though it did not 
arise and indeed could not have arisen here 


* See Lord Mansfield’s judgment in Mostyn v Fabngas (1775), Cowp 161, 
and the note beginning on p 255, below 



( 237 ) 


CHAPTER X 

JURISDICTION IN ENGLAND, AND EXTERRITORIALITY 

Indeed, while the detailed histoiy of jurisdiction m 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 piesent state of jurisdiction in 
England may seem to have little concern with my subject It is 
very common foi the couits of a countiy to entertain actions 
under circumstances m which they would not admit that the 
jurisdiction was sufficiently founded to entitle the judgment of 
a foreign court, pronounced under similar ciicumstanoes, to be 
recognized as intei nationally binding For example, the pei- 
sonal foium of the plaintiff introduced by Art 14 of the Code 
Napoleon- see above, p 233 — and copied in other countnes whose 
legislation is based on that code, is not even in France consideied 
to possess any intei national validity, and no authority is allowed 
there to a judgment pronounced m one of those other countnes 
on the ground of it Hence the true question for private inter- 
national law in the matter of junsdiction is not what actions are 
entertained by the courts of a given country, but m what cases 
those courts will recognize foreign judgments, which with regard 
to English practice will be considered m another chaptei The 
former question is as much one of national law in a special sense 
as is the question whether the law of any countiy contains 
peculiar provisions about aliens It has however interest 
enough m connection with our subject to make it woith 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 m the acts and ordeis regulating the Supreme 
Court of Judicature restrains that court from entertaining any 
action m 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 powei of entertaining them has been set free from the 
restraint of local venue by the piovision m R S C , 1917, 
replacing It S C , 1883, Oidei XXXVI , that the older made m 
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- 
cel y, 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 
m cases wheie to do so would be unjust to the parties or would 
amount to an abuse of the piocess of the court 

If, for instance, a person should be induced by fiaud to come within 
the jurisdiction for the concealed purpose of serving lnm with a writ 
Watkinv v North American Land and Timber Co , Lim , [1904] 20 T R 
534, Davey, James of Hereford, Robertson 

Where one of four defendants was resident m England and the chief 
defendant, a company registered m Scotland, was seived with the writ at 
a branch office in England, and the plaintiff was resident m Scotland and 
the cause of action arose in Scotland, the action was stayed Logan v 
Bank of Scotland (No 2), [1906] 1KB 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 1 Egbert v Short, [1907] 2 Ch 205, Wairmgton In a somewhat 
similar case the action was stayed m Be Norton 7 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 couit to decide the case “ The 
sphere of jurisdiction and the sphere of right are not cotenninous ” 
John Bussell J Co v Cayzei , hvme <t Co , [1916] 2 A C 298, Haldane, 
Sumner, Parmoor, Wienbury, at p 302 And where it would be inequit- 
able to exeicise its legal juiisdiction, the couit will refiain 

§ 181 “ (1) No service of wilt shall be required when the 
defendant by Ins solicitor undertakes m writing to accept service 
and enters an appearance (2) When service l-> required, the 
writ shall wherever it is practicable be served m the manner m 
which peisonal service is now made, but if it be made to appear 
to +he court or a judge th .t 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, oi for the substitu- 
tion for service of notice by advertisement or otherwise, as may 
seem just ” Older 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, mle 2, requires some explanation 
In § § 182, 183, 184, we shall see peculiar modes of service given 
in certain cases of actions against paitneis and for recovery of 
land and m admnalty actions m rem The name “ substituted 
sei vice ” however is not used for these, which are regarded as 
exceptions to the maxim of iequmng peisonal seivice on defen- 
dants, but for the modes of service allowed m cases wheie that 
maxim is supposed to apply but real peisonal service is imprac- 
ticable, such as by letter, by seivice 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 w T hich 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 Bey (1876), 2 Ch D 218, Hall An officei on board a king’s 
ship on the high seas is within the jurisdiction Seagrove v Parks , [1891] 
1 Q B 551, Cave and Charles affirming Denman 

Duung the Great War leave was given to make substituted service of 
notice of writ on agents of enemy aliens who were carrying on business m 
England Porter v Fi eudenberg, [1915] 1KB 857 

(2) Those of all Bntish subjects out of the junsdiction, m 
cases not falling undei §§ 182, 183, oi 184, but wheie service 
out of the junsdiction is allowed under § 186 

Biamwell, in Great Anstiahan Gold Mining Co v Mai tin (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 m ordei to bring the 
writ to the knowledge of a foreign defendant out of the Butish 
dominions, m cases not falling under §§ 182, 183, oi 184, but 
falling undei § 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 Aktiebolaget Fkmans Mekaniska Smckarefabnk (1876), 1 
Ex D 237, Kelly, Bramwell, Amphlett, decided on the rules of 1875 
Padley v Camplutusen (1878), 10 Ch D 550, Jessel, Baggallay and 
Thesiger affirming Hall Hewitson v Fabre (1888), 21 Q B D 6, Field 
and Wills An order giving leave to issue concurrently a writ and serve 
it by posting a copv to an address within the jurisdiction was held bad on 
the face of 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 pioceedmg ought to be 
given to a foreigner out of the jurisdiction, that which is m form a 
seivice cannot be suppoited as a notice He La Compaqme Genemle d’Faux 
Mmeuilcs et de Bams de Mer , [ 1891] 3 Ch 451, Stirling Wheie a wilt 
is issued in the form foi service m England but the writ cannot be pro- 
perly seived in England, not only the service but the whole writ is bad 
Sedg ad v Ytdras Mining Co (1886), 35 W R 780, Huddleston and 
A L Smith But where the wnt is issued foi service out of the jurisdic- 
tion, it may be seived within the jurisdiction Fold v Shephaid (1885), 
34 W R 63, Day and Smith And where a concurrent writ has been 
issued for service out of the junsdiction, an older may be made for sub- 
stituted service at several places some of which aie within the jurisdiction 
Western Suburban and Nottmg Hill Permanent Building Society v 
Buclchge, [1905] 2 Ch 472, Swmfen Eady 

A foreigner may appoint an agent to receive seivice for him within the 
jurisdiction Montgomci y v Liebenthal, [1898] 1 Q B 487, A L Smith, 
Chitty and Collins afhrming Phillimore 

So far as matters are concerned, the cases in wlncli personal 
service or notice substituted for service can be allowed out of the 
jurisdiction are enumerated below in §§ 18G, 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 mles 
as to substituted service 

Field v Bennett (1886), 56 L J Q B 89, Coleridge and Denman , 
approved m He Bernale s v New York Herald (cited below on p 242) 

See, too, Gibson & Co v Gibson , [1913] 3KB 379, Atkin (below, 
§ 321) 

The junsdiction of the eouit may be extended by the sub- 
mission of foieigneis to its junsdiction 

Where the foreign owneis of a ship, against which pioceedings m rem 
were being taken, enteied an appearance, they became personally liable to 
pay the amount of the judgment The Gemma t [1899] P 285, A L Smith 
and Vaughan Williams The Hupleix, [1912] P 8, Evans A foreigner 
residing abroad and suing m England through an agent cannot be ordered 
to give discovery, but the court can stay the action until such disoovery 
is given Willis & Co v Baddeley , [1892] 2 Q B 324, Esher, Bowen and 
A L Smith A foreign defendant may enter an appearance under protest 
Ht, should obtain leave to enter a conditional appearance, and must then 
apply to set aside the wnt within the time fixed by the court For the 
practice m 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 dfter a defence had been delivered under 
protest The time fixed for the application to set aside the writ may be 
extended , Keymer v Beddy, [1912] 1KB 215, 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 pei sons were copartners at the tune of the acciumg 
of the cause of action (3) Where peisons are sued as paitners 
m the name of their firm under rule 1, the writ shall be served 
either upon any one oi more of the paitners, or at the pimcipal 
place within the junsdietion of the business of the paitneiship, 
upon any person having at the time of seivice the conti ol or 
management of the partneiship business theie, and, subject to 
these rules, such service shall be deemed good service upon the 
firm so sued, whether any of the membeis thereof aie out of the 
jurisdiction or not, and no leave to issue a wnt against them 
shall be necessary (11) Any person canying on business within 
the jurisdiction in a name or style other than his own name mav 
be sued in such name or style as if it w T ere 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 mles 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 seived on every person within the jurisdiction sought to 
be made liable ib rule 3, and every person served must be informed by 
notice in writing whether he is sued as a partner oi as a person having 
control of the business ib rule 4 

Partners domiciled and resident abroad, carrying on business only 
abroad and being foreigners, cannot be sued undei 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 Cambefort j(1889), 23 
Q B *D 526, Cotton, Fry and Lopes, overruling O'Neil v Clason (1876), 
46 L J Q B 191, Coleridge and Pollock affirming Cleasby, which was 
decided on the equivalent rule of 1875, and overruling Pollexfen v Sibson 
(1886), 16 Q B P 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 m the writ Western National Bank of City of 
New York v Perez , Tnana Co , [1891] 1 Q B 304, Lmdley and Bowen 
outvoting Esher and reversing Pollock and F ay , Indigo Co v Oqilvy 
[1891] 2 Gh 31, North, and on appeal Lmdley and Kay , Grant v Ander- 
son, [1892] 1 Q B 108, Esher and Kay affirming Coleridge and Wright, 
Hememan & Co v Ilale & Co , [1891] 2 Q B 83, Esher and Kay re- 
versing Cave and Charles , Dobson v Festi, Basini & Co , [1891] 2 Q B 
92, Lmdley, Lopes and Kay affirming Cave and Grantham Service of 
notice of a writ out if the jurisdiction upon a foreign partnership m 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 propeily sued in its firm name Fern Hellefeld 
V Richnitzer, [1914] 1 Ch 748, Buckley, Phillimoie, Astbury 

Under lule 1 a film carrying on business within the jurisdiction may be 
sued m the film name without leave, though all the partners aie foreigners 
resident abroad Worcester City and County Banking Co v Firbank, 
Battling <( Co , [1894] 1 Q B 784, Mathew and Collins partially affirmed 
by Eshei, Lopes and Davey , Lysaght Lim v Clark <C Co , [1891] 1 Q B 
552, Cave and Grantham A foreign film employing an agent in London 
to piocure oiders on commission does not cairy on business within the 
junsdiction within the meaning of this lule (riant v Anderson (cited 
above) Okuia <{ Co v Forsbacka, dc , [1914] 1KB 715, Buckley and 
Phillimore affirming Ridley 

Rule 11 does not apply to a foreigner lesident abioad who carries on 
business within the jurisdiction m a name other than his own name St 
Gobam , Chauny and Cney Co v Hoyeimann* s Agency, [1893] 2 Q B 
96, Esher and A L Smith, De Benialet v Neu York Retold , [1893] 2 
Q B 97, note Esher, Lmdley and A L Smith affiiming Lopes and 
Colendge, who had affiimed Kennedy, and Matlver v G and J Bums, 
[1895] 2 Ch 630, Lmdley, Lopes and Rigby 

§ 182rt A mle was issued m 1920, allowing seivice on an 
agent residing m tlie junsdiction and oairymg on business on 
behalf ot a pnncipal outside the junsdiction 

‘ k Wlieie a (ontiact has been entered into within the junsdic- 
tion bv oi thiougli an agent residing oi canying on business 
within the junsdiction on behalf of a principal lesidmg oi cany- 
ing on business out of the jurisdiction, a w T nt of summons m an 
action i elating to or arising out of such conti act may by leave of 
the couit oi a judge given before the determination of such 
agent’s authonty or of his business relations with the pnncipal 
be seived on such agent Notice of the order giving such leave 
and a copy theieof and of the w r nt of summons shall forthwith 
be sent by prepaid registered post lettei to the defendant oi 
defendants at his or their address out of the jurisdiction Pro- 
vided that nothing m this rule shall invalidate or affect any 
other mode of service m force at the time this rule comes into 
operation ” 

In a note issued by the Supreme Court explaining die 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 
Ji 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 m getting an order for and effecting service out of the juris- 
diction m 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 thb rule should m each 
case be supported by an affidavit going fully into the circumstances relating 



PECULIAR MODES OF SERVICE 


243 


to the making of the conti act and the difficulties that exist m effecting 
service out of the jurisdiction in the ordinary way 

§ 183 “ Service of a wilt of summons m an action to recover 
land may, in case of vacant possession, when it cannot otherwise 
he effected, be made by posting a copy ot the writ upon the door 
of the dwellinghouse oi other conspicuous part of the property ” 
Older IX of 1883, rule 9 

§ 184 “ (12) In admiialty actions in rem, seivice of a writ 
of summons oi wan ant against ship fi eight or caigo on board 
is to be effected by nailing or affixing the original writ or 
wan ant foi a shoit time on the mainmast oi on the single mast 
of the vessel, and on taking off the piocess leaving a tiue copy 
of if nailed or affixed m its place (13) If the cargo has been 
landed or tianshipped, seivice of the writ of summons or warrant 
to anest the caigo and fi eight shall be effected by placing the 
wilt oi wan ant foi a slioit time on the caigo, and on taking 
off the piocess by leaving a tiue copy upon it (14) If the cargo 
he in the custody of a peison who will not permit access to 
it, service of the writ oi wairant may he made upon the 
custodian ” Oulei IX of 1883, mles 12, 13, 14 

The couit has juiisdiction to j lonounce judgment, though the ship has 
been clandestinely lemoved out of the juiisdiction aftei seivice under this 
rule The Nantih , [1895J P 121, Biuce, and see The Lady Blessington , 
34 L J Ad 73 

Wheie the cargo has been sold bv anangement between the parties, the 
peison in possession of the pioceeds of sale cannot be seived undei this 
rule, the ownets being out of the juiisdiction The Foi n jot t [1907] 24 
T R 26, Buckmll 

A wan ant cannot issue against the freight except by airest of the ship 
and caigo The Kuleten , [1914] T L R 572, Evans, P 

§ 185 In connection with the last § it may be observed 
that in actions by seamen, foreign oi British, against foreign 
vessels, though the competence of the Butisli couit of admiralty 
is excluded bv the terms of then service, that competence is not 
thereby ousted, out the couit will exercise a disci etion as to 
entei taming the action It is necessary however befoie entei- 
tainmg it that notice be given to the representative of the 
government of the vessel's country 

The Gohibehicl r (1840), 1 W Rob 143, Lushington The Ntr\a (1867), 
L R 2 A A E 44, Phillimore , L R 2 P C 38, Romilly The 
Leon XITI , 8 P D 121, (1882) Phillimoie (1883) Brett and Bowen 

In The Annette and Dora , 1 1919] P 105, Hill, the English court accepted 
jurisdiction m a suit for possession of vessels between foieigneis, 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 m 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 Seivice 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 

“ (b) Any act, deed, will, contract, obligation or liability, 
affecting land or heieditaments situate within the jurisdiction, 
is sought to be constiued lectified set aside oi enfoiced m the 
action, oi 

“ (c) Any relief is sought against any person domiciled or 
ordinarily resident within the junsdiction , oi 

“ (d) The action is for the admimstiation of the peisonal 
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 m Scotland to enforce, rescind, 
dissolve, annul or otherwise affect a contract or to recover 
damages or other relief for or m respect of the breach of a 
contract (l ) made within the jurisdiction, or (n ) made by 
or thiough an agent trading or residing within the jurisdiction 
on behalf of a principal trading or residing out of the juris- 
diction, or (m ) 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 oi Ireland, m 
respect of a breach committed within the jurisdiction of a 
contract wherever made, even though such bleach was preceded 
or accompanied by a breach out of the jurisdiction which 
lendered impossible the performance of the part of the contract 
which ought to have been performed within the jurisdiction ” 
R 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 


245 


“ (/) Any injunction is sought as to anything to be done 
within the jurisdiction, or any nuisance within the junsdiction 
is sought to be prevented or removed, whether damages are 01 
are not also sought m respect thereof, or 

“ (g) Any person out of the jurisdiction is a necessary or 
proper party to an action pioperly bi ought against some othei 
person duly served within the junsdiction, or 

“ (h) The action is by a mortgagee or mortgagor m relation 
to a mortgage of personal propeity situate within the jurisdic- 
tion and seeks relief of the natuie or kind following, that is 
to say, sale, foreelosuie, delivery of possession by the mort- 
gagor, ledemption, ie( onveyance, deliveiy of possession by the 
mortgagee , but does not seek (unless and except so far as 
permissible under sub-head (e) of this mle) any personal 
judgment 01 oidei foi pavment of any moneys due under the 
mortgage ” 

In this sub-head the expression peisonal property situate within the 
jurisdiction means peisonal piopeity which, on the death of the owner 
thereof intestate, would foim subject-matter for the grant of letters of 
administration to his estate out of the Principal Probate Registry , the 
expression moitgage means a moitgage charge or lien of any description, 
the expression moitgagee means a paity foi the time being entitled to or 
interested in a moitgage , and the expression mortgagor means a party for 
the time being entitled to 01 interested in property subject to a mortgage 
(R S C , August, 1916 ) 

“ 2 Where leave is asked from the court oi a judge to seive a 
writ undei the last preceding rule in Scotland or m Ireland, if 
it shall appear to the court or judge that theie may be a con- 
current lemedy m Scotland or Ireland (as the case may be), 
the court oi judge shall have regard to the comparative cost 
and convenience of pioceeding m England or in the place of 
residence of the defendant or peison sought to be served, and 
particulaily in cases of small demands to the powers and 
jurisdiction, under the statutes establishing or regulating them, 
of the Sheriffs’ couits or Small Debts couits in Scotland, and 
oi the Civil Bill couits m Ii eland respectively 

“ 2 a Notwithstanding anything contained in rule 1 of this 
order, the parties to any contract may agree (a) that the High' 
Court of Justice shall have junsdiction to entertain any action in 
respect of such contract, and, moreover or m the alternative, 
(b) that service of any wuit of summons m any such action 
may be effected at any place within or out of the jurisdiction 
on any party or on any pet son on behalf of the party or m 



248 


PRIVATE INTERNATIONAL LAW 


Rule 1 Where a case falls only m part under this rule, unconditional 
appeal ance 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 ( e ) Clare County 
Council v Wilson } [1913] 2 I R 89 

1(b) An action foi 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 151, it is said that the couit of appeal affirmed 
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 accoiding 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 m a lease is within 
this head Tassell v Hallen , [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 couits for a breach of tiust as to lands 
m 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] 25 
T R 225, Parker 

1 (d) The existence of such property within the jurisdiction is a con- 
dition precedent to service under this head Wmtei v Winter , [1894] 
1 Ch 421, Stirling For a curious case where the county court rule was 
widei than this lule and difficulties consequently arose on a transfer of 
the case to the High Court, see Wood v Middleton , [1897] 1 Ch 151 

1 ( e ) It is not necessaiy that performance within the jurisdiction be 
expiessly stipulated, but it must result from the contract Bell & Co v 

Antuerp, London and Brazil Line , [1891] 1 Q B 103, Esher and Kay 

affirming Cave and Day On a contract for the transfei 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 Beynolds 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 Mutzenbecher v La Aseguradora Espanola , 
[1906] 1KB 254, 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 puce to the plaintiffs Robey v Sncefell Mining Co (1887), 
20 Q B D 152, Stephen and Charles , Thompson v P aimer } [1893] 2 
Q B 80, Esher, Lopes and A L Smith Similarly on a consignment of 
goods to be sold in Germany Rem v Stem , [1892] 1 Q B 753, Lindley 
and Kay affirming Cave and Vaughan Williams Similarly, on a contract 
for sale of champagne by the defendants out of the jurisdiction as agents 
of the plaintiffs domiciled m England Charles Duval & Co , Lim v 
Gans , [1904] 2KB 685, Stirling and Mathew In Drexel v Drexel f 
[1916] 1 Ch 257, at p 260, Nevile, it Was held that non-payment of a 



SERVICE OUT OF JURISDICTION 


249 


separation allowance to a wife resident m England was a breach within 
the jurisdiction, though no place of payment was mentioned m 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 conti act 
made in England took place out of the jurisdiction, the fact that there 
was a consequential failure to carry out the terms of the contract in Eng- 
land did not give a basis of jurisdiction to the English court Johnson v 
Taylor Bios , [1920] A C 144, Birkenhead, C , Haldane, Dunedin, Atkin- 
son and Buckmastei, overruling Bankes, Warrington and Scrutton, Li 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 sequitur 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 Pi ivy Council Hemsbrych v W rn Lyall 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 junsdiction, 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 lule dispels any doubts 

An action to enfoice 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 Eulei , [1893] P 119, Jeune, Esher, Lmdley 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 1 f contract to be shipped from a place not within the jurisdic- 
tion Ciozier, Stephens dr Co v Auerbach , [1908] 2KB 161, Vaughan 
Williams and Farwell overruling Bigham and Barrow v Myers , 
4 T R 441, Manisty and Mathew But in Biddell Bros v Horst A Co , 
[1912] A C 18, it was held that in a c l f contract between a foreign 
vendor and English puichaser, 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 m doubt whether there has been a breach of 
contract within the jurisdiction, he may make an order for service out of 
the junsdiction, at the same time imposing on the plaintiff the condition 
of recovenng at the trial only the amount as to which it shall appear that 
service out of tho jurisdiction was proper Thomas v Hamilton (1886), 
17 Q B D 592, Day affirmed by Esher, Bowen and Fry The dismissal 
of a London con espon dent of a foreign newspaper by a letter wntten 
abroad is not a breach within the jurisdiction under this head Holland 
v Bennett [1902] 1KB 867, Vaughan Wiliams and Mathew 

Pnor to the addition of sub-section (h) it was held that an action for foie- 
closure of a moitgage was not an action on a contract under this head 
Deutsche National Bank v Haul, [1898] 1 Ch 283, Stirling, nor 
action to enforce a charging order against shares in an English company 
Kolchmann v Meunce , [1903] 1KB 534, Vaughan Williams, 

Stilling affirming Joyce The conditions m the new form of the order on 
which a writ may be served are disj unctive , and, therefore, when the 



250 


PRIVATE INTERNATIONAL LAW 


contract was made within the jurisdiction, theie is power to order service 
out of the jurisdiction though it was not to be governed by English law 
11 ansbioutjh Pnpet C o v Laughlaml, [1920] W N 344, Bankes, Sciutton 
and Atkin Conversely, when a conti act was made in New Yoik between 
a Canadian eomjjany, with an office m London, and a foreign subject, and it 
was expiessly stipulated that it should be consideied “ to be duly made and 
executed in London,” it was held by its teims to be governed by English 
law, and theiefore leave to serve the wut out of the jurisdiction was 
lightly oi dei ed Bntish Conti oiled Oilfields, Lim v Stagg, [1921] W N 
319, Sargant 

Theie is no powei undei this head to older seivice out of the junsdiction 
on a defendant domiciled or ordinanly resident in Scotland or Iieland , 
the expiess exception in rule 1 (e) is not teduced by lule 2 to a discre- 
tionary exception Lenders v Andeison (1883), 12 Q B D 50, Grove and 
Huddleston, Field agieeing, and see Channel Coahn Co v Ross, [1907] 
1KB 145, Alverstone and Hailing , a similar case undei the county court 
rules And substituted service cannot be resorted to in such a case 
llillyatd v Smith (1887), 36 W R 7, Smith and Charles An express 
agieement that the writ may be served on an agent in England is valid 
Montgomery Tones d Co v Liebenthal d 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, howevei, whether this ruling would apply now 
in view of the express terms of the new rule 2 (a) 

1 (/) See Tozier v Haulms (1885), 15 Q B D 650, Coleridge and 
Cave , ib 680, Brett, Baggallay and Bowen , and, for a case of infringe- 
ment of a patent in England by foreigners abioad, Chemise he Fabrik 
vormtih Sandoz in Basel v Badische Amlin und Soela Fabuh , [1904] 20 
T R 552, Macnaghten, Davey, James and Robertson, affirming Collins, 
Romei and Cozens-Haidy, who affiimed Joyce Apparently service under 
this head would not be allowed if it were shown that there weie not, and 
were never likely to be, any means of enforcing the injunction in England 
See T>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 foi 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 T)e Fenny, De Fenny v Christie , [1891] 2 Ch 63, Chitty Leave was 
refused m the case of an alleged libel published m a Scotch newspapei, only 
a few copies of which were sold m England, Watson d Sons v Daily 
Becoid ( Glasgou ) Lim , [1907] 1KB 853, Collins and Cozens-Hardy 
overruling A T Lawrence Leave was allowed by the lush courts in an 
action against a company out of the jurisdiction, foi an injunction to 
restrain the company from publishing m Ireland an advertisement con- 
taining pmtuies of the plaintiff, said to be libellous The mischief 
complained of was lesented 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 upheld m a bona fide case, Alexander dr Co, 
Lim v Valentine d Sons [1907] Lim , [1908] 25 T R 29, Buckley 
and Kennedy As to what is a “ thing to be done within the jurisdiction ” 
see The Badische Amlin und Soda Fabrik v Basel Chemical Works, 
Bmdschedler, [1898] A C 200, Halsbury, Herschell, Macnaghten and 
Havey 

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 
m a foreign country by the laws of that country “ Morocco Bound ” 
Syndicate, Lim v Hat ns, [1895] 1 Ch 534, Kekewich 

1 (q) The person within the jurisdiction must be seived before an order 
for service out of the jurisdiction is made undei this head Lightowler v 
Liqhtouler (1884), W N 1884, p 8, Butt, Yorkshire Tannery v Eqhnton 
Chemical Co (1884), 54 L J Ch 81, Pearson, and Tassell v II a lien 
above under 1 (h) A party may be proper under this head without being 
necessary, and, subject to the disci etion of the couit, he will ’be so 
whenver, if within the jurisdiction, he could have been made a party under 
Older XVI of 1883 Massey v Tlayne s (1888), 21 Q B D 330, Wills and 
Giantham affirmed by Esher, Lmdley and Lopes See The Elton, [1891] 
P 265, Jeune Tlianemore Steamship Co v Thompson (1885), 52 L T 
552 The test is, “ Supposing both the defendant films were resident 
within the jurisdiction, would they both have been joined in the action?” , 
Witted v Galbraith, [1893] 1 Q B 577, Bindley and Kay reveising 
Hawkins and Coleridge, followed in Boss v Eason, [1911] 2 I R 459, 
Walker, Palles, Gibson and Boyd Oesterreichische Export v British 
Indemnity Co , [1914] 2KB 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 
weie pioper parties in the action The action against both defendants 
must be substantially the same ('ollm s v North British Mercantile Insur- 
ance Co , Piatt v The Co , [1904] 3 Ch 228, Kekewich The fact that 
the cause of action arose out of the jurisdiction is nnmateiial The I)uc 
d’Aumalc, [1903] P 18, Goiell Barnes, and Deutsche National Bank v 
Paul, [1898] 1 Ch 283, Stirling 

See the orders made under this head in support of an action for enforcing 
a cieditors’ deed relating to foreign land Jenney v Mackintosh , above, 
p 218, and m support of an action to enforce an equitable charge over 
foreign land Duder v Amsteuhimsch Trustees Kant our , [1902] 2 Ch 
132,, Byrne, and where a person out of the jurisdiction supplied goods to 
a dealer m Ii eland, which infringed Irish patent lights 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 abioad but who left assets m 
England Be Ixine, Lane v Bolnn (1886), 55 L T (N S ) 149, Pearson, 
and see MtCheam v Gyles, below, p 253 This lule ha«* been held to 
apply where the plaintiff has an alternative claim against either the person 
within the jurisdiction oi the person out of the jurisdiction Witted v 
Galbraith, [1893] 1 Q B 431 (but see the same case, at p 577) The 
court has a discietion which should be exercised with gieat care, The 
Ilaqen, [1908] P 189, Alverstone, Faiwell and Kennedy oveiiuhng 
Bai grave Deane, where an order giving leave to serve the ownei of a 
foreign ship was dischaiged on the ground that the collision* took place 
abroad and proceedings were commenced without undue delay bv the 
foieign owners m the local courts 

The discretion should not be exercised m a rase wheie plaintiffs in England 
brought an action against two companies out of the jurisdiction Thev 
had shipped goods in a vessel owned by a company domiciled in Scotland, 
and the vessel ha\ing been requisitioned, the caigo was loaded on another 
ship without then knowledge oi consent, which ship was sunk The first 
defendant consented to the jurisdiction of the English couit, and the 
plaintiffs then asked leave to serve wilt on second defendants out of the 
jurisdiction 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 here 
against the first defendant Bussell v Cayzer, [1916] A C 298, see above, 
p 238 This discretion is not limited by Order XI, rule 2 Lopez v 
Chavam, [1901] W N 115, Farwell This rule applies to actions on tort 
Croft v King , [1893] 1 Q B 419, Day and Collins, and Williams v Cart - 
ivriqht , [1895] 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 m rule 1 (e) it does not limit that exception 
Lenders v Andeison, cited above under rule 1 (e) , it does not apply to 
service within the junsdiction Logan v Bank of Scotland, [1904] 2 
K B at p 500 

The following cases illustrate the mode in which the discretion enjoined 
by this rule will be exeicised Cresswell v Barker (1879), 11 Ch D 601, 
James, Baggallay and Bramwell reversing Malms, Harris v Fleming 
(1879), 13 Ch D 208, Hall two cases on the analogous discretion in the 
rules of 1875 Harvey v Dougherty (1887), 56 L T (N S) 322, Kay; 
Marshall v Marshall (1888), 38 Ch D 330, Cotton and Fry affirming 
North , Be Burland' s Trademark, Burland v Broxburn Oil Co (1889), 
41 Ch D 542, Chitty , Kmahan v Kmahan (1890), 45 Ch D 78, 
Kekewich , Be Dc Benny, [1891] 2 Ch 63, Chitty, Witted v Galbraith, 
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 MtCium, [1899] 1 I R 217, above 

Sufficiency of evidence discussed m Chemuche Fabnk normals Sandoz m 
Basel v Badische Amlin und Soda Fabrik , [1904] 20 Times Law Reports, 
552, cited under r 1 (/) 

8 This rule does not apply to seivice on a British subject in the 
countries to which it applies It was applied to the German empire by 
an order of the Loid Chancellor dated 4th July 1904, but the order was 
cancelled in November, 1914, and special directions were issued See Annual 
Brattice , 1922, p 107 — to Russia by order dated 21st 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 m 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 m 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 Societe Anonyme des Bapetenes de VAa, 
[1910] 2KB 727, Alverstore, Pick ford, 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 peison m a foreign country, and Scotland 
was not a foreign country Be Campbell, [1920] 1 Ch 35, Eve 
But the words m the present rule aie wider and would appear to cover 
service of any summons on a British subject resident anywhere out of the 
j urisdiction 



SERVICE OUT OF JURISDICTION 


253 


§ 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 wilts of summons are sealed A copy 
of such notice shall be filed with the proper officer and served 
on such pei son according to the rules relating to the servi 2 e of 
writs of summons ” Order XVI of 1883, rule 48 

It seems that wherevei the action is one falling undei 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 m that older Dubout v Maiphei son (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, Bowen 
and Fiy 

But a thud party notice cannot be served under the combined effect of 
this rule and Order XI, rule 1 (g) } 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, Romei and Cozens-Hardy 

§ 187n “ 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 teims as may appear to the court oi a judge to be 
just, ordei that the names of any parties, whether plaintiffs 

or defendants, who ought to have been joined, or whose presence 
before the couit may be necessary m order to enable the court 
effectually and completely to adjudicate upon and settle all the 
questions involved m the cause or matter, be added ” Order XYI 
of 1883, rule 11 

The court has a discretion under this rule, and has refused to requne a 
plaintiff to add a defendant wheie the proposed defendant was a foreigner 
out of the jurisdiction Wilson Sons (f Co v Baharres Brook Steamship 
Co , [1893] 1 Q B 422, Eshei, 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 competert so far as the res was con- 
cerned, if the ship could have been arrested within the jurisdiction, is no 
reason for allowing service out of the jurisdiction Be Smith (1876), 1 
P D 300, Phillimoie , The Vivar (1876), 2 P D 29, Phillimore affirmed by 
James, Baggallay and Bramwell , Karris v Owners of Franconia (3877), 
2 C P D 173, Coleridge, Grove and Denman 

Service out of the jurisdiction cannot be ordered because a fact which 
occurred out of the jurisdiction has caused damage within the jurisdiction - 



254 


PRIVATE INTERNATIONAL LAW 


Sheen man v Findlay (1883), 32 W R 122, Grove and Mathew, case of a 
libel published out of the jurisdiction 

Pioceedings relating to funds in couit have been ordeied to be seived out 
of the junsdiction on persons alleged to be or to claim to be intei ested m 
them, on the giound of necessity Colls v Robins (1886), 55 L T (N S ) 
479, Kay, Re Ruddiman's Tiusts (1887), 31 Sol J 271, Stilling, Re 
Got don’s Settlement Trusts , [1887] W N, p 192, Chitty , Re Baron 
Liebig's Cocoa dr , Waiks , [1888] W N , 120, North But m Re Jellaid, 
[1888] W N , pp 184, 186, where Noith declined to act on the authority 
of Re Goidon’s Settlement Trusts , Cotton, Fry and Lopes found a way out 
of the difficulty wunojit deciding the point 

Although notice of motion to expunge an English trademark could not be 
served abioad, the court has made the order in the absence of the registered 
piopnetor who was abroad and to whom actual notice had been given , 
Re King d Co ’s Tiademaik , [1892] 2 Ch 462, Lmdley, Bowen and Kay 
affirming Kekewich , and see La Compaqnie Genetale d’Eanx Mmeiales et de 
Bams de Me>, [1891] 3 Ch 451, Stilling 

Undei the Workmen’s Compensation Act, 1897 (60 & 61 Viet c 37, 
2nd schedule, clauses 9 and 14), wheie the paities are resident within 
different parts of the United Kingdom, the court of the district within 
which the accident happened has junsdiction, and pioceedings may be 
seived m othei paits of the United Kingdom by legisteied lettei Rex v 
Owen, [1902] 2KB 436, Alverstone, Darling and Channell 

§ 189 The mles of 1888 do not “ affect the procedure or 
practice ” in certain matteis, of which t lie only one that is 
important for oui subject is descubcd as a proceedings for divorce 
or other matrimonial causes ” Oidei LXYIII of 1888, mle 1 
These continue to be governed by the eailiei piactice 

Seivice of the petition can be effected on a co-respondent out of the 
junsdiction without leave and independently of his domicile oi nationality 
Payment v Rayment and Stuart, [1910] P 271, Evans The lules as to 
service in a suit foi lestitution of conjugal rights, made by the Piesident 
of the Division m 1914, aie set out above at p 92 
In Trubnei v Trubnei and Cnstiam (1889), 15 P D 24, Butt, a citation 
was allowed to be seived on a foreign co-iesj>ondent abioad by inclosing it 
m a registered letter addressed to him, it being proved that service on him 
of foieign piocess by a person at the sj>ot would have given him a right of 
action by the law of the country where he was living 

Similai seivice was allowed on a co-respondent in Poitugal, it being 
proved that letters of request from England to Portugal would be 
ineffectual Wray v Wray and D’ Almeida, [1901] P 13°, Gorell Barnes, 
and also lr Stumpel v Stumpel and Zeppel, [1901] 70 L J P 6, Jeune 
As to dispensing with service of the petition on a foreignei abroad against 
whom allegations of adultery are made, see Boger v Bogei , [1908] P 300, 
Bargrave Deane Rush v R^'sh and Pimento, [1913 1, above p 89 

Note on Actions for Trespass to Foreign Soil 

In the case of the M Moxham, commenced m the Court of Admiralty 
but heard m the Supreme Couit after the fusion, a British ship had 
damaged by collision a pier on the coast of Spam, and the parties had 
entered into an agreement that the dispute thence arising should be tried 



TRESPASS TO FOREIGN SOIL 


255 


in England, Loid Justice James observed that, but foi such agreement, 

“ very giave difficulties indeed might have arisen as to the jurisdiction of 
this couit to enteitam any action 01 pioceedmgs whatevei with respect to 
injury done to foreign soil ” (1876), 1 P D 109 We have seen m § 180 
that nothing m the acts and older s legulatmg the Supreme Couit is 
opposed to such an action, when the writ is seived m England on the 
othei hand there is nothing in those acts oi oiders 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 Suj ieme 
Court mhents • 

In Skinner v Eeust India ('o (1665), cited to Lord Mansfield in 

Mostyn v Fabngas (1774), Cowp 161, at p 168, the king in council pro- 
pounded to the judges the question “whethei Mi Skmnei,” who claimed 
m lespect of damage done m foieign and uncivilized regions, “could have 
a full lelief m any oidmaiy couit of law ” And they answered “ that his 
majesty’s oidmaiy couits of justice at Westminstei can give relief for 
taking away and spoiling his ship, goods and papeis, and assaulting and 
wounding his peison, notwithstanding the same was done beyond the seas 
But that as to the detaining and possessing of the house and islands m the 
case mentioned, he is not lelievable m any oidmaiy court of justice ” 
Lord Mansfield, howevei (p 180), mentioned a previous action befoie him- 
self against Captain Gambler, foi pulling down houses in Butish though 
uncivilized regions, in which an objection founded on the same citation was 
made, but a case was produced in which Loid Chief Justice Eyie had over- 
ruled the objection, continuing, “and I overruled the objection upon this 
principle, namely that the reparation heie was personal and foi damages, 
and that otherwise theie would be a failuie of justice, for it was upon the 
coast of Nova Scotia, wheie theie were no regular courts of judicature, 
but if theie had been Captain Gambiei might nevei go theie again , and 
therefore the leason of locality m such an action in England did not hold 
I quoted a case of an injury of that sort m the East Indies, where even m 
a couit of equity Loid Haidwicke had directed satisfaction to be made in 
damages ” In British South Africa (Ur v Cornpanhia de Mozambique, 
[1893] A C 602, at p 633, Loid Halsbuiy identified the case before 
Eyie, CJ, with Shilling v Farrnei [1738], 1 Strange 646, and pointed 
out that Lord Mansfield’s account of it was eironeous, Eyie having i ejected 
the evidence about trespass to a house m the East Indies and only admitted 
that alnnit trespass there to the person It would seem then that in the 
opinion of Mansfield, though not of Eyie, a local action foi a cause arising 
abioad was admissible, always, I imagine, supposing that the defendant 
was eithei a Butish subject or lesident m England, for otherwise the 
reason would fail, since he might be sued in Ins own countiy 

But in Douhov v Mattlieus (1792), 4 T R 503, which was an action for 
expelling the pla ntiff from his dwelling-house in Canada, Kenyon and 
Bullei decided against the plaintiff solely on the giound of the distinction 
between tiansitory and local actions, the wisdom oi policy of which Buller 
said it was too late to question And the Loids m the British South Afina 
Co ’ s case held that such decision was not fou ided merely on the technic' 1 1 
difficulty about a loc&l venue See especially Herschell, at p 621 That 
case has finally decided that English couits have no jurisdiction to entei- 
tain actions to recover damages for tiespass to land situate abioad Com- 
panhia de Mozambique v British South Africa Co , [1893] A C 602, Her- 
schell, Halsbury, Macnaghten and Moins, overruling Fiy and Lopes— 
[1892] 2 Q B 358 — and supporting Esher, who dissented m the Court of 
Appeal, Lawrance and Wright 



256 


PRIVATE INTERNATIONAL LAW 


Exterritoriality 

But to the foregoing mles, which determine the actions that 
will be entertained by the English eouit, there is a class of 
exceptions that it especially belongs to our subject to notice, 
becauvse they are not only directly connected with international 
law, but aie also admitted in all countries on similar principles 
and with the same 01 neaily the same limits These are the 
exceptions made in favour of states, of sovereigns, and of 
ambassadois 01 other persons eliaiged 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 pi eventing the public business the latter have 
to transact fiom being impeded by the annoyance and loss of 
time which lawsuits would occasion , and any violation of the 
immunities which they create would be legarded as a high breach 
of public international law In foimer times they were cained 
to an extravagant extent An ambassador’s residence was m 
most countries an asylum even fiom criminal justice, and some- 
times large franchises were enjoyed by the quarter of the city in 
which it stood A fiction, the practical scope of which must not 
be extended beyond wdiat 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 m 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 111 
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 gestcp , and the 
forum rei is to be found within the state itself, or m the proper 
country of the person But the exception of exterritoriality 
does not Extend to the forum rei sitcc, for no country can be 
expected to renounce the determination of the property m its 
soil The doctrines established m England are as follows 

§ 190 Foreign states, and those persons m them who are 
called sovereigns, whether their title be emperor, king, grand- 
duke, or any other, and whether their power m their states be 
absolute or limited, cannot be sued in England on their obliga- 
tions, whether ex contractu , quasi ex contractu , or ex delicto • 



EXTERRITORIALITY SOVEREIGNS 


257 


Except that possibly a mantime lien may be enforced in an 
action m lem against a ship belonging to a foreign soveieign m 
his private charactei and employed exclusively m commerce * 
Tlieie may not be the same objection to suing a foieign sove- 
ieign m that mannei, and m a mattei unconnected with his 
public chaiactei, which there would be to serving on him a writ 
01 liotu e of a w i it f 

Mantime liens are not enfoiceable against foreign ships of war The 
Constitution (1879), 4 P D 39, Phillimore — a case of salvage, and the 
immunity extended to a caigo with the care and protection of which the 
foieign government stated that it had chaiged itself foi public purposes 
In the case ot The Chaikieli (1873), L R 4 A A E 59, which was a 
claim foi damage against a ship belonging to the Khedive of Egypt and 
employed m (ommeice, Sn R Phillimoie decided in favoui of the plaintiffs 
on the giounds that the Khedive was neithei sovereign noi senn-sovei eign, 
and that even a soveieign would not have enjoyed lmmuiiitv undei the 
ciuumstancts lu the ( asc of Th< I'aihnunt Bihfi (1879), 4 P D 129, 
which was a claim tni damage against a public Belgian ship, the same 
judge decided in favoui of the plaintiffs on the giound that she was 
mainly employed in c ommeice But this was leveised by James, Baggallay 
and Biett, who held that they weie piecluded fiom enquiung into the 
facts of her employment by the deelaiation of the King of the Belgians that 
she was m lus possession as soveieign and was a public vessel of the State 
(1880), 5 r I) 197 The judgment discusses and condemns the notion that 
onl\ ships of wai, and not all public ships, aie exempt fiom foreign 
jurisdiction This was followed in The Tossy, [1906] P 270, Goiell 
Baints The mle leceived a wide extension duiing the Euiopean wai, 
1914 — 1918, when a large part of the mercantile maiine was requisitioned 
by governments foi ti anspoi ting munitions, At , and theio was what 
Sciutton, L J , called “ a fashion of nationalization ” Vessels so 
requisitioned weie held to enjoy the immunity of public ships, though not 
employed evclusivelv for purposes of wai The Voito Ah rand i < , [1920] 
P 30, G A, Bankes, LJ, Wainngton, LJ, *Sciutton, I; J , affirming 
Hill A contr ary view taken by the gieat Amencan judge, Maishall, 
m C S Banl v Blnntn s Bank , (1824), 9 Wheaton 904, was not followed 
See too Tlu Bioad mayne , 1 1916 j P 64, Evans, affirmed by Swinfen Eady, 
Pick fold, Bankes, Tlu Mcssuano , [1916] 32 T L R 519, Evans, The 
Annetti and Doia, [1919] P 105, Hill, The Gaqaia , [1919] P 95, Hill 
Vessels chartered or requisitioned by a government only enjoy immunity 
fiom anest while they aie subject to tho chatter oi the requisition, and 
proceedings in inn may pioceed against them, so that the judgment may 
be enfoiced as soon as the chaitei oi lequisition is terminated The 
Bioadmfn/ne (u s ) See also, The Tenaete, Addenda , p xxvii 

The extension of the pnvileges of public ships to vessels employed bv 
the state for commercial pui poses appeals to be unjustifiable in punciple , 
and it is noteworthy that a clause has been included in the Treaties ot 
Peaco 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 whuh tairy a step 
further the immunity from piocess of government ships 

fSee an article on the whole subject by A I) McNair in the British Yeai 
Book of International Law, 1921 22 


W I L 


IT 



258 


PRIVATE INTERNATIONAL LAW 


enemy governments engage in international trade they shall not m respect 
theieof have 01 be deemed to have any lights, privileges or immunities of 
soveieignty (see Article 281 of the Treaty of Versailles, Aiticle 368 of the 
Tieaty of S^vies) Piesumably the International Court of Justice would 
hold that the same rules should be applied to vessels of the Allied States 
engaged in commeicial voyages, and the Articles may be legarded as the 
introduction of an international rule limiting the immunity of public ships 

The couit will take judicial cognizance of the nature and extent of the 
sove eignty of a foreign prince or state Migliell v Sultan of Johore, 
[1894] 1 Q B 149, cited under § 192, Foster v Globe Syndicate , Limited , 
[1900] 1 Ch 811, Faiwell Recognition of a new state or a government or a 
soveieign need not be absolute, but maj 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 Gagara and The Annette and Dora (us) 

The mles as to substituted service cannot be wrested so as to make a 
British colonial government suable in England Sloman v Governor and 
Government of New Zealand (1876), 1 C P D 563, James, Mellish, Bag- 
gall ay 

A ship owned by the Canadian government is for this purpose owned by 
the ciown Young v S S Scotia, [1903] A C 501, Halsbury, Macnaghten, 
Shand, Davey, Robertson, Lindley and Wilson 

A foreign mling prince in India cannot be made a co-respondent in a 
suit for divorce Statham v Statham and the Gaeluar of Baroda , [1912] 
P 92, Bargrave Deane 

§ 191 To the rule laid down m § 190 an exception appears 
to have existed in the case of a foreign soveieign who was also 
a British subject The Duke of Cumbeiland having become 
king of Hanover in 1837, an ineffectual attempt was made to sue 
him m this country for what was held both in the court of 
clianceiy and m 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 fiom all liability of being 
sued in the courts of this country for any acts done by him as 
king of Hanovei, 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 m the couits of this countiy m respect of any acts and 
tiansat tions done by him, or m which he may have been engaged, 
as such subject ” Dale of Brunswick v King of Hanover , 1844, 
6 Beav 57 On the appeal m the same case Lord Brougham 
remarked “ it, is not at all necessary to say that supposing a 
foreign sovereign, ben g 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 m 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 m 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 ” 
ib , p 25 But it is now scarcely possible that a foreign sove- 
leign should be also a British subject, for if a British subject 
accepted a foreign throne he would surely by such acceptance 
“voluntarily become natuialized M m the state of which he was 
sovereign, and theieby lose his British nationality in puisuance 
of the Butisli Nationality Act, 1914, s 13 Nor could a foreign 
sovereign satisfy the conditions necessary for being naturalized 
m this country without a special act of parliament, which he 
could have no motive for seeking, since if he desned to hold land 
m 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, 
churning such land by a superioi title, would be unable to obtain 
judgment and delivery m England, or that a mortgagee of 
English land could not have his usual remedies m England 
because the mortgagor was a foreign sovereign The exception 
of exterritoriality, as above lemarked, does not appl} to the 
forum iei sitcr , 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 wont under 
Ordei 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 pnvilege 
of exterritoriality, bringing an action m 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 compnsed 
m 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 qm non cogitur m ahquo loco judicium pati , si ipse 



260 


PRIVATE INTERNATIONAL LAW 


ibi agat , cogitur cwnpere actiones et ad eundem juduem nutti 

Dig 5, 1, 22 

In IluJlet v King of Spam (1828), ID & Cl 169, Redesdale and Lynd- 
huist affirming the latter, it was decided that a foieign soveieign might sue 
m a court of equity It had been objected that “by no possibility can 
process be issued with effect, or equity done, or a decree enfoiced against 
him”, but Lyndhuist said, “ when he sues heie as a plaintiff the court 
has complete conti ol ovei him, and may hold him to all proper terms ” 
A ci oss bill was then filed, and it was decided that the king must answer 
it peisonally on oath King of SjHiin v Ilulht (1833), 1 Cl & F 333, 
Plunket, Wynford and Biougham affiiming the latter In Bothsihild v 
Queen of Vmtugal (1839), 3 Y & C Exeh 594, Alderson, a bill of discovery 
against a foieign sovereign was allowed in a couit of equity, m aid of the 
defence to an action by hei at law In Co lotnbian (iovet nment v Roth- 
schild (1826), 1 Sim 94, it was held Iry Leach that a foieign republic must 
sue m chancei y in the name of an official on whom process could be served 
on the pait of the defendant, and who could be called on to answer a cross 
bill But it was afteiwaids established that a lepublic leeogm/ed by the 
Butish Government might sue m its own name, and the court would take 
caie that piopei means of dwovery weie affoided see Vnohau v United 
States of Amnica (1866), L R 2 Eq 659, Wood, United State s of 
Ainu it a \ Wagon (1867), L R 2 Oh Ap 582, Chelmsford, Tmnei and 
Cairns level sing Wood, L R 3 Eq 724, Rejyublu of Libena v Imperial 
Bank (1873), L R 16 Eq 179, Malms, Rejmblu of Peru v Weguelm 
(1875), L R 20 Eq 140, Hall , Kepuhlu of Costa ltua v Filanqei (1875), 
T Ch D 171, James, Mellish and Blackburn icveising Malms A foreign 
government plaintiff oidered to give secunty foi costs Republic of Costa 
Bn a v Eilangei (1876), 3 Ch D 62, James, Mellish and Baggallay agiee- 
mg so far with Malms A foieign soveieign as plaintiff m an action for 
damage by collision ordeied to give secunty feu damages to a defendant 
bunging a counterclaim, it being impossible to arrest the plaintiff’s ship 
as secunty Tlxe N embattle (1885), 10 P D 33, Brett, Cotton and Lmdley 
affiiming 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 Afruan liepnblu v La 
Compagme Fian< o-Belqe du Chemin de Fet du Nord, [1897] 2 Ch 487, 
Lindley, Ludlow and Clntty affirming North , oi 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 foieign sovereign must be 
made after action brought, and cannot be implied from previous conduct 
Miqhell v Sultan of Johoie , [1894] 1 Q B 149, Wilis and Lawrance 
affiimed by Esher, Lopes and Kay A protected sover ign is a sovereign 
within the rule ib at p 162 So also is a reigning prince in India 
Statharn v Statham and Oaekmai of Baioda, [1912] P 62, see above, 
p 258 

The court will take judicial cognizance whethei a foreign state, suing 
in its own name, is recognized by the British Government City of Berne 
v Bank of England (1804), 9 Ves 347, Eldon The recognition of a state 
or sovereign is normally proved by a certificate from the Foreign Office In 
seveial cases which came before the English courts after the Russian 
empire was m 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 the case 



EXTERRITORIALITY FOREIGN SOVEREIGNS PLAINTIFFS 261 


of The Gaqaui y the couit refused jurisdiction over a vessel which was 
claimed by the Esthoman 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 Esthoman National Council as a de facto inde- 
pendent body ” 

Similarly the Couit of Appeal in the case of A 0 Luther v James 
Sagoi d Co, [1921| 1KB 456, 474, held that it could not entei- 
tam junsdiction ovei a stock of wood m England, claimed by the 
Russian Soviet Government, on a certificate of the Foreign Office being 
given that the Soviet Admimstiation was recognized as being in possession 
of the poweis of a sovereign m Russia Roche, J , had decided the case m 
the opposite sense, because at the time the action was heaid lief ore him 
the Soviet admimstiation was not recognized , and be held that if a foreign 
government oi soveieignty is not lecogmzed by His Majesty’s Government, 
the couits of this country cannot, or at least ought not to, lecogmze such 
government oi its sovereignty Between the healing in fust instance and 
on appeal a commeicial agi cement was made between His Majesty’s 
Government and the Soviet Government which linjdud official leoogmtion, 
and led the Court of Appeal to reverse the eailier judgment 

Passing now beyond questions of pioceduic, the liability of a foieign state 

01 sovereign suing in England, to lespect all just defences and to do com- 
plete justice to the defendant with rcgaid to the matteis comprised in 
the action, is illustrated b> United Staffs of Inter tea v Tnoleau (1865), 

2 H A M 559, Wood, United Stotts of Amenta v Manae (1867), L R 
4 Eq 327, Wood, partly reveiscd by Chelmsfoid, L R 3 Ch Ap 79 A 
government which has succeeded to anothei must resjiect all defences which 
would have been good against that other Befniblic of Peru v Dreyfus 
(1888), 38 Ch D 348, Kay But a conquering state is not subject to all the 
liabilities of the conqueied state West Band (fold Mining Co v Be: r, 
[1905] 2KB 391 

A contract entered into with a minister of a foreign state may be sued 
upon by his successoi in office, if such was the apparent meaning of the 
conti act Yzquierdo v Clydebank Bnqmeer mq and Shipbuilding Co , 
[1902] A C 524, Halsbuiy, Macnaghten, Biampton, Robeitson, Lmdley 
Same parties, [1905] A C 6 

If the foieign state or person entitled to the privilege of externtoi lality 
has obtained final judgment in his or its action, the doctrine of this § 
does not allow what would then lie an independent action to be biought 
against it Strmisberq v Bepubhc of Costa Bica (1880), 29 W R 125, 
Jesse 1, James, Lush James said “ if anything has ansen oi been dis- 
covered since the judgment was obtained which would make it inequitable 
for the plaintiff o enfoice his judgment, the defendant’s proper course 
according to my opinion would be to apply in that action, and not m any 
fresh action, for the exeicise of that junsdiction which every court always 
does exercise ovei its own judgments, to stay any further proceedings upon 
that judgment on the ground that it is no. equitable that pioceedings 
should be taken upon it ” 

The Japanese Government, plaintiff in the Butish Consular Court, could 
not be compelled to submit to a cioss claim, though the facts which weie 
alleged to give rise to one might be lelied upon as a defence to his claim , 
but fhe decision would have been the same if a pnvate Japanese person 
had been plaintiff, on acoount of the limited jurisdiction of the court 
Imperial Japanese Government v V*and 0 Steam Navigation Co , [1895] 



262 


PRIVATE INTERNATIONAL LAW 


A C 644, Herschell, Watson, Hobhouse, Macnaghten, Shand, Davey and 
Couch 

^ 193 In connection with the mle laid down in § 190, a 
doctrine must be mentioned wduch may be best intioduced by 
quoting the woids of Loid Langdale with refeience to the court 
of chancel y “ There have been cases n> which, this court being 
called upon to distribute a fund in which some foieign soveieign 
oi state may have had an mteiest, it has been thought expedient 
and propel m older to a due distubution of the fund to make 
such soveieign oi state a paitv The effect has been to make 
the suit pei feet as to parties, but, as to the soveieign or state 
made a defendant m cases of that land, the effect has not been 
to compel oi attempi to compel such sovereign or state to come 
in and submit to judgment m the ordinary couise, but to give 
the soveieign an oppoitunity to come in to claim his right or 
establish his mteiest m the subject mattei of the suit Coming 
in to make his claim, he would, by doing so, submit himself 
to the jurisdiction of the oouit in that mattei , icf using to come 
in, he might peihaps be precluded fiom establishing any claim 
to the same mteiest in anothei foim So where a defendant in 
this countiy is called upon to account foi some matter m respect 
of which he has acted as agent foi a foieign soveieign, the suit 
would not be peifect as to paities unless the foieign soveieign 
weie foimally a defendant, and by making him a party an 
oppoitunity is aftoided him of defending himself instead of 
leaving the defence to Ins agent, and he may come in if he 
pleases In such a rase, if he lefuses to come m, he may 
perhaps be held bound by the decision against his agent / 9 
Duke of Brunnvtik v King of Hanover , 1844, 6 Beav 39 

So fai as this doctime is sound, it applies now to the Supreme 
Couit, and it certainly is sound as to the hist portion, which 
deals with cases where the court is called on to distubute a 
fund The second portion, however, which deals with cases 
where persons have acted as agents foi foreign sovereigns, ought 
to have been expressed in a more guarded manner If the 
plaintiff can establish a right in the natuie of property or 
hypothecation to the money or things which the agent holds 
m his hands within the realm, the matter falls under the same 
principle as the class of cases m which a court has to distribute 
a fund There is m fact a fund within the jurisdiction, the 
rights m which the court cannot refuse to declare and carry 
into effect, without a denial of # justice similar m kind to that 



EXTERRITORIALITY PROPERTY IN ENGLAND 


263 


which would take place if the (ouit lefused to deliver land to 
one claiming it by a title supenoi to that of a foieign soveieign, 
or to foieclose a m oil gage of land against a foieign soveieign 
And there w'ould be this further circumstance m favour of 
exeicismg 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 claims by vntue 
of an obligation alleged to exist on the part of the 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 weie made in the following eases to apply the lattei part of 
Lord Langdale’s doctrine, as quoted m § 193 , but in none of them was 
relief ultimately obtained, it being held m all that no light m the nature 
of piopeity 01 hypothecation to the money or things in the agent’s hands 
had been established Smith v Weyuelin (1869), L R 8 Eq 198, 
Romilly Lanvure v Morgan, decided m favoui of the plaintiff by Malms 
and on appeal by Hatheiley (1872), L R 7 Ch Ap 550, but leversed on 
furthei 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 Mumrus Bey (1862), 1 H & M 495, 
Wood, the plaintiffs obtained an interim injunction against the Bank of 
England as stakeholder, but the case is not traceable further In Glad- 
stone v Ottoman Bank (1863), 1 H & M 505, Wood, the plaintiffs did not 
rely on any right to money or things m England, but attempted m vain to 
restrain the Ottoman Bank fiom enjoying m Tui key the benefit of ah act 
of state of the Turkish sultan, which they alleged was in violation of their 
lights They must have equally failed, as the judge pointed out, if they 
had made a similar complaint of a Bntish act of pai Lament In Strou s- 
herg v Bepublic of Costa Bica (1880), 29 W R 125, Jessel and James 
repeated Lord Langdale’s doctnne as to funds m the hands of peisons 
within the junsdiction, but not fuither 

In Vavasseur v Krupp (1878), 9 Ch D 351 (Jessel affirmed by James, 
Brett and Cotton), a foreign sovereign was allowed to lemove certain shells, 
which were his pioperty, 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 
heieafter be sued forth or prosecuted, whereby the peison of any 
ambassador oi other public minister of any foieign prince or 
state, authorized and received as such by hei majesty her heirs 
or successors, or the domestic or domestic seivant of any such 
ambassador or other public minister, may be arrested or 
imprisoned, or his oi their goods or chattels may he distrained 
seized or attached, shall he deemed and adjudged to be utterly 



264 


PRIVATE INTERNATIONAL LAW 


null and void to all intents constructions and purposes wliat- 
soevei ” St 7 Anne, c 12, s 3 

“ Piovided and be it deelaied that no mei chant oi other tiader 
wliatsoevei within the descuption of any of the statutes against 
bankiupts, who hath oi shall put himself into the seivice of 
any such ambassadoi oi public mmistei, shall have or take any 
maiinei of benefit by this act ” lb , s 5 

This is the statute passed in consequence of the Russian 
ambassadoi having been taken fiom his coach and mipiisoned by 
a pnvate suitoi, and its thud section, above quoted, has always 
been deemed to be meiely declaiatoiy of the common law So 
far indeed as concerns an ambassadoi oi public minister himself, 
the immunity extends fuitliei than is expiessed m that section 
Not only is his pei son privileged fiom anest, and his goods or 
chattels fiom seizui e, but he cannot be sued at all, even foi the 
pui pose of obtaining against him a judgment which may be 
enfoieed by exe( ution aftei he lias ceased to be entitled to the 
pi l vi lege 

Magdalena Steam Navigation ('ompany v Maitin (1859), 2 E A E 94, 
Campbell, Wightman, Eile, Ciompton The pnvihgo belongs to a lecalled 
ambassadoi remaining a leasonable time m the country to wind up his 
official business Wheio an ex-minister had disappeared foi moie than 
six months aftei his mission had been bi ought to an end, it was held 
that theie could be no question of his privilege subsisting Suarez v 
Suaiez , [1918] 1 Ch 176, C A , Swmfen Eady, Warrington and 
Scrutton, L JJ The statute of limitations does not run until the 
ex-ambassador can be effectually served, and the powei of service out of 
the junsdiction does not affect anv question relating to the statute 
Musurus Buy v Gadhan, [1894] 2 Q B 352, A L Smith and Davey 
affirming Wright and Lawrance 

Noi can he be made a defendant as lepiesenting his soveieign 
oi state, with the view r of giving him an oppoitunity to appear 
and defend the lights of such soveieign oi state when they may 
be adjudicated on puisuant to Loid Langdale’s doctune quoted 
m Si 193 

Gladstone v Musuius Bey , (1862), 1 II & M 495, W<x>d 

Noi, when a foieign soveieign oi state is made a defendant 
m such a case as last mentioned, can the writ be seived on 
the ambassadoi oi mmistei as a means of bunging it to the 
knowledge of such soveieign or state 

Stewart v Banl of England , [1876] W N, p 263, Jessel 

If the ambassadoi oi minister has submitted to the juiis- 
diction, he may be too late in applying to have his name stiuck 



EXTERRITORIALITY AMBASSADORS 


265 


out oi the proceedings against him stayed, especially if he is 
being 1 sued jointly with otheis but even then the statute will 
have to be lespected as to the execution of any judgment 
against him, so long as he holds lus office 

Taylot v Best (1854), 14 C B 487, Jervis and Maule , Sunre „ v Suarez 
(No 1), [1917] 2 Ch 131, Eve 

But if heJtias 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 
endeavouis then to set up the privilege as a defence to the execution pro- 
ceedings Suutez v Suaiez (No 2), [1918] 1 Ch 176, C A , Swinfen Eady, 
Warrington and Scrutton, L JJ 

The pnvilege (an be waived by a diplomatic agent with the 
consent of his government oi so\ereign oi official supenoi , 
and when a nunistei expiessly waives his pnvilege it wull be 
assumed that he has such consent, because the sovereign cannot 
be asked to auihoii/e the act of his aceiedited iepiesentali\e 
But the wai\ei must be expiess and unambiguous 

Bohiia Ej plot at ion Synduati, [1914] 1 Ch 139, Astbuiv 

So fai as concerns the seivants mentioned in the statute, the 
following quotations illustiate the pnneiples of decision — 

“ To constitute a peison domestic servant it is not essential to show that 
he lesidts m the house', but if you had shown that this paity was a 
chorister, and in such a situation that the Bavanan ambassadoi required 
his attendance fiom time to time in order to assist in the peiformance of 
the religious seivice of the embassy, I should consider that he was on this 
ground entitled to some of the pnvileges of a domestic servant” Bayley, 
m Fishei v Beqtez (1832), 1 C AM 117, at p 124 Holland spoke to the 
same effect, adding, what no doubt Bayley also meant, “ if such person 
attends at the chapel ” lb , 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 ambassadoi to perform any seivices ” Bayley, in 
Fishei v Btqiez (1833), 2 0 AM 240, at p 243 In Poitin v Cioza 
(1749), 1 W B1 48, the alleged service to the Sardinian envoy was not 
pi ovecl 

The seivant may live m a separate and suitable house, his goods m which 
will be privileged , but where he kept a lodging-house, his goods in it were 
liable to be distiamed for poor lates Novella v Toogood (1823), 1 B & C 
554, Abbott, Bayley and Holroyd 

By the teim “ domestic , 99 which is distinguished in the statute 
fiom “ domestic seivant,” any person belonging to the family 
or suite of the ambassadoi or ministei must be understood 
And it is the (lot tune of public international lawyeis, 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, w T ho may waive it foi 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 Bobeck 
(1789), 3 T R 79, Kenyon, Ashhurst and Grose , Farkmson v Potter 
(188C), 16 Q B D 152, Mathew and Wills 

Wheie an ambassadoi, ministei, or member of an embassy or 
legation is a subject of the country to which the mission is 
accredited, he enjoys the pnvilege of extenitonality so far as 
the government ieceivmg the mission has not expressly excluded 
it in its leception of the peison in question 

Mamrtney v Gat butt (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 then family and seivants are not entitled 
to the benefit of § 194 But it must be remembeied that in 
Eastern countries consuls have a diplomatic chaiacter 

Barbuit's Case (1737), Forrester’s Cases temp Talbot, 281, Talbot See 
also Vivash v Beqker (1814), 3 M & S 284, Ellenborough and ( ?), where 
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 oourts see Imperial Japanese Govern- 
ment v P (tO Navigation Co , [1895] A C 644, where it was held that 
the British Consular Court in Japan had no jurisdiction m a counter- 
claim brought by a British defendant against a Japanese plaintiff, the 
cognizance of such causes belonging to the Japanese courts 



( 267 ) 


CHAPTER XI 

TORTS 

When damages are claimed m lespect of what is alleged to 
be a toitious act or omission, the selection of a law by which to 
decide is free from all question about the voluntaiy submission 
of the parties to the law of any countiy, such as arises in cases of 
contract, because there has been no dealing in which the parties 
have concuned Another contention may be made, suggested by 
or imitated from what takes place in contiact, namely, that the 
defendant has voluntanly submitted himself to the law of the 
countiy in which he has acted 01 omitted to act, either by 
the veiy act or omission, or if he does not belong to that countiy 
by having enteied it But such leasomng would piove too 
much, for it would equally cut all the knots of pnvate intei - 
national law by lef erring every question to the special laws of 
the country wheie the fact which gave rise to it occuned The 
tiuth is that by entering a countiy oi acting in it you submit 
youiself to its special laws only so fai as legal science selects 
them as the rule of decision m ea< h case Oi more truly still, 
you give to its special laws the oppoitunity 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 bom subjects as on those who have bi ought themselves 
undei it The international law of toits 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 aceoiding to the general notions 
on junsdiction the forum delicti and the forum ret are equally 
competent m cases of toit, we have to inquire which of them 
is the pnmaiy jurisdiction, not m the historical sense, m which 
we have seen on p 230 that the forum lei is the older, but in 
the sense of being the more appiopnate, and therefore of not 
being obliged to take any law but its own into consideration 
(See p 226 ) The forum delicti rppears 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 countn , also because one of the mam objects of law 
is to maintain the peace within a given temtory, and theiefore 
to afford judicial lediess foi such conduct as m the absence of 
it would tend to pio\oke a bieach of the peace But if the 
plaintiff choose the foi inn ici, tail he claim that the decision 
theie shall be the same as it would have been in the forum 
(Jeh ft ? It will piobablv be found that to secure ceitainty is 
the leading motive foi following m othei junsdictions the law 
which would lnne been applied in the pumaiy one, but this 
means ceitamtv m the mutual dealings of men, and the motive 
has little application to the case of a toit wdieie necessarily 
theie has been no such dealing A law T which gives damages 
foi a w’rong must pioceed on giounds of justice 01 public 
expediency, and if the peisonal law’ of the defendant lefuses 
damages which the leu lot i delicti commissi would give, the 
foimei, m adopting the lattei, would leceive a shock that may 
we\] be thought to outweigh in impoitanee the disappointment 
which a lefusal would cause to the plaintiff, even supposing 
that he has not had an oppoitunitv of suing the defendant with 
effect whoie the act complained of w r as done On the other 
hand, if the peisonal law’ of the defendant would give damages 
for what the lei lot i delicti commissi legal ds as a justifiable 
act, the defendant may plead that if his act distuibed the 
social ordei of any eounfiv it was that of the countiy wdieie it 
was committed, the law of which theiefoie is the best authority 
on the subject 

This leasoning tends to the conclusion, which we shall see 
has been adopted in England, that the le,v fon and ler loci 
delicti (ommissi must concui in oidei that an act or an omission 
may be deemed tortious On the continent theie is no geneial 
agreement Kavignv maintains the exclusive autlionty of the 
ler fori , “ both positively and negatively, that is, foi and 
against the application of a law’ w’hich lecognizes an obligation 
arising out of a delict ” * His leason is that ail laws i elating 
to delicts have such a close connection with public older as to 
be entitled to the benefit of what I have called the leservation 
m favoui of a stungmit domestic policy above, p 51 
M Charles Brochei, on the contrary, maintains the authonty 
of the leu loci delicti commissi in teims which would appear to 
be exclusive, were it not that he goes on to claim for the judge 


Syst § 374, Guthne 254 



TORTS 


269 


the light of taking consideiations of public oidei into account, 
and the lesult at \ihich lie would piadually am\e would 
piobably not be veiy difteient fiom that which pievails m 
England * 

§ 19G No act can be tieated m England as a wiong on the 
pait of any defendant in whom it is not a wiong by the law of 
the countiy wheie it was done, whetliei that law did not legal d 
him as a wiongdoei at the time, 01 whetliei he has since been 
enabled to -justify it m that countiy by the enactment of an 
indemnity 

For civil pui poses the second case put in the §, which cames the hrst 
with it a foitiou , was decided m an action foi damages against a late 
govemoi of Jamaica, whose pioceedings in time ot liisui lection had been 
ooveied by a colonial act of indemnity Phillips v Hqie (1869), L R 4 
Q B 225, Cockbuin, Lush, Hayes, afhimed (1870), L R 6 Q B 1, Kelly, 
Mai tin, Channcll, Pigott, Cleasby, Willes, Biett Cockbuin, delivenng the 
judgment of the couit below, said “ It appeals to us clear that wheic by 
the law of anothei countiy an act complained of is lawful, such act, though 
it would have been wiongful by mil law if committed heie, cannot be made 
the giound of an action in an English couit ” us, p 239 And Willes, 
delivenng the judgment of the Appeal Couit, said “ The act must not 
have been justifiable by the law of the place wheie it was done ” us, 
p 29 In Iiait \ von (iampaih (1873), L R 4 P C 439, Montague 
Smith, an action foi damages inclined b\ an alleged libel m China, which 
failed because theie was a sufficient defence by English law, the question 
was noticed and leseivtd, whetliei pioof that the communication was pnvi- 
leged by the law of China would have been a sufficient defence (pp 464, 5), 
We must conclude that it would have been so In The M Moo ham (1876), 
IP D 107, James, Mellish, Baggallay , leveismg Phillimoie (1875), lb 43, 
a British ship by negligent sailing damaged a pici on the coast of Spain, 
and it was said that by Spanish law the mastei and mauneis weie liable 
but not the ship <u hei owneis It was held that if that weie so the latter 
would not be liable m England “ Whatever is a justification m the place 
wheie the thing is done ought to be a justification wheie the cause is tru'd,” 
had alicady been said incidentally by Lord Mansfield m Mostijn v 
Fahncjas (1775), Cowp 175 “ In then loidships’ opinion the general 

punciple of minimal junspiudence is that the quality of the act done 
depends on the law of the place wlieie it is done ” Mellish, delivenng the 
judgment of the Pnvy Council in Aft -Hen of lloiuj Konq v Kuolc-a-Sinq 
(1873), L R 5 P C 199 That damages cannot be lecoveiecl m the locus 
delicti commissi is nnmatenal if the act was wrongful there Machado v 
Fontes , [18971 2 Q B 231, Lopes and Rigby Wheie a man, domiciled in 
Quebec, while tiavellmg on a lailway m Ontano, was killed by the negli- 
gence of the lailway company’s seivants, and his widow sued the company in 
Quebec foi damages under the Civil Code of Quebec, it was held that, as 
theie was neithei civil noi criminal liability m the company according to the 
law of Ontano, the lotus dcluh , no action could be maintained m Quebec 
Canadian Pacific Bailuaq Co v Patent, P C , [1917] A C 195, Haldane, 
Dunedin, Paiker, Parmooi, Wrenbury 

**Nouveau Traite de Droit International Priv£, p 31 1 



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 Dobree v Najner (1836), 2 Bing N C 781, Tmdal and ( ?) , 
Regina v Lesley (1860), Bell C C 220, Erie, Wightman, Williams, 
Watson, Hill, Carr v Fracis Tvmes d Co , [1902] A C 176, Halsbury, 
Macnaghten, Shand, Brampton, Lindley, reversing A L Smith, Vaughan 
Williams and Romei, who had reversed Grantham 

§ 197 Neithei can any act be? treated as wrong m England 
which is not such m 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 pi oof of foieign law as one of the facts upon 

which the existence of the toit, oi the light to damages, may 
depend ” — “ as m the case of a collision on an oidmary road in 
a foieign count ly, wheie the mle of the road m force at the 
plac e of collision may be a necessary ingredient m the deter- 
mination of the question by whose fault oi negligence the alleged 
toit was committed ” — “ and it then applies and enforces its own 
law so fai as it is applicable to the case thus established ” 

The passages which in the § are placed between inverted commas are 
taken from the judgment of the oourt m The Halley (1868), L R 2 P C 
193, Selwyn (pp 203, 4) It was there held that the compulsoiy 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 oountry 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 Guy Mannenng (1882), 7 P D 132, Coleridge and Cotton, affirming 
Phillimore, 7 P D 52, The Agues Otto (1887), 12 P D 56, Butt, The 
Brins Hendnk , [1899] P 177, Gorell Barnes * 

See Batthyany v Walford (1886), 33 Ch D 624, North — quoted above 
undei § 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 m analogous cases 

§ 198 But the last § must be undei stood without prejudice 
to this, that an act may be tieated as a wrong m England which 
is not such m the defendant by English law otherwise than as 
adopting some rule of public international law 

In The Nosh a Signora de los Dolores (1813), Dodson 290, Scott, a part 
ownei of a privateer 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, 
1913, 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 punciples of English law, it is no answer to a 
civil action in England that by the lex Ion delicti commissi civil 
proceedings are not allowed to be taken foi the act m question 
unless ciiminal pioceedmgs accompany or have pieeeded them, 
for this is a matter which relates to the foim of the remedy and 
is therefoie governed by the lex fori 

Scott v Seymour (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 
oountiy where it was done, and yet damages are not recoverable 
for it at all by that law, although the pnnciples of English law 
would grant them v This question is not likely to arise m 
ciiminal cases wheie leal pecumaiy damage is done, because the 
law of England is not moie libeial than other laws m gi anting 
civil lemedies as well as (linnnal ones foi such wiongs But 
theie aie countries, as France, in which no damages aie allowed 
to be daimed on the giound of illicit inteieourse, the investiga- 
tion which would arise being thought hurtful to public morality , 
and there aie probablv countries in which redress of a penal 
nature, but not by way of damages, may be obtained for slight 
assaults or othei personal injuries not lesulting in leal pecuniary 
loss 

The question was suggested by the pleadings in Scott v Seymour , but 
was not properly laised by them, and the jxnnt 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 
wheie the redress that oould be obtained was only penal and not by way of 
damages, but Williams was not prepared to assent Blackburn doubted 
whether in such circumstances no damages would be “ recoveiable 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 II & 

C 234, 5, 7 Lord Mansfield said m Mostyn v Fabrigat “ 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 oould be maintained here, because, though it is not a criminal 
prosecution, *t must be laid to be against the j>eace of the king , but the 
breach of the jieace is merely local, though the trespass against the person 
is transitory Theiefore, 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?” (1775), 
Cowp 176, 179 In a case m which the English Court would entertain an 
action for divorce by the husband, it can scarcely be supposed that the 
co-respondent could esoape paying damages on the ground that the adultery 



272 


PRIVATE INTERNATIONAL LAW 


was committed m a countiy wheie they aie not lecoverable foi 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) alieady existed Such 
adulteiy would be an mjuiy to a conjugal lelation deemed to be entitled to 
protection in the English Couit But then the damages in respect of it, 
being meiely an incident in the pioceeding foi divoice, could scaicely be 
drawn into piecedent in suppoit of a recoveiy in an independent action for 
an mjuiy done abioad It is piobably the bettei opinion that no such 
independent action would lie wheie damages weie not gi anted by the lex 
loti deUcti tommim whethei the parties weie Butish subjects oi not, there 
being no family i elation that could claim the piotection of English law, 
and no civil light acqimed by the plaintiff m the piimaij junsdiction 
See howevei Machado v Fontes , T 1897] 2 Q B 231, Lopes and Rigby , and 
see Baqment v Payment and tituait, T 1910] P at p 286, Evans, and 
Phillips \ Bat ho, 1 1913 | 3 K B 25, wheie Soutton, J , was of opinion 
that an independent action m England would have lain against an 
English co-iespondent in a divoice suit tiled in India The Indian Couit 
had, in fact, awaidcd damages against the co-iespondent m absence, and 
the datum was theiefoio onl) made ohitcr 

§ 200*7 The Fatal Accidents Acts 1840 and 1801 apply for 
the benefit of the lepiesentatives of a deceased toieignei, at all 
events against a Bntish viongdoei 

DavuBson v 1 1 ill, [1901] 2KB 606, Kennedy and Phillimoie, dissent- 
ing fiom Adam v Bntish and Fonujn Steamship C ompany , [1898) 2 Q B 
430, Darling, and agieeing with The Eiplom (1870), L R 3 A & E 289, 
Sn R Phillimoie This was followed in a Scotch case, ('onvenj v Taiiuii k- 
shue Tiamuays ('omi>any, [1905] 8 Stss Cas 5th series, Dunedin, Adam, 
M‘Laien, Kmneai, on the ground that if a claim is recognized both by the 
lej fori and by the lex loti dehtti lomrnissi, it is immateiial that it is not 
iecogni7ed by the peisonal law of the plaintiff A foreign subject, howevei, 
is not entitled against a foreign employei to the benefit of the Workmen’s 
Compensation Act on account of an accident happening in England or 
English teiutoual waters Panaqoti s v Pontiac, [1912] 1 K B 74, 
Cozens-Haid} , Moulton, Faiwell, L JJ 

$ 201 So fai as the doc times stated oi eonsideied m the 
pievious §§ do not inteifeie, an action foi toit may be brought 
and an injunction gianted even against a foreignei who is m 
England 

Caldwell v Vanvhssenqen (1851), 9 Haie 415, Tumei 

A pioyision has m modem times been widely adojited m 
different countries by which, in collisions at sea, the liability of 
sliipowneis foi damage c 1 me by their ships without then actual 
fault or pnvity is limited to the value of the ship and fieight 
After some enactments applicable only to particular cases, this 
limitation was first fully adopted m 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 owneis was 



COLLISIONS AT SEA 


273 


left to legal reasoning, but after oui legislation liad lemamed 
m that state for about half a cent my the Men ban t Shipping 
Amendment Act 18G2, s 54, expiessly limited tlie liability of 
*' the owneis of any ship, wliethei British 01 foreign,” to a 
eeitam perumaiy amount pei ton of hoi tonnage * English 
eouits will theiefoie m futme ha\e little occasion to ltMson out 
the measuie of the liability of foieign shipowneis on legal prin- 
ciple, but m a treatise on Pnvate International Law the question 
of pnneiple cannot be ignoied The geneial law maiitime, with 
which we had to make acquaintance m considenng the piopeitv 
m movables (above, pp 194 — 196), being the aggiegate of those 
maiitime mles which at a i emote penod weie prevalent m most 
Euiopean countiies, of couise knew nothing of such a limitation 
as is hoie icfeiiecl to, fpi at that penod shipowners weie liable 
without limit by the laws of their respective countiies What 
view’ then will be taken by those who aie m the habit of appeal- 
ing to “ the general law maiitime as it is administeied in 
England ” ? The subject had best be introduced by the case of 
The Carl Johan , in which the measuie of damage' wheie the 
law’s of the colliding ships are different had to be considered by 
Loid Stowell 

The Call Johan (1821), Stowell, is not reported, but is cited in The Dundee , 
1 Hagg Adm 113, and in The ( Urolamo , 3 Hagg Adm 186 It was a 
caso of collision between a British and a Swedish ship, the latter being at 
fault, and the limitation of the ownei’s liability did not exist by Swedish 
law but had been recently established m British law by the 53 Geo 3 It 
was therefore almost a matter of course that the Swede could not defend 
himself by the Bntish statute, which was neither his personal law noi the 
lev Ion delicti eommvwi Lord Stowell is stated to have held “ that the new 
rule introduced by the 52 [lead 53] Geo 3 was one of domestic policy, and 
that with lefeience to foieign vessels it only applied m cases where the 
advantages and disadvantages of such a lule weie common to them and to 
British. vessels , that if all states adopted the same mle there would be no 
difficulty, but that no such general mutuality was alleged , that if the law 
of Sweden adopted such a mle it would apply to both countiies, but that 
Sweden could not claim the protection of that statute without affoidmg a 
similar protection to British subjects in similai cases ” 3 Hagg Adm 

187, from Dr Arnold’s notes It will be observed that in the alove Lord 
Stowell, sjieakmg with reference to the actual state of British law, says 
that Swedish owners would enjoy the benefit of a similai 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 mle of the English statute is modified by the l.itei rules of the 
Merchant Shipping Act, 1894, and also by the piovisions 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 Ilagg Adm 113), on which footing it is not easy to see how 
its presence oi absence could make any difference to the liability of a 
Swedish owner Theie 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 oi absence of a British statute could make no 
difference to Swedish liability, but that if a oountry possessing such a 
limitation foi itself did not allow British owners the benefit of it in its 
courts, he would be justified on a principle of retorsion m not giving that 
countiy the benefit of its limitation m his couit 

Thus there is nothing m what has been repoited from Lord 
Stowell that, except from the point of view of ietorsion, can 
impugn the § which, on principle, is next submitted 

§ 202 On punciple, m 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 eithei fiom considering 
the law of the delinquent ship as the lex loci delicti comin'issi , in 
accordance with the fiction by which a ship is deemed to be a 
pait of the temtoiy indicated by liei flag, oi fiom holding that 
there is no focal law, and that theiefoie the defendants are sub- 
ject to no obligation not imposed on them by their personal law 
But the owneis of the delinquent ship cannot plead a limitation 
of liability to the value of the ship and fi eight which is 
accorded by the law of the plaintiffs’ flag but not by that of 
their own flag 

“ If the mantime 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 mattei in respect to which they so agree, though it differ from the 
maritime law as understood m the country of the former, foi, as respects 
the paities concerned, it is the maritime law which they mutually acknow- 
ledge ” fiom the judgment of the Supreme Court of the United States, 
delivered by Bradley, J , in The Belgenland (1885), 114 U S 355, at 
p 370, quoting The Scotland, 105 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 m the American 
court to the benefit of a limitation of liability fixed by the American law, 
though the vessel m 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 St o well’s 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 m collision with a foreign ship are liable only as 
by British statute law, but the foreign owners of a foreign ship 
m collision with a British one outside territonal jurisdiction, 



COLLISIONS AT SEA 


27 f* 


though liable under then own law only to the same extent as 
by British statute law, are subject in England to an unlimited 
liability by virtue of that blanch of English law which is called 
the general maritime law as administered in England [Of 
what is so called it was coirectly said by the couit of appeal in 
Lloyd v Guibert, L It 1 (J B 125, that it is, “ to avoid 
periphrasis, the law of England ” See also Lord Justice Biett, 
in The Gaetano arid Maria , 7 P D 143 ] 

The first case in which this doctrine appears is probably Cope v Doherty 
(1858), 4 K & J 367, Wood, affirmed (1858), 2 D J 614, Knight-Bruce 
and Turner , m 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 
pioved that the Amencan law was the same as ours he would have been 
competent to apply it as between Americans, but must 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 parliament to limit the liability of the foreign owneis 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 m the case 
which he put Kmght-Biuce 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 Butish river or a British 
port ” The case put by Wood and leserved by Knight-Bruce arose in The 
Wild Banger (1862), Lush 553, Lushington, where an Amencan 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 general law maritime, his 
opinion as to which we have seen above m lelation to the tiansfer of the 
property m movables 

In General Iron Screw Collier Company v Schurmanns (1860), 1 J AH 
180, Wood, the British limitation of liability was applied in favour of a 
British ship against a Dutch one, the collision having taken place within 
three miles from the coast of England In The Amalia ( Call v 
Bapayanni) (1863), 1 Mo P C (N S ) 471, judgment affirming Lushing- 
ton pronounced by Chelmsford, the British limitation of liability was 
applied in favoui 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 m The Zollverem, 
a case on the rule of the road at sea He said : “ As regards 
the foreign ship, for her owner cannot be supposed to know or 



276 


PRIVATE INTERNATIONAL LAW 


to be bound by the municipal law of this eountiy, the case must 
be decided by the law maiitime, by those lules of navigation 
which usually pievail among nations navigating the seas wheie 
the (ollision takes plate, if the foieignei comes befoie the 
tiibunals of this (ountiy, the lemedy and foim ot pioceedmg 
must be act oiding to the 1e.t fan ” Swabey’s Adm Rep 99 
By speaking of the law maiitime as the h.i foil he showed 
himsell to be awaie that notwithstanding that specious name 
it was Bntish law T lie was leallv applying to foieigneis, giving 
us pei haps at the same time the clue to his leasoning, namely, 
that as soon as any paiticulai (emit of admnalty is recognized 
as competent to enteitam the litigation, its law becomes 
applicable on the giound of the maxim ibi jorum e/go et jut. 
But that maxim only applies in favoui of the couit to which 
any litigation most piopeily belongs above, p 17 And to 
any one penetiated witli the idea that all. legulai authonty m 
the civilized w r oild is eithei ovei peisons oi ovei places, it would 
seem to follow that on the high seas the only legulai authonty, 
whethei for the enactment of law oi foi the establishment of 
nonnal jurisdiction, must be that of soveieigns and states over 
(1) then subjects oi membeis, (2) foieigneis on boaid ships 
lightly caiiying then respective flags, (M) pirates, that what is 
done on the high seas can pioduce legal effects m accordance 
wuth this pi inciple alone, and that though the presence of a 
ship m a poit may give to the local couit a fo/um /et sitce , 
eanying with it the light of applying to the tiling the legal 
effects of wdiat may have taken place beyond the jurisdiction, 
it cannot cany that of detei mining those effects by the law’ 
of the couit It must liow r evei be admitted that the deduction 
anciently diawn fiom the 11011 -ten itorial character of the high 
seas was not that no state could exeicise legulai authonty on 
them without special justification, but that eveiy state could. 
So one cannot help suspecting that the application of the law r 
of a paiticulai country, under the name of the law mantime, 
to torts committed by foieigneis outside its territory w r as a 
survival of the view that the high seas are a field foi the exercise 
of universal and indiscriminate junsdiction Indeed "this is 
confessed m what was said by Lord Justice Brett m Chartered 
Mercantile Bank of India v N etherlands India Steam Naviga- 
tion Comgang “ Inasmuch as the rule of exclusive jurisdiction 
cannot apply, it seems to me that if a foreigner m this eountiy 
can be served with a writ for an act of his servants done on 



COLLISIONS AT SEA 


277 


the high seas, which aie as much within the jurisdiction of 
England as they aie within the junsdiction of any othei 
countiy, an action can be maintained in a court of common 
law ” 10 Q B 1) 53T 

§ 203 The conflicting pnnciples of §§ 202 and 202a apply 
to a law by which, in any countiy, liability foi damage wholly 
occasioned by the negligence of the master oi manners is 
imposed oil them to the exclusion of the owneis If § 202 is 
adopted as to the measuie of the owneis’ liability, it must 
follow that the veiy existence of then liability must also depend 
on the law of then flag If § 202a is adopted, the foieign 
owneis will be liable m England, although fieed by their 
own law 

In The Leon (1881), 6 P T) 148, Sir R Phillimore, Spanish owners, 
though said to be fieed by the law of Spain, weie held to be subject to 
liability in England for damage caused cm the high seas wholly by the 
negligence of the master oi manners 

§ 204 In cases of collision at sea, the compulsoiy employ- 
ment of a pilot will exempt the owners m an English couit 
fiom liability foi damage caused by Ins fault, whatevei be the 
flags and the laws of them This agiees with the pimciple 

that no act can be tieated as a wiong in England which is 
not such m the defendant by the pnnciples of English law 
see § 197 

The Christiana (damage done by foreign ship m 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 Bntish ship to foieign one) (1842), 
1 W Rob 316, Lushmgton 

In The Neptune the Seiond (1814), 1 Dods 467, Scott, and The Girolamo 
(1834), 3 Hagg Adm 169, Nicholl, the collisions occuned in Bntish tern- 
torial wateis, and foieign ships weie held liable notwithstanding compulsoiy 
pilotage In the lattei case the fault was held to be that of the mastei 
himself, so that theie was no necessity foi objecting to the decision in The 
(hi istiana, as the hained judge dots on p 188 In the foimer case the 
compulsoiy ehaiactei of the pilotage is not lefened to, and it is theieforo 
possible that Sn W Scott maj ba\e doubted whethei the pilotage could 
stuctly lie called compulsoiy, which was anothei point advened to by 
Su J Nicholl in The Gnolamn 

§ 205 When two ships aie m danger of collision at sea, the 
lule of the load to he followed by each is that wdnch is common 
to then flags, oi if at the time no lule is common to then flags, 
then the old lule wdnch was once common to them 

The question about the application of the Bntish statutory 
mle of the load at sea diffeis consideiably as well fiom that 



278 


PRIVATE INTERNATIONAL LAW 


about the application of the British statutory limitation of 
liability to the value of the ship and freight, as fiom that about 
the application of the Butish statutory exemption from liability 
on the giouncl of compulsoiy pilotage Fiom the nature of the 
case, any mle of the load at sea must apply to both or neithei 
of the ships which are appioachmg each other, while there is 
no impossibility m the different paities to a collision being 
bound by diffeient laws with legard to the existence of liability 
as depending on other considerations than the rule of the load, 
or wuth regaid to the measure of liability supposing it to exist 
See the quotations m § 197 from the "judgment of the privy 
council in The Halley Also it is a fact, and not a hasty 

geneialization, that theie was once a mle of the road at sea 

common to all the maiitime populations of Euiope When 

theiefoie the legislatuie eitliei of the United Kingdom or of 
anv other (ountiy alters its mle of the road, it must be 

piesumed, in the absence of expiession, to intend that the old 
mle shall be left standing even foi its own subjects, under 
all cncumstances m which the other paity to a possible collision 
is not subject to the new mle and the legislatuie m question 
could not claim to impose it on him 

In The Dumfries (1856), Swabey 63, Lushington held that the old lule, 
and not the Butish statutoiy 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 dehveied by Patteson , the Dumfries being 
held to have been in the wiong, even supposing the act of pailiament 
applied, as to which no opinion was given In The Zollverem (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 (! utdi) (1861), 14 Mo P C 202, Romilly, the 
inapplicability of the British mle as between a British and an American 
ship was conceded In The Bepmtei v The Braga or Krageroe (1865), 14 
L T (N S ) 258, Kelly, the Court of Admualty of Ireland applied the 
British mle 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 Saronia (Hamburgh American Steamship Com- 
pany v North of Scotland Banking Company (1862), x5 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 m 
collision at sea within three miles fiom the coast of England, not even m 
the Solent, between the Isk of Wight and the mainland of Hampshire 
In II M S King Alfred, [1914] P 84, Evans, P , wheie 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 
squadion of warships The foreign vessel could not be required to know the 
English leguiations 



COLLISIONS AT SEA 


279 


§ 206 Where the defendant has toitionsly had the use of 
the plaintiff’s money 01 piopeity m a given countiy, interest 
on the value must be allowed accoidmg to the rate of that 
country, and judgment given for the sum which will produce 
the amount in that countiy at the late of exchange 

Elans v East India Company (1718), 1 P W 395, Cow per , affirmed 
(1718), 2 Bro P C 382 See below, §§ 225 and 226 

Aftei the slave tiade had been piohibited by British legis- 
lation, but while theie were still countries which had not 
prohibited it, a class of cases used to anse out of injuries done 
at sea by Butisli officeis to subjects of those countries, m the 
couise of attempts to suppiess slave-tiading by them The 
actions weie held to lie, because the old rule of public inter- 
national law pei nutting the slave tiade remained m foice in 
favoui of such plaintiffs, and was to that extent a rule of 
English law , so that the case fell undei § 198, and was not 
inconsistent with the doctnne submitted m § 202, that wheie 
there is no local law T a defendant can only be liable accoidmg 
to his peisonal law 7 

Madiazo v Willes (1820) 3 B A A1 353, Abbott, Barley, Holioyd, Best 



( 280 ) 


CHAPTER XII 

CONTRACTS 

Formalities of Contends 

§ 207 Subject to S5 208, the fonnalities lequired for a con- 
tract by the law of the place wheie it was made, the let lo( i 
contractus (elebiati y aie sufficient foi its external validity in 
England 

Guepiatte v Young (1851), 4 De G & S 217, Knight-Biuce See above, 
on p 76, that learned judge’s appioval, exceptional foi England, of the 
punciple of the lej Ion actus 

§ 208 But a conti act, although externally peifeet according 
to the law of the place wheie it was made, cannot be enfoiced 
n England unless evidenced in such mannei as English law 
recj unes 

This doctrine is based on the maxim that the lev fori governs 
proceduie, but it is fai fiom being univei sally received abroad, 
the evidence of a contract being often deemed undistinguishable 
from its foi m Indeed to say that a contract may be validly 
made without writing, but that it cannot be enfoiced unless 
evidenced by wilting, appeals to be a distinction without a 
ditfeience, at least when the law of only one eountiy is con- 
sidered The distinction may begin to have a meaning when 
two legal systems are considered, as m this §, though even then 
the truth will be that while the lei Ion ( ontr actus celebrati deems 
the (ontiact to be both ^alul and enfoiceable, the let fori ignores 
it altogether The opinion of Boullenois was tbit the mode of 
pi oof, as for example whether by oial testimony oi by waiting, 
depended on the law of the place of contract, as being pait of 
the vinculum obligations , v and to the same effect the Italian 
code, Pielimmaiv 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 


Traite de la personnalit£ et de la r6alit6 des Loix, t 2, p 459 



FORMALITIES OF CONTRACTS 


281 


where the books are kept Their probativeness indeed appears 
to belong 1 to the law of piocess, and lienee to be properly subject 
to the 1c r fon But heie it is inseparably connected with the 
form and effect of the juridical act itself, which heie must be 
regarded as the preponderating element The foreigner who 
deals with a merchant belonging to a place where mercantile 
books are probative subjects himself to its local law T ”* This 
reasoning might be admitted so fai as to receive the evidence of 
such books on the strength of the 1c i Ion ( onttactus , and to do 
so would simply amount to icgarding the merchant who made 
the entry in his book as constituted by the let’ hut conti actus 
the agent of the othei party, empoveied to reduce the contract 
for him into waiting in a certain way But it would still lemam 
that if oral evidence w r eie offered which the let fon excluded, 
such exclusion, being founded on the desire of preventing per- 
jmy, might claim to oieinde anv contiaiy mle of the let loci 
t ontraitus, not only on the ground of its being a question of 
procedure, but also because of that leseivation in favoui of anv 
stringent domestic poire v which contiols all maxims of private 
international law 

Evidence by writing must be furnished, where leqmied by the 4th section 
of the statute of fiauds, though the lex loci conti actm cdchuiti does not 
lequne it Leiourv Broun (1852), 12 C B 801, Jeivis, Maule, Talfourd 

So, too, parties suing in the English couit upon a conti act relating to 
foieign land must comply with section 4 of the statute ('oombs v Quincy , 
T 1917] 142 L T 23, C A 

§ 209 The formalities lequned foi a contiact by the law of 
the place wdiere it was made, the let lott conti actus celehrati , 
aie also necessaiy foi its validity in England 

“ The plaintiff cannot lecovei upon a wntten contiact made in Jamaica, 
which by the laws of that island was void foi want of a stamp ” This is 
the marginal note of Alv< s v Hodgson (1797), 7 T R 241, in which 
Kenyon said “ Then it is s t .id that we cannot take notice of the ie\enue 
laws of a foieign countiy , but 1 think we must lesmt to the laws of the 
countiy in which the note was made, and unless it be good tlicie it is not 
obligatoiy in a couit of law heie” In Bnstou v Sequevdle (1850), 
5 Exch 275, Pollock, llolfe, Aldeison, I latt, there was no question of 
pioving the contiact, but only of pioving that the case provided foi by the 
contiact had ansen thiough the fact of a ceitain pa\ment having been 
made, and a leceipt was allowed to be used as evidence which could not 
have been so used wlieie it was given foi want of the stamp lequned in that 
countiy The case therefoie lested on the maxim that the Ux fon governs 
procedure, and did not laise the point of this § But Rolfe said “ The 
maigmal note of Alves v Hodgson is pcifectly conect, although I cannot 

*Syst § 361, Guthrie 322 “ The judicial act ” means only “ the transaction,” 

which is so called because it fs of a natuie to produce legal consequences 



282 


PRIVATE INTERNATIONAL LAW 


help thinking that there must be some mistake m the report of the case 
I agree that if for want of a stamp a contract made m a foreign 
countiy is void, it cannot bo enforced heie But if that case meant to 
decide that wheie a stamp is lequired by the revenue laws of a foreign 
state before a document can be received in evidence there, it is inadmissible 
m this countiy, I entnely disagree ” And Alderson said “If by the 
law of a foreign countiy a document is only inadmissible for want of a 
stamp, it is a valid conti act, and receivable m evidence in another 
country ” Theie 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 tiy was whethei there was an obligation by the 
lex loci contractus celebrati, and implies so clearly that such an obligation 
was equally absent whethei 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 place, and not that an obligation aiose on that 
tiansaction by the appropnate law 

“ I should cleaily hold that if a stamp was necessary to render this 
agreement valid in Suiinam, it cannot be leceived in evidence without that 
stamp heie A contract must be available by the law of the place wheie 
it is enteied into 01 it is void all the world ovei ’’ Ellenborough, m Clegg 
v Levy (1812), 3 Camp 167 An annuity gi anted in England, and secuied 
on land in Ireland, was void in Iieland if it did not comply with the 
formalities lequued by the English annuity act Richard* v (ioold (1827), 
1 Molloy 22, Hart, who said that “a conti act void by operation of law 
m the place wheie it is made cannot be set up m any other place ” I 
have put into italics the woids m these judgments which are inconsistent 
with limiting the mefficacy in England to those contracts which are 
expressly declaied void by the lex loci contiactus celebrati 

In James v Catheiwood (1823), 3 D & R 190, Abbott, Holroyd, Best, 
receipts given in Fiance, and inadmissible theie for want of stamp, were 
admitted in oidei to piove the loan of money The only leason given was 
that no notice can be taken of the levenue laws of a foieign country, a 
reason of which Pollock appeared to approve when he quoted the case 
m Bristow v Sequeville To impose on the defendant an obligation 
which he nevei mcuired by the approjmate law of the transaction, on 
the ground that he would have incurred it if a foreign levenue law had 
not stood in the way, is something moie than not to notice a foreign 
revenue law But in the paiticular circumstances of James v Cathei- 
uood proving a conti act 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 Bnstou v Sequeville, 
might be 'educed to the pi oof of a fact 

In Wynne v Jackson, 2 Russ 352, a dictum, of Leach is repoited, “ that 
the cucumstance of [ceitainj bills being drawn [in Fiance], in such a 
foim that the holder could rot recovei on them in Fiance, was no objec- 
tion to his recovei ing on them m an English court ” It has been assumed 
m quoting this dictum that the objection of form was the want of a stamp, 
but it does not appear to have been so, foi it is said that the bills were 
not “ in the foim lequued by the French code ” The dictum is theiefore 
quite indefensible, and the case appears to have been ultimately decided 
l^o th by the vice-chancelloi, and by Eldon on appeal (1826), on the 
ground of the consideration for which tin bills had been given 



INTERPRETATION OF CONTRACTS 


283 


See also, m §§ 227, 228, the rules enacted by the Bills of Exchange 
Act, 1882, as to the forms required m bills of exchange, particularly the 
non-necessity of the foieign stamp, which makes those instiuments an 
exception to the doctrine heie contended foi, supposing that doctrine to 
be sound m general 

§ 210 There is an authority to the effect that a foimality, 
which in the place wheie 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, wheie theie is no diffeience 
between sj)ecialty and simple contract debts, is a specialty m England, and 
the longei penod of limitation applies to it Alliance Bank of Simla v 
Carey (1880), 5 C P D 429, Lopes 

Interpretation of Conti acts 

Supposing that a contract satisfies the conditions required with 
legard to its formalities, it has next to he mterpieted, that is, it 
must be ascei tamed what the parties meant by the woids they 
have used, then a question may anse whether the meaning of 
the paities was not pi evented by some mle of law fiom producing 
a binding obligation, and theiefoie, in oui subject, a question by 
what national law the legality of a contract is to be determined, 
and lastly, if the contract is found to he a lawful one, it will 
often happen that the parties have expiessed no meaning about 
the particular consequences of it which aie under discussion, 
whence arises in our subject the question by what national law 
the unexpressed consequences of a contract are to he drawn 
from it 

On mterpietation in private international law there is little to 
be added to what is said above, pp 80, 81 

§ 211 “ Where a written conti act is made m a foreign 
country and in a foreign language, the court, m order to 
interpret it, must first obtain a translation of the instrument , 
secondly, an explanation of the terms of ait, if it contains any, 
thirdly, evidence of any foieign law applicable to the case, 
and fouithly, evidence of any peculiar lules of construction, if 
any such lules exist by the foieign law With this assistance, 
the court must mteipret the contract itself on oidmary prin- 
ciples of construction ” Loid Cranwortli, m Di Sora v 
Phillippi, 1863, 10 H of L 633 It will be obseived that m 
this passage no rule is laid down as to what law is applicable 
to the case, supposing, for example, that persons belonging to 
one countiy conti act m a second for the performance of certain 



284 


PRIVATE INTERNATIONAL LAW 


things m a thud It is not pietended by the learned lord that 
the law of any of those countnes, as such, would govern the 
interpretation A eonsuleiation of all the facts might lead to 
the conclusion that voids had' been used by the paities m the 
technical sense of this 01 that law, 01 it might lead to the 
conclusion that they had not agieed in any meaning on the 
pom 4, undei discussion And in the latter case the lesult might 
be eitliei that tlieie was no obligation on the point, or that an 
obligation on the point followed, by some law as such, fiom 
anothei point on which the parties had agreed m a meaning 
But in eveiv case the intei pi etation of then meaning w T ould be 
a question ot fait, as it is put abo\e, on p 80 It is tiue that 
in the same case, p 088 , Loid Chelmsfoid is lepoited to have 
said “ It is difficult to understand how the consti uction of a 
conti act can be a question of fact ” But he only desned 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 
moie elementaiy facts which v r eie to guide the couit in inter- 
preting the conti act for itself The woids which immediatelv 
follow in the report - ‘‘ the construction of a contiact is 
nothing moie than the gatheiing of the intention of the parties 
to it fiom the woids thev have used ” — aie equivalent to stating 
that the question is one of fact in the sense heie meant And 
although Lend Chelmsfoid added — “ if the law T applicable to the 
case has ascribed a peculiar meaning to paiticulai w r oids, the 
parties using them must be bound bv that meaning ” — the value 
of that mle can scarcely extend beyond the case m which the 
whole transaction, and the peisons and things concerned m it, 
belong to a single terntoiy To apply it fuitliei would requne 
the possession of a rule foi the selection of a law on mtei pi eta- 
tion, which it would be a bold under taking to furnish 

In Thuuan v Campbell (1842), 12 Sim 616, Shadwell, a deed executed 
m Scotland, and m Scotch foim, was under the ciuumstancfs interpreted 
according to the technical sen«e of the words in English ] r *w In Ci oil and 
v T Vriqle n r 1895] 73 L T 60, KtKewich, and 327, Lnrdlev, Lopes and 
Rigby, dnections to pay money to members of a family were intei preted 
accoidmg to the law of the domicile of the family Cf lie Milln, [1914] 
1 Th 511, and St mid v ('ool, 8 App Cas 571 (above p 215) See Addenda 

There are tv'o important cases in which the facts pointed to 
the conclusion that m drawing up a contiact the parties had 
at any rate no law except that of England m then mind, and 
m which, by the simple interpretation of the contract irrespec- 
tive of any question of the law to be applied to it, no action 



INTERPRETATION OF CONTRACTS 


285 


was to be bi ought undei it except on an award in an aibitiation 
whn h w r as piovided toi by it, but m both of which cases an 
attempt to enteitain an action undei the contiact not on such 
an aw aid was made and defeated These aie Hamlyn Co 
v Talisler Distillery, [1894] A C 202, Heischell, Watson, 
Ashbourne, Macnaghten, Moms and Shand, in which the 
attempt was made by the Com! of Session, on the giound that 
the law of Scotland lecpmes that the aibitiatois shall be named 
in an aibitiation clause, and Spun ter v La Clothe, [1902] 
A C 440, judgment of himself and Macnaghten, lhrsey, 
Robeitson and Noith, deliveied by Lindley, m which the 
attempt was made by the Royal Couit of Jeisey, on the giound, 
as w r as suggested, of some invalidity of the aibitiation clause 
by Jeisey law The language of then lonlships m each case 
did not distinguish between the intei pi etat ion of a contiact on 
the one hand, and its legality and unexpiessed consequences oi 
mtiinsic validity and effects on the othei hand, as has here been 
done and as it has been usual to do m pnvate international 
law, although m the second case the judicial committee m fact 
treated the question as one of intei pi etat ion, by saying that 
‘‘the contiact is one on which no cause of action could acciue 
until the amount to be paid had been detei mined by aibitration, 
and by aibitiation as provided by the eontiait” Dealing 
without distinction with the topics that can anse on this blanch 
of oui subject, they assumed that some law r must have been 
contemplated by the paities, and, concluding in each case that 
this was English law, they gave as then latw decidendi what 
the judicial committee thus expiess in the second case ‘‘that 
the intention of the paities to a contiact is the tiue cnteiion 
by wh i cli to detei mine by wdiat law it is to be governed is too 
cleai foi eontioveisv, see Hamlyn <$ Co v Tahsler Distillery , 
and the intention is heie unmistakable ” 


Intrinsic Validity and Effects of Control t s 

Supposing that a contiact satisfies the conditions required 
with regai d to its foimahties, Unci that it has been interpreted 
so far 4 as the meaning of the paities has been expiessed in it, 
there remain the questions which aie usually described as those 
of its legality and unexpressed consequences, oi those of its 
intrinsic validity and effects Anotliei teim which is some- 
times used, the obligation of a contiact, will include them all 



286 


PRIVATE INTERNATIONAL LAW 


At this point begins the competition between the lex loci 
contractus celebrati and the law of the place of fulfilment, 
intending by the latter the law of that junsdiction which would 
be the forum contractus accoidmg to true Roman principles 
The dicta of the English judges aie mainly on the side of the 
former, which at the time when the maxims of pnvate intei - 
national law were imported into this countiy was almost 
universally piefened on the continent, under the influence of 
mistaken views as to the forum contiactus m Roman law Also 
the locus contractus celebrati and the locus actus being the 
same, our judges, who weie little acquainted with the principle 
of the lex loci actus , weie led to lefei to the lex loci conti actus 
celebrati that operation with regaid to the foimalities of 
contiacts, and even with regaid to their mteipretation, so fai 
as any one might be disposed to attribute a binding authority 
to the technical sense of woids, which elsewhere was perhaps 
moie often lef cried to the lex loci actus , and they were thereby 
confirmed in their adheience to the lex loci contractus celebrati 
where it no longer ran paiallel to the lex loci actus, but competed 
with the law of the place of fulfilment But the leasons which 
plead foi the law of the place of fulfilment as m general 
determining the obligation of a contract are so substantial, 
lestmg as they do on the geneial 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 conti acting that pai amount influence which their dicta 
ascube to it 

Thus no dictum in favour of the place of conti act can be 
stiongei than that of Loid Justice Turner, m delivering the 
judgment of the pi ivy 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 countiy wheie 

a conti act is made governs as to the nature, the obligation, and 
the interpretation of it The paities to a contract are either the 
subjects of the power there luling, 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 agtion upon their contract. It is of course immaterial 
that such agieement is not expressed in terms, it is equally an 
agreement m fact, presumed de jure, and a foreign court mter- 
pietmg oi enforcing it on any contrary rule defeats the intention 
of the paities, as well as neglects to observe the recognized 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS 287 


comity of nations ” Yet the same jndge immediately proceeded 
as follows* “ Their lordships are speaking of the geneial 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 m England, sub- 
stantially for safe carriage fiom Southampton to Mauritius 
The perfoimance is to commence m an English vessel, in an 
English port, to be continued in vessels which foi this purpose 
carry their country with them , to be fully completed m 
Mauntius, but liable to bleach, partial or entire, m seveial 
otliei countnes in which the vessels might be m the course of 
the voyage Into this contract, which the appellants frame 
and issue, they have mtioduced foi then own piotection a 
stipulation, professing in its terms to limit the liability which 
accoidmg to the English law the conti act would otheiwise have 
cast upon them ” According to the French law, in foice at 
Mauntius, a stipulation so limiting the company’s liability 
would be ineffectual, but the pnvy council held, leversing the 
judgment pionounced at Mauritius, that it was effectual m the 
case “ The actual intention of the patties,” said Tuinei, 
“ must be taken cleaily to have been to tieat this as an English 
contract, to be interpreted according to the mles of English 
law, and as theie is no rule of general law 01 policy setting 
up a conti aiy piesumption, their lordships will hold that the 
court below was wrong m not governing itself according to 
those rules ” 

Now let us consider what was involved m the case, and m the 
judgment as above cited When a contract was entered into 
which expressly pui ported 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 leal question was 
whether that intention was lawful, and theiefore effectual, and 
this depended on whether the law of England or of Mauntius 
was to govern nor was any step redly gained by pointing out 
that the parties, so far as they thought 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 m that sense the place of 



288 


PRIVATE INTERNATIONAL LAW 


fulfilment The pi ivy council decided in favoui of the law of 
England, but neitliei substantially nor nominally on the bale 
giound of its being that of the plate of contiact, notwithstanding 
the stiong dictum with which they ( ommence Substantially, 
they point out that the fulfilment of the contiact was to be 
the whole carnage, and not meiely ifs teimmation, and they 
icfei to the English chaiactei of the company by (ailing the 
contiact one made between Bntish subjects nominally, they 
build on the piesumed intention of the paities to adopt English 
law Now if the leadei woll turn to Sa\igny’s examination of 
the fonnn < out hk tus above, pp 2dl, 2d2, he will see that the 
case did not fall undei I, because among all the places ovei 
which the fulfilment was to extend none was specially fixed, 
but that it fell undei II, by reason of the obligation ansmg 
out of the company’s (ouise of business in England, and also 
undei III, by leason of the English chaiactei of the company, 
and that theiefoie, foi leasons agieeing wuth the substantial 
giounds of the pi ivy council, England w r as the Homan jorum 
conti actus And as to the nominal giound, it may be con- 
fidently believed that if it had been the English law which 
piohibited the limitation of the company’s liability, and the 
Eiencli which allowed it, the decision of the pi ivy council 
would still have been in favoui of the English law, and nothing 
would have been said about the intention of the paities to adopt 
the law which made then contiact good 

And dicta of English judges aie not wholly wanting on the 
side of the place of fulfilment, as against that wheic the contract 
was made In Robinson v Bland , 1TG0, Loid Mansfield said, 
“ the law ot the place can nevei be the iuIo wheie the trans- 
action is enteied into with an expiess view to the law of another 
(ountiy as the lule by wdnch it is to be governed ” Buir 1078 
The question was about the lawfulness of the consideration foi 
a bill of exchange drawn by a peison in one country on himself 
m anothei , and as the law of the lattei country w r as opposed 
to a recovery on the bill, uni theie was nothing but the place 
the lull was diawm on fiom which to infer a view to that law, 
Lord Mansfield can hav^ meant by “ an expiess 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 piobably be said with 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS 289 


truth that the law by which to (letei mine* the intrinsic validity 
and effects of a contiact will he selected in England on sub- 
stantial consideiations, the piefeience being given to the countiy 
with which the tiansaction has the most leal cornier lion, and not 
to the law of the place of contract as such 

This punciple was lllustiated in Jacobi v Ciedit Lyonnais, 12 Q B D 
589, (1883), Denman and Mamsty , (1884), Brett and Bowen, and Be 
Missoun Steamship Co, 42 Ch I) 321, (1888), rhitky, affnmed m 1889 
by Ilalsbury, Cotton and Fiy In both cases the law chosen was m fact 
that of the Roman fcnum conti actus as explained by Savigny But m 
both cases a stiess was laid by the learned judges on the intention of 
the paities, as the governing element m the choice of a law 

In the last edition, liowevei, Westlake justified the' rule laid down in 
the § thus — When a case shall anse in which the nature and circum- 
stances of a contract shall jxrmt 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 piesumed to have intended, or 
may even have said that they* intended, to contract with leference to a 
law by which then contiact would be upheld, the judges may be con- 
fidently expected to decline such a request See Boyal Ejchange Assurance 
Coi par at ion v S )ofoi sailings Altiebolagct Vecfa, [1902] 2KB 384, 
Collins, Mathew, Cozens-Har dy, affirming Bigham, [1901] 2KB 562 Two 
more lecent derisions may be noted here, and the second may be said to 
have affirmed his principle Income and Oeneral Investment Tiust , Lim v 
Boicu ('onsohdated, Lim , [1920] 1KB 539, 8a n key and Hath Bros v 
Companhia Naviaa Sotu Y Azncu, [1920] 1KB 614, Bailhache, affiimed 
by C A Steindale, M R , Wainngton, Scrutton, L JJ , [1920] 2KB 257 
In the fust case a railway company mcorpoiated m the United States issued 
bonds to the plaintiff company and undtitook to pa;y 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 wtie English, and the plaintiff 
company agieed to be sued in England Subsequently, an income tax was 
imposed by the American Government on income denved by a foreign 
coipoiation, and the railway company claimed to deduct the income tax 
m making the payment of interest due It was held that the claim was 
not good, that by English law there was no light to considei payment of 
foieign tax as a discharge of the English contiact, and no implied stipu- 
lation could be read m the contract that tax laws of the United States weie 
enforceable against the plaintiffs in England There was no illegality in 
peifoiming the Cwxitiact 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 couit m determining the lights 
undei an English chaiteipaity by which pait of the contiact was to be 
perfoimed m Spam should have regaid to a Spanish law which limited 
the amount of freight to be chaiged It was held that as legal ds the 
pait of the contract to be executed m Spam 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 fieights paid for 
carriage of goods to a foreign country was held enforceable, though payment 

19 


W I L 



290 


PRIVATE INTERNATIONAL LAW 


of lebates would make tl e shipowner liable to penalties in accordance with 
the foreign law 

In British South Africa Company v De Beers Consolidated Mines, 
[1910] 1 Ch 354, [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 conti act to be 
void although by the lex situs of a large pait of the immovables this 
term would have been valid Swinfen Eady, whde leferrmg the deter- 
mination of the pioper law of the contract to the intention of the parties, 
declined to piesume an intention based on the legality of the term m 
the ler situs Kennedy also refened the question to the intention of the 
parties, but Cozens-Haidy and Farwell decided the point in accordance 
with § 212 without any reference to presumed intention The real 
detei mining factoi m Ilansen v Via on, [1906] 23 T R 56, Bray, cited 
under § 224, m which the intention of the paities was referred to, was 
the place of intended peifoimance of the contract, a piomise of mainage 

Even wheie the supposed intention of the parties has nominally 
been ielied on, it has been in fact nothing more than a fictitious 
intention presumed fiom following the doctrine of this §, and 
has been m itself no substantial guide to the choice of law 

The following cases have been decided in accoidanee with § 212 
Chatenay v Brazilian Submarine Telegraph Co, [1891] 1 Q B 79, 
Eshei, Lmdley and Lopes afhinnng Day, a case in which the questions 
of intei pietation 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 
expeits, including if necessary Brazilian lawyers, and that if according 
to such evidence the intention appeared to be that the authority should 
be acted on m 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 Baines, affirmed by Lmdley, 
A L Smith, and Davey , South African Breweries v King, [1899] 2 Ch 
173, Kekewich, quoting § 212 with approval , affirmed, [1900] 1 Ch 273, 
Lmdley, Vaughan Williams, Romei Followed m Hubs v Maxton, 1 
W C C 150, a case under the Workmen’s Compensation Act, where it 
was held that a servant living m England who was taken over to France 
to do work and there suffered injury was not entitled to recover compensa- 
tion, because, m the absence of evidence that the lex loci contractus 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 

Befoie coming in detail to tlie cases m which some other 
country may compete with the place where the contract was made 
as the truest seat of the tiansaction m question, and therefore 
as the country giving to the contract its proper law, it will be 
convenient to take the cases in which the lex fori competes with 
the law prevailing m the unquestioned seat of the transaction 



INTRINSIC VALIDITY AND EFFECTS OF CONTRACTS 291 


> § 213 A contract which is illegal by its propel 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 

Henz v Biera (1840), 11 Sim 318, Shadwell Italli Bios v Companhia 
Naviera, etc (us), and see Foid v Cotesuoith, 5 Q B 544, Kelly, 
Maule, and ( ?), Cunningham v Bonn, 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 tiade, and that theiefoie a contract of which the proper law is 
that of England may be enforced notwithstanding that it contemplated 
such a violation Blanche v Fletcher (1779), 1 Doug 251, Mansfield 
and ( ?) , Lever v Fletchei (1780), Paik on Marine Insurances, 8th ed , 
p 506, Mansfield, Simeon v Bazett (1813), 2 M & S 94, Ellenborough 
and ( ? ) , affinned (1814), sub nom Bazett v Meyer, 5 Taunt 824, Thomson 
and ( ?) , Shat p 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 countiy concerned This howevei was done m Bouchei 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 countiy to another properly belongs to the latter country See § 222 

It may heie be mentioned that a contract having for its object to 
revolutionize a friendly oountry, or to supply funds to an insurgent 
government not recognized by the sovereign of these realms, will not be 
enforced m England Jones v Carcia del Bio (1823), T & R 297, 
Eldon , Bire v Thompson, mentioned by Shadwell in Taylor v Barclay, 
2 Sim 222, Eldon, Macnamara v D'Evreux (1824), 3 L J Ch 156, 
Leach, De Wutz v Hendricks (1824), 9 Moore 586, 2 Bing 314, Best, 
Thompson v Bowles (1828), 2 Sim 194 — mb 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 conti ary is averred m 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 57, Abbott 

§ 213a But the fact that the performance of a contract m 
England has been made impossible by some act of a foreign 
government or by force mageure at the place of fulfilment does 
not make it invalid or prevent damages being awarded for its 
breach according to its proper law 

Blackburn Bobbin Co v Williams & Sons, [1918] 1KB 540, 
McCardie Defendants sold to plaintiffs timber to be imported from 



292 


PRIVATE INTERNATIONAL LAW 


Finland and to be dehveied to plaintiffs m England They could net 
cany out the conti act owing to the impossibility of obtaining the timber 
m Finland, and it was held that they were liable m damages, the non- 
performance not being excused on account of inevitable necessity abroad 

§ 214 Wheip a contiact contemplated the \iolation of English 
law, it cannot he enfoieed hcie notwithstanding that it may have 
been valid by its piopei law 

Riggs v Laiuenu (1789), 3 T R 454, Kenyon, Ashhuist, Bullei, 
Grose, all howevei gioundmg their opinion on the fact that thiee of the 
partners who sued lived in England at the time the contiact was made, 
Cluga s \ Penal una (1791), 4 T R 466, wheie theie was a sole plaintiff, 
lesident in the countiy of the contiact, but a Butish subject, on which 
fact Kenyon giounded his opinion, and possibly Giose, while Ashhuist 
and Bullei took the bioad giound expiesscd in the § , Waymell v Read 
(1794), 5 T R 599, Kenyon, Bullei, and Giose, wheie the plaintiff was 
not a Butish subject, and the doctune ot the § was finally adopted It 
had been laid down by Loid Mansfield in Holman v Johnson (1775), 
Cowp 341, but could not be applied eithei there oi m Pellet at v An (jell 
(1835), 2 Or M A R 311, Abingei, Bolland, Aldetson, Guiney, because 
the delivery of the goods sold was complete abroad, and nothing was done 
by the sellei to assist in smuggling them into England, though he knew 
the buyer’s intention to do so In the cases befoie Lord Kenyon the sellei 
packed the goods in a peculiai manner, for the pui pose of smuggling 

In Santos v Illulge (1859), 6 C B (N S ) 841, and on appeal (1860), 
8 C B (N S ) 861, the action was by a Biazilian against Butish sub- 
jects, foi non-delivery of slaves sold by them in Brazil, and the question 
was whetliei they had been piohibited fiom selling them by a British 
act of parliament If they had, the contract did not contemplate the 
violation of Butish 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 Bi am well and Blackburn that a light of piopeity acquired m Biazil 
to slaves there, through a purchase made theie and lawful there, must 
Ire lecognized m 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 pai Lament in acquiring it 8 C B (N S ) 873, 876 
BLackbuin howevei thought the point would be questionable “ if the 
vendor was a domiciled British subject ” The doctrine, peihaps even 
without this limitation, seems plain enough, but the contrary was held 
by Willes, Williams and Byles m the lowei court, and by Wightman and 
Pollock in the higher oouit In a number of cases arising during the 
war out of the conti actual relations between Englishmen and enemy sub- 
jects it was held that, whatevei the law under which the contract was 
made, the war put an end to all executory contracts which for their 
further peifoimance requiied intercourse between a subject of the King 
and an alien enemy oi any person voluntarily residing in the enemy 
country Bitel Bieber (Sr Co v Rio Tmto Co , [1918] A C 260, Parker, 
Dunedin and Atkinson Naylor Benzon <i Co v Kiaimsche , I G , 
[1918] 1KB 331, McCardie affirmed by C A [1918] 2KB 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 held that this condition 



CONTRACT OPPOSED TO ENGLISH LAW 


293 


could not stand because contrary to English law, and the whole contract 
was abrogated 

§ 215 Where a contract (onflifts with what aie deemed in 
England to he essential public or moral interests, it cannot be 
enforced here notwithstanding that ll may have been valid by 
its proper law 

The plaintiff m such a rase encounters that leseivation in 
favour of any stnngent domestic 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 pinuiplc, but merely whether the 
public or moial mieiests comerned are essential enough to call it 
into opeiatron, 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 approval m Kaufman v (Union, [1904] 1KB 
591, Collins, Romoi and Mathew, levtrsmg Wnght, [1903] 2KB 114, 
in which the couit refused to enforce a contract between persons domiciled 
in Fiance, theie obtained by moial coercion, and said by an expert to be 
nevertheless valid theie It was applied again in HoniU des Hotels 
It (unis v IT a win, [1913J 29 T L R 878, Sciutton, wheie the court held 
payment of a cheque obtained in France fiom an Englishman under 
dui ess for the purpose of paying a gambling debt of another could not 
be enforced in England, though the tiansaction was lawful in Fiance 
See He Fitzqeiald, Hut man v Fttzqnald, quoted above, p 79, where two 
learned judges out of four held that a stnctly alimentary provision for 
an adult male is conti aiy to public policy m England 

Suppose an action to be brought here for money won at play, or lent 
foi the puipose of play, where the lei Ion lontiaitus gives a right of 
action In Bobmson v Bland (1760), Burr 1077, Mansfield gave no 
opinion on the point, no difference between the law of England and the 
lex Ion contractus being established, but Denison and Wilmot thought 
the law of England would in any case prevent the recovery In Quarner 
v Colston (1842), 1 Ph 147, Lyndhurst held that the law of England 
would not prevent the lecoveiy And this was followed in Saxby v 
Fulton , [1909] 2KB 208, Btay, affirmed by Vaughan Williams, Buck- 
ley, Kennedy, on the ground that the enforcement of a loan for the 
purpose of gaming m a foreign country, where such gaming is legal, is 
not contrary to the policy of English law 

In Wynne v Callender (1826), 1 Russ 293, Gifford, bills accepted 
abroad for money lost at play in England were held not to be enforceable 
here, but it does not appeal whether this r as on the ground of the 
domestic policy of the lex fori , or on the ground of the lex Ion contractus 
of the consideration for the bills In Moults v Owen , [1907] 1KB 
746, Collins and Cozcns-Hardy (Moulton dissenting on a special view of 
the English law), a cheque drawn in France on an English bank for 
money lost at play m France was held not to be enforceable here, although 
valid by the law of France, on the ground that the law applicable to the 
cheque was the place of payment, and also that the Gaming Acts, 1845 



294 


PRIVATE INTERNATIONAL LAW 


and 1892, which declare that no action shall be brought, make the lex fori 
apply as introducing a rule of procedure, and Cozens-Hardy expressly 
declined to consider the question of public j>olicy (p 756) See, too, 
Societe des Hotels v Hawker , (us) 

The English court will not enforce an agieement between husband and 
wife which contained a stipulation for facilitating proceedings m England 
for divoice, or, where the parties are Butish subjects though domiciled 
abroad, a stipulation as to the custody of the children which they could 
not have entered into by English law, even though the objectionable 
stipulations have been carried into effect Hope v Hope (1857), 8 
D M G 731, Kmght-Bruee and Turner , in which case (1856), 22 Beav 
351, Romilly had held that the rest of the agieement might be enforced 
if the objectionable stipulations had been carried into effect The English 
court likewise will not enforce, as being contrary to public policy, an 
agreement to pay perpetual alimony to a woman who was the mother of 
an illegitimate child lie Macartney, [1921] 1 Ch 522, Astbury The 
couit refused on this ground to override the title to property lying m 
Russia which a subject of that country, being the owner by the law of his 
state, had sold foi export to England, and would not allow the principles 
on which the foieign government had acted to be examined Luther v 
Sayor A Co , [192].] 1KB 456, Roche 

A conti act relating to an English litigation being impeached on the 
ground of champerty, the law of England condemning it prevails over 
the lex loci contiactus suppoitmg it Crell v Levy (1864), 16 C B 
(N S ) 73 , Erie, Williams, Willes 

If a contiact, so far as it affects tiade in England, is open to the 
objection which lies by English law against contracts in undue restraint 
of trade, it cannot be enforced here notwithstanding that it is valid by 
the lex loci contractus pei Fry, in llousillon v Bousillon (1880), 14 
Ch D 351, at p 369 See also § 341 below 

Conversely an agreement made in Italy to pay a debt to an Italian on 
account of a moral obligation without valuable consideiation was held 
enforceable here, because the principle that there must be such considera- 
tion to support an English contract is not a ground of public policy, Be 
honacma, [1912] 2 Ch 394 C A , Cozens-Hardy, Faiwell, Kennedy 

We now come to the oases in which the competition is not 
between the lex fori and the law prevailing in a place which is 
the unquestioned seat of the transaction 

§ 216 Contracts relating to immovables are governed by their 
proper law as contracts, so far as the lea situs of the immovables 
does not pi event their being cained into execut on 

Campbell v Vent (1838), 2 Mo P C 292, Lushington Bank of 
Africa Lim v Cohen , [1909 ] 2 Ch 129, Eve, Cozens-Hardy, Buckley, 
Kennedy, where the contract could not be cained into execution owing to 
the incapacity of a married woman by the lex situs British South 
Africa Co v l)e Beers Consolidated Mines, Lim (cited under § 212), 
wheie this § was cited with approval, [1910] 2 Ch, at p 514 See also 
above, § 163 Halford v Clark, [1915] 50 L T 68 See above, p 217 


§ 217 Contracts impeached as violating monopolies 



VARIOUS CONTRACTS 


295 


Pattison v Mills (1828), 1 D & Cl 342 (and sub nom Albion Insur- 
ance Co v Mills, 3 W & Sh 218), Lyndhuist contract made by a’ 
company sustained on ground of lex loci contractus, notwithstanding that 
m the company’s countiy the contract would have been illegal because 
of a monopoly enjoyed theie by others 

§ 218 Conti acts foi service 

A con ti act foi service belongs, so fai as the liability of tbe 
hirer is concerned, to the countiy where it is made and m which 
the hirer lives, and not to that m which the service is to be 
rendered 

This was Best’s opinion, at nisi irrius, on the question of liability to 
interest Arnott v Itedfern (1825), 2 C & P 88 And see South African 
Breweries v Knuj, [1899] 2 Ch 173, [1900] 1 Ch 273 Bt Anqlo- 
Austnan Bank, r 1920] 1 Ch 69, Younger 

A bamstei’s right to sue and lecovei payment for his services 
depends on the law affecting his bar, and not on that of the 
place wlieie he is retained oi of that wlieie his seitues are to 
be peifoi med, and the same principle applies m the case of any 
othei skilled piactitionei 

Queen v Doutre (1884), 9 Ap Ca 745, Watson 

As to seivice at sea, the Merchant Shipping Act, 1894, s 265, 
enacts that “ wlieie in ail} matter i elating to a ship oi to a 
person belonging to a ship theie appears to be a < onfli( t of law a, 
then, if there is m this part of the act ” [part 2, Masters and 
Seamen, sects 92 -266] “ any provision on the subject which is 
heieby expiessly made to extend to that ship, the case shall be 
governed by that provision, but if there is no such provision, the 
case shall be governed by the law of the port at which the ship 
is registeied ” 

§ 219 The operation of a contract of affreightment depends 
on the law of the flag, that is, on the personal law of the ship- 
owner If the ownei finds it convenient to legistei his ship m 
another countrv, it is still his law, and not that of the material 
flag, which is intended by the expiession see what was said by 
Lord Justice Brett, in Chartered Mercantile Bank of India v 
Netherlands India Steam Navigation Company , 1882, 10 

Q B D , at pp 534- 536 

In Lloyd v Guiheit a French ship was chaiteied by hei master to a 
British subject, m a Danish port, for a voyage from a Haytian port to 
England , and the question was as to the owner’s liability to indemnify 
the charterer against a bottomry bond on ship, freight and cargo, made 
during that voyage in a Portuguese port It was decided m 1864, 33 L J 



296 


PRIVATE INTERNATIONAL LAW 


Q B 241, Blackburn, Cockburn and Melloi — Compton is added m 
the repoit m 6 B & S 100 — that the mastei’s authority to bind the 
owner towards the charterei dejiended on the law of his flag , which was 
in accordance with the decision of Story, as a United States judge, in 
Pope v Nulerson (1844), 3 Story 465 On appeal (1865), L R 1 Q B 
115, and 6 B & S 100, it was decided by Willes, Eile, Pollock, Mai tin, 
Keating and Pigott, not only that this was so, but also that the owner 
could equally have defended himself by the law of his flag if he had 
been present in the foieign poit and made the contract of affreightment 
himself 

The mastei’s authonty to bind the cargo by a conti act of bottomry may 
also be consideied as a lesult of tho conti act of affreightment, by virtue 
of which he icceives the caigo on Ixiaid, and that this authority depends 
on the law of the flag has been accoidmgly held in Droege v Suart, or 
The Kmnak (1869), L R 2 P C 505, Eile, and in The Gaetano and 
Maiia (1882), 7 P D 137, Brett, Cotton and Coleridge, leversing Philli- 
more (1881), 7 P D 1 In The Equator, ( 1921 J 10 C C Rep 76, 
Duke, Hill, it was held that the mle whereby an agent contracting 
foi a foreign principal is piesumed to contract foi himself has no appli- 
cation to a contract to supply necessaries to a ship made by the owners’ 
agents in a foieign poit 

The mastei’s authonty to bind the ship and f l eight bv a conti act of 
bottom ly depends on the same pnnciple as the nairowei of the two deci- 
sions in Lloyd v Gurhirt, foi he can have no other authonty to bind the 
ownei towauls the lemlei than towaicls the chaiteiei It has been seen 
in § 150 that the acquisition of leal lights, as those of pledge or lien, 
even in movables, is geneially to be decided by tho lej situs But if a 
question of agency anses, the hi situs, as lemaiked on p 200, cannot 
confei an authonty as against a person who is not subject to it 
The mastei’s authonty to sell the caigo depends on the law of the flag 
'lne Avgust, T1891] P 328, Ilannen And so does the light to freight 
on tho caigo sold by the mastei The Industrie , [1894] P 58, Gorell 
Baines, unless the contiact otheiwise expiesses S C , lb , Eshei, Lopes 
and Kay, diffenng fiom Goiell Baines as to the mterpietation of the 
contiact But see above, pp 198, 199, for the title to the caigo sold 

Whethei the master has duly delivered the cargo depends on the law of 
the flag The Stettin (1889), 14 P D 142, Brett 
In lie Missouri Steamship (' ompany (1888), 42 Ch D , at p 327, it is 
said by Chitty that the law of the flag “ought to be applied not merely 
to questions of construction and the lights incidental to oi arising out of 
the contract of affreightment, but to questions as to the validity of stipu- 
lations in the contiact itself ” 

The law of the flag howevei is of no authority as against an insurer 
Greet v Poole (1880), 5 Q P D 272, Lush and Cockbu. i 
Laydays urn fiom what by the custom of the port of discharge is con- 
sidered to be arrival Norden Steamship Co v Dempsey (1876), 1 
C P D 654, Coleridge, Brett, Lmdley This however belongs rather to 
the interpretation than to t 1 e operation of the contract 

See on the subject of this § The Patna (1871), L R 3 A & E 436, 
Phillimore, and The E cpress (1872), L R 3 A & E 597, Phillimore 

§ 220 Geneial average 

Owners are bound by a general average adjustment made at the port 
of destination according to the law of that port , and so are insurers, so 



VARIOUS CONTRACTS 


297 


far as the loss incurred by the insured, 01 to which the insuied is obliged 
to contubute, arose fiom a peril insuied against ox its consequences, 01 fi<> m 
proper endeavoms made in older to aveit a peril msuied against it or its 
consequences, Harris v Scaiamanga (1872), L R 7 C P 481, Bovill, 
Keating, Biett, The Man/ Thomas , [1894] P 108, Got ell Barnes, affirmed 
by Bindley, A L Smith, Davey This, so fai as concerns the liability 
of insurers, agrees with Walpole v Hun (1789), Paik on Marine Insur- 
ances, 8th ed , p 898, Kenyon, and with the leMilt in X finnan v Cazalet, 
ib , p 899, Bullei, though theie it was put on usage and not on law, but 
it ovei mles Power v Whitmore (1815), 4 M & S 141, Ellenborough, 
Le Blanc and Bayley, in which no usage was proved, and the law was 
held to be that an insuiei is only bound by a geneial average stated 
accoiding to his 7c x Ion lontractu s 

See T)e Hart v Compaiha Anonima de Seguras “Aurora,” [1903] 
1KB 109, Kennedy, [1903] 2KB 503, Vaughan Williams, Romei, 
Stilling, and Goiell Baines m The Bttqella, [1893] P, at p 201 

§ 221 Muiinc insurance 

Whether the insuied is accountable to the insuiei who has paid him, 
foi money received aliunde in iesj>ect of the loss, depends on the law 
governing the conti act of insurance Buruand v Jlodocoruahi (1880), 
5 C P D 424, Coleridge, see end of judgment, wheie then can be little 
doubt that the law of the contract was intended to be ictened to though 
the hr fori is mentioned Also see § 220, and (ireer v Poole, quoted 
undei § 219 

§ 222 The (ontiaH <>1 a (airier to (an\ passengcis or goods 
fiom one (ounh\ to anolhei 

As to illegality of chaige on tlio ground of inequality Erie, and peihaps 
also Keating, seem to have considered that this would depend on the ln x 
Ion contractus, and not on the law of the carrier’s country, in Branley 
v South Eastern lhnluay Co (1862), 12 C B (N S ) 63 , but it was not 
necessary to decide the point 

As to legality of stipulation limiting liability Lex loci contractus, 
where the contract is made in the piopei countiy of the company which 
is the earner Peninsular and Oriental Steam Navn/ation Co v Shand 
(1865), 3 Moo P C (N S ) 272, Tumei See above, p 286 In Cohen 
y South Eastern Bailuay Co (1877), 2 Ex D 253, the company made 
the contract abroad, rn a country the law of which was held to be the 
same on the point as that of the company’s countiy , but had it been 

necessaiy to choose between them, Baggallay leant to the lex loci con- 
tractus, and Mellish to the law of the company’s country, taking into 

account that the other paity belonged to the same countiy, while Brett 

leant to the latter law without referring to that circumstance 

A regulation concerning carnage of goods at sea was drawn up at the 
International Law Association’s Conference at the Hague m 1921, and 
is being adopted by the Chambers of Commerce in many countries, in- 
cluding England, but at present the rules have no binding force as law * 

§ 223 Agency 

The right of an undisclosed principal to sue on a contract 
made by the agent with a thud party, and the consequences of 

* Sec an article in the Journal of Comparative Legislation , 1922, p 24 



298 


PRIVATE INTERNATIONAL LAW 


that con ti act if so sued on, depend on the law which governs 
that (ontiact, and not on the law which governs the contract 
between the undisclosed principal and the agent 

Maspons v Mildred (1882), 9 Q B D 530, Lmdley, Jessel and Bowen 

§ 223a The contract between the preference and ordinal y 
stockholder of a company is governed by the law of the com- 
pany, that is, by the law of the country where the company is 
domiciled 

Spiller v Turner, -[1897] 1 Ch 911, Kekewich 

§ 223b A contract undei the Sale of Goods Act for the supply 
of goods which aie to the knowledge of the vendoi to be expoited 
to a foreign country will not be invalid, though the goods are 
not legallv saleable m that country There is no implied 
warranty that the goods will be merchantable m the place of 
ultimate destination Sumner, Pei main fy Co v Webb Sf Co , 
[1921] W N p 30G, C A , Bankes, Serutton, Atkins, leversmg 
Bailhache 

§ 223c A contiact for the pei forming lights m England of 
French plays was held to be governed by French principles of 
inter pietation Serra v Famous Lasly Film Service , TAd , 
[1921] W N 347, Eve, affirmed C A , [1922] W N 44 

§ 224 Place of contracting m the case of conti acts inter 
uu«snte? 

When a contract is made by an interchange of letters or tele- 
grams, it is held to have been made, so far as that may be 
important, at the place from which the reply concluding the 
contract is despatched 

('(man v O'Connor (1888), 20 Q B D 640, Manisty and Hawkins 
The contract ansing from an offer of mairiage contained in a letter sent 
from England and accepted by letter despatched from Denmark was held 
to be governed by English law, but this was chiefly on the ground that 
the contemplated place of performance was England Hansen v Dixon, 
[1906] 23 T R 56, Bray 

Posting a parcel fiom one country to another, m response to an order 
directing it to be sent by post, is an act done only in the former country, 
and not in the latter, although its consequence is a transit of the parcel 
within the latter Badische Amlin und Soda Fabmk v Henry Johnson 
& Co and Basle Chemical Works, Bmdschedler, [1897] 2 Ch 322, 
Lmdley and A L Smith, reversing North, Rigby dissenting , reversal 
affirmed, [1898] A C 200, Halsbury, Herschell, Macnaghten, Shand, 
Davey 

A power of attorney intended to be acted on in a given country will 
operate according to the law of that country Chatenay v Brazilian 
Submarine Telegraph Co , [1891] 1 Q B 79, Esher and Lmdley, affirm- 
ing Day 



JUDGMENT FOR FOREIGN DEBT 


299 


§ 225 Intel est will be given by the court according to the law 
of that country m which the principal ought to have been paid* 

Chamfxint v lianelagh (1700), Pre Ch 128, 1 Eq Ca Abr 289, wrongly 
reported in 2 Vern 395, Wright, Ellis v Loyd (1701), 1 Eq Ca Abr 
289, Dungannon v Hackett (1702), 1 Eq Ca Abr 288, Stapleton v 
Conway (1750), 1 Yes Sen 427, Hardwicke (m Connor v Bellamont 
(1742), 2 Atk 382, Hardwicke, it piobably appeared that the sum secured 
by the bond was to be paid in Ireland) , Bodily v Bellamy (1760) Buir 
1094, Mansfield, wheie the distinction is drawn between the interest to 
be incorporated in the judgment and that which the judgment bears, the 
latter being governed by the lex fon In the above cases the question was 
as to the rate of mteiest, but the rule is the same when the question is 
whethei compound interest is payable Fergusson v Fyffe (1841), 8 
C & F 121, Cottenham It must be observed that the lex loci solutionis 
is not expressly made the ground of decision m all the cases cited in this 
paragraph, but none of them are inconsistent with its being the ground 

See also Cooper v Waldegrave t under § 229, and above, § 206 

As all usury laws have been repealed m England, it will be sufficient 
to refer to the cases in which, while they existed, their operation with 
regard to contracts connected m some way with othei countries was con- 
sidered, without attempting to extiact general rules fiom them If the 
validity of a oonti act as affected by a foieign usury law had to be con- 
sidered, much might depend on the precise charactei of the law Deuai 
v Span (1789), 3 T R 425, Kenyon, Ashhurst, Buller, Giose , llaivey 
v Archbold (1825), 3 B & C 626, Abbott, Bayley, Littledale , Anonymous 
(1825), 3 Bing 193, opinion of judges delivered to House of Lords by 
Best, Thompson v Towles (1828), 2 Sim 194, Shadwell , Ex parte 
Cuillebert (1837), 2 Dea 509, Erskine, Rose, Cross 

^ 226 Damages foi breach of conti act abroad, oi a d^ut 
payable abioad, being leeovered m England, the judgment 
must be for so much English money as, if i emitted to the 
country wheie the payment ought to have been made at the 
rate of exchange current at the time the bieach of contract 
occurred or payment should have been made oi the debt was 
incurred, will there produc e the amount of the judgment oi debt, 
with any mteiest or damages included m the judgment 

In the former edition the rule appeared as “ the rate of exchange current 
at the time the judgment is recovered ** , but in a number of decisions 
given by the English Couits in cases arising out of the extraordinary 
fluctuation of exchange which followed on the Armistice m 1918, the 
principle has been re-examined and modified, and m cases of breach of 
contract for carriage of goods or sale of goods is as above Di Ferdmando 
v Simon Smits cfc Co , [1920] 3KB 409 C A , Bankes, Scrutton, Eve, 
affirming Roche , Barry v Van den Hurk , [1920] 2KB 709, Railhache , 
Balli Bios v Companhia Navieia, Ac , [1920] 1KB 614, see p 289 
Where, however, a person, after action was brought in England, paid 
a debt due abroad in the currency m which it was due, to the person to 
whom, and at the place at which, it was payable, the Court of Appeal 
have held that the Court had not to consider the rate of exchange at 
which the liquidated debt incurred abroad is to be calculated in English 



300 


PRIVATE INTERNATIONAL LAW 


monej, because the debt was discharged Societe des Hotels, v 

Cnmminq, [1921] W N 250, Avoiy , reversed on appeal, Bankes, Scrut- 
ion, Atkin, [1922] W N 18 See, too, Addenda 

The rule has been amplified in special cases of toit and actions of account 
Where the damages for a toit aie properly assessed m a foieign currency 
the} must be conveited, foi the purpose of the English judgment, 
at the rate of exchange ruling at the date with reference to which the 
damages m the foreign cunency have in law to be assessed The Volturno, 
[1921] 2 A C 544, and [1920] P 447, H L , Buckmaster, Sumner, 
Paikei, Wienbuiy, Carson dissenting The action aiose m this case out 
of a collision between a British and an Italian ship which were both held 
to be in fault, and the question was as to the date at which the rate of 
exchange foi the amount allowed to the owners of the Italian ship for loss 
by the detention of their vessel during repairs should be taken It was 
held that the late should be as at the dates when the losses by reason of 
detention were inclined 

Where an account of transactions made in a foreign cunency is claimed 
and delivered by older of the Couit, the late for conversion must be that 
ruling on the day when the account is delivered, and not that ruling when 
the particulai items m the account became due Man net s v Vanson d 
Co, [1898] 1 Ch 581, Lindley and Rigby, affirming Kekewich , Vaughan 
Williams dissenting In the dissenting judgment, Vaughan Williams 
projiosed the rule adopted in the cases mentioned above, that the date 
at which the value is ascertained is the date of the breach and not the 
date of the Judgment 

In certain eailier decisions given by the English Couit wheie the 
question at issue was as to the amount of the judgment given by a Court 
m another part of the British Dominions, it was held that the late of 
exchange should be fixed as at the time judgment was recovered 

Scott v Bt ran (1831), 2 B A Ad 78, Tenterden, Parke and ( ?) In Cadi 
v jo union (1804) and (1805), 11 Ves 314, Loid Eldon dwelt on the duty 
of a person who is bound to pay a certain sum at a certain place on a 
certain da\ to have it theie on that day, and added, “ If he fails in that 
contract, wheiever the creditor sues him, the law of that country ought 
to give him just as much as he would have had if the contract had been 
pei formed ” Fiom this the conclusion has been drawn that where the 
time and place of payment are fixed by contract, the late of exchange 
ought to be taken as at the time so fixed Beitiam v Vuharnel (1838), 2 
Mo P C 212, Erskme 

Bill s of Exchange and Piomissot y Notes 

The subject of bills of exchange and promissory notes 
furnishes a large and intei esting field for the appl’ ation of the 
doctrines oi this chaptei It must be mtioduced by the English 
legislation But in 1912 an international conference held at 
The Hague drew up an i itei national law concerning bills of 
exchange and cheques containing some notable provisions on 
the choice of law England, howev