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LAFLEUR ON CONFLICT OF LAWS 
 
THE 
 
 CONFLICT OF LAWS 
 
 IN THE 
 
 PROVINCE OF QUEBEC 
 
 BY 
 
 E. LAFLEUK 
 
 Of the Montreal Bar, Profeggor of International Law in McGill University 
 
 MONTRFAL : 
 C. THEORET, LAW BOOKSKLLKE & PUBLISHER 
 
 H <t 13 ST. JAAItS STliEKT 
 
 18!)8 -' 
 

 
 Etitrrcil aocordiiiK to Ai't of I'nrliuim'iit of Caiiiicla. in the ji'iir one tliouMiind 
 
 t'iglif liundrid iind niiirtj-iMyht, liy <". Tiii:r)i(Kr. of Montri'iil, in tlic 
 
 Offici- of tl p Jliiiislpr of AKriciiltiirc iil (ittawii. 
 
PREFACE. 
 
 This book owes its orii^iii to ;i c't»urse of lectures 
 delivered in MeGill University. In the prepanitioii of 
 these lectures I have freciiiently realized the difficulties 
 whieh must he experienced h}' the student of tliis branch 
 of our law. There is, of course, no lack of excellent 
 theoretical treatises on Private Interiuitional Law or of 
 valuable works dealinar with the rules for solvuii; con- 
 flicts in particular countries, but the absence of any book 
 treating; of the i)rinciples of our own law upon the sub- 
 iect often makes it difficult to distiny:uish between rules 
 prevailing elsewhere or merely advocated by thooristy, 
 and those which would be followed by our courts. The 
 fact that no attempt has yet been made to collect and 
 svstematize the rules for solving conflicts of laws deriv- 
 able trom our codes, statutes and jurisprudence, notwith- 
 standing the ever increasing frequenc\' and importance 
 of these conflicts in actual practice, encourages me to 
 hope that this work will prove useful to my confreres at 
 the bar as well as to my students. 
 
 My thanks are due to my friend Mr. C. S. Campbell, 
 of the Montreal bar, for his kindness in reading my work 
 in manuscript, and for many valuable criticisms and 
 suggestions. 
 
 MOXTUKAL, JlNE, ISIIS. 
 
 E. Lafleur. 
 
CO^^ TENTS. 
 
 IXTRODltTIO.V. 
 
 DeHnition of Uu. Kubjc.c-t.-Rul..s for Kivin« ..r,.! to forcVn laws or 
 r Kl.tH a.„u,red tl,..r..un.ic.r.-TlH.s.. rul-s f„r„. „,», of th. ,.ii, vc" aw 
 of oach c-ountrj-^ and di.Ier i„ aUV.r.ut coun.ries.-PeeuIia po u on of 
 th. Prov.nce of yuebec-.- Distinction between positive an. ,.,a 
 metbods -So„n,..s of our own hiw on the subject -codes Mtrt.'s 
 <nn,K-na . federal and provinciaU, Jurisprudence, old la. of 'iWe " 
 Value of th,.oreticaI works an.l foreign jurisprudence.-Er oneous 
 views on the sub ect "-"iiumcoum 
 
 i-i;{ 
 
 CIIAPTKU I. 
 FoKKKi.N Law and Ii^ Phook. 
 An.biguity of expression " foreign law."-I„cludes rules of Private 
 ."rZ^d" or "' '"■"'^" -ntrv.-ForeiKn law n.ust be.U le^ed 
 
 tim s p1 r 1''' ""'"'""' '" '"-' '''^"^'^•"' -i^'' '>"rs.-Illustra. 
 
 .ons.-ira.l.ce in Krance.-Our practice .lerived fron. Kuwland - 
 
 Doctrine of presumed identity not applied to statutory law -Who aro 
 
 con.petent experts f -Foreign ,ud«u.en, as proof of fo.".; Uw -Prr, 
 
 of statutory law.-- Imperial act for 
 ions 
 
 inn law.— Proof 
 ascertaining law in British doniin- 
 14-:«» 
 
 CHAPTKR ir. 
 Status. 
 
 cile -Fff "ef 'V'"^'•°''":.''■''■ '''"" "''^' "'''^''' '"''^'^ ''^P''"^ on donu- 
 pat .Uion °^7"""''"f>- Citixensbip by bir.h.-Expatriation.- 
 
 Ss-D°s:.^iMH''T/'""- ""'«''"' of aliens.- M.rrie.l women and 
 
 by our coJ^-tT ' '^'^«"^-^-*'''" "^'"d-s of status not recognized 
 
 ■ ^.3748 
 
t^ 
 
 VI 
 
 THE CONFLICT OF LAWS. 
 
 ClIAI'VJiU in. 
 
 Do.MK M.i:. 
 
 Definition. -Disiiiu-iion hrtvM'i'ii riNidpiwi' and domicile. - CliiinKf 
 of doniicili'.- -IllUHtnitions. Ddinicilf of ilt'iinndunt j)«TMons minors, 
 niiirrifd wonu-n, interdicts 41t-.V< 
 
 CIIAI'TKH IV. 
 
 MAHUIAIiK. 
 
 Formal validity.— Murriivj^es {•clebratud in uncivilized tountrics.— 
 Indian uiarriagos. — Formal and siibsDi'ilivc validity.— Capacity to 
 marry.— Capacity of miirriod woman. Kllect of clmiiKi' of domicile— 
 Suretyship l»y married women. Marital authority.— I'arent and child.— 
 Alimony.— Iienitimacy.—/-r^/(7t»Kf//(> fjcr snhsajucHs ni(t(riiiio)iiiiin 
 
 " ni)-7i) 
 
 CHAPTKR V. 
 
 DlVOUCK AND SEFAHATION. 
 
 Divorce not against pul>lic policy of our law.— Foreign decrees 
 intitled to recognition.— True test of international competency in 
 divorce cases.— Other considerations admitted by our courts .—.luiiicial 
 separation.— .lurisdiction in separation from lied and hoard and 
 Hejiaration as to jiroperty 80-91 
 
 CHAI'TKR VI. 
 
 MiXOKII'V AND TlTolismi'. 
 
 Uncertainty whether minoi-'s capacity changes with domicile. — 
 Distinction lietweeii acts dune het'ore and after change of domicile. 
 Tendency in some countries to make fcr luci coyitravtun govern minor's 
 cipacity. Conflict helween law of domicile and law of situation of 
 Immoveahlcs. — Sale of minors jiroperty.— Rights of foreign tutors.— 
 Proper forum for aj)poiiitment of tutors 92-10:^ 
 
 CHAPTFH VII. 
 
 Coitl'Oi;ATU)NS. 
 
 Right of foreign corporations to sue and to contract.— Restrictions 
 
^ 
 
 I 
 
 COXTENTS. 
 
 vn 
 
 iinili-r foi'civ;!) Iiiw. Limitutioii of powiTs iti coitiiin cnscs ; ImnkM, 
 iiisuriiiic*' conipanit'H, riiilwuys. Sp«'i iiil j^i'iiiit "f powers liy U-ttci'M- 
 pnteiit. MortinaiiiH. {'nil fi)ri'ij^n cniponitiniis ever fiijoy ^frfiilrr 
 ri^litH tliaii (lomestlf cori'-iriitloiiH*. I(t4110 
 
 rilAPTKU VIII. 
 
 I'HOI'IMtTV OWNKHSHir AMI I I- .MoDll'K ATIONS. 
 
 I.fx fori diTitlos as to iiatiire ordistiiictioii of jnoptTfy.— Coiillict 1h'- 
 twci'ii reiil and porsonal stntuic— Caput ily in dt-alinK with inmiovo- 
 ablt's. — Koriii li validity of dt't'<l.s coii . mint.; iiiimi")vi'al>lt's. Hi^^lits and 
 ol>li(iati<>iis p'^'Tni'd l)y law of Hituai on. i-'orfi^n iniiiiov<'al)U's gov- 
 crni'd l)y /<•'• / v/ !*\in'. Mo\ t-alil*- pr ipcrty Kciiurally novcnu'd l)y law of 
 owiu-rs doiiiicilc. -Mohilin .<»■'■ miiur ;>rrsi)n<i> i —Li.i /o?-/ govi-i ns in 
 (luivstions of privileges, lien ;. al i;onteHtati<ii.-. nn to jiossessloii.— /,*■,»• 
 .si f IIS soniotiinus applied 111-124 
 
 CIl.VI'Thl! IX. 
 
 AniNTKSTATK Sr( IIISSIONS. 
 
 Three theories as to law ;.,'ovei'iiiii.LC 'levolutioii of suc( i-ssioiis : terri- 
 torial, personal, and intermediate theory. - Last is doctrin" of our I'ode. 
 
 Status an<l powers of foreign administrators. Vacant succession 
 Succession duties IJ.">-1;'|;{ 
 
 CIIAI'TKK X. 
 
 Wir.I.S AM) (ill TS. 
 
 I.iiriis riijil iiitmn. \s the rule imper,iti\ e or iieriuissis »• N-Wills of 
 military men and mariners. Capacity of testiitor and ot legatee- 
 Intrinsic validity of will. Interp)ri'tatioii of will. — Formal validity of 
 donations.— Capacity of donor and of donee. — Interpretation of (h>na 
 tions. Hevocation for ingrat ilude I.'UIII 
 
 (•IIAi'TKR XI. 
 
 (■(t.NIHAI IS. 
 
 I''oiinal validity. Capacity. — Interpretation.- Ktl'cct of contracts.— 
 Discharge.— Imiiutation of payments. - Express reference to particular 
 
vni 
 
 THE CONFLICT OF LAWS. 
 
 law or custom.— Esseiiliiil viilidity. -Contracts against piiblif policy. 
 
 public order and good niora's.— ForciK'n revenue laws.— /lr//o Pmdlinia 
 
 14o-l(il 
 
 C'llAPTFll XII. 
 
 MAHHIAtJi: COVKNANTS. 
 
 Formal validity.— Interpretation.— Pi-csumed intention of consorts 
 in the absence of exjjress contract.- Law of matrimonial doniieile gov 
 ern.s.— Hut dower governed by law of situation.— Prohibition of gifts 
 between consorts.— EU'ect of cluingeof domicile.— Distinction between 
 gifts before and after change of domicile l(52-17t) 
 
 CHAPTEU XIII. 
 
 Bills ok Ex( iiAxciK and Promissory Notks. 
 
 Canadian statute regulating conflicts. — Formal validity.— Inter 
 prctation.— Interprovincial conflicts.— Capacity 177 1 84 
 
 CHAPTER XI\'. 
 
 Mi;i«HANT SlIin-INd, Al-IIJKUiUTMKNT. 
 
 Special rules in maritime cases.— Law of the Hag.— Merchant 
 shipping act.— Accidents on British shi|)s in foreign territorial waters. 
 Collisions on the high seas. Local legislatioiu— Rules governing con- 
 tract of atrreightment lS5-Ut7 
 
 CHAPTim XV. 
 
 DELins AXl) QlASIDKLK TS. 
 
 Delicts committed within the province governed by our law. — Ar.c 
 achin generally governs those committed abroad.— Distinction between 
 actionable and v, rongful acts.— No remedy when lev furl creates no 
 liability l!»8-2i»H 
 
 CHAPTER XVI. 
 Prksckiptiox. 
 Uncertainty of doctrine before Civil Code.— Immoveables governed 
 
CONTENTS. 
 
 IX 
 
 l)y Ic.r rci .swVri.-KulcK for prcx-rijitioii of inove!iblts.-,(iiiisi„udenfe 
 -since the code "h! -'OT 
 
 CHAI'TKi; XVII. 
 
 I'HilCKDllii:. 
 
 Le.r /o/'tKovcnis. -Jurisdiction of our Civil courts over forci.u'ucr.s. 
 —HxteiTiloriality.— Actions alVectinK foivivMi ininiovciihles. -Rules of 
 .inrisdiction under Co.le of Civil I'roccdure.-Admiralt v juris.lic 
 t ion. -Status of foreigners before our courts.-Evidcnce. -Evidence 
 in commercial cases.-Proof of writings executed out of the inovince.- 
 ForeiKu commissions for taking evidence.-Execution.-I{ij,'ht to 
 execute and modes of execution governed hy hr fori.—Cni)!„s for 
 secretion committed abroad " " -'ds. •'•'!) 
 
 CHAPTER XVIII. 
 
 BaNKRII'TCY AM) I.\S()I,VEX( V. 
 
 General principle that proceedinKs should l)e at debtor's domicile- 
 Auxiliary proceedings in other jurisdictions.-Status of foreign re 
 ceivers and liquidators in our courts.-Contlict of interest between 
 foreign receiver an.l local creditors. Immoveables in the province not 
 transferred by foreign bankrui)tcy. Hut possibly by English bank- 
 ruptcy.— Ellect of foreign discharge " ^.'Jtti'iS 
 
 CHAPTER XIX. 
 
 FouKKJN Ji-(:i).Mi;.\is. 
 
 International competency of foreign court.-l'roof of f,.rei.ni 
 judgments.-Formal re.,uisites.- Defences availal)le under Code ",f 
 Civil lOcedure.-Distinction between .judgments in Canada aiul out of 
 Canada.- lor..ign judgment interrupts prescription.-.Tudgme.its in 
 penal actions not recognized. -Definition of penal actions.-A/;s;),,MA«,s- 
 in foreign country no defence to action in the province.. •^;jy-'l7 
 
 APPENDIX A. 
 
 Imperial Statute for the ascertainment of the law in Hiiti^h 
 ^o"""'^'"« 24i)-2ni 
 
^ THE CONFLICT OF LAWS. 
 
 APPENDIX li. 
 Imperial Statute to providf for taking evidence by commission 
 j^-^ 2ol-2o2 
 
 APPENDIX C, 
 
 Imperial Statute amending the law for taking evidence bv commis- 
 sion • .,....,., 
 
 2n.{-2ol 
 
 APPENDIX D. 
 
 sions ''"''''"'" ^'«^"f^' f^'- tal^i"K of evidence under foreign commis- 
 '*^°"'' 254-2n(i 
 
 APPENDIX E. 
 Note on Criminal Jurisdiction 266-259 
 
CASES CITED. 
 
 I'AtiK 
 
 Abdul Me.ssili V. FiHTH 2(> 
 
 Addams v. Worden. . . . 2.'{, 4I), 245 
 
 Alcufk V. Howie 242 
 
 Alcot'k V. Siiiitli \Ki 
 
 Allen V. Hanson 2:11, 282, 2a() 
 
 Alniour v. Harris 245 
 
 Anne Joliinne (The) HW 
 
 Astill V. Hallee l(«l 
 
 Aurora (The) li)5 
 
 It 
 
 Banl< of America v. Copland. 
 
 17s, 17!t 
 Bank of Mont real V. Hopkins. 24 
 
 Barnes V. Hrown 75 
 
 Barker v. Central Vermont 
 
 Hy 224. 2;{4 
 
 Bates V. fjauzon 242 
 
 Bauron \ . Davies ;J2, 240 
 
 Beaudet v. Dorion 57 
 
 Belanjxer v. Mann & Simard . 1 17 
 
 Bentlev v. Stock 240 
 
 Betheii V. Hildyard,.: («? 
 
 Bond V. Bond 8() 
 
 Breault v. Wadiei^ih 12S 
 
 Bremer v. Freeman 22. 85 
 
 Brinkley V. Attv. Cen (Ki 
 
 British South Africa Co. \. 
 Con.i)anhiade Mo(,'aml)i(juc 122 
 
 iirooke v. Bloondield UN) 
 
 Hrodie v. Cowan 24 
 
 Bruce v. Anderson 2:il 
 
 C 
 
 Calwejl V. Calwell ,S»> 
 
 Canadian Inland Steam Xav. 
 
 (V). V. l\)luml)ian Ins. Co 282 
 
 Canadian Pacific Hv. Co. v. 
 
 Western Union Tel. Co. . . . 104 i 
 
 1'.\(;k 
 
 Carroll v. Ballanl IST 
 
 Cartwri^ht v. Cart Wright & 
 Anderson ;il 
 
 Chapman V. (;ordon 241 
 
 Chapi'ian v. McFie 171> 
 
 Chartered Merc.mtile Bank 
 
 V. Netherlands Co 202 
 
 Cliaudij're (Jold Mining Co. 
 
 V. l)esl)arats. los 
 
 Cole V. Duncan 242 
 
 Collier V. Hivaz 22 
 
 Colonial Haidv v. Cady 140 
 
 Connelly v. Connelly." 74 
 
 Connolly v. Woolricli M, (i8 
 
 Connecticut & Fassumpsic 
 
 HK. Co. V. Corns' ock 104, 1()!» 
 
 Converse v. Converse 52, '<!7 
 
 Copcutr. V. .Mc.Master i(!» 
 
 t'ote V. .M.irrison i;(l 
 
 Crawford v. Morton Dairy 
 
 I''arminK Co 222 
 
 Cri'sse V. Hal)y ."i5 
 
 Cross V. Snow 207 
 
 l> 
 
 Dalton V. Kinj:; 00 
 
 Davies V. Batuon 82,240 
 
 Daly V. (iraham !"!) 
 
 De Honneval v. De Bonni'Val. 20.22 
 
 Deciles.. e v. Beaulieu 182 
 
 De Nicols V. Curlier HiH 
 
 Doutre V. The (jueen. 152, 21H 
 
 Done^ani v. Doncf^ani IS 
 
 Donohue v. l!an(|ue .lactpies 
 ("artier 102 
 
 Driscoll V. OTtourke 15 
 
 Dunbar v. Almour 240, 245 
 
 Dupoul V. Quebec SS. Co. 
 
 25, 101, 200 
 
Xll 
 
 CASES CITED. 
 
 PAUE 
 
 E 
 
 Eddy V. Eddv 172 
 
 Edwards v. lioimld Sil 
 
 E(iuital)le Lift- Assunviice v. 
 
 Pcrmult 12}», 15:{ 
 
 Ericlisen v. (yuvillicr Kiij 
 
 P 
 
 Folliot V, Ogden 47 
 
 Fniser v. Ponliot 'u, (Y-i 
 
 Furni.ss v. Larocuiue 14(i 
 
 O 
 
 (Jan It V. Hohertson '221 
 
 (iiU's V. Carirpy 'Xi 
 
 Giles V, .Iac(|nes 2(5, 2'M 
 
 (jiles V. Phanyuf 2;{1 
 
 (Jill V. Hari'oii 2;JS 
 
 Glasgow & London Ins. Co. 
 
 V. Can. I'ac. Ky. Co 2()(} 
 
 Glengoil SS. Co. v. Pilking- 
 
 toii 2.T 
 
 (irainger v. Parke 27 
 
 (ireen v. lirooks 242 
 
 Gre(>nshields v. Aitken & 
 
 Iiickerdike & Trusts Co. of 
 
 Ontario 110, 129, 21.t 
 
 H 
 
 Halley, (The) I'.tt, 203 
 
 Haniljuru: American Steam 
 Nav. (Jo. V. North ot Scot- 
 land Banking Co 101 
 
 Hamlyn v. Talisker Distil- 
 lery 149 
 
 Hart V. Phillips 28 
 
 Harvey v. Farnie S2 
 
 Henderson v. Bank of 
 
 Hamilton 119 
 
 Hillshurgh v. Mayer 20."5 
 
 Hodgson V. Be Beaiiehesne. . 51 
 
 Hogan V. Wilson 204 
 
 Hogle V. Hogle. 215 
 
 Holme V. Cassils 240 
 
 Hoppoek V. Demers 241 
 
 Horn V. N. B. Ry. Co 20;l 
 
 Howard Guernsey Co. v. 
 
 King 13, 247 
 
 Huntington v. Attrill 245 
 
 I 
 
 Irving V. Payne 45 
 
 J 
 
 Johnston v. Connolly 12 
 
 •lones V. Dickinson 97, 147 
 
 .loslyn V. Baxter 155 
 
 .Judcy V. Society Fran^aise 
 de Phosi)l!ates l.T(i 
 
 K 
 
 Kerr v. Lanthier 239 
 
 King V. Demers 245 
 
 Kinnier v. Kinnier 8<) 
 
 I. 
 
 Lacoate v. Lesage 143 
 
 Lacroix (In the goods of) ... . 22 
 
 Lafaille v. Lafaille 20() 
 
 Languedoc v. Laviolette . . . (M), lfi5 
 Laroo(iue v. Franklin County 
 
 Bank 1<>4 
 
 Laviolette v. Martin OS 
 
 Law V. Hansen 242 
 
 liefehvrc v. Dignian 70, 217 
 
 Le Mesurier v. Le Mesurier. H2, S9 
 
 lA'rou.x v. Brown 218 
 
 Lloyd V. (Juibert 185 
 
 London & Brazilian Bank v. 
 
 Maguire 149, 183 
 
 M 
 
 Macdonald v. Georgian Bay 
 
 Lnml)erCo 118, 23($ 
 
 Machado v. Fontes 202 
 
 Maltass v. Maltass 22 
 
 Maniuette v. Smith 240 
 
 Marseilles Extension Ry. & 
 
 Land Co. ( Tn m 182 
 
 Mar.ston v. Pelletier 220 
 
 Martin v. Lee 139 
 
 May V. Ritchie 239 
 
 McCoy V. Dineen 179 
 
 McDonnell v. Tvre & Kenney 230 
 
 McGibbon v. Abbott 140 
 
 McMullen v. Wadsworth 55 
 
 McNamara v, Constantineau . _ 
 
 51, 57, 1(W 
 
THE CONFLICT OF LAWS. 
 
 XUl 
 
 I'AOE 
 
 McNiiinee v. McNamep 71 
 
 Merchants Bank of Halifax 
 
 V. (iillespie 2;tt) 
 
 Mifhigan Central Ky. Co. v. 
 
 Wcalleans 107 
 
 Molleur V. Dejadon 8i» 
 
 Moore v. Harris l.'jO, hUi 
 
 N 
 
 New Zealand Loan & Mer 
 
 cantile Co. v. Morrison 
 
 Nibovet v. Niboyet 
 
 Noafl V. Noad 
 
 Northern Ry. Co. v. Patton. . 
 
 o 
 
 2:{s 
 
 242 
 
 Osgood V. Steele 231, 2:^2 
 
 l» 
 
 Pacaud v. Tourignv * Nia- 
 gara Dist. Fire Iiis. Co. :« 
 
 Parent v. Shearer 
 
 Parker v. Cochrane 
 
 Patez V. Klein ;iO 
 
 Pechell V. Hilderlv 
 
 Penn v. Lord Haltiniore.. 
 
 Phillips V. Kvre 
 
 Powis V. Quebec Bank. . . . 
 
 Prentice v. Steele 
 
 Primean v. Giles 20 
 
 Prunier v. Menard liTi 
 
 Purdom v. Pavey & Co. 2!», 12' 
 
 Queen v. Doutre. . 
 Queen v. Ogilvie 
 
 1.^,2, 
 
 2;il 
 72 
 24 
 
 1.S7 
 l!i 
 
 12(1 
 
 2IKI 
 
 2;{4 
 mt 
 
 UV.) 
 Kil 
 
 21M 
 
 R 
 
 Hedpath v. Sun Mutual Ins. 
 
 Co 
 
 Rcndell V. Black biau'iond 
 SS. Co 21 
 
 Rhode Island Locomotive 
 \\orks V. South Eastern 
 
 „"V 1.51. 22(i 
 
 Rogers v. Mississippi & Dom- 
 niion SS. Co 24 I.tO 
 
 Rogers V. Rogers 
 
 10(! 
 1.5.5 
 
 2;« 
 
 22(i 
 Ifil 
 
 I'AtiK 
 Ro.-S V. Ros< 
 
 1">. i is. !:<.->, 142, 145, 211 
 Russell V. Field i;{, 247 
 
 Santos V. lllidgc i^j 
 
 Scott V. Seynunir 202 
 
 Senauer v. Porter . . IIH, 2II 
 
 Shaw V. (Jould .si j^^ 
 
 Skead v. McDonnell 118, 211 
 
 Sniith V. HeinpMead 222 
 
 fctacey V. Bean din •>;«) 
 
 Stevens V. Fisl< 7!^ f^)"f<2 
 
 Stevens v. Uonrley, The 
 
 Cleadon ]j)| 
 
 Sweetapple v. (ivvilr my 
 
 T 
 
 Thomson V. Thonisoii 25 
 
 Tr'.w V. Kiii-np 2.0 
 
 l.H 
 
 l-)0 
 
 27 
 
 V'anglmii v. Campbell 
 
 Vennor v. Life Association 
 
 of ScntliUid 
 
 Vernon (The) 
 
 \'o;^lit v. Hichter 
 
 w 
 
 Wad.s worth v. McCord.. 
 
 W arrender v. Warrender 47 
 
 Wiggins V. Morgan »(► 
 
 \V illiams v. Gutch, The Chan- 
 cellor lyj 
 
 Wilson V. Dcmers ,,', 2()4 
 
 Wilson V. Perry •>i7 
 
 Wil.son V. Wilson .' 1.5.5, 103 
 
 \N isconsm v. Pelican Ins. 
 
 ^o 24() 
 
 Young V. Consumers' Cord- 
 age Co i;i-> .>3i 
 
 Young V. Deguise ......... of, ItiH 
 
 Z 
 
 Zycliiiski V. Zycliiiski. 
 
 Ha 
 
1? 
 
 LIST OF PRINCIPAL AUTHORITIES 
 
 (WITH TMi; K!::;iO,>.'. < itkd). 
 
 Ai'imv & Rau.— Cours dc Droit Civil Fran^iiis, 4e edition, 1S<H»-7H. 
 
 Kak.— I'rivati' Iiiternational Law. Translated by Gillespie, 1S!»2. 
 Bi)1'i,ij;nois.— Traite de la Personnalile et de la Realite des Lois, Cou- 
 
 t nines on Statuts, 17(1(5. 
 BorniKK.— (Kuvres Kd. DeUevy, 17H7-(», 
 HouiMoN.— Droit Comnnin de la France, 1770. 
 Diio(iii;i{.— Droit International Prive, 18H2 .">. 
 
 Ci.rxKT.— Journal de Droit International Prive, lh.4-93. 
 Cockhuk.n.— On Nationality, l)St)9, 
 
 Dicky.— Conflict of Laws, 1897. 
 
 Dv Moi.iN. -(.Molina-ns), Opera, 1(581. 
 
 E.MiouKJO.v.— Des Assurances et des Contrats a la Grosse, 178y. 
 FioHKiKRK.— Dictionnaire de Droit, 1771. 
 
 FiOKi;.— Droit International Prive. Trad, par Pradier-Fodere, 1875 
 FdCLix.— Traite du Droit International Prive. 4e Ed. par C. De- 
 
 mangeat, 18()(). 
 Foori:.— Private International .Jurisprudence, 2d Kd., 1890. 
 Fkoi.ani).— Meinoires concernant la Nature et la Qualite des Statuts, 
 
 1729. 
 
 Guvor.— Repertoire de Jurisprudence, 1784. 
 
 LAruKXT.— Droit Civil International, 1881. Principes de Droit Civil, 
 
 1887. 
 
 Maci.u-hi.an.— On Merchant Shipping, 1870. 
 
 Mi:iM, IN.— Repertoire de Jurisprudence, 1807-25. Qi" in- de Droit, 
 
 1810:50. 
 Mesm:.— Des Minorites, Tutelles, &c., 178.5. 
 
 Phillimohe.— Commentaries upon International Lav ^ 
 PoTHlKh.— G'^uvres, Ed. Rugnet, 184o-()2. 
 
 RoMN. — Droit International Prive, 1897. 
 
 Savic.ny. -Private International Law. Trans, by Guthrie, 1880. 
 Story.— C.mrtict of Laws. Redtleld's Ed. 18(55. 
 
 Wksti.ake. — Private International Law. 1880. 
 Wharton.— Cou'lict of Laws. 2d Ed., 1881. 
 
LIST OF ABBREVIATIONS. 
 
 V c ) 
 
 Ap. Cfi. I A])pciii Cases (Eiif,'lish Liiw Reports). 
 
 HAKitorR 13(irl)our's New York Reports. 
 
 ^;-^^^- '^"' Cassels' Digest of tlie Supreme Court of Canada. 
 
 ^""- I^ Clianeery Division (Enxlisii Law Reports). 
 
 Ci.. & Fix Clark & Kinnelly's Reports (House of Lonisi. 
 
 C. C Civil Code of Lower Canada. 
 
 C- C. P Code of Civil Procedure of tiie Province of 
 
 Quebec. 
 
 f- N Code Napoleon. 
 
 *-'• S. L. C Con.solidated Statutes of Lower Canada. 
 
 C. n Common Bench Reports (KukUsIii. 
 
 ^- 1^— ^'- 55 do New Series. 
 
 CuHTKis Curteis' Ecclesiastical Reports (Kn^'li^h). 
 
 ^^ Dalloz Periodi(iue. 
 
 Ex. C. R Exche(iuer Court Iteports (Canada). 
 
 ^■^C Hurl.stoiie & Coltmau's Report •>. Exclieiiuer 
 
 (English). 
 
 H- L House of Lords Cases. 
 
 ^^':^i'i' Knapp's Privy Council Reports. 
 
 i^- G. ,1 Lower Canada Jurist. 
 
 L. C. L. J Lower Canada Law .lounial. 
 
 I^- <^'' K Lower Canada Rejjorts. 
 
 ^^- ^ liOgal Xews (.Montreal). 
 
 ^'■'J-C-P Law .Journal (English) Common Pleas. 
 
 L. .T. Q. B Law .Journal (Englisli) Queen's Ben.h. 
 
 J'- *^ Law Reports ( English ). 
 
 ^'- '^'- ^ Law Times Reports (English). 
 
 Mont. Cond. Rkv. . . . Montreal ('ondensed Reports. 
 
 ^^- ^'-^^ Montreal Law Reports. 
 
 MooHK ] ,r . , 
 
 Moo. P. C. ) .Moore s Privy Council Ca.ses. 
 
 MuN. Code Municipal Code of the Province of Queiiec. 
 
 ^- '^ New York Reports. 
 
 ^- -^ Probate (English Law Reports). 
 
 ^•^ i'rivy Council (English Law Reports). 
 
XVI 
 
 i ■: 
 
 r 
 
 THE CONFLICT OF LAWS. 
 
 P' *D I'rol ate &Divorct' (English Law Reporth). 
 
 Q- r*- I^ QiU'en's Heiich DiviHion (English Law Reports). 
 
 Q- B. R Dorion's QuceirH Bench Reports (Montreal). 
 
 y- L. R Quebec Law ReportH. 
 
 K. C Revue Critique (Montreal). 
 
 R- r»E .1 . . . Revile de Jurispriidence (Montreal*. 
 
 I*'"*'^ Revue de Legislation et de .Jurisprudence 
 
 (Montreal). 
 
 Ff- •'• Q RnpportH Judiciaires di Quebec. 
 
 '^- !-■ Revue Legale (Montn.al). 
 
 H s r' 1 
 
 Rkv. Stat. Can. ) ■ • • R*''^''''^^''! Statutes of Canada. 
 
 Rkv. Stat. Qikb. ) •• Revised Statutes of Quebec. 
 
 RoBEKTs«>N Robertson's Ecclesiastical Cases (English). 
 
 S" C. R Supreme Court Reports (Canada). 
 
 Stepii. Dk; Stephens' Quebec Law Digest. 
 
 Stuakt's Ri;i' Stuart's liower Canada Reports. 
 
 Stat. Can Statutes of Canada. 
 
 SWAH. & Tr Swabcy & Tristram's Reports (English). 
 
 U. S United States Supreme Court Reports. 
 
 W. X Weekly Xotes (English). 
 
fcs). 
 
 nee 
 
 THE 
 
 CONFLICT OF LAWS 
 
 IN THK 
 
 PKOVINCE OF gL'EiiEC. 
 
 INTRODUCTIOX 
 
 Tlu' tribunals of every civilized country arc rre(iUGntly n.-fmition 
 obliged to adjudicate upon cases in which some foreign "'i4''.t. 
 element is involved. The parties may he domiciled in 
 another jurisdiction, they may owe allegiance to different 
 sovereigns, the transactions giving rise to the controversy 
 may have originated in one country and may have been 
 intended to be carried into effect in some other country, 
 or, again, the documents embodying the transactions may 
 have been executed in still another country. As the 
 laws of these different countries are often completely 
 dissimilar, it may be of the utmost importance to the 
 litigants to ascertain which of these conflicting laws is to 
 be applied to the solution of their difficulties. It would 
 be extremely simple for the court to resort invarial)ly to 
 its own law in such cases, but the injustice of such a 
 
THE CUNFLICT OF LAWS. 
 
 ' I 
 
 ciiiiso lu'cd liiinlly 1)1' insisted on. Riichts wliieli luul 
 Ix't'ii <lniy jU'(iuirod under a ditt'erent system of law 
 would be swept away by refiTriiii:^ tlieiu to a test wliidi 
 iiad never been eontemplated by the [uirties. • For 
 instance, if the eonrts of the Province of Quebec were 
 to bold that eonmiunity of property existed between 
 consorts whose domieile was and liad alwavs been in 
 Eiiifland, this would be attributing to them intentions 
 which never can have entered their minds, and subjecting 
 them to a system which they may never have heard of. 
 
 It is universally admitted among civilized nations that 
 such a Procrustean method cannot be adopted for the 
 solution of tbese conflicts, but that, on the contrary, 
 the tribunals of each country must give recognition to 
 an<l enforce vested rights acquired under foreign jurisdic- 
 tions. The body of rules which are followed by the 
 I'ourts of any country in giving efFect to foreign laws or 
 rights acquired thereunder constitutes what is often 
 calle<l Private International Law. 
 
 Another name given to this department of law, is the 
 Conflict of Laws, but a more accurate and satisfactory 
 description of the subject is "the extra-territorial effect 
 of law," suggested by Mr. A. V. Dicey, or "the extra- 
 territorial recognition of rights," proposed by l*rotessor 
 Holland. The old names, however, are now so well 
 established in legal language, tliat they can hardly bo 
 displaced by the more accurate phrases of modern 
 writers. 
 
 It is useful to observe that each country has its ovvi\ 
 
 rules of Private International Law, or, in otlier words, 
 
 the rules followed by the courts of any country for 
 
 j.';,^„';J'y'"'*''' deciding as to tlie choice of law form part of the law of 
 
 that country. 
 
 Rules for 
 eolntion »if 
 cotillictR 
 from part 
 of tho 
 ponitivp 
 
i 
 
 M 
 
 no 
 
 ill 
 
 1)0 
 Til 
 
 4 
 
 'I 
 
 4 
 
 INTIJ<t|)|(Tlf iN'. a 
 
 Tlu'sc nilcs iiiiiy l»i' t'liiltodiod in a tMxk', in particular 
 Ktatiitt's or ill jinlirial dcu-isions which arc hiiuling 
 aiithoritii's. l>ut thcv arc a branch i>l the hiw id'fhc hiiid 
 just as iiiiicli as the set of rnU'> applied l»v ihi' court in 
 dccidiiii; ct)ntrov( isies in which no lorciijn ch'iiicnt arises. 
 To revert to th" c:'.;<' al>ovc sui;i>cste(l. when oiir courts 
 hohl that our ovvn rule as lo i-oMiniunity of pi-oporty 
 must not he applied to cousori> whose mat riiuoiiial 
 • lonru'ile is in Eiiii-land, l»nt that the law of KiiiiflaiKl 
 must he apitlii'd in such case, the rule cxchidinic '>iir own 
 and adoptinn* tlu' Fiiiiflish law is itself part of the law of 
 the I'rovinci' ot Quohoc. 
 
 Moreover, the nilos adopted in one country for solvinif """■"''" 
 ^uch conflicts are frcfpiently differ«'iit from those which J!' j:,,',',^'''^" 
 
 prevail in anotlier country. In Kiiirland the status and """""* 
 
 eapacity of persons depends, as a <;eneral rule, on their 
 domicile, while in Fi-anee it is nationality wliicli governn 
 ill HUch matteiK. Again, in Kngland the capacity of 
 persons to dispose of real estate depends on the law of 
 the situation of the [u-operty : wliile under the French 
 law the capacity of a person to dispose of immoveable 
 property is governed by his national law. There is, 
 unquestionably, a tendency towards uniformity in the 
 rules of l*rivate International Law followed hy modern 
 civilized nations, and when the rules on any particular 
 subji'ct are not fixed by a code, b}' legislation or by 
 authoritative jurisprudence, reference is often made by 
 the courts to that common fund of legal principles 
 furnished by the writings of the juriscoi-.aults who have 
 treated the subject from the theoretical or scientific point 
 of view. This common fund of maxims and principles 
 is sometimes spoken of as the jus ;jentium — an expression 
 
I 
 
 4 TlIK rONKMCT ( >F LAWS. 
 
 which ^•(»uvl'\■^^ tlic nii^lcadiiiu; iiU'i; that there in u sort ot' 
 iiiti'i'iiatiinml authority from which the rules applied hv 
 the (•oiirt> are tlerived, whereas the rides ol' Private 
 hiteriiatioiial Law prevailing: in any particular eoinitry 
 (h'five I heir authority iVoni the hiw of that country just 
 as nnich as the rules appKuMl in (U'cidin,<; cases in which 
 no coidlict ol laws arises. Novei'thcless, the inaccurate 
 expression jus fiertthim contains, in one sense, a true idea, 
 lor the rules of Private Internatioiud Law are less 
 indiirenons in their growth, less local in their oriifin. than 
 the rules ol" law in most othei- cases, in the same wav 
 we often >|)eak ol the lex niercdtaiin or •• law merchant " 
 as if there existed a body ol" rules ol nu-rcantih; law 
 i^overninij: all civili/,ed states, wlu-reas in ^ruth each state 
 has a mi'rcantile law of its own. hut all systems ol 
 mercaniilc law re>end>K' each other verv closi'lv owiiiir to 
 their cosmo|»oliian orisjfin. 
 
 Many circumstances contrihiite to make the study of 
 the CoiiHict of r^aws in the Province of (^uehoc peculiarly 
 interestiiiii' and instructive. The Province ol (^uehoc 
 heiug" one ol the several |iroviiice> of the Dominion of 
 Canada united under a constitution which, whili' ijivinu' 
 the tederal parliami'Ut I'xtensive legislative powers, leaves 
 to each province the exclusive right to legislate in rela- 
 tion to propi'rty ami <!ivil rights in the province, and 
 having preserved the old law of France as the hasisof its 
 civil law, while tlie other iirovinces of the Domiinon 
 havt' taken the English common law as the sul)stratum of 
 their own si-veral systems, it was ineNital)le that colli- 
 sions should arise hetween these dift'erent laws. Sindlar 
 coiiilicts were hound to occur in conse(pienct' of the 
 commercial intereoursi' between this countrv and the 
 
 "i 
 
 I 
 
i.\TKMiu;rTi(»N. 
 
 6 
 
 ■^1 
 
 various -*tiitcH ol' the Amcrifaii rnioii, tin-li nf wliidi 
 likewise possesses local let>'islative powcis. A(l<l tu tlii'* 
 flic niniieritiis complicatioDs resulting' iVniii the inuiiiijrji- 
 tioii uliifli constantly ,i(oes on iVotii tlic old coniitrici* 
 to Can:i<lii. and the cmit^ration t'roin tlii' l*i'<ivincc nt 
 (Juclx'c til flic United States, and it will rt-adilv \u- 
 MJideistood that occasions were not wanting tor illnsirat- 
 ing the coidlict ol' laws. 
 
 Another feature adds tu tlir interest of this hranch nl 
 the law ol the I'rovince ol'ljiu'ltec. While retaininu" the 
 French law iis the loundation ot'oiir system, we ha\'e not 
 followed the modern French law in makiiiu' eivil status 
 and ifcnerally the law ol' persons dept-nd on iitiHonnlitii- 
 \Vi' have, on the contrary, kept the rule of the old 
 French law. which is also tliat of the Knjjflish law. antl 
 which decides such ([iiestions hy reference to 'lomirUe, 
 without reii'ard fo the allci^ianec of the |tarties. 
 
 In makinu' a study ol' tin- contlici of laws in the 
 Trovince of (Jiiehec, the positive as distinuMiisiuMJ from ■ 
 the thcoi'etical method of treatment has hcen adoj)ted. 
 Tn other words, the aim luH lieen to present an accurate 
 cxpositiiui of the rules of onr law in cases of contlicts 
 rather than to indul<>'e in sjieculative inipiiries as to tlie 
 rules which ouu-jit to prevail foi' tlu' solution of sucli 
 questions in this or in any other <'ountry. The limited 
 scope of this impiiry (h>es not exclude an examimition of 
 the reasons upon whiidi the maxims accepted hy our 
 courts are hased, oi-occjisional refereiu'es hy way of illus- 
 tration to the rulesof Private Internatiomd Law toHowed 
 in other countries. Moreo\-er. where our own law 
 appears to furnish no rule tor the decision of new cases 
 
 I'lisitivp 
 iml thco- 
 I ■liciil 
 111 Hioils. 
 
 of 
 
 con 
 
 tlict, 
 
 or where our jurispru(h^nci' i 
 
 4ill 
 
 unst 
 
 ttled. 
 
6 
 
 THE CONKMCT OK LA\\S. 
 
 Sources 
 of our 
 own law 
 on thn 
 »ubje<t. 
 
 Codes. 
 
 il; 
 
 the rules adopted by foreign courts may he referred to, 
 and the theories of speculative writers may be consulted. 
 But in making such occasiomd digressions care has l)e(Mi 
 taken to distinguisli between the rules whidi constitute 
 a part of our positive law atid those which may l)e 
 adopted by foreign courts or advocated i>y speculative 
 writers. 
 
 Our own law upon the subjectt is found in the Civil 
 Code and the Code of Civil Procedure of this ]>rovince, 
 in statutes of the Imperial Parliament extending to this 
 colony, in statutes of the Dominion of Canada or of the 
 Province of Quebec, in the decisions of our courts, and in 
 the law ot France before the cession of Canada to Great 
 Britain. 
 
 1 Whei» an article ot our Civil Code contains a rule 
 concerning the choice of law upon any subjeci, there can 
 be no further controversy on tlie point, and neither the 
 practice of %reign tribunals nor the opinions of writers 
 can prevail against its authoritative enactments. Thus, 
 article 6 o\' the Civil Code lays down the rule that the 
 status and capacity of persons is governed by the law ot 
 the domicile. It wT^uld manifestly be a waste of time to 
 ask our judges to apply the test of natiomility in such 
 cases, on the [tretext that many of the European codes 
 have adopiod this principle, or that speculative writers 
 advocate it oii grounds of consistency or exjtediency. 
 Again, article 210 of our Code of Civil Procedure (1897) 
 decides the ([uestioii as to what nuiy be pleaded by way 
 of defence to foreign judgments in suits to enforce them 
 here, and however unscientiiic or unreasomdde the^e 
 provisions may appear, our judges are not at libt^rty to 
 apply any other rule. 
 
 ■■;:i'B 
 
I VTKoKircriov. 
 
 2- [t would l)e equally futile to cite such authorities 
 when our statute book provides a rule for the case under 
 .•oiisiderntioii. For instanee. the Imperial statute known 
 as the Merchant Ship[)ing Act makes certain provisions 
 for contacts of laws arising \\\ maritime cases, and the 
 Dommion Statute, 53 Vict., cap. :}3. sec. 71, contains a 
 iiund)er of rules concerning conHicts of laws in regard to 
 hills of exchange. Whatever views jnay he entertained 
 as to the theoretical correctness of this" legislation, the 
 rules which it enacts cannot he disregarded by our courts 
 when they are applicable to cases submitted tl)r adjudica- 
 tion. 
 
 3 In the same way, a rule of Private International 
 Law may be so tirmly established by a long series of 
 concurrent decisions or by the judgment ot the highest 
 appellate tribunal that it would be hopeless to expect our 
 •ourts to overrule the Jurisprudence in order to ap{)ly a 
 maxim which might possibly commend itself to our 
 jndgment as more reasonalde or expedient. Tluis. it is 
 now u well settled rule that (in the absence of njarriai^e 
 coycnants) no community of i)roperty under our law 
 exists between consorts whose acttual and prospective 
 domicile at the time of the marriage was in a country 
 whose laws did not create such community. Thi> rule 
 rests upon a uniform jurisprudence, and may be regarded 
 as absolute law. 
 
 4 Where tieither the codes, no,- the statutes, nor the 
 Jodirial reports furnish us with any rules or principles 
 upon the subject, recourse must be had in the first r)lacc 
 to tlic old law ot France before the cession of Canada. 
 The principal sources of this 
 
 ■M:itnt.'3 
 
 lurispru- 
 
 ll'llCP. 
 
 I 
 
 i 
 
 Mid I'rench 
 law. 
 
 lecisions {arrets} of the Frencl 
 
 aw are to be foutid in the 
 1 courts in the colonv or in 
 
m. 
 
 8 
 
 TIIK CONFLICT OK LAWS. 
 
 tlio niotlior country, and in writors sncli as Duinoiilin. 
 Boullcnois, Froland, BouIucm-, Rioard, Potliier. and 
 others. Onr Civil Codi-, indeed, lias done little else than 
 to reprodnee in modern garl» some of tlie principal vnli's 
 of i'rivate International Law laid down by the judijes 
 and text writers i)i' old France, and for the elucidation 
 and illustration of these rules, which are stated in our 
 code with the concisei\ess that is inevitable in coditica- 
 tion, ri'ference must often be made to the earlier law. 
 And the French law of that period forms no insignitii-ant 
 contribution to the science of Private Internationul \jh\\. 
 The division of France into a immber of [trovinces 
 governed by diffei-ent laws and customs, and the constant 
 intercourse l»etween the inhabitants of all parts of the 
 realm, tended to the development of a system of rules 
 upon this subject which is greatly in advance of the 
 period. h\ ai)plying the old law. however, to the 
 solution of the new and ever more complex problems 
 resultinii" from modern civilization aiul the intercourse 
 betwetMi nations, it must \)o remembered that the ten- 
 dency of our courts is not to follow the excessive 
 formalism of the old law, or to apply princi[)les foi'minu- 
 part of a civilization which we have outgrown. 
 
 As M. Brocher justly remarks in reference to the early 
 law of Fi'aiuH' on the subject: " Cv ne pouvait Atre a 
 rorigine. (urune soi'tc de dr(»it coutumier. caracteri' ipii 
 sembh', d'aillenrs, eti'c de sa miture, par suite de Tegalitc'' 
 et de riudi'pendunee originelles des souverainetes. C'est 
 ainsi que les aneiennes doctrines si' soiit formees : elles 
 sont nt'es, spontaucunent. de (!onvicti(»ns communi's ct 
 plus on moins gen<''rales. line telle origini' leur assure, 
 bien certainenu'iit, le respect, nuiis il ne faut pas ouf'lier 
 
 ■<■. 
 
 ■a 
 :t 
 
 1 
 
IXTH« iDCCTKjV. 
 
 9 
 
 I'Xigt'iici's (It's ii.'co.saite 
 
 'ju'clk's (liirciit satisfairi' aux 
 
 pratiques ct irctivoir fortemciit rcmpreiiitc dii milieu 
 
 social dans lequel olles se tormaient. Co milieu social 
 
 n'existe plus r|u';\ Tetatde vcstiy-es : lo; 
 
 a produifes sc trouvent fortement attei 
 t'aire rohjct (Tune tninstormatiou pli 
 plHe, II taut i-echercher. avaut tout. 
 
 consequences (pi'il 
 
 lite 
 
 't d 
 
 oiveitr 
 
 ou moms com- 
 i>us (pu'lli' forme 
 
 It 
 
 't dans (piel sens ri' cliauifement doit s'operer." (') 
 The feudal oricrin of many of the old 
 im[)ossil)le to adopt tliem in modern t 
 
 or maxims mak» 
 
 important iiiodiiications and 
 
 imes without 
 
 reservation." 
 
 France tlie dominant feat 
 
 T. 
 
 n media>va 
 
 lire was th 
 
 IK' preponderance of 
 the territorial over the porHonal law : the sfatnf r/'d i)re- 
 vailed whenever it came in contlict witli the stfihit pn- 
 sonnei As it was difficult to Hud cases where the .pies- 
 tion was so purely personal as tc exclude all f)ossihle 
 reference to ,),• ,.tFect ui)on property, the result was that 
 the law iA- persons was almost invariahlv subordinate to 
 and c<.ntroll,.d l.y the real statute". Tlie disapp,.arance 
 of the feudal system was naturally folh.wed l.y tin- 
 .srradual emancipation ot the personal law fnmi it's ^uh- 
 Jeetion to the territorial statute, and the tenden.-y ..f 
 inodern French writers is to mak(. it pre.lominate in 
 ••ases of conflict. This tendency has heen accentnate<l 
 l>y the enormous o-powth of fortunes consistino- in niove- 
 =<l>Ie l.roperty an.l the diminished importauee'of lan.led 
 estates. In estimating rhe effect of this chanu-e up,." 
 <"'r own law the principal .lifficultv lies in the fact that 
 'IH' >-"vil law of France was preservd in this province as 
 It existed at the time of the cossi,.n in 1 7(;:>,, namely, 
 heh.re Its complete emaneipation fr<.m old theories aiid 
 
 ' l>n)ii Intciii.ithiiial F>rivc, vol. I, p. l'. 
 
"^ 
 
 1(1 
 
 rilK CONKMCT <ir LAWS. 
 
 Theo- 
 retical 
 writers 
 and 
 foreign 
 jurispru- 
 Uenci'. 
 
 idoiis. To ada[tt a system taken at a period of arrested 
 develoiuiU'iit to tlie wants of modern eivilizatioii and 
 eommeree is necessarily, in many cases, a task of con- 
 siderable nicety. 
 
 o . When cases arise tor the (h.'cision of whicii no 
 rules oi' principles are furnislied by our codes, oiir statute 
 law or our/|urispru(U'nce, and in regard to winch tiie old 
 law of France' is either silent or inapplicable by reason 
 of changed conditions, our judges may usefully considei" 
 the ojtinions ot speculative writi'i-s and consult the 
 decisions ot foreign courts. 
 
 [n seeking for guidance from tlu' exponents of the 
 a priori method, such as Savigny and ]5ar, there are 
 certain dangers against which the student of our law 
 must be on his guard. The aim of this school is to erect 
 the science of Private International i^aw upon a strictly 
 [ihilosophit-al basis, and to deduce trom first principles 
 a set of rules which ouglit to commend themselves to 
 the reason of judges in all civilized countries. In pur- 
 suing this object the theoretical writi'rs are apt to assume 
 thaf the principles from which they start can be accepted 
 everywhere and under all circumstances. With a com- 
 [)osite system of law like our own it is difficult, it not 
 altogether im[)ossibK'. to refer all the rules which are 
 binding on our t-ourts to an h priori theory. Upon the 
 basis furnished by the old French law. there is a super- 
 structure composed of Provincial, Federal and Imperial 
 legislation, and of a jurisprudenci' which exhibits un- 
 mistakable traces of its dual origin. The rules or 
 Private International Law derived from such hetero- 
 geui'oas elements can hardly be always referable to the 
 sami' source of inspiration. 
 
 I 
 
 M 
 
 i 
 
 'it 
 
 

 XTKdDrCTIoN. 
 
 11 
 
 In the next place, tlieoretieal treatises are apt t(» be mis 
 leadiiiii; to the student as well as to the practitioner from 
 their failure to (listini2:uish between the lex lata and the lex 
 ferendd. lEowever correct in priiu-iple a theory may ap. 
 pear, it is always usetul to know whether it has t'ound a 
 footiiiif in the domain of positive law. or whether it sim- 
 ply serves as a guide for tuture legislation. Writers of 
 the a priori school are too prone to lay down as law rules 
 which in fact may not be followed in any conntrv. 
 
 The most important jurisprudeiu'e, next to our own, 
 will be that of the Judicial Conmiittee of tiie I'rivv 
 Council in appeals from other dependencies of the Em- 
 l)ire ', except in cases in which the decision may havi' 
 turned on the [>eculiar local law of a particular colony or 
 on prineipiles which are distinctly antagonistic to our law. 
 And as the decisiojis ot the House ot Lords would doubt- 
 less befollowed by the Judicial Committee except where 
 tlie law of a particular ;'olony was clearly different from 
 the English law upon the subject, the judgments of that 
 TTouse must evidently have great authority in such mat- 
 ters. The authority of the |»ronouncements ot the 
 Judicial Committee of the l*rivy Council and of the 
 House of Lords will be all the greater in ((uestions of 
 Private International Law from the fact that the rules of 
 the English law upon that subject have been derived in 
 a great n.easurc from the woi-ks (.[ intermitiomd jurists 
 rather than from the rules of the common law.-' 
 
 • Uf coiusf III,' (K'ci-,i()iis of I lie t'diimiitU'o in ;iii|H';iIs linin iliis I'ro- 
 viiicf arc al)>.oiutely binding on our courts. 
 
 -' There aifsonif notahie exceptional u this statement. For example, 
 tile rules of tile Hn-lish law as t<> imnioveal)le iiropertv arc so strictly 
 territorial that the law of the situation is applied in regarcj to all rights 
 
 over or in relation to immoveable.s- 
 
 relatiiig ii 
 
 e. (/., even the forn 
 
 )f 
 
 deed> 
 
 immoveables and the capacity of the parties to such deed.« 
 
 are (h'terniined Irv the /<■./■ rcl sifn 
 
12 
 
 TlIK COXri.irT (IK LAWS. 
 
 Erroni'iiii< 
 opinions 
 1)11 thr 
 subject. 
 
 
 Wlicii tlu' inodcri) Freiieli law is the same Jis it was ai 
 the tiriu' of the cession of Ciinaila. tlie dcoisions ot the 
 Frencli courts /// /mri matend iwv also of considerable 
 wci^'lit. l>nt tlu; Code NajJoK'-on lias dciiartod so miicli 
 Irom till' old law of France u[)on this suhjoct. that tlie 
 usefulness of modern decisions and of tlie commentators 
 on the Frencli code is considerably diminished thereby. 
 
 It cannot be said tliat this view as to the scope and 
 naturi' of Private International Law. and as to its autliori- 
 tative sources, has always been [»resent in the minds of 
 our judges. On the contrary, espi'cially in somi' of the 
 earlier cases, we shall often Hud confusion and uncer- 
 tainty on tlie subjecr. Thus, instead of regardinsi; the 
 I'ules o\' Private International Law as ap})licable ex dehHo 
 JKsfici'i under all eircumstani;es, oui' courts have some- 
 times imagined that tlu' (juestion of reciprocity must 
 l>e consi(h'red, and that we should not admit the effect 
 of the law ot a foreign state iiere. uidess tlie same recog- 
 nition is given to our law on tlie sui)ject by tliat state. 
 It need hardly be obser\-ed that cir courts shouhi not 
 proceed upon any such princi|tle in api>lying foreign law. 
 When the foreign law is allowed to control tlie case it is 
 because rights havi^ been ac«piired under that law, and it 
 Would be an injustice to the jtarties to have those rights 
 sul)jt'cted to the test of another law. The adojition of 
 the foreign law in such cases is in no sense an act ot 
 courtesy- to a foreign state, but an act of necessary jus 
 tice to private litigants, and it cannot be ot the slighti'St 
 
 ' Jri/i iishni v. Cini tiiilhi. 1 \{.\.. :*7:<. 
 
 -Tin- union iiiiaic jiiid Nlill imuli UM'd f\)ircs>ioii "coiuity of 
 UiUions.' uliiili is nftiM syiioiiviiioiis witli "Halt's t'oi- I'linllifts of 
 l^aws," or ■' Hulls ol i'liviUi' liiternatioiial Law." doubtless tends to per 
 IK'tualc tlic iui--a|i))i-('lu'iisi(iii wliicli lias |iii'\ ailed on this sultject. 
 
 ^^Il 
 
IXTRoltrCTlDX. 
 
 concern whether tlie toreiii-n state, whose law has Ijeeii 
 applied, wouhl return the •' ednii.Iinient " in a simihir 
 ease. 
 
 Ai^ain, some of our jmluvs api-ear to Imve heen niuh-r 
 the impression that ((Uestions eonceriiing eoiiHiets and 
 the reeognifion of forciu-n law must not Ix' (leci(h'd hv 
 our own law hut by the Puhlic Law of P]nghiinL' It i"- 
 obvious. from the [.receding explanations, that these ar*' 
 matters of private and not of puhli.' law.- and that tin- 
 law of Eng-land ean havi- no anthoritv on the suhje^i 
 except within the limits indicated ahovc. 
 
 Indiscriminate references to the decisions of fui'eiiri, 
 courts and to the theories of speculative writ<'rs are, 
 moreover, to he Ibnnd in <ascs which are in realitv 
 governed by our positive law. 
 
 But hy the gradual evoluti(.n of tin' true tlu-orv of 
 tlie subject, this Ir.oseui'ss of ex[>!'ession and confusicMi ,,r 
 thought have almost if not altogcthei' disa[.peared from 
 recent jinlicial utterances. 
 
 ' y>i,n//„n. v.C.nu/.U//. ;, L.C.i; Cil. Coini.arc i.ls,, A',,,..,// v 
 /■'irl</. StUillis U,.|,. .V.s, awl IhnrunI CurHs.ii Cn. V. A',//,/ H .! (t 
 .") .*<.(•. \K-2. ./..,' 
 
 ■-' II is, or <•, .Ill's,., ruiiiiM.i(-ui fuf iIk- Imp. rial ,iul lu-rii irs i,, hlml 
 tills colony l,y tivatlL's with loiei-ii coiuilrii-s Cur n'-iilat iim- coiiHIcIs o! 
 laws. i... if! in such cases set i,, 11 i:{L' of ihc iiiitish Xorth Ainei-ica Ari . 
 lS(i7, enacts that : •'Tiic Pai-namciit of Canada shall have all powers 
 necessary or proper for iierl.rmin.i!; the ,.hii-atinns of Canada or of iii.y 
 province thereof, an mm oi the Itritish Kuipiiv. louards roiei-ii conn- 
 tries, arising under treat i.-^ heiwcen the enipir,- anil such lorei.-.i 
 count tie-.," 
 
CUAITKH I. 
 
 FOUKKiX liAW AM) ITS I'KOOF. 
 
 ■^ 
 
 uity of 
 ixpri s- 
 Hion 
 
 ' Ibri'iuii 
 liiw "• 
 
 When wo spi'iik of ai>iilyiii^ ihe law of a fovrii^i' 
 coinitry to a given case, the ex[)ressioii is in.t free from 
 ambiguity. For it may mean either tlie ordinary hiws 
 which govern the inliahitants of tliat country when no 
 foreign element enters into the controversy, or it may 
 mean the rules t)f Private International Law which 
 would he followed by the courts of that country in deal- 
 ing with tlie particular (;ase under consideration. It 
 will often make a great dilference whether our courts 
 apply what may be called the territorial law of a foreign 
 country, or the rule ot Private Intennitional Law which 
 would be considered applicable to the case by the courts 
 of that foreign country. For example : a French sub- 
 ject, domiciled in Italy, is sued in our courts, and the 
 question ot his status and capacity is raised. By article 
 6 of our Civil Code his capacity must be decided by th»^ 
 law of his domicile, /. e., Italy. If we apply what has 
 been called the territorial law of Italy, we must ascer- 
 tain what is the status and capacity of Italian persons. 
 But if we apply the rule which the Italian law would 
 recognize as applicable to that particular case, we shall 
 not have to consider the status and capacity of Italians 
 at all, but that of Frenchmen, for by the law of Italy 
 
FOREIGN LAW AXD ITS I'ROOF. 
 
 15 
 
 qtK'stions of status aiul ciipueity (l'.'[»eii(l on iiiitionality 
 ami not on domicilo. So that our courts on rot'crriTit; to 
 tlic law of Italy, would by that law he roforrod to the 
 law of Franco for the solution of the (|U('stion. 
 
 fn the recent case of lioss v. Ross,' it was held un- 
 animously by the Court of Appeals of this Province and 
 l»y a majority judi^ment in the Supreme CN)urt of Canada, 
 that in sm-h cases the application of t'oreign law nutans 
 and includes the rule as to the choice of law (or the 
 rule of Private International Law) whiidi the forei,<;n 
 country would apply to the particular case. The cir- 
 cunistances were as follows : A will had hei'n made in 
 the holograph form in the City of Xew York by a per- 
 son domiciled in this province, and the validity of this 
 will was contested by the heirs at law on the ground 
 that by the law in force in this I'rovince at the time the 
 will was made (I8G0) it was necessary to its validity 
 that it should be nuide according to the forms required 
 by the law of the place where it was made, according to 
 the maxim : locus regit adum. It was alleged that the 
 holograi»h form of wills did not exist under the laws of 
 the State of New York, aiul that consequently the will 
 was a nullitv. The expert testimonv establisheil that 
 the holograi)h form of willing was unknown to the laws 
 of the State of Xew York, but that the laws of that 
 State recoo-ni/ced the validitv of wills made acc(>r<ling 
 to the law of the testator's domicile. 
 
 The heirs at law contended that when our law requires 
 that a will should be madi' according to the forms 
 required by the law of New York, this means the forms 
 required by the local or territorial law of that State, and 
 
 H.-J.Q. 2Q.n. li:};25.S.C.K. :W7. 
 
ir, 
 
 TIIK CONFLICT or |,A\VS. 
 
 (loos not refer to the niK' of Private Iiiteniatioiiiil Law 
 jjrevailiii^ there, liy whieli a will iiuule aecordin^ to the 
 law of the te.«tutoi''s doiiiieile is reeoo-ni/^ed as valid, 
 Thev tiirther aruMied that if, iiiiou ji reference to the 
 law of Xew York, our eoui'ts applied, not the local law 
 of that State, hnt the rule of Private rnternational Law 
 of Xew York which i-eters the case l)a(d< to the law of 
 till' domicile (/. e., the law of Quebec), then the law of this 
 province, to which the law of New York referred the 
 validity of the will, must likewise* mean the international 
 and not the local law ot Quebec. And if the intei'- 
 national law of Quebec l)e so applied, this means the 
 application of the rule iicus reijit acliuii^ namely the 
 rtderence by our law back again to the law of Xew 
 York, and this consequently involves us in a vicious 
 circle from which escape is imp(»ssible. The Court of 
 Ap[)eals unanimously held that the rule licus retjit <ictii))i 
 applic(l to wills, and that it was imperative and not 
 mei-ely permissive, so that the foi-mal validity of this 
 will depended on its compliance with the forms re<pure<l 
 by tlic law of New York. l>ut the Court also held 
 unanimously that the will was made accordins.;; to a form 
 authorized by the law of Xew Y'ork. and was therefore 
 valid. Upon this [toint the Chief Justice (Sir A. 
 Lacoste) made the followini;; observations : "Tout ce que 
 la maxime 'locus regit actum,' exige, c'est que le testa- 
 ment soit valide d'apres la loi du pays ou il a etc fait. 
 On nous dit que raisonner ainsi c'ctait tourner dans un 
 oercle vicieux, puis([ue notre loi renvoie a la loi de New 
 York et que la loi deXew York renvoie a notre loi. Jo 
 ne vols pas le cercle vicieux. Xotre loi rcconnait le 
 testament fait suivaut une forme autorisee par la loi du 
 
l'')UKI(i.\ LAW ANH ITS I'KihiI' 
 
 1 
 
 lien on 11 a <'tt'' |>uiss('. Notn- lii-olt nc (l/'tl'iid piis do sc 
 servir <l(!s tonniiiUi's proscritcs <liiiis imtrc pays, si la lol 
 t'traiig^ri' aiitoi'isc remploi dc (•i'> t'oi'inalitt's. Utw autre 
 iiitt'rpi't'tatioii nous conduirait ;\ cc n'siillat i'tfaiigc, 
 (pi'un fi'staniciir tait a Xcw ^'(l^l<. ]iai' unr ixtsoimic 
 doiiru'ilii'C' daus <iut'l)oc, soi-ait \alid(' dans I't'tal dt- Ntiw 
 York I't lu' l(> s(M'a,it pas dans la proviiict' t\{' Qut''i)0('. On 
 a prt'tondu (pic iioti'c interpretation allaif a lencoiitre de 
 la niaxime *' locus rct;"it actum" ct pom- Tadoption dc 
 «'ellc du "lex domicilii,"" en matit'ic dc te>tameiit. Nous 
 ne croyons pas cette prt;ti'ntion l»icn fomlt'c. Vw tosta- 
 miMit fait dans cotte provin<'c, jiai' un •''ti'anij;ci' suivant la 
 loi de son domicile, ne serait pas valide. I)e inerne, uu 
 testament fait par un etran<2;i'i' suivant la loi de son 
 domicile, dans uu pays (jui nc rcconnait p;is un tel tes- 
 tament, serait nul." 
 
 In tlie Sujuvme Court, tiiree of the judi^es (Sir IT. 
 Strong, C. J., Sedgewick and King. JJ.) held that the 
 rule locus reyit actum, was not imperativi-, hut [termissivc 
 t)nly, while the other two (P\)urnier and Tasidiereau, JJ.) 
 lield with the Judges of tile Court ot Ap[)cals that tlie 
 rule was imperative. The ma_jority also held (Tascrhoreau. 
 . I., dissenting) that the will w^as valid even if the I'ide were 
 imperative, inasnnich as it would he considered valid hy 
 the law of New York. P^ournier. d., on this [)art of tlie 
 case remarked as follows: "Si ce testament cut etc fait 
 par un resident de TEtat. il serait nul, comnie n'ayant pas 
 »'te atteste par deux temoins. Mais I'art. iJtJIl du (tode 
 <le procedure de oet Etat, permettant aiix I'-trangers de 
 faire un testament suivant les formes du pays de leur 
 <lomicile, ce testament est legal en v«'rtu de cette disposi- 
 tion introduite en faveur des etraiiijci-s. Ce tt^stament, 
 2 
 
IS 
 
 TIIK ('ONKI.IC.T or LAWS. 
 
 «Miti('ri!iiuMit <''«'rit dc hi main du testatMiir ct sija^iit'i de lui, 
 ^1' trouvjiiit I'll Isi foriru; olo^rapht' contbrmt'rnciit a la loi 
 ('II forco. lors (U» wa date, daiiH la provinoc de Qiu'd)ec', est 
 par rexccptioii de I'artii-le 2611 do la loi do New York, 
 en taveiii' di's t'traiitfers, rt'connu valalde comme le tewta- 
 ineiit d'liii t''traiin('r. autorine par eotto loi ii sewervir dela 
 foniie de tostanu'Mt de son pavn. C'est cornnie si la loi de 
 New York avait admis •teeialernent la forme olographe 
 en favenr des etraiii^ers. et, en ce neiis, c'est par appli(!a- 
 tioii de la I'eifU' locus- re(/if (ictiim, (jue ce teHtament doit 
 ctre considere coniine valabhs" 
 
 AgaiiiHt this view, the dissenting judge (Tasehereaii, 
 .1.) delivered a very elaborate and powerful opinion, from 
 which the following extracts may be (juoted : 
 
 "The form that, under Art. 7 of the Quebec Code 
 declaratory of the old law, has to be followed by a Que- 
 becer who makes a will in New York, is the torm 
 required by the law of Ni'W York for wills by its own 
 subjects, the form generally used in New York, as the 
 last part of Art. 909 of the Code Napoleon reproducing 
 tlie rule locus reijit ncfjim expresses in clear terms. And 
 the New York Legislature had not the power to alter 
 that law t()r the province of Quebec, and to decree that 
 a Quebecer (^ould in New York nuike his will either 
 according to his lex domicilii or to the lex loci actus, or t<» 
 neither one nor the other, but according to a mixture of 
 both, iit least so as to atb'ct movables in Quebec. 
 
 "It cannot be that the legislature of New York has 
 the right to pass a statute in the following terms : 
 " Whereas by the law of the province of Quebec a holo- 
 graph will made in New York by a citizen of the |)ro- 
 vince is invalid in Quebec ; whereas it is expedient tt> 
 
I'liKKKIN LAW AND ITS l'K( h iK. 
 
 1!) 
 
 f.f 
 
 'M 
 
 ]irovi(lf otluTwisf ; it is iicrohy (Kurcod that hiToiifter 
 siieli ;i will shall Ix' valid." Could such mi oiuictmont 
 affect |>r()|)crty in (iuchec ? I would say not, ami tht* 
 Now Yoik Icirislature never inteude<l to do so. To a^ivc 
 tu their statute tiie incunin^i; that the respondent con- 
 tends tor wouhl l»o to extend it in a manner not justified 
 Itv liny principle of law that 1 know of. 
 
 *• The respon<lent, in other wonls, would ar^ue, at 
 least liis ari^unient leads to it, that though the legislature 
 in QiH'hec has refused to adopt the cliange in the law 
 niadi' in tliis resj)ect as to liolograph wills hy Art. 999 of 
 the ('o(h' Napoleon or hy Art. 1588 of the Louisiana 
 Code, yet the New York legislature has done it for 
 them. 
 
 "To so contend is evidently to forget thi; sovereignty 
 <>t* the province and of the law of the <h)mi(!ile of the 
 testator in the matter and leads to a reasoning in a circle. 
 And a safe rule that I would apply here is the one laid 
 <lown hy Lord Penzance in a somewhat analogous case, 
 Pechell V. llilderhj^^ that in determining the question 
 wiietlior such a will is valid or not, regard can he had to 
 tile law of one country alone at a time and the court will 
 not mix up the legal precepts of difierent countries. The 
 law of Quehec is exclusivt'l}' the rule here. But were it 
 necessary to mak(^ the inquiry, it seems to me estahlishod 
 in the case that the will would he held invalid in New 
 Y..rk 
 
 " Mr. Adams, one of the experts examine<l in the case, 
 makes this point clear and [ do not see that he iscontra- 
 <licted hy the other experts. As in England, in matters 
 of testate succession, when the will has heen made hv a 
 
 L. R. 1 P. & D. »;7:h. 
 
20 
 
 TIIK CONFLICT or LAW'S. 
 
 pcTHon tlying with a toroign domiciU', iii(|uiry is niado \\i 
 New York, I assume, witli regard to the validity ol" that 
 will by the law of the domicile and aeecordiiig to the 
 result of such inquiry, probate of the will is granted or 
 rejected. Art. 2694 Xew York Code of Procedure.' 
 
 " Upon evidence that by the Quebec law a holograph 
 will made in New York by a citizen of Quebec is not 
 valid in Quebec to transmit property real or [>ersonal 
 situated or to be found in Quebec if, by the New York 
 law, holograph wills b}' citizens of New York are not 
 valid in New York, this will in (question here would not 
 be admitted to probate in New York. 
 
 "This Art. 2611 ot the New York Code ot Proceihnv 
 does not cover this will as it applies only to a will of per- 
 sonal property executed by a person not a resident ot the 
 State according to the laws of the testator's residence. 
 
 " It was said at the argument on the part of the res- 
 pondent, this will is good by the Quebec law, it is also 
 good by the New York law, why should it not be up- 
 held? This is, however, but an assumption of tlie very 
 question at issue. That is precisely what lias to be deter- 
 mined, whether this will is valid or not ; and to such an 
 argument the appellants have only to answer, with not 
 more but with as much force, by saying that as the will is 
 bad in Quebec, and also bad in New York, it cannot be 
 upheld. If Ross had left personal estate in New York. 
 and the New York Court upon contestation of his will 
 had referred the (question of its validity to the Quebec 
 courts, following the course adopted by the Prerogative 
 Court in England in de Bonneval's case,- to have 
 
 ' Ab<l-ulMesKi]> v. Farra, i:{ App. Ciis. ['M ; RolK-rtson on SiKci.'«s. J!'- 
 - 1 CurU'is. mi. 
 
KOIIEIGX LAW AN'D ITS PROOF. 
 
 21 
 
 
 rlic ([iiostion settled by Ross's le.r domicilii, the Quebec 
 (•(iiirts would have hiid to answer, and the Court 
 of Queen's Bnudi concedes it, that by Ross's lex ilonii- 
 riia. al(»iie and independently of the New York law, the 
 niU' loc'is retjit actum imperatively governs, and that this 
 will by that law is tlierefore null; that by tlie Quebec 
 law a Quebt r, who in Ni'W York desires to make a will 
 di<[)osing < either movables or immovables, or Itoth, in 
 (iin^l)ee, must do so according to the New York forms. 
 And as a holograpli will is not in the New York form, 
 tliat would have been the end of the controversy, as 
 Art. 265)4 of the New York Code of Proc.'dure, above 
 referred to. expressly says that as to personal estate it is 
 by Ross's lex domicilii that, in New York, the validity of 
 \\\> will is to be concluded. I utterly fail to understand 
 tlic im[tort of the rule locus regit actum, it" it does not 
 mean, adapting it to this case, that a Quebecer who 
 desires when in New York to make a will has to make 
 it according to the form required by the law of New 
 York for its own subjects ; or to put it in other words, if 
 a will in the holograph form made by a New Yorker in 
 New York is void under tlie New York law in New 
 York, a Quebecer's will in that form ma<le in New York 
 i> also void in (Quebec, which is Ross's lex domicilii.^' 
 
 It is manifest from this (h'cision that our courts in ap- iiiriudon 
 plving the law of a foreign countrv should aiinlv the rule Private 
 a- to the choice of law (or tlie rule of Private Interim- ">tionii 
 tional Law) which would there be retjarded as applicable ''""■'?° 
 
 ' r^ 1 I . imtitry. 
 
 to the particular case. Fur (assuming that tlu> ruU' lacas 
 reijit (ictum was imperative) if the will in Ross v. Ross had 
 bi'.-n tested by reference to what has been calle(l the ter- 
 ritorial law of the state of New Yoik {i. e. the law v/hieh 
 
m 
 
 22 
 
 THE CONFLICT OF LAWS. 
 
 would ordinarily be applied by its courts in cases present- 
 ing no foreign element), the will would undoubtedly have 
 been held to be invalid, inasmuch as the holograpli form 
 was proved to be unknown to the local law of New York. 
 It was only by applying the rule of Private International 
 Law prevailing in that state {i. e. that which recognize^i 
 the validity of wills made according to the law of the 
 domicile), that it became possible to hold that the law of 
 New York had been complied with. 
 
 This solution appears to be in accord with the rule 
 established in England ', and also with the weight of 
 judicial authority in France and Belgium, although the 
 (piestion is not so well settled there-. 
 
 ' Bremer v. Freeinun, 10 Moo. P. C. Wi. —In the goods of Larroix, 
 L. R. 2 P. D. i)4.— Collier vs. Rivaz, 2Curteis, 85.5.— 3/rt//a*s v. MaUass, 
 1 Robertson, Gl.— Westtake, Private International Law, s. SU. Direy, 
 Conflict of Laws, pp. 70-78. 
 
 '^ Dalloz,\SH),\, aii.— Journal (lu Palais, 1875, p. KKJti. Sirey, \f^Sl, 
 4, il.—Sirey, 1882,4, ll.-Pasicr. Beige, 1887, 8, 87. -Clunet, 188{), p. 6ii8. 
 Clunet, 1888, p. l<d\.— Clu)iet, 1894, p. 531, p. IQffl.—Clunet, 18<)5, p. 105. 
 
 Contra :—l)alloz, 1843, 1, 208, compared witli same case in Knglaml 
 (Df Bonneval v. IJe Bonneval, 1 Curteis, 8ati).—Clunef, 1885, p. 5. - 
 Clunef, 18i)0, p. -.^n.-Clunef, 1893, p. o^iO.-Cluuef, 1894, p. 248 & p. 721.- 
 Clunet, 18J)5, p. -184. In a recent contribution to tlie same journal ■Clunef 
 1890, pp. 241 sqcj.), M. Armand Laine severely criticizes the prevailiug 
 jurisprudence of France and Belgium, and points out that so-ne of the 
 most recent decisions indicate a change of opinion on the subjecr. Re- 
 ferring to the generally accepted principle, he makes the following 
 trenchant observations : 
 
 " II faut allor plus loin encore et ne pas craindrededirc (luapplinue 
 avec logicpie il serait al).surde. En efl'et, si attribuer competence, en 
 telle maticre. a la loi d un pays etranger, c'est de la part du Icgislateur 
 fran^ais s'en remettre an droit international de ce pays pour le regie- 
 ment du conllit des lois en cctte matiere, la regie de dr )it international 
 du dit pays (pii renverra la competence a la loi franvaise aura necessaire- 
 ment le meme sens : a son tour, elle saisira le droit international fran 
 (.ais du contlit. Alors commenccra un cercle vicieux duquel on ne 
 sortira jamais. Les juges fran<,'ais et beiges en sont sortis, il est vrai. 
 Mais com iient ? Par une inconsequence. Us n'ont pas aper<,;u (|uils 
 
 
F()KFJ<iN' LAW AND ITS FROCK. 
 
 23 
 
 Proof of foreinn law. — When forei<>:n law is roliod on i"">< ik" 
 by any party to a case in this province, such law must '"■^^^""k'"'* 
 he specially plea<le(l and must he established hy evidence. i'f"*"'i 
 
 Thus, where a transaction had taken place in England, 
 and the defendant pleaded that the consideration was 
 tainted with usury, the Court of Appeals was of oi)inion 
 that this plea was had, inasmuch as there was not in 
 that pleading an averment stating what was the law of 
 Kngland in relation to this matter, which was essential.' 
 
 Again, where a defendant pleaded the statute of 
 limitations of the State of Xew York as a har to the 
 claim sued ujion, hut made no proof of such statute, 
 the Court of Appeals held that the statute of a toreign 
 state cannot he judicially noticed hut must l)e proved as 
 a fact before our courts can decide upon its nature and 
 ettect.- 
 
 In a recent case, it was held by the Court of Review 
 (Tait, A. C. J., Taschereau and De Lorimier, JJ.), that 
 where the parties had tiled a consent that the fort'ign 
 law might be established by reterence to statutes and 
 jurisprudence in the same way as if it iuid been proved 
 by evidence in the case, the Court was not bound t*- take 
 cognizance of the foreign law, I)ut that this must be 
 explained to the court by the evidence of a propiM- 
 
 entendaiciit lo renvoi fait a la loi fraiiraiso paf li's lois bavaroise ou 
 aiiglaise autiement nu'il.s n'avaient comj)ris rituHcation jiretuiere de 
 I'uiie ou ik' I'autrL' (Ih ces lois par la loi fraiiraise. Apres avoir refuse 
 (i'appli()uer la loi interne <le Haviere ou d'AngltHerre, en niatiere de 
 succession ou d'«>tatdes personncs, bien i\\u la loi fran(,'aise le preserivit, 
 ils ont, deferant, au contraire, aux lois etrauKeres. appli<|ue la loi 
 interne de France, L'inconseiiuence est llaurante. " 
 
 See alfio, in t he same sense, the eritieisni of the doctrine laid down in 
 Noss v. Noss in Mr. Mif^nault's Droit t'ivil Canadieii, vol. 1, p. 101. note. 
 
 ' ffcirf V. P/ii/li/,s, 1 L.t;.H. !W. 
 
 -■ AihhDus V. Wordeii, (> L.C. H . 237. 
 
^^mmm 
 
 
 24 
 
 Till-: CONFLICT tiK LAWS. 
 
 M 
 
 OthPrwisi' 
 assunii'il 
 to bn iden- 
 tical with 
 oars. 
 
 ('X[)ort.' Til this caKi.', however, the reference hy the 
 parties to foreign books had been accepted by the judge 
 in the Superior Court ^Davidson, J.), and a similar con- 
 sent was acted on by the Superior Court (Andrews,'.!.) 
 in a previous case.- 
 
 In tlie absence of allegation and proof of the foreign 
 law, our courts assume that there is no difference be- 
 tween the foreign law and our own. This rule has been 
 a[>plied even to thi- law of the other provinces of the 
 Dominion of Canada, wliose law is treated like that of 
 any foreign country. A few cases may be given to 
 illustrate the application of this rule. 
 
 In Parker v. Cochrave^' a wife sued for separation of 
 property. The parties were married in England, but 
 no proof of foreign law was made, and tlie Superior 
 Court held that it must therefore be taken to be the 
 same as that which prevails here. 
 
 In Brodie V. Coimn.' the defendant relie<l on the law 
 of Scotland as applying to consorts whose matrimonial 
 d(»micile was in Scotland, and set forth the difference 
 b(!tw(K'n the Cd'iiiiiiiiiio biitiorarii of the Scotch law and 
 community ot proj)erty under our law. No proof, how- 
 ever, was made as to tlu' law of Scotland, and the same 
 Court held that tlu' law ot that country must bi' pre- 
 sumed to hi' the same as our own. 
 
 In BanhofMoithealy. Hapfa'Ds:' t\w ([Uestion was as 
 to the effect of a marriage contract executed in 1859 in 
 the Red River settlement (now Manitoba). The parties 
 <'Xpr(^ssly admitted that at the time of the marriage 
 contract the laws of Eny-land were in torce in the Red 
 
 Hrntl(ll\. lUavh- lUiniuinil SS. Co.. H.I.Q. lOS.C, 2.i7. 
 lioi/er.s V. Minslfisijt/ti tl' Doiniiiioii SS. Co., HQ.Ii.R. W. 
 Mont. Coiid. K.'p. (i.V * 7 L.CI !K>. ■• 5 L.\. 1(52. 
 
KoRKKJX LAW AVO 
 
 l'K('iiK 
 
 2-") 
 
 I 
 I 
 
 ;# 
 •^ 
 
 
 River Scttlemont, Imt did not admit wljut that law was. 
 Tlie Superior Court lu-ld tliat tlie foreign law must 
 under these cii'cumrttatiees l>e {tresumed to be the same 
 as the law of this proviiiee. 
 
 In yVew V. Kir/aijK^ the plaintiff' allea'ed that she was 
 separated as to property from her husband under the 
 laws of the ]*rovinee ot" Manitoba, but made no proof as 
 to the law of that province. The Court of Review held 
 that in the absem-e of such proof, the law of Manitoba 
 must be presumed to ereate community of property 
 lietweon Consorts marrying without antenuptial contract. 
 
 In Thomsov v. Ihowsov-, it was held by tlie same 
 Court that, in the absenee of evidence as to what the 
 law of th" Province of Ontario was as to the effect of a 
 marriage without license or previous publication of the 
 l)anns, it nnist be [»resumed to be the same as the law of 
 the Province of Quebec, by which a marriage, even if 
 annullable, is not radically null because of the omission 
 of such formalities. 
 
 In Dupiwt V. Quebec SS. To. the Court of Review held 
 that as regards the inter{)retation of a contract of hiring 
 no differetice cinild be presumed to exist l»etween our 
 law and the law of New York, in the absence of alU'ga- 
 tion and proof of that law. 
 
 In Gleixjoil SS. Co. v Pilkhyjto)! ' the same rule was 
 laid down by the Sui)reine Court of Canada. Per 
 Tascherean, J.: '' A question might have arisen in the 
 case as to which law applied to this contract. But as no 
 other law has been pleaded or proved, the law of the 
 Province of Quebec governs the <'ase, or, mow correctly 
 perhaps 1 should say, the law of Belgium on the subject, 
 
 - 11.. J. g. !t s. c. -.i^'.y ■ ii..J.g. 11 .s. c. iss. 
 
 ' U..l.(^ 7 s.c. ;<os. 
 ••2S.S. (.'. I J, IK 
 
 I 
 
2(i 
 
 THE OONKLICT < »F LAWS. 
 
 if that governed, must be asBumed to be the (•ame as the 
 Quebec law." 
 
 A good illustration of the application of this rule will 
 be found in the cases of Giles v. Jacques and Primeau ". 
 Giles ', in which the Court of Appeals rendered judg- 
 ment on the same day in two actions instituted by the 
 receiver of a foreign insurance company in li<(uidation 
 against members for assessments to meet the company s 
 losses. The circumstances were similar in both cases, 
 .:';ept that the foreign statute authorizing the assess- 
 \'' r, was proved in one case and not in the other. Tho^ 
 Chief Justice (Sir A. A. Dorion) in rendering judgment 
 !5aid :--" There is very little difference between the two 
 cuiijCs. '^xcopt that in the case of Jacques the Ontario 
 Statute was filed, while in the case of Primeau it was not 
 filed. We think in the former case the action should 
 have been maintained, while in the l*rimeau case it 
 should have been dismissed. As to the question of calls, 
 they were made by the directors after the Court of 
 Chancery had ordered that a receiver be appointed, but 
 l)efore he was actually appointed. According to our 
 law, the moment a company is insolvent the power of 
 the directors ceases. Foreign law is presumed to be the 
 same as ours where the contrary is not proved. There- 
 fore on the 18th July, 1877, when these (;alls were made, 
 the directors, according to our law, would have had no 
 authority to make them. In the Jacques case the 
 Ontario statute is produced, and shows that the proceed- 
 ings are regular. It may be said, you have the statute 
 before you in the case of Jacques, why not put it in 
 force in the case of Primeau ? The answer is that we 
 
 ' M. L. R. 7 Q. B. ln() ami 4()7 : 'M L. C. J. -Mi and 271. 
 
FOKKIGN LAW ANI> ITS l'KO:)F. 
 
 27 
 
 Clin only look at it in the particular case in which it is 
 produced. When the foreign law is not proved we have 
 to take it for granted that it is the same as our own." ' 
 
 liut the necessity of making such proof no longer 
 exists when the statement of tlie foreign law hy one 
 party is not contradicted hy the other. The Court is 
 then bound to accept the law it! the very terms of the 
 allegations and without modification-'. 
 
 Our practice as to the proof of foreign law is not con- p,.,^,tiu„ 
 formablc to the old French law or to modern French '""''■"""''• 
 authorities. Under the old French system there seems 
 to be no trace of our present practice ot proving foreign 
 law as a fact in the case. When a conflict arose between 
 the laws of difterent provinces of France the court ascer- 
 tained the law by referring to the decisions, enactments 
 or text-writers of the province whose law was held to be 
 
 ' In the case of Grainger v. Pnrke (10 L. C. li. :{.jO), decided by the 
 Court of Appeals in 18()(), aonie of the judges appeiir to have held views 
 at variance with the doctrine .supported by the Jurisprudence above 
 given. The action was brought by a foreign executrix and other plain- 
 tiffs, and the defendant.s demurred on the ground that the declaration 
 did not show wliat were the rights of tiie executrix under the foreign 
 (Irish) law, or what was the elJ'ect of such foreign law in vesting lier 
 with the estate and rights of the deceased. The demurrer was main- 
 tained by the Superior Court, but the .judgnieut was rever.sed by a 
 majority of the Appellate Court. Sir L. II. Lafontaine, C..I., and 
 Duval, J., dissenting, held, that the promise to pay alleged to have i»een 
 made by the defendant to the executrix was invalid because it was not 
 shown liy the declaration that by the law of Ireland the executrix had 
 power to receive such promise. The three judges who constituted the 
 majority did not rest their opinions on the same reasons. Badgley, J., 
 thought that the rights of an executrix under a will are recognized the 
 world over : Mondelet, J., wa^ of opinion that the allegation of a pro- 
 mise to pay was enough to defeat t!ie demurrer; aiul Aylwin, .1., 
 appears to be the only one who applied the principle that, in the absence 
 of proof of the law of a foreign country, the court must apply its own 
 law. 
 
 - Voijht v. Ri.chter, 21 H. L. 4«1. 
 
 
( """I"" 
 
 28 
 
 TliK CnNFIJCT ' >F LAWS. 
 
 ap|)li('al)I('. Tlio sanic iiu'tliod tn»|»('ars to have lui'in 
 adopted tor ascertaining the laws of foreign states, for wo 
 liiid the advocates in reported cases citing from Dutch, 
 German oi- Italian writers to estahlish the lavv of foreign 
 countries, witliout ever referring to any testimony in 
 8upj)ort of tiieir statements. 
 
 In modern France tlio law oi a foreign country is not 
 treated h}' the judges as an ordinary ([uestion of fact ; it 
 is a document of which the court may take cognizance as 
 well as tlie parties, and its apidieation does not depend 
 exclusively on the will of th(> lattei'. The judge cannot 
 take a purely passive attitude as to the knowledge and 
 application of foreign law, hut must proceed e.r-ojficin to 
 ascertain and apply it when the occasion arises '. 
 
 The rule followed hy our courts is undouhtedly derived 
 from the law of England, which regards foreign law as a 
 fact to he jtroved in the case'. The adoption of this 
 English practice is prohahly due to tlie fact tliat the 
 earliest cases presenting questions of foreign law were 
 commercial cases, to which tlu> English rules of evidence 
 were .ipplicahle, and that the same rule was insensihly 
 extended to ordinary civil cases. There can henodouht 
 tliat in many instances it would he more reasonahle to 
 follow the French than the Enurlish rule in ordinary civil 
 cases, for the assumption of the identity of our law with 
 that of a neighhonring province is frequently at variance 
 with notorious facts, and puts the judge in rlic absurd 
 position of deciding a case upon a supposition which he 
 knows to he fictitious. But our jurisprudence appears 
 to be so settled upon this jtoint that it would i)ro])ably 
 be impossible to revert to the French law. 
 
 ' Jiruchvr. Droit Int. Frive, vol. 1, pp. iii.i-i. jAiumif, Droit Civil 
 iMtcrnational. vol. "J. Nos. 27!) sm\. - Taiilor. Evidt'iice, SiS o, IS & \V£.\. 
 
I'oHKKiN LAW AND ITS I'K(>()1". 
 
 
 -1 
 
 -'I 
 
 ith 
 
 '■mm 
 
 nee 
 
 ~^m 
 
 ir.l 
 
 M 
 
 
 .■•ij^ 
 
 lie 
 
 m 
 
 ars 
 
 ^m 
 
 hly 
 
 '^m 
 
 -i.il 
 
 
 It is ciirious to oltscrvf that l']n_u;lish and Anu'rican 
 niiirts do not ai»[»ly x\w rule in rcgai'(l to statutory law. 
 On tlir contrary, the [»rc'8mni)tion is held to be that, in 
 tlu' abfsiMU'i! ot' allegation and proot, the law of a f()roi<;'n 
 country is not similar to the statutory law of tlio forum '. 
 This was held m a rt'ccnt cast' by the Supreme Court of 
 Canada', and althou«^h the decision was rendered upon 
 an appeal from a Judgment of the Court of Ap[»eal for the 
 Province of Ontario, there is no reason to tlniik that the 
 Supreme Court would deeide otlierwise in aQuebecease. 
 For our own praetiee in this res[iect is not, as has been 
 observed, based upon the French law, but rather upon 
 English precedi'Uts. The ([ue.stion arose upon }»roceed- 
 ings taken in Ontario to set aside a mortgage on lands in 
 the State of Oregon as having been given in fraud of 
 creditors, and the Chief Justice, in delivering the judg- 
 ment of the <M)urt, said : " So far as tlie lands are con- 
 cerned, the validity or invalidity of this transaction must 
 depend on the lex rei sif(E—tho law of the State of Ore- 
 gon—and there is no allegation that according to that 
 law a constructive trust by operation of law would arise 
 by reason of the intent to hinder and delay creditors or 
 tluit even an express trust must necessarily enure to or be 
 available for the satisfaction ot creditors. It may be 
 that a mortgagee's interest according to the law of Oregon 
 is not exigible. Up to 1837. according to English law 
 such interest \vas not at conmion law, nor until the pass- 
 ing of statutes of comparatively modern date, available to 
 satisfy creditors by means of either legal or equitable 
 execution. Then we cannot presume tliat tlie law of 
 
 ' CrccnUfif. on Evidence, vol. 1, No. 4*t8 »>. 
 - Purilom V. />arii/ ct- Co., 26 S. C. R. 412. 
 
 DiK'ti ini' 
 
 of pll'. 
 
 Jiimi il 
 iili'iility 
 Mi)t Mppliiici 
 •> <l.itii- 
 
 loiy l:i\Y. 
 
 M 
 
80 
 
 TIIK CnNFLICT (iK LAWS 
 
 Wlio art- 
 
 coiiipctcnl 
 
 ixports. 
 
 Oregon corrosponds with the present utate of our statu- 
 tory k»w " 
 
 If such a presumption is iinrejisonabk!, it is certainly 
 not less unreasonable for a Quebec Court to assume that 
 the old French law of community of property is in force 
 in the adjoining provinces or in the great majority ot 
 the States of the American Union, whose law is known 
 by every lawyer to be based on the common law of 
 England. In the case of British possessions, at least, it 
 would seem that under the terms of the Imperial Statute 
 to be referred to presently our courts need not make any 
 such presumption, but may of their own motion cause 
 the law to be ascertained by reference to another court.' 
 
 No authoritative decision appears to have been ren- 
 dered here as to what persons are com[>etent experts to 
 give evidence of foreign law. The almost invariable 
 mode adopted before our tribunals is to examine lawyers 
 actually practising in the foreign country whose law is 
 to be establii ^ed. But instances may be found where 
 our courts have been satisfied with the testimony of wit- 
 nesses who were not professional men. Thus in Patez v. 
 Klein,' which was an action for wages brought by sea- 
 men against the captain of a Russian ship, the Court 
 accepted the evidence of the defendant and of another 
 Russian captain to establish that the ship's articles were 
 valid and binding according to the Russian law under 
 which they were made, although the sailor's testimony 
 gave a different version as to that law. Ir is probable 
 that in an ordinary civil case our courts would not 
 accept such an opinion as to foreign law, but in a mari- 
 time case the judge may have admitted it ex necessitate 
 
 » Infra, p. Si ■! 13 L . C . R . 4:«. 
 
KOKKICN LAW AN'D ITS l'R(Kir. 
 
 31 
 
 late 
 
 rei, siihI may iilso have been influeiu'ed by the fact that 
 hv section 12 of chapter 5^! ot thr Coiisolichited Statutes 
 of Lower Canada, providing tor the punishment of sea- 
 men on conviction for desertion, it is enacted tliat the 
 oatli of the master of a foreign menliant vessel that, to 
 the best of his belief and understanding, any seaman is 
 bound to serve on board such vessel according to 
 tlie law of t)>e countr}' to which such vessel Itelongs. 
 shall be prh, tt facie evidence that he is legally bound to 
 serve on board sudi vessel — although, of course, such 
 jirovisions could not in atrictness be ai)plied except in 
 ]>ro8ecution8 under tluit statute. 
 
 In England the practice is that the witness must 
 either be a professional man. or at least must hold some 
 official position requiring special knowledge. Thus, 
 judges, advocates, barristers and solicitors are admitted 
 to establish the law of a foreign country,' a Roman 
 Catholic Bishop to prove the matrimonial hiw of Rome, 
 and a I'ersian ambassador to prove tlie law of his 
 country. But it is doul)tful whether the evidence of 
 consuls and vice-consuls is admissible, and it is certain 
 that the law of a foreign country cannot be proved by a 
 jurisconsult if his knowledge is derived solely from 
 having studied it at a foreign university. -' 
 
 ' In a CHse of Cnrtrhjht v. ('arffiijhl it' A iiitirsn)i. which was an 
 undefended divorce suit, the counsel for the petitioner, desiring to 
 prove the validity of the niarriafje aecordin(f to the C'lnadiaii law, the 
 niarriaRe having heen celebrated in Montreal, callc.^ .is n witness Mr. 
 Bompas, Q.C, who testified that he was familia: ' ''h Canadian law, 
 having practised for many years in Canadian appeals l)efore the 
 •Judicial Committee of the Privy Council. Sir .1. llannen refused to 
 admit this evidence or to hold (hat an Knglish barrister liy practising 
 before the Privy Coiincil becomes an expert as to any system of law in 
 respect of which the Privy Council may be the final Court of Appeal. 
 <See 1 L.N. ICJHK - Taylor, on Evidence, vol. 2. S 142.5. 
 
32 
 
 TIIK ((iNHJCI" iif I-AUS. 
 
 KorriKD 
 |iid)/iiii'iit 
 ,in prool' III 
 t'liri'Jtiii 
 law. 
 
 Fii a recent ciiHe ' our Court of Ai)iieuls held that the 
 hiw of Fi'ance was proved hy tin- prodiution of a (hily 
 eertilied copy of u Jiid<rnn'!it reiidei'i'd e.i jir ' - l»y a 
 Kr(!iieh Court upon the petition of a nnirried an to 
 
 he authorized to sue in her own naine tor the reeovery <»t 
 a (h^bt due to the eominunity. her liushaiul hcing an 
 ahsentee. Tlie wife havinu; ohtaint^d tliis authorization 
 from the French Court, instittited proceedings hero 
 agiiinst tlu( del)tor wlio appeared in t}ie suit, V)ut made 
 no defence, stating that hi' was rt-ady to pay tlie amount 
 deimmded it the phiintitt [)roved her ability to give a 
 good diHclnirge. The iudgmi'iit of the French Court 
 was produced in the case, but no proof of the Krei\ch 
 hiw was made. Tlie Superior C/ourt held that in the 
 abHonce of such proof tlu; Frt'ticii law must be p'^esumed 
 to be same as our own, in virtue of wliieh t' noney 
 sought to be recovered would tall into comiri,. j ami 
 under the control of the hiisbaml. Consequently, as 
 this community was not sViown to have beiMi dissolved, 
 and as none of the formalities reipiired by our law in 
 regard to absentees appeared to have been tultilled, the 
 plaintift had no (juality to bring tVie action and could not 
 give a valid discharge. As to the foreign judgment, the 
 Court held that this could not be regarded as deciding 
 the merits of the plaintiffs claim, but merely as author- 
 izing her to appear before the Court and urge whatever 
 legal rights she might V)e found to have U]»on investiga- 
 tion before the proper tribumil. The Court of A[)peals 
 unanimously reversed this judgment holding that under 
 article 1220 C.C., § 1, the foreign judgment made prima 
 
 ' liauron v. Oavieti, KJ.Q. 11 S. C\ IIH : 2 H. dc .F. 4(m : :{ H. de .1 . »H). 
 R. J. Q. « Q. B. 547. 
 
 •m 
 
KOREKiN LAW AND ITS rKUUF. 
 
 ;ij 
 
 facie jtroot iA' its contents suid, i»fer alio, that it wiis 
 n-ndiTcd uccm >r(liiii>; to the t"orci«;ii law. 
 
 liy till' provisions of article I'JU? ot tlio Civil Code (as 
 atiH'iitliMl hy R. S. (J. 5805), tlic statutes ot" the fniptTial 
 I'arliameiit, oid those of the Ici^islatiires of the other 
 jd'oviiices of Canada may he proved hy copies of the acts 
 printed hy the duly authorized jirinter. It has heen 
 held, liowcver, that our courts will not take judiei.J 
 cojy^nizance of the statutes of the other provinces, ai.d 
 (•onsiM|Uently that they must he proved hy the produc- 
 tinii ill the case of copies printi-d hy authority.' The 
 same ruh' would douhtless he a[)plied to rm[>erial Acts, 
 except wheri' they directly applied to this colony. As to 
 the statutory laws of for< ii;-n states, they would <i fnr- 
 iini'i recpiire to he proved hy the evidence of exi)erts. 
 
 Whi'uever the law to he ascertained is the law admin- 
 istered in any part of the British Dominions, anotliei 
 method of estahlisliing such law is furnished hy the 
 Imi>erial Act of 1859 (22 & 23 Vict., cap. 63). Tliis act 
 provides that if in any action pending in any Court 
 within Her Majesty's Dominions, it shall he the opinion 
 of such Court, that it is necessary or expedient for the 
 proper disposal of such action to ascertain the law 
 a[>plicahle to the facts of the case as a<lministered in any 
 other part of Iler Majesty's Dominions on any point on 
 which the law of such otlier part of Her Majesty's 
 Dominions is different from that in which the Court is 
 situate, it shall he competent to the Court in wliich such 
 action may depend to direct a case to be prepared set- 
 ting forth the facts, as these may he ascertained by 
 
 ' (.'l/esv. (iarirpy, 2!) L. C. .1. 207. I'rinudu v. Gil<\% M. L. 1?. 7 Q. H.. 
 4(>7 ; 81 L. C. J. 271. Pacaml v. Tourinni/, 10 Q. I,. K. 54. 
 
 I'nxif of 
 stiitiitiiry 
 Inw. . 
 
 lijL|irrliit 
 iii't l'(ir 
 iiHcn t:iiii- 
 iiiK law iit 
 ItriliHJi 
 (liiiiiinlons. 
 
illii 
 
 34 
 
 THE CONFLICT OF LAW'S. 
 
 verdict ot a jury or other mode competent, or may l)o 
 agreed ni>on by the parties, or settled by such per8(»ii or 
 persons as may have been appointed by the Court for 
 that purpose in the event of the parties not agreeing. 
 The Court or judge, after settling such case, settles the 
 (juestions of law arising therefrom upon which the 
 opinion of another Court is desired, and pronounces an 
 order remitting the case and questions to a Superior 
 Court in such other part of Her Majesty's Dominions. 
 The parties or their counsel may be heard before the 
 Court whose opinion is sought, and before pronouncii-g 
 an opinion such Court may take any further procedure 
 it deems proper. The opinion may be lodged in the 
 Court which sought it by any of the parties to the 
 action, and upon a motion to that effect the Court 
 applies the opinion to the facts, or submits it to the jury 
 as evidence, if the case is tried by jury. In the event of 
 an appeal to Her Majesty in Council or to the House of 
 Lords, the opinion pronounced by any Court whose 
 judgments are reviewable by Her Majesty in Council or 
 by the House of Lords, may be adopted or rejected as it 
 may appear well founded or not in law.' 
 
 This enac'tment seems to furnish a more satisfactory 
 mode of ascertaininif foreiijn law than the usual one of 
 examining experts. For it is cften difficult, when 
 experts differ in their oi)inions, to know the relative 
 
 ' Similar facilities for the better ascertainment of the law of 
 foreign countries, when pleaded in courts within Her Majesty's 
 Dominions, are provided by the Imperial Act of 18(J1 (24 Vict., ch. 11) in 
 cases wliere a con> ention has been entered into between Great Britain 
 and any foreign state. But up to this time no such convention appears 
 to liave been made, and the act lias in conseijuence remained a dead 
 letter. 
 
 i 
 
m 
 
 FOREIGN' LAW AND ITS I'litKtK. 
 
 35 
 
 standing and authority of such experts.' Moreover, 
 experts examined on behalf of one of the parties to a 
 case are frequently inclined to support the views of that 
 [tarty and to imitate the partisanship too often exhibited 
 by other professional experts, who consider themselves 
 as retaitied to support a particular opinion. And yet, 
 m spite of its manitest superiority in these respects, the 
 Imperial Act does not appear to have been made use of 
 in cases pending in our courts.- 
 
 The language of this statute seems to imply that a 
 British Court need not assume a purely passive attitude 
 when it appears to such Court that the law to be applied 
 is that in force in some other part of Her Majesty's 
 Dominions. The act says that a reference to another 
 British Court may be made, if iii the opinion of the Court 
 if is necessary or expedient for the proper disposal of an 
 action to ascertain the Uun of .some other British possession 
 applicable to the facts of the ease : which indicates that, of 
 its own accord an<' without waiting for the action of the 
 parties, the Court may order such reference. If this be 
 a correct interpretation of the statute, it follows that in 
 the cases above cited, in wliich it appeared that the law 
 of England, of Scotland, of Manitoba, or of Ontario, 
 applied to the facts ot the case, the Court, instead of 
 
 ' III Bietnerv. Frffmini (10 Moure, UIMi) the .Iiidiriiil ( ■oiiiinittfc of 
 the Privy Council hold that when the evidence of the experts is uiisutis- 
 factory and contlictinji, the Appellate Court, not havinjjjan opportunity 
 of personally examining the witnesses, to ascertain the weijiiht due to 
 each of their opinions, will examine for itself the decisions of the frreign 
 courts and the text writers, in order to arrive at a satisfactory conclu- 
 sion upon the (juestion of foreif^n law. 
 
 '^ An example of a reference by the Court of Chancery \n Ontario to 
 our Superior Court will be found in the case of Xoml v. Xoad (21 I.. C. 
 .T. :«2). 
 
 
 ;^f:- 
 
 i' : 
 
IIPP 
 
 ii ^i 
 
 86 
 
 THE CONFLICT OF LAWS. 
 
 presuming it (in the absence of proof supplied by the 
 parties) to be the same as that of tliis province, might 
 have ordered a reference under the act, and have escaped 
 from the absurdity of applying our civil law to provinces 
 governed by English law. In all probabih y its atten- 
 tion was not drawn to this enactment, which appears to 
 have been lost sight of in cases before our tribunals. 
 
CHAPTER II. 
 
 STATUS. 
 
 Two leatlint? theories prevail as to the law which xationui • 
 
 "^^ * ity ;ind 
 
 fchould govern in matters of status. Most of the Euro- ''"■"'•■'''^ 
 peau States, such as France, Belgium and Italy, have 
 adopted the view that race is the ground of a person's 
 subjection to a particular law, while Germany, England 
 and the United States have accepted the principle of 
 territoriility. In the former group of countries a person's 
 status and capacity depend on his nationality, while in 
 tlie latter it is the law of his domicile that governs.' 
 
 Article 6 of our Civil Code enacts that : " An inhabi-onrcodo 
 tant of Lower Canada, so long as he retains his domicile -t'tus 
 therein, is governed, even when absent, by its laws ''<"»'';''>'■ 
 respecting the status and capacity of persons ; but these 
 laws do not apply to persons domiciled out of Lower 
 Canada, who, as to their status and capacity, renuiin 
 subject to the laws of their country." 
 
 The expression "inhabitant of Lower Canada" is 
 explained by art. 17, § 21, as meaning a person having 
 liis domicile therein. 
 
 Our Code, therefore, expressly adopts the test of 
 domicile and not that of nationalitv for the solution of 
 
 I For an iirtorestiiig summary of the arguments in support of these 
 rival doctrines, the reader may consult Lnunnf, Droit Civil Inter- 
 national, Vol. 2, nos. !»7 sq';. 
 
 km 
 
 m 
 
 I'ii 
 
 
rr^ 
 
 38 
 
 THE CONFLICT OF LAAVS. 
 
 Kffect or 
 national- 
 ity. 
 
 questions of status uiul capacity. In this respect we 
 have merely preserved the rule of the old French law, 
 and have not i'ollowed the innovation contained in 
 article 3 of tlie Code Napoleon, which adopts the prin- 
 ciple of nationality. Whatever may he the respective 
 merits of the two theories, it does not seem practicahle 
 to apply the test of nationalit}' or alle<2;iance in the case 
 ot a British colony having local laws of its own. How, 
 for example, could the status or capacity of an in- 
 habitant of the Province of Quebec be determined 
 from the fact that he is a British subject? There is no 
 ffoueral British law re <i:u latino; the civil status and 
 capacity of the subjects of the Em[>ire, but on the con- 
 trary its various dependencies generally enjoy the 
 privilege ot making their own laws on the subject. To 
 say that the status and capacity of the person in ques- 
 tion must be determined by the law of the British 
 colony in which he lives, would be tantamount to saying 
 that it must be determined by the law of his domicile. 
 The same difficulty would be experienced in establishing 
 the status and capacity of a citizen of the United States 
 according to his national law, for there is no federal law 
 on the subject, but local laws in respect of civil status 
 and capacity in the difterent states of the American 
 union. 
 
 Notwithstanding the principle laid down 1)}' our Code 
 that status and capacity depend upon domicile, it would 
 be incorrect to Siiy that a [)erson's allegiance has no 
 effect upon his status and capacity. For although aliens 
 i.e. persons who are not British subjects) enjoy the pro- 
 . tection of our laws and may exercise nearly all the civil 
 rights enjoyed by British subjects, there are some privi- 
 
STATUS. 
 
 3cr 
 
 leges which are denied them. Moat of these privileges 
 are, however, of a political cliaracter or arc connected 
 with the administration of justice. 
 
 By article 18 of the Civil Code it is provided that : — 
 *' Kvery British sulject is, as regards the enjoyment of 
 civil rights in Lov^er Canada, on the same tooting as 
 those born tlierein, saving the special rules relating to 
 domicile." 
 
 The question as to who are British suVyects l>y '"igl'tVi','',",'"' 
 of birth must be decided by tlie laws of the Empire- '''■■"' 
 Act'ordingly, article 20 of the Civil Code does not con' 
 tain an authoritative statement on tlie subject, but its 
 guarded and general language is tolerably correct as far 
 as it goes. It reads as follows : — " A person born in 
 any part of the British Empire, even of an alien, is a 
 British subject by right of birth, as also is he whose 
 father or grandfather by the father's side is a British 
 subject,' although he be himself born in a foreign 
 country ; saving the exceptions resulting from special 
 laws of the empire." 
 
 The exceptions referred to are the following : 
 
 1. A person whose father is an alien enemy, and 
 who is born in British dominions during hostile 
 occupation, is not a natural born subject. 
 
 2. A person whose father is an alien accredited as 
 ambassador or other (li[il<)nuitic agent to tlie 
 British Crown l)y the sovereign of a foreign state, 
 does not acquire the <[uality *>f British sul)ject by 
 beinir born in British territory. 
 
 ' Tij iii:iki' Miis ^tfitt'iMt'iit ci 
 U(i(k'(l lu'ie. 
 
 vvi\ tli<' wonls " l)v hirtli " should bf 
 
 ^m 
 ^m 
 
 m 
 
 
 
rry 
 
 40 
 
 THE CONFLICT OF LAWS. 
 
 Naturali- 
 
 cation 
 
 Act. 
 
 3. A person born out of the British dominions, 
 whose I'utlier, though a natural born British sub- 
 ject, is at the time of sucli person's birth in the 
 service of a hostile foreign state, is not a British 
 subject. 
 
 4. If the father of a person born outside of the 
 British dominions has lost his quality of natural 
 born subject at the time of such person's birth, 
 the quality of British subject cannot be claimed 
 under the rule laid down in article 20.' 
 
 An alien may become a British subject by the operati<»n 
 of law. 
 
 By the Imperial Naturalization Act of 1870 all laws, 
 statutes and ordinances made by the legislature of any 
 British possession for imparting to any person the privi- 
 leges of naturalization to be enjoyed within the limits ot 
 such jiossession have the authority of law within such 
 limits, subject to confirmation or disallowance by Her 
 Mai est V. 
 
 Under the authority of this enactment and of the 
 British North America Act of 1867, which assigned the 
 subject of "Naturalization aiul Aliens" to the exclusive 
 legislative authority of the Parliament of the Dominion 
 of Canada, the Naturalization Act of 1881- was passed. 
 It is modeled on the Imperial Act of 1870, and contains 
 provisions for the expatriation of British subjects, the 
 rejtatriation of British subjects who have become natur- 
 alized abroad, and the naturalization of aliens. 
 
 One of the principal benefits resulting from this legis- 
 
 ' Cockburn, Nationality, p. 7; Calvin's Cani', 7 Hep. ISa, 186; Wi'sf- 
 la/,f, pp. 'Mli .s(|q. Dicy, Conflict of Laws, pp. 17() sqci. 
 -Ki'produocd in Rev. Stat. Can., cap. 113. 
 
STATUS. 
 
 41 
 
 lation is the i>reventioii of conflicts between the laws ot 
 (liiFerent states, and the consequent injustice to indivi- 
 (luals who might be considered as subjects of two or 
 more states.' 
 
 The cxinitriation of a British subject results from liis Kxpatri- 
 making a declaration of alienage in the torm prescribed 
 by section 8 of the Act. 
 
 Sucli declaration may be made : 
 
 1. By a person who has been naturalized in Canada, 
 provided the foreign state to which sucli person 
 originally belonged has entered into a convention 
 with Her Majesty to the effect that the subjects of 
 tliat state who are naturalized as British subjects 
 may divest themselves of their status as British 
 subjects, and provided such convention has been 
 put in force by an order-in-council. 
 
 2. By any person who l)y having been born in Her 
 ^Majesty's dominions is a natural-born subject, but 
 who also at the time of his birth became, under 
 the law of a foreign state, a subject of such state. 
 
 3. By any person who is born out of Her Majesty's 
 dominions of a father being a British subject. 
 
 The eftect of such declaration of alienage is that the 
 declarant ceases, within Cana<la, to be a British subject, 
 and is regarded as an alien.- 
 
 When a British subject has voluntarilv become uatur- iM'itn- 
 alized in a foreign state, he is deemed, within Canada, to 
 havo ceased to be a British subject and is regarded as an 
 alien. 
 
 'See, for exiiin])les of such foiillk-ts, Cockhurn, Niitioniility, pp. <>S 
 s(iq, and Forsyth, Cases and Opinions on t'onstitutiona! Law, i»p. 29:{ 
 :t;W. - llev. Stat. Can., cli. 11:5, sec. I, .->, (i. 
 
 
 t! i I 
 
 m 
 
 
 V t'-l 
 
 >' 
 
w^ 
 
 ill'' 
 ii 1, 
 
 Katurali- 
 >ation. 
 
 42 
 
 THE CONFLICT OF LAWS. 
 
 But a delay of two years from the coming in force of 
 the act was granted to such persons as had thuH become 
 aliens before the act, during which they could make a 
 declaration of British nationality, and take the oath of 
 allegiance and thus be deemed to be and to have been 
 continually British subjects within Canada — with this 
 qualification, however, that they shall not, when within 
 the limits of the foreign state in which they have been 
 naturalized, be deemed, within Canada, to be British 
 subjects, unless they have ceased to be subjects of that 
 state in pursuance of the laws thereof, or in pursuance of 
 a treaty to that effect.' 
 
 An alien may become naturalized in Canada after a 
 residence of three years, or after he has been in the ser- 
 vice of the Government of Caiuida or of any of the Pro- 
 vinces of C'anada, for the same period, on taking the 
 oath of allegiance and the oath that he intends, when na- 
 turalized, to reside in Canada or to serve such govern- 
 ments." 
 
 The alien who conforms to these recpiirements receives 
 a certificate of naturalization, and the effect of such cer- 
 tificate is stated as follows : 
 
 "An alien to whom a certificate of naturalization is 
 granted, shall, within Canada, be entitled to all political 
 and other rights, powers and privileges, and be sulyect 
 to all obligations to which a natural-born British subject 
 is entitled or subject within Canada, — with this qualifi- 
 cation, that he shall not, when within the limits of the 
 foreign state of which he was a subject previously to ob- 
 taining his certificate of naturalization, be deemed to be 
 a British subject, unless he has ceased to be a subject of 
 
 ' Rev. Stat. Can., ch. li:^, sc:. 7. - Rev. Stat. Can., ch. 113, sec. S. 
 
STATU'^. 
 
 43 
 
 tlmt stiitc, in piir.suaiR'e of the laws thoivot', oi- in j)ur- 
 ananco of a troatv or convention to that oticct."" ' 
 
 Tlie provisions for natnralijcation are niado aitplicaUK" 
 to ''statutory aliens," namely, Jiritisli snljjects by l>irtli, 
 who have become aliens by makin<i' m (Icclarati.ni of 
 alienage under the statute. To such [jcrsons acertitirate 
 is granted re-admitting them to the status of British sub- 
 jects within C/anada, and thereui>on, but not in respect of 
 any previous transaetion, they resume their position as 
 Britisli subjects within Canada — with tliis ([ualilication, 
 that within the limits of the foreign state of which they 
 became subjects, they are not deemed to be JJritish suli- 
 lects witliin Canada, unless thev have ceased to be sub- 
 jects of such foreign state according to the laws thereof, 
 or in pursnance of a treaty or eonventio!i to that effect. - 
 
 From the foreii'oino; sumnuu'v it will be seen that the 
 
 greatest precautions have been taken to 
 
 avoid coll' 
 
 uons 
 
 between our law and the laws of foreign states on the 
 sulijcct. The difficulties under wliich persons formerly 
 laboured, when their alleii'iance was claimed bv two conn- 
 tries have been ahnost. if not entirely, removi'd by this 
 liberal legislation, which, like the Imperial xVet from 
 which it is taken, expressly aban(h)ns the old English 
 d' ?trine ot perpetual allegiance. 
 
 The Xaturalization Act detines the rights of property 
 of aliens as follows: — "Real and personal property of 
 any description may be taken, ac(piired, held and dis- 
 posed of by an alien, in the same manner, in all respei'ts, 
 as bv a natural-born British subject : and a title to real 
 and personal property of any description ma}' be derived 
 
 ' Rev. Stilt. Tail., ih. 11'', sec. In. 
 - Hex Stilt. Ciin., ch. Ui, sec. H, 1'.'. 
 
 Uii^lita of 
 
 Illil'IlS. 
 
 i:;^|: 
 
 •:ll 
 
 vfi 
 
v^ 
 
 m 
 
 44 
 
 THE CONFLICT OF LAWS. 
 
 M.'irried 
 women 
 and 
 irinore. 
 
 through, from, or hi succession to an ulien, in tho samo 
 manner, hi ah respects, as through, from, or in succes- 
 sion to a natural-horn British suhject; hut nothing in 
 this section shall qualify an alien for any office, or foi- any 
 municipal, parliamentary, or other fi-anchise ; nor shall 
 anything therein entitle an alien to any right or privilege 
 as a British suhject, except such rights and privik'gcs in 
 respect of property as are herehy expre.^^ly conferred 
 upon him." ' 
 
 Tlie statue of married women and minors is dealt with 
 in the following sections of the Naturalization Act : — 
 
 " 22. A married woman shall, within Canada, l)e 
 deemed to he a suhject of the state of which her husl)aiid 
 is, for the time heing, a suhject. 44 V., c. 1;5, s. 20. 
 
 ''23. A widow, who is a natural-horn British suhject. 
 and who has hecome an alien hy or in consequence of her 
 marriage, shall he deemed to be a statutory alien, and 
 ma}', as such, at any time during widowhood, obtain a 
 certiticate of re-admission to British nationality, within 
 Canada, as heretofore provided. 44 V., c. 13, s. 27. 
 
 " 24. If the father, being a British subject, or the 
 mother, being a British subject and a widow, becomes an 
 alien in pursuance of this Act, every child of such father or 
 mother who, during infancy, has become resident in the 
 country where the father or mother is naturalized and 
 has, according to the laws of the country, become natu- 
 ralized therein, shall, within Canada, be deemed to I>e a 
 subject of the state of which the father or mother has 
 become a subject, and not a British subject. 44 Y., e, 13, 
 6. 28. 
 
 " 25. If the father, or the mother being a widow, has- 
 
 ' Rev. Stat. Can., ch. 113, s. 3. 
 
STATUS. 
 
 l-", 
 
 obtaiiu'd 11 cortiHcati' of iv-adniisHioii to I'.ritisli jiatioiial- 
 ity within Canada, every child of siieli father or mother 
 wlio, (hiriiiif infancy, lias hecoiue resident uitlnn ('aiuuhi 
 with such fatlier or niotlier, shall lie deemed to have 
 resumed the position of a British suhject within (.'anada, 
 to all inronts. 44 V., c. l;'., s. 2!). 
 
 " 2(!, If the father, or the mother hein<!: n widow, has 
 ohtained a eertitieate of natui-alization within Caiuida, 
 every child of such father oi' mot her who. durintj infancy, 
 has heconu' resident witli such lather or mother within 
 Canada, shall, within Canada, he deenu-d to he a natural- 
 ized British suhjt'ct. 44 V., c 18, s. ^JO."" 
 
 Among the [irivileges and lights which aie expressly 
 denied to aliens hy special legislation, the following may 
 he mentioned. AFumis cannot he municipal electors or 
 councillors', [irovincial electors or memhers of the I'ro- 
 vincial Legislature-, electors or memhers of the I'arlia. 
 mentof Camula '', Advocates '. Notaries ', Jurors", owners 
 of British ships '. 
 
 As aliens can claim oidy the rights specially conferred 
 upon them by the Naturalization Act, thei-e are other 
 rights and privileges besides those above enumerated 
 trom whicii they are impliedly excluded. Thus, they 
 could not be ai)pointed tutors to minors, or curators to 
 interdicts, to vacant successions or to absentees. Xor 
 could thev be sheriffs, clerks of court or even bailifis\ 
 
 On tlie whole, it mav l)e said that the status ot foreiicn- 
 
 Disaliilitii'H 
 lit' aliriiii. 
 
 i.Mun. Code, arts. 2i»l, 2S;{. 
 
 Hfv. Stat. Qiu-ljec. s. 17:!, !»». 
 
 •■•Rev. Stat, fan., fh. "). s. W ; cli. S, s. 20. ^ Hi-v. Stat, gut-l)., .s. \V->Wl. 
 .sKev. Stat. Qneh., s. :j,sui '■ t^. It! Vict., c. Ki, s. :{. 
 
 "Merchant Shipping Act, lS!)t, sec. 1. 
 
 " Drisvoll vs. O'Jiourkc—M. L. It. 1 S. C. IJll. Lam >i</ii\ Com. sur 
 le Code Civil, vol. I, Xo. 14."). Irciiu/ vs. Piiijne, 1 K. de J. Vl. 
 
 lij 
 
4ii 
 
 TIIK COM'LICT OK I.AWS. 
 
 (Jcrtaiii 
 kInilH 
 nf iitutii 
 not II'- 
 
 C'Oglli/.l 
 
 <l. 
 
 oi'H ill this proviiicc in nxtrciiu'ly tiivouniblc, aiwl tliiit 
 very tew of tlif siihstaiitiiii Iteiu^fits of oiii" civil law uro 
 
 (Icllil'd tllCTM. 
 
 N'otwitlistaixliny- tlu' goiioral i)riMci|>le laid down in 
 arlii-le 6 of our ('odo that porHoiiH domiciled out of Lower 
 Caiuida remain, as to their status aiul eai)a('ity, sul)jeet to 
 the laws of their country, there are some limitations 1o 
 the recoi^nitioii (^1' a foreign status. Our courts will nctt, 
 as a rule, recognize or give effect here to a status which 
 is repugnant to our laws or institutions. Thus, it mjiy lie 
 regarded as certain that our tribunals wo\ild dediiu' to 
 enforce the status of slavery, the rights or liabilities re- 
 sulting from [K)lygam(tus nuirriages, or disabilities arising 
 from religions beliefs (e. //. disabilities of Jews, Prote^t- 
 ants or (catholics) '. 
 
 Although our own law recognizes civil deatli (Civil 
 Code, articles 31 to 381), yet our courts have followed 
 the well-established rule ot the English law that a for- 
 eign penal status should not be enforced. In Adams v. 
 Wonle}}^- the Court of Appeals refused to admit the effect 
 of a sentence of a criminal court in the State of New 
 York depriving the plaintiff ot his civil rights, 'i'he 
 action was brought on a promissory note by a plaintiff 
 who was at tlie time serving a term as a convict in Clin- 
 ton Prison, in the State of New York. The defendant 
 pleaded that by the laws of the State of New York the 
 
 1 Possibly a distinction must be nifide in the case of x< ,,iij»>Mlt 
 disabilities resulting from perpetual vows taken by (\r '■ Our o\\ n 
 Code (Art. 'M) reeoKuizes the disabilities of person^ 'k <» ei-rtiiin 
 
 recognized communities in this Province, and it w .lot seem unreji 
 
 sonable to admit the disabilities of members of s. inr commanities 
 recognized by the 'aws of a foreign state. Cf. Sftfif/iii/, Priv. int. Law, 
 p. 1(57, note a, 
 
 ■' ti L. C. R. 2;{7. 
 
STATUS. 
 
 \ 
 
 l>laintirt' \\'H3, durinu; the torni of his sfiitoiiee, deiirivcd 
 ;ui(l divt'rtted of all liin, civil rights, and could not legally 
 institute or maititaiu any suit at law. The plaintitt dc- 
 niurrcd to this plea, on the ground that no penal law of 
 the 8tat(^ of Xew York could deprivt' a man of his pro- 
 perty or civil rights in Caiuulu. The judgment ot the 
 Court of Appeal confirmed the judgment of the Superior 
 Court, which had overruled this pica, and it contains the 
 following reason : 
 
 "Seeing that the sentence of a court of criminal Juris- 
 diction in a foreign state, hy which the exercise of the 
 civil rights of men may be susjiended or abridged, is 
 limited in its operation to tlie state itself in which the 
 sentence has been rendered, and does not dej)rive an 
 individual of his natural rights elsewliere, beyoiul that 
 state, and that the enforcement of such sentctice by a 
 foreign power would be a violation of public law, and of 
 the law of nations &c.''' 
 
 This doctrine, however, is not that of the old French 
 authors. Boullenois- lays down the rule in his time as 
 follows : — " A I'egard des statuts rpii [)rononcent uiu; 
 mort civile pour crime ou une note d'iTifamie, I'etat de 
 ces raiserables se porte partout independemment de tout 
 domicile, et cela par un concert et un concours general 
 des nations, ces sortes de peines ctant une tache, une 
 plaie incuralde, dont le condamnc est atllige, et (jui 
 I'accompagne en tons lieux." And he cites d'Argentre 
 in the same sense. 
 
 While the criminal law of England was undoubtedly 
 
 : % 
 
 
 I 
 
 hi 
 
 '-0 
 
 > 
 
 •, \ ■ \ 
 
 
 ' Tlie It'iidiiiK EiigUsh cases iire Folliot v. 0<i<hit, 1 H. HI. i;{.") ; 
 render v. Warrender, 2 CI. c& Fin. oll^*. 
 ••! Vol. 1. p. 64, Obs. 4, 
 
 ^'Ji 
 
 fc fi 
 
48 
 
 THE CON'F JCT OF I.AW'S. 
 
 introduced into this country at the time of the cession 
 of Canada, it does not seem to follow thsvt the effect of a 
 criminal sentence upon the civil rights of a person is a 
 (juestion of public law or is to be decided by the law of 
 England. The civil consequences flowing from a 
 criminal condemnation should properly be regarded as a 
 question of private and local law.' 
 
 ' A similar distinction was made by the Judicial Committee of the 
 Privy Council in Doiuyaui v. I)oup<)(ini (3 Knapp, (W), where it was 
 held that, by the change of sovereignty conse(|uent upon the cession of 
 Canada, the law of England determined who were aliens or not ; but 
 when the fact of alienage was once established the civil consequences 
 o' alienage would be determinable by the local, that is, the Canadian 
 law. 
 
I 
 
 Dniiiifili' 
 IKlt ivu- 
 niijmoiis 
 with ri'8i« 
 llrlici'. 
 
 \ 
 
 CHAPTER Iir. 
 
 I>0>II(lf,K. 
 
 As our law makes the status and capi.city of persons 
 depend upon the law of their domicile, it will he neces- 
 sary to define and ex[>lain that term. 
 
 Article 79 of the Civil Code defines domicile as fol-ii>'i'>'>'on 
 lows : " The domicile of a person, for all civil purposes, is 
 at the place where he has his principal estahlishment." 
 
 Domicile is difierent from residence, for a residence 
 may he for a special and temporary purpose. As Ritchie, 
 C.J., said in Wadsworth v. McConV : "Domicile and resi- 
 dence are two distinct thiny's domicile 
 
 imports an abiding and permanent home, and not a mere 
 temporary one ; there must he the factum of residence 
 and the (inimm manendi.'^ And Henry, J., in the same 
 case (p. 504), said : " Residence in a country is not even 
 /j/'ma/acie evidence of domicile when the nature of that 
 residence either is iticonsistcnt with, or rebuts the pre- 
 sumption of, the existence ot an intention to reside there 
 permanently {nniiiio inanendi).'' Indeed a person may 
 legally be (lomicile<l in a place without having any resi- 
 dence there. For althoui^h a (lomicile must be estab- 
 lished animo el facto, i.e., by the intention to make a [>er- 
 manent home coupled with actual residence, still, when 
 
 ' 12 S. C. R. 478-9. 
 
 4 
 
 ■'Mm 
 
Chanpc of 
 domicili'. 
 
 oO 
 
 THE CONFIJCT OF LAWS. 
 
 once tliis domicile has been establisl i\, it may be re- 
 taiiio<l nmrno solo. This would be the case if a person 
 left his domicile for a long ^-oyage or to take up a tem- 
 porary residence elsewhere, for until there is a manifesta- 
 tion of intention to change the domicile coupled with 
 actual residence, the old domicile will persist. 
 
 Confornnibly to these principles the rule is well estab- 
 lished that no person can, at any time, be without a 
 domicile, and that no person can have at the same time 
 more than one domicile. It wva\ often be difficult to 
 deternnne where that domicile is, but the law will, from 
 the circumstances of the t-ase or by presumptions, assign 
 a domicile to every person. - 
 
 Every one receives at birth a domicile of origin. Thus, 
 the domicile of origin ot a legitimate child is the domi- 
 cile of his father at the time of the child's birth. This 
 domicile persists until a domicile of choice has been 
 ac<[uired.' 
 
 In order to lose a domicile of origin and acquire an- 
 other, there must bu a residence and the intention of 
 making the resideni-e a permanent home and not a resi- 
 dence for a mere special or temporary purpose.* Article 80 
 of the Civil Code enacts that : " Change of domicile is 
 effected l)y actual resi(U'nce in another place, coupled 
 with the intention ot the person to make it the seat of 
 his principal estal)lislinu'nt." A prolonged residence in 
 a foreign country raises a j>resumi)tion of an intention to 
 abaiulon the domicile of origin, ajul to acquire a new 
 
 ' Pof/iier, Ititrod. Gen. iiux Coutiiuies, No. J). 
 
 '^ Wai/sirorth v. McCord, 12 S. C. H. 47S ; Pothier, Introd. Gen. aux 
 CoutuMies, No. '10. 
 
 •' Pot/nn\ Introd. Gen. aux Coutunies, No. 12. 
 * Wndairorfli v. McVon/, 12 S. C. R. 478. 
 
DOMICILE, 
 
 51 
 
 (loniicik;, but this presumption may be rebutted by tacts 
 tending to sliow that there was no such intention. Great 
 weight must always be attached to length of residence as 
 one ot* tlie facts indicative of a person's intentions, but 
 other matters must also be taken intit consideration.' 
 
 The acquisition of a <lomicile of choice by the combin* 
 ation ot residence and intention {factata et animus 
 mdiiendi) can of course oidy take place in the case of per 
 sons who are under no disability, such as minority, cover- 
 ture or interdiction. Minors, married women, interdicts 
 and other dependent persons are, in general, unable to 
 exercise anv choice in rei^ard to theii- domicile, and are 
 governed by sp«)cial rules. 
 
 The onus of proof of cluuigt' of domicile is on the 
 party alleging it, and ever}' presumption is to be made 
 in favor of the original domicile.' And as TTenry, .J., 
 said in the same case (p. o07) : '• The status of domi- 
 cile by birth is as tenacious as a man's allegiance until by 
 his own act he changes or suspends it."' 
 
 A change of domicile liberates a person from the laws 
 of that domicile relating to status and capacity, and sub- 
 jects him to the laws of the new domicile.' Possible 
 exceptions to this general rule will be discussed in deal- 
 ing with the sub/^cts of minority and of nuirital author- 
 ization. 
 
 By article 81 of the Civil Code, the proof of tlic 
 intention to change the domicile results from the declar- 
 ations of the person and from the circumstances of the 
 case. It may be useful to examine the leading cases on 
 
 ^ Ho(fg.t()n\\ l)e lii(iuchisn>'.llMooTe,'2Hii. McXtnnura v. Cotisfnif 
 tineaii, \i'li.(\e J. 482. 
 
 •^ Wadsinirffi v. MrCortl, 12 S. C. R. 477-H. 
 ' I'ofhler, lilt rod. (Jen. uux ("outumex, No. l;<. 
 
 V It! 
 
 vm 
 
;;!' 
 
 52 
 
 TJIE ('(JNn>l('T or LAWS. 
 
 Illustra- 
 tions. 
 
 the subject in order to illustrate the apftlicntioii of this 
 principle and ot the rules above given. 
 
 In Converse v. Converse,' tlie defeuihint came to Mont- 
 real as a single man in 1825 in order to look after tlie 
 interests of his uncle, who was a resident of the State of 
 ^ew York and had a claim against a commercial iirm 
 in Montreal. The defendant at the time was domiciled 
 in the State of Xew York, and <'ame to Montreal for a 
 tenjporary purpose. In ls27 he married a lady residing 
 in Troy, in the State of Xew York, and hrouglit her 
 with him to Montreal, where he ('ontinued to live until 
 1834. In that year he returned to the State of New 
 York and remained there until 1839, when he came 
 back to Montreal and made that city his permanent 
 home. 
 
 The Superior Court (Torrance, J.) held, on this 
 evidence, that at the time of the marriage there was no 
 proof of intention to settle in Canada, and that his 
 domicile in the State of ISTew York had not then been 
 abandoned. 
 
 In Wndsvorih v. McCord,- the facts Avere as follows : 
 In 1822 Wadsworth, a native of Ireland, came to 
 Canada and was employed as a shantyman on the Pionne- 
 chcre (Upper Canada). In 1827 he got out timber for 
 himself, and in 1828, while in the City of Quebec, where 
 he was in the habit of going every summer with rafts of 
 timber, he married the widow of his former employer. 
 Shortly after the marriage he returned to the Bonne- 
 chere to carry on lumbering operations there as formerly, 
 and on his w^ay up lett his wife and daugliter in the 
 neighbourhood of Aylmer (Lower Canada). In the 
 
 1 ,") L.N. (if). - 12 S.C.K. 4(i(i: 14 Ap. t'a.x. Ciil. 
 
nOMICII-E. 
 
 53 
 
 w "nter he canu' down tor lier and i)ron<i;ht her to his 
 residence on the Bonnechi're, where he eontinued to live 
 for ten or twelve years thereafter, and where he acquired 
 considerahle wealth. Then he sold out his establish- 
 ment and removed to the neii>-hbourhood of Hull 
 (Lower Canada), where he purchased a farm. 
 
 He subsequently left that neighbourhood and resided 
 for several years in Ottawa, where his wife died. He 
 re-married there, and afterwards, in 1878, moved to 
 Hull, where he resided until the time of his death. At 
 the time of his first marriage in Quebec, "Wadsworth 
 declared in the presence of the priest who performed tlie 
 oereraony that he was a journalier de cette ville^ and he 
 was so described in the certificate of marriage. 
 
 The Supreme Court of Canada held (reversing thc! 
 judgment of the Court of Appeal),' that the facts were 
 not sufficient to prove that Wadsworth had ac([uired a 
 domicile in the Province of Quebec at the time of his 
 first marriage ; and also, that the statement contained 
 in the marriage certificate had reference only to resi- 
 dence in relation to the ceremony of marriage in com- 
 pliance with article 68 of the Civil Code, which states 
 that for the purposes of marriage domicile is estab- 
 lished by a residence of six months in the same 
 place, and had no reference to domicile as affecting the 
 civil status of the parties. The judgment of the Supreme 
 Court was not unanimous, as Fouruier and Taschereuu, 
 JJ., dissented from the majority, both of them finding in 
 the marriage certificate a complete proof of the existence 
 of a domicile in Lower Canada, and Fournier, J., hold- 
 ing that all testimony tending to prove Wadsworth's in- 
 
 iM.L.Ii. 2Q.B. li:{. 
 
 ) !i 
 
 i I 
 
 m 
 
 '! 1 
 
 hi 
 
 m 
 
m 
 
 54 
 
 TIIK cnNFI.ICT OK J.AWS. 
 
 tentions from hiscoiiversatioi)!< and verbal statements was 
 illegal, the "declarations of the person" in article 81 of 
 the Civil Code meaning, in his opinion, written declara- 
 tions. The jndgmcnt of the Conrt ot Appeal was also a 
 majority judgment, Dorion, C.J., and Cross, J., having 
 dissented, so that this case is a good illustration of the 
 difficulty which often presents itself in cases of this kind 
 as to the proper inference to be diawn from the facts. 
 Special leave was subseipiently obtained L.> api)eal to tin; 
 I'rivy Council, not for the purpose of reviewing the find- 
 ing of the Supreme Court, which depended on a mere 
 question of fact, but in order to determine what was the 
 legal effect of the certificate or octe de marUvje signed by 
 Wadsworth and his wife, and that tribunal held, con- 
 firming the judgment of the Supreme Court, that the 
 statement contained in the cvtificate had no bearing on 
 the question at issue. Sir Baines Peacock, in rendering 
 the decision, said : *' Article 79 of the Civil Code of 
 Low-er Canada speaks of tlie domicile of a person for all 
 civil purposes, and article 63 of a domicile for the 
 pur[)Ose of marriage. The latter article is as follows : 
 "The nian-iage is solemnized at the place of the domicile 
 of one or otlier of the parties. If solemnized elsewhere 
 the i)erson officiating is obliged to verify and ascertain 
 the identity of the parties. For the purposes of mar- 
 riage, domicile is estal)lished by a residence of six months 
 in the same place." The words ' for the purposes of 
 marriage ' refer to the previous portion of the article, 
 and mean for the purpose of the solemnization of the 
 marriage. The Legislature never could have intended to 
 enact by such expressions as these that no person should 
 be married in Quebec unless he should have his inter- 
 
DOMICILE. 
 
 O) 
 
 national domicile' there ; still less could it have intended 
 to alter the international law ot domii'ile, and to enact 
 that any person having his nitennitional domicile else- 
 where should, hy a temporary resi<lence in Qm-bee 
 for six months for the [»urposc of having his marriage 
 solemnized there, lose his international domicile and 
 acquire a new internatiotnd domicile hy election, so as to 
 aifeet his status and civil rights."' ' 
 
 In Cressc v. Baby- the (luestion was as to wlicthi-r 
 Francois TJid)y was domiciled in the District or Quehnat 
 the time of the issuing of the commission in hankruiticy 
 in his ease. The facts of his lih' were as follows: lie 
 was horn at the City of Quehee. IV'fore 1819 he let't 
 home to establish himself at St. Pierre les Becquets, 
 in the district of Three Rivers, wliere in the same year 
 he made the purchase of the seigniory of Xicolet. In 
 1829 or 1830 Mr. Baby was married at the parish ^>i' 
 St. Philippe, in the District of Montreal, where he re- 
 mained until 1837, when he went to Albany in the State 
 of New York, at which jdace he resided with his family 
 until about the month of February, 1.S44. Towards the 
 end of January of that vear. heariiiif that his mother wa> 
 dying, he hastened to (inehi-e, where he arrived on 
 the 8rd of February. ( )n the :20th ot the same month he 
 made his declaration in the Court of Bankruptcy that he 
 was umible to meet his liabilities, and tlu- commission in 
 bankruptcy bears datt' the same day. He was thus just 
 seventeen days in Quebec before he went into the liank- 
 ruptcy Court. It also a[ipears from the report that he 
 subsequently continued to reside in the City of Quebec. 
 
 1 MrMnllni v. \V(i<ls 
 
 ■' 10 I.. C. J. :n;j. 
 
 ■II, , L. 11. II An. Cii. (i:U. 
 
 
if 
 
 6(i 
 
 TlIK CONFLICT OF LAWS. 
 
 Upon these facts the Court of Appeal held that Baby 
 was domiciled in Quebec at the time of the issuing 
 of the commission in bankruptcy. Mondolet, J., said : 
 " With regard to Baby's domicile, I am of opinion that 
 upon his return from Albany, he immediately re-assumed 
 the paternal domicile, and this was confirmed by his 
 subsequent residence in Quebec." And Duval, C J. : 
 *' The question which we are now called upon to decide 
 is whether tlie commissioner of bankrui>tcy liad juris- 
 diction in the premises. For this it was necessary that 
 Baby should have had a domicile in Quebec. This I think 
 he had, for one day is sutficient to obtain a domicile 
 when accompanied with the pro[>er intent The ques- 
 tion then is, had Baby, when he made liis declaration, 
 the intention of fixing his residence at Quebec? This is 
 clearly established by his subsequent conduct." 
 
 The case of Connolb/ v. Woaliich} illustrates the con- 
 verse principle that a very prolonged residence is in- 
 sufficient to establish a domicile if the intention of 
 remaining is wanting. Connolly was born at Lachine, 
 in Lower Canada, about the vear 1786. lie entered the 
 service of the North-West Company in 1801, and in 
 1802 was stationed at Rat River in the Athabaska 
 country. He went there to buy furs and skins from the 
 Indians, with no more design of settlement or residence 
 tlian sucli as was necessary to carry on his trade. Tie 
 8ubse(|uently resi<led at different posts of the North- 
 West Comi»any for thirty years, and during the whole 
 of his stay in that region always expressed his intention 
 of returning to civilization as soon as he could. lie 
 ultimately carried out his intention, and lived in Lower 
 
 1 11 L.CT. li»7; 1 H.L. 2:.:i. 
 
r)OMirii,K. 
 
 57 
 
 •Canada for eighteen years after his return, and then diod 
 there. In 1803, while stationed at the Rat River, he 
 took an Indian wite, and one of the questions in the 
 case was wliether at the time of this nuirriage he had 
 lost his Lower Canadian (hjmicile and acquired a (h)nii- 
 <iile in the North-West Territory. The Superior Court 
 hehi that Connolly had never lost his domicile of hirth, 
 and this judgment was confirmed in appeal.' 
 
 Another presumption in favor of the retention of the 
 domicile is contained in article 82 of the Civil Code, 
 which enacts that : " A person appointed to fill a tem- 
 porary or revocuhle puhlit- ofiice, retains his former 
 domicile, unless he manifests a contrary intention." 
 
 The rules concerning the domicile of dependent per- 
 sons are contained in article 83 of the Civil Code : — *' A 
 married woman, not separated from bed and hoard, has 
 no other domicile than that of her hushand. The domi- 
 cile of an unemanci[»ated minor i^ with his father and 
 mother, or with his tutor. The (hnnicile of a person of 
 the ao-e of maioritv interdicted for insanity is with his 
 •curator " 
 
 Separation from bed aiul hoard gives the wife the 
 right of choosing for herself a domicile other than that 
 of her husl)and. 
 
 There is one case in which a married woman may 
 have a domicile of her own, although she is not separ- 
 ated from hed an<l hoard, /. e., when the husbaiMl is 
 interdicted for insanitv and the wife is his curatrix.' If, 
 
 ' The easos of /''nr.vc/- d- Pon/iof d- Fnisir {U MI.. 1 k 5:iO ; 12 
 Q.L.R. :{27); Voiinrf v. Dgnisr, r>'.) I, ('..!. liUi; Riitmlrl v. Dorion 
 (•) L. C. li. 344) iiiul McXiitnnni v. Consfanfinniu (3 It. de J. 4<S2) ni.iy 
 also be consulted for illustrations of the rules above KJven. 
 
 ■^ Civil Code, article 201. ^ Marmde, on art. 108 C. N. 
 
 Duiiiioilii of 
 
 .l"|»'ii(l(int 
 
 prraung. 
 
 I 
 
 
 M 
 
r)8 
 
 THE CONFLICT or LAW';' 
 
 li0W3ver, flio husbiiixl liad ii curiitor otiicr than liii* 
 wife, her domicile would necessarily be that of the 
 curator. 
 
 It was a debated ([uestioii under tlie old French law 
 wliether a minor who, upon the death of liis father, 
 nu'cived a tutor domiciled elsewhere, lost his paternal 
 domicile and accjuired that of his tutor. Pothier' follows 
 Mornac in thinking that the paternal domicile continues, 
 against the opiiuon of Bretonnier and Houllenois. Mar- 
 cade, on article 108 of the Code Nai»olcoii, which is 
 worded like our artit;le S3, justly observes that the tutor 
 exercises all the civil rights of his ward, and that the 
 domicile of the minor depends on him and not on the 
 father or mother, even thougli the minor should reside 
 witli the latter. The tutor controls the iiersninie civile 
 and not the personvc phi/sit/iie.. (See also Demolombe, 
 Vol. 1, No. :359|.- 
 
 I Introd. ti('ii. iiiix ('ouIuiiujm, No. 17. 
 
 - Tlie foiv;^()iim- fhapliT does not jiurport lo fn-iit tlu' sulyect of 
 •loniic'ik' cxliau.slivi'ly, l)ut iiitTcly lo t'siuhlish llic piiiicipal ruK's iiiso- 
 far a.s thoy appoar o i)e recj^inzcd hy oiw law and as may lie necessary 
 for the eoini)rehen.si(jii of tlie following; chapters. For further detail* 
 the reader may usefully lonsuU amout;- modern I''rench writers, Merlin, 
 l-{»''pertoire, V'erl)o " Domicile," and 'I'oullicr, \'o\. I. Xos. ;{()2 stpi. The 
 l»est Kn^^listi work on the subject is un(|uestional)ly that of Mr. A. V. 
 Dicey, on Doinicil, Loudon, IS?!), and his chapter on tlie same subject 
 in his recently pulilished work on the Contlict of I^aws (London, ISlHi). 
 The modern law of France in regard to domicile does not dill'er in any 
 essential respect from the old l-'rencli law on wliicli our ("ode is based, 
 nd as to the law of Kugland, it was said by Ritchie, I'.l, in W'hiIk- 
 inivf/i V. McCord {]2 S C.IL 478), thai its principli's on this subject are 
 practically identical with those of our own l.-iw. 
 
(MfAl'TKR IV. 
 
 MAKHIA(;i<J 
 
 i 
 
 Tlu' fitrmjil validity of the m.arria^o eerornony is sul)- 
 ii'ct to the i'ciu'ral rule onnnc.iatod in article 7 of our Civil 
 (■ode : " Acts and deeds made and passed out of Lower 
 Canada are valid, if made aceordiii^ to the forms required 
 ])y the law of the country wliere tlu'V were passed or 
 made." This is merely a reproduction of the old maxim 
 of the customary law : Locus re(/it actiini. lint article 
 135 ot the Civil Code applies ttie rule in rei;ar<l to 
 the celehration of marriage with a proviso. It enacts 
 that : •• A marriage solemnized out of Low^t Canada he- 
 tw^ccn two ftersons, either or hoth of wliom are suhject to 
 its laws, is valid, if solemnized according to the formali- 
 ties of tlie place where it is performed, iirovideil that the 
 parties did not go there with the intention of evading 
 the law."' 
 
 The codifiers douhtless consi(h'red it superfluous to 
 state tliat the marriage solemnized out of Lower Cana<la 
 between two persons, neither of wln)m was subject to its 
 laws, would be valid if solemnized according to the for- 
 malities of the place whore it was pertormed. That case 
 would be governed by the general rule enunciated in 
 article 7. But article 135, while recognizing tlie rule, 
 contains an exception wdiich is applicable when the con- 
 
 Kormiil 
 viiliility 
 of mar- 
 
 •r-i 
 
 
rm 
 
 I i 
 
 <;o 
 
 TiiK coNi'i.irrr ok laws. 
 
 tnictiiiiij parties are (or one of tliem is) subjoct to our laws, 
 i e. vvboii thoir status and capacity depend upon the law 
 of this province. 
 
 Tims, a minor who is domiciled in this province, and 
 who consecpiently re(piires the consent of his parents 
 or of his tutor to contract a niarriau^e ', (!ould not evade 
 the laws ^overnin<j!j his capacity hy goin^^ beyond the 
 province to have his marriage solemnized in a country 
 where such consent is not re([uircd. Article 135 C. C. 
 merely recognizes tlu^ formal validity of a marriage cele- 
 brated abroad according to the forms of the place ot 
 ceUibration, but does not remove any disabilities created 
 by the law of the domicile -. This, in fact, necessarily 
 follows from the provisions of article 6 of the (/ivil Code, 
 which exi»ressly declares that an inhabitant of Lower 
 Camida, so long as he retains his domicile therein, is 
 governed, even when absent, by its laws respecting the 
 status and capacity of persons. 
 
 The decision in the case of Lamjuedoc v. Laviolette^ 
 does not conflict with the above rule, imismuch as 
 the objection as to the want of i-onsent of the wife's tutor 
 could not be raised by the consorts themselves. The 
 facts were as follows : 
 
 The appellant Langae<loc had been married to Miss 
 Beaudry, a uiinor, on 25th September, 1849, in Cham- 
 plain, State of New York, before a justice of the peace. 
 Both consorts were Roman Catholics domiciled in Lower 
 Canada, and immediately after the marriage they re- 
 turned to their domicile. The consent of the bride'is 
 
 'C. c. nil, i-2± 
 
 - I'nt/iicr, Mariapce, No. :127. /iuul/oioLs, Vol. I, pp. -IIM-Ii. 
 '1 L. C. .1. 210; S 1. t". H. 2.i7. 
 
MAUUIACE. 
 
 61 
 
 ]iart'ntH or tutor liad not been ol»taiiio<l as I'tMiiiircd Ity tlic 
 hiwrt of Lower (^aiuula. On the 28r(l October. 1H4!>, 
 Lanjifuedoe and his wite, roproseiited by tlic rcspoiideiit 
 Jjaviolottc, her tutor, t'xocutod marriap' covciiantrt stipu- 
 lating; s('[)aratioii as to property, and on '27tli O(!tober, 
 1849, a second niarria«j^e was celel»rated l»etore the priest 
 of the wife's parish. The action was bron_<;lit by tlic 
 consorts aii;ainst Laviolette for an account of his admin- 
 istration as tutor, tile female plaintirt assuming: the 
 • luality of a wife separated as to pro[»ei"ty in vii-tue (d'the 
 second marriaice and tho covtMunits preccdiun' it. The 
 deh'iidant Jiaviolette i)leaded tlu> nullity of t!ie second 
 marria<2;e ami tlu' niarriaije covenants, alleii'ini; that 
 tho first marriage alone was valid, and that as this 
 was not preceded by any antenuptial contract the parties 
 wore presumed to have intendeil to establish legal com- 
 nnmity under the laws of their domicile. The tutor fur- 
 ther alleged tiuit ho had a claim against tho husband 
 which would more than compensate any V)alance of 
 account of his tutorshii), and that in oonseciuenco he had 
 an inti-rest in showing that tho consorts were coinmon as 
 to property. 
 
 The only question raised in the ease was as to whi<'li 
 of the two marriages was valid. Tlie Su|»erior Court 
 (one judge dissenting) held that the first marriage was 
 valid, but no reasons ap[)ear in tho fornud judgment. 
 The majority of tho Court of Appeals (Aylwin, J., di.ss.) 
 confirmed this judgment, and Sir ]j. il. Lafontaine, C.d., 
 and Caron, J., both expressed tho opinion that the 
 marriage was valid as to form. As to tlu' objection that 
 the tutor's consent had not boon obtained, this could not 
 be sustained inasmuch as the tutor alone could complain 
 
 •If. 
 
 m 
 
 ;MJV. 
 
 vv«S 
 
Ill 
 
 02 
 
 THE COXFLIOT OF LAWS. 
 
 Imperial 
 Foreign 
 Marria}.'e 
 Acts. 
 
 ]Iarri:i);('f< 
 celebriitcd 
 in unri- 
 vilizi'd 
 countries. 
 
 that \\iii rights had been violated, and in the present case 
 the tntor, ho tar troni complaining ot'isnoli violation, was 
 actually su[>}>orting the validity of the marriage. 
 
 The celebration of marriages by BrititJi Ambassadors, 
 Ministers, Governors, High Commissioners, Consular 
 OtHcti's, etc., in foreign countries between parties of 
 whom one at least is a British subject, and of marriages 
 solemnized on Her Majesty's vessels on a toreign station 
 between such parties, is regulated by the following 
 Imperial Acts : The Consular Marriage Act 1849, the 
 Consular Marriage Act 1868, the Marriage Act 1890, and 
 the Foreign Marriage Act 1891.' As this legislation 
 appears to be intended to appl}- to British dominions, our 
 courts would probably be obliged to recognize the valid- 
 ity of such marriages although they might not be in 
 accordance with the form recognized by the law of the 
 place of celebration. 
 
 Another question which presents itself in connectioii 
 with the validity of marriages celebrated outside of the 
 Provinc< of Quebec, is as to how far our courts would 
 recognize unions contracted in barbarous or half-civilized 
 countries. It is held by many authorities that the rules 
 of Private International Law have no application i:i 
 uncivilized countries, as the laws or customs of such 
 countries are either so uncertain or so re[>ugnant to 
 the policy of civilized states, as to prevent them from 
 being accepted. In the case of marriage, however, the 
 tendency seems to be in favor of the recognition of local 
 forms, at least in cases where one of the parties is a 
 native.- 
 
 ' The last two are printed with the Canada Statutes of )*»l, 
 - IHceij, Conrtict oi Laws, p. 724. 
 
Kt 
 
 makhiA(;e. 
 
 03 
 
 In Omnolhj v. Woolrich & Johiimn ' the Superior Court 
 maintuiuod the validity of a marriage contracted accord- 
 ing to the usage of the Cree Indians between a (hjniicilcd 
 Lower Canadian and an Indian woman at Rat River 
 in tlie Indian country, where there were no priests or 
 magistrates, no religious or civil authority and no regis- 
 ters. The custom proved in this case consisted in obtain- 
 ing the consent of the parents and in presenting them 
 with gifts. This decision was confirmed (with om- 
 dissent) by the Court of Appeals, but its authority is 
 very much shaken by the recent judgment of the Court 
 of Appeals in Fraser v. Poulio' k Jones-, where an rndian 
 marriage of the same character, contracted by a Lower 
 Canadian with an Indian woman in the North-West 
 Territories, was field not to be a valid marriage. The 
 decision in the latter case is, however, based on the con- 
 sideration chat the union in question did not, according 
 to Indian customs, possess the essential characteristics of 
 a Christian marriage, namely the idea of a permanent 
 union with one woman to the (>xclusion of allothen.. As 
 will be seen, the decision in the Fraser case does lu^t 
 necessarily contiict with the holding in the Connolly case, 
 that a marriage contract 't' between a civili/ed man and 
 a savage woman accoifiifi;;' to the local usages of an 
 uncivilized country may be regarded as valid. The [>oint 
 decided in the more recent case is that sucli a marriage 
 in order to be recognized liere must involve the distinc- 
 tive qualities of the marriage known to our law. 
 
 The Fraser case, in fact, does not lav down anv ruleasSui)- 
 to the foriiiiil validity of the marruige, but lays down the ^'»''*i''y- 
 
 1 11 L. L'. ;. l!*7: i K. L. tXi. 
 
 -• i:i R. L. .Vi(» : 12 (J. L. H. :«7 ; S L, X. 178. 
 
64 
 
 THE CONFLICT ( »F LAWS. 
 
 priric'ii>l(.' that, iii(]op(.'ii(l"ntly of all qiif.-tions ot' form, tlio 
 marriairo nmst lio valid agt(. its substaiu-c. 
 
 The rospoiidoiit Jones clai'nod as tlu' heir-at-law of an 
 Indian woman between whom and the late Alexander 
 Fraser a marriage was alleged to have lieen eontracted 
 in the Xorth-Wt'st Territory aecording to tlu' custom ot 
 the Indians. The majoritv of the court held that the 
 alleged marriage, according to the custom of a barbarous 
 nation whii-h admitted iiolvgamv and the rio-lit (tt 
 repudiation at will, did not possess the conditions 
 re<piired for a valid marriage in this province or in any 
 otiier civilized country, Ramsay, J., said: "The mar- 
 riai^e which the law recoirnizes as binding, is a bond 
 indissoluble at the will of the parties." And Cross, J., 
 a<hled : " Civilization introduces artificial regulations 
 affecting property rights and defines ol>ligatory duties, 
 for the protection of women and cliildreu. In Christian 
 countries the relation of husband and wife is dis- 
 tinguished by an am[»lificati()n of reeiprocal obligatory 
 duties and conse<piences, as affecting property, difteriwg 
 widely from tliose to be found elsewhere, and forming a 
 striking contrast to the relations of male and female in 
 savage life, when- perpetuity of r;ni(.i; and exclusiveness 
 is not a rule, at least, not a strict ru'e. Marriage, as 
 understood by Cliristians, is the union I'ov life of one 
 man with one woman to the exclusion ot all other^s ; any 
 intercourse without tliese distinctive (pnilities cannot 
 amount to a Christian ma'-riage."' Monk, .1., dissented 
 from tlie holding of the Co.irt on the question of legiti- 
 macy, and expressed the oi)in!<in, in coidbrmity with his 
 previous decision in Cvimolh/ v. Woolrii-h d- Johnson,^ 
 
 1 11 L.C..(. lltT ; 1 H.L Ih'X 
 
 th 
 
MARIUACE. 
 
 65 
 
 tliat these so-ciilli'd Indian inarriii<i:es, contracted hctwceii 
 white men with Indian women in the Xorth-West, 
 aecording to the custom of tiieir trihe, shonid he 
 reijarded as valid in this jii'ovinee. The hist mentioned 
 ease \/as decided hy Mr. Justice Monk, Avhen judti^o of 
 the Superior Court, and his judijiuent was confirmed hy 
 the majority of tlie Court of Appeal.' The jud<j;cs wlio 
 held the marriage valid a[ipt'ar to have hased tlieir 
 decision on the fact that although polygamy v/as 
 pi'actised among the Imlians themselves, it was unknown 
 among the whites living in the Indian country, who 
 regarded their somewhat unceremonious unions with 
 Indian women as binding ma''ri.iges. The pi'oot upon 
 this point, liowevci'. appears from the re[)ort of the case 
 to havi' been very contradictory, and Connolly himself, 
 whose union with an Indian woman was tlie subject of 
 the controversy between the parties, after declariuL!,- his 
 intention of marryiiig tlie woman when he came back 
 to civilisation, abandoned her on his return to this pro- 
 vince an<l married a lady to whom he had previously 
 atRiinced himseif. Tlie case was subsequently ap|iealed 
 to the Privy Council, but w^as settled between the parties 
 before argument, so that the question of tlu' validity ot 
 these Indian marriage; has never been definitively 
 settled by our highest tribunal. It seems ])robabli', 
 however, that the holding in the more recent decision 
 would be maintained, as the opinion which prevailed in 
 the Fraser case appears to be based on sound princi[»les. 
 This view is also conformable to the followint^ dictmn 
 
 ' The case was not adjudicated upon by the Court of Review, as the 
 report in 1 R L. 2")2 states. See pp. :!!).") and IJlKi, and the ('X|)!aM.iti()n 
 of this mistake given l>y Cross, J., in the Fraser case (12y.L.K. IW")). 
 
 PI 
 
 ■ » E J 
 
 
(u; 
 
 THE O^NFLICT OF LAWS. 
 
 ol" Lord !>r()u_iilijnii in the case of Warroider v. War- 
 rejxJer' decided by the House of Lords: — "If indeed 
 there go two t]iini!:s under one and the same name in 
 diiierent countries; it tliat wliieh is called mnrriage is of 
 a ditferent nature in eaeli, tln.'re miiy he some room tor 
 holdiut!: thut we are to consider tlie tliiuii; to which the 
 parties have hound themselves, according to its legal 
 acceptance in tlie country where the obligation wiis 
 eontrai;tcd. But marriau'e is one and the same thins" 
 substantially all the C-hristian world over. Our whole 
 law of marriage assumes this : and it is im[)ortant to 
 observe, that we regard ir as a wholly ditferent thing, a 
 (ditferent sfalns, from Turkish or other marriages among 
 intidel nation; , because we clearly never should recog- 
 nize tlu plurality of ^\■ives, and consecpient validity of 
 second marriages, stamiing the tirst, which second mar- 
 riages the laws of tliosi' countries authoi'i/.e and validate. 
 This cannot be ])Ut up<»n any rational ground, except our 
 holding the intidel marriage to le something different 
 from the Christian, and our also holding Christian nnir- 
 riage to l)e the same ever}' where. Therefore all that 
 the courts of one country have to (h'tci-mine is, whether 
 or not the thing calle*! marriage, that known relation, of 
 persons, that I'elation which those courts are acfpiainted 
 with, and know how to deal with, has been validly con- 
 tracted in the other country where tlie parties professed 
 to bind tliemselves. If the (piestion is answered in the 
 affirmative, a marriage has been had ; the relation has 
 l)een constituted ; and those courts will deal with the 
 rights of the parties under it according to tlie principles 
 ot the municipal law which they administer." 
 
 1 2 (M & Fin. ISS. See also lU-hikhii v. Attji. d'a., ISOO, 15 P.D, 70, 
 iiiid Hfthdl V. IlihUjard, 1H88, lis V\\. 1). 22(1. 
 
» 
 
 
 1 1 
 
 MA UK [AGE. 
 
 07 
 
 11 
 
 II has 
 II the 
 
 ["iples 
 
 .1) TC), 
 
 Tho ciipueitv ot the parties, to contract a niarriat;e<''i''city 
 
 ^ " '- _ ~ to iiKirry. 
 
 depends on tlie law of tlie domicile ot each of the 
 intendiiii; (lonsorls at tho time of the niarria^'e. This is 
 merely an apj^lication of the ijreiuM'al principle as t'> 
 capacity enunciated in article of the (Jivil Code. 
 
 A married woman's capacity to contract, to alienate '''i''"^i'v 
 
 I ' ' III iriarrii'il 
 
 oi- to hecpieath, depends in general on the domicile of""""'°- 
 her hushand at the time of those acts. This is a con- 
 sequence of the same principle coupled with the rule 
 that tlie wife's domicile is that of her hushand.' Thus, 
 a married woman whose hushand is domiciled in Quehe<' 
 is governed as to lier status and capacity hy the laws oi' 
 (Juehec, which prevent her tVom contracting or alien- 
 ating:: '.vithout lier hushand's authorizatit)n. Aiul inas- 
 much as article (5 of our Civil Code provides that })ersons 
 domiciled in this province are governed, even when 
 absent, hy its laws respecting status and capacity, oui' 
 courts would undouhtedly hold thai such married 
 woman would retpiire marital authorizati(»n if she 
 entered into a contract in the State of !N^ew York, where 
 the law permits a wife to contraet without this author- 
 ization. 
 
 Hut while the question i»resents no ditHculty when i.tr.vt of 
 there is no chano:e of domicile, much eontroversv ]niS"t'i..M.i<iie. 
 arisen in regard to the wife's i-apacity when the original 
 matrimonial domicile has heen abandoned, and the con- 
 sorts have acipiired a new domicile whose laws are 
 different in that regard. For instance, if conaorts origin- 
 ally domiciled here reraov their (h^micile lo the State 
 of New York, will the wife be able to contract without 
 
 ' Civil Code, art. s:{. 
 
 ' Pofhier, Introil. (jtMi. aux Coutumes, No, 7. 
 
 <^)l 
 
 
 ■ 
 
68 
 
 THE CONFLICT OF LAWS. 
 
 her husbiuid's .authorization after tliis cliangc of domicile? 
 And coiivorsely, vvouhl eoimorts removing their (h)micile 
 from tlic State of New York to tliis province, become 
 subject to the provisions of our hiw respecting marital 
 authorization ? 
 
 According to strict princiitles it would seem that })ot]i 
 questions should be answered in the affirmative. Our 
 Code eiuicts that status and capacity depend u[)on (himi- 
 cile, and we luive seen ' that a change of domicile liber- 
 ates a person from the hnvs oi' the old domicile relating to 
 status and capacity, and subjects him to the laws of the 
 new domicile. Froland ■, Boullenois ', Pothier ' and 
 Merlin ' hold this opinion, while Bouhier '' and Dumoulin " 
 maintain that as to marital power the law of the matri- 
 monial domicile determines the condition of the wife, 
 which is then iixed and does not change with the 
 a('(juisition of a new domicile. 
 
 The earliest case in which this point has been adjudi- 
 cated upon here is tliat of Lavioleitex. Martin.'' Tlio con- 
 troversy was as to the validity of a deed of sale of land 
 situated in this province executed by a married woman 
 without her husband's authorization in the State of New 
 York, where tlie consorts were then domiciled, liaving 
 left their tormei domicile here. The Superior Court 
 (Day. Snaith and Mondelet. JJ.) held that, inasmuch as 
 tlie const irts m-ere at the time of the execution of the 
 deed domiciled in a stat»> wliose laws did not require that 
 
 I »>ipra. ]>. T)!. '^ Mem. Vol L p. 172. -'Vol. I, Obs. I. p. tU. 
 ■• Introd. Cieii. aux Conuiiiit's, NOs, 7, V.i. 
 
 Hfpei'toiri'. \'o. " Autni isation Miiillaln, hoc. 10. 
 * Cout.de Hourjt. cli. 22, sec. 07. 
 ' Comment, ad Cod. Lib. 1, lit. 1, L. 1. 
 "2 L. C. J. m ; .') L. C. J. 211 ; 11 L. C. H. 2M. 
 
MARRI.VGE 
 
 69 
 
 ii MiiirriiMl woman should be autliorizcil \>y Iut liushaiid 
 lor such imrjiosc, tlio conveyance was valiil. But the 
 Court of Ai)[ieals unanimously reversed tliis jndii;ment. 
 The Chief Justice (Sir L. II. Latbntaine), wiio delivered 
 the opinion of the court, held that tlie (diange of domicile 
 did not tree the wife from the disability created by the 
 law of the original matrimonial domicile, but that this 
 tollowcd her into the new domicile, lie also added that 
 tiie rule that the laws of the new domicile have all 
 tlie eflect on the individual which those of the old domi- 
 cile previously luul, was restricted to their eti"ect in that 
 new domicile, and could not nudvc those laws [)revail in 
 opposition to [irohibitive laws in the old domicile. The 
 tirst proposition of law enunciated by the learned Chiet 
 Justice is, as we have seen, su^iported by some, th(Uiii-h 
 jtrobably not the best, authority ; but hissei-ond [)roposi- 
 tion, in the form in which it is {»ut, a[i[)ears to be 
 untenable. In the tirst place, it is dithcult to understan<l 
 how the law reipiiring a wife to obtain her husband's 
 authorization before contracting can l)e reu'arded as 
 prohibitive except as i-egards persons domiciled in this 
 province and subject to its laws respecting status and 
 capacity. It surely cannot concern our i»ul)lic jiolicy 
 that a married woman domiciled abroad and by the ex- 
 press terms of article 6 o\ the Civil C(^de no longer 
 subject to our laws, should obtain her husbaiurs authori- 
 zation when selliiig her property. In the second ]»lace, 
 the rule that status and capacity change with the domi- 
 cile would become meaningless if its o[>eration were 
 restricted to tlie territory of the new domicile. It would 
 amount to saying that while the courts of the new domi- 
 cile might recognize the change of status, our own courts 
 
 m 
 
70 
 
 THE CONl'LICT or LAWS. 
 
 would treat persons iicquiriiii;: a new doniifilc ju^t as if 
 tlioy had jncsci'vcd the ohl ', 
 
 The (U'eisioii of the Court of A[i|peals in tlie ease just 
 discussed was also hast'd on another ennsideration, 
 namely, tluit as the contract was i'or tlu' sale of lands 
 situated in this [»rovince, the mode of dis[)osition must 
 eouform to the law ol' the situation. Tiie learned Chief 
 Justice cites on this point soiiie authorities to the eflect 
 that the formal validity of deeds conctu-ning real estate 
 depends on the law of its situation. W^e shall exarnini', 
 in a subse([uent chapter, the linnts within which this 
 principle must he api»lied under our law. But it seems 
 very (loul)tful whether the requirement as to marital 
 authorization can he regarded as part of the form of 
 a deed. Jt appears, on the contrary, to he a (piestion of 
 capacity. The disability of a married woman in this 
 respect is a limitation of her capacity just us the inability 
 of a minor to act without his tutor is a limitation of his 
 eaiiacity. The ultra-realists of the old consuetudinary 
 law did indeed maintain that the law of marital authori- 
 zation was a territorial statute based on considerations of 
 public policy. Act'ording to this exaggeration of the 
 sUdut reel^ the law of the situation goverr.ed all incidents 
 connected with the transfer of immoveables and even the 
 capacity of the parties. The result was that a married 
 woman might sell immoveables without her husband's 
 authorization in one place and not in another.- But the 
 
 ' It is useful to ohscrvo that tlu^ reporter's head-note in this case is 
 erroneous. It wouhl seem to inijily tliat the conscrts had merely 
 at'ciuired a rvsuhticr in New York State without losin;^ their Canadian 
 doniieiie. Hut both courts treated the case as one where a chanjie of 
 (loniicUc had taken place. 
 
 - .Merlin linally ado))ted this view (Rep. Vo. " Kllet retroaclif," sec. 
 3. par. :!, art. '^. Xo. ;i) and changed his former opinion. 
 
MAUKIAO?;. 
 
 71 
 
 sn|i|»ortt'rs of tliis tlicorv did ti(»t coiifoiind the (iiicstiDn 
 i»t' caiJiuity with that of foriiial validity. 
 
 The rnic [»riiicipU's <>t" thi* suhjt'ct apiicai' to have liccu 
 hiid down hy Mr. Justice .NfathiiMi in the casv of J/c- 
 Ait/nec V. NcN(tiiiee\ (4eoi\i;'(' McXauu'e and Klh'ii 
 Rohill wi'iH" married in 1840 in Ireland, whei-e they 
 were then domieiled. and it was estahlislu'd that under 
 the laws ot Great Britain and Ireland at tliat dat(% all 
 tlie proi)2rty and rigiits of the wite hccaiue veste<l in the 
 liusband during tlie marriage, and the wife was ahso- 
 lutely in 'apahle of contracting any ohligatioiis or making 
 a will. The consorts sul)se(|UOMtly removed their domi- 
 cile to the Province of Quebec, and in 184!t, when they 
 were <loiriiciled hei-e, they became parties to the mar- 
 riage C( iitract of one ot their daughters and bound 
 themselves not to benefit their other children by gifts or 
 testamentary dispositions to the prejudice of the said 
 daughter. The cour.t held that the marital power of the 
 husband and the eai)acity of the wife depende<l, not on 
 the situation of tlie property, but on the actual domicile 
 ol' tlic consorts at the time ot the execution of the con- 
 tract in <iuestion, and that they wi're in conse(picnce 
 both bound by the obligations therein contracted. 
 
 Again, in the case of Slerens v. Msk- the Coui't of 
 Appeals in 18S3 held that a married woman, after 
 accpiiring a domicile in this province, must l»e author- 
 ized by lier husband to institute proceedings before our 
 courts, although no such authorization was required by 
 the law (d' the orit^inal matrimonial domicile of the con- 
 sorts. This judgment was subsecjuently reversed by the 
 
 'V 
 
 1 i;;| 
 
 'ill 
 
 4 
 
 I URL. ;io. 
 
 ■^ IhJ'ki, pp. !^2 aii(i. 
 
;i 
 
 m 
 
 72 
 
 TIIK ("OM'I.ICT or LAWS. 
 
 Siiri'tv- 
 slii|> liy 
 iiKirrii'd 
 wipiiirii 
 
 Sin»iH'iiU' (N)iirf ol Ciinadii, Imt on tlic <;r(iiii)<l that the 
 coiitforts wt'i'c validly (li\t>i'ccMl at tin- tiinr tlic jiiMrcfd- 
 iui^s in (|ii('sti(»ii wrrc iiistitiitod, 
 
 AnotluT (|ii('sti()ii wliicli gave rise tri coidlictiiii^ 
 (>l)ini()ns aiiioiiii; tin* old writers was tliat of the wit'o's 
 iiicaparity to hccoinc a surety under the provisions ot 
 the SeiKihi.s-nDtisiilliiiii Vidlclniniin oi' ot" similar jirohihit- 
 ivi' enactments. Some authoritii's were in favour ot 
 reii:ardin<^ tliesc laws as territorial, and eoiiseiiuently 
 aiii»licahU' to all porHons coiitraetini!; within tho juris- 
 diction without rei;'ard to the law of theii' domii'ile. 
 But this \iew apiiears to luive hoen satisfactorily refuted 
 l>y IJoullenois,' wlio shows that the disability is a purely 
 personal one, and that it should be ii'ovorned by the law 
 ot the domicile, lie is a})proved liy most of the modern 
 writers.' Our Civil Code (art. l^JOl) enacts that ''a wife 
 cannot bind herself either with or for her hiisl)and, 
 otherwise than a8 beini*' common as to property; any 
 sueh obliiji-ation contracted ])y her in any other (quality is 
 void and of no eii'ect," thus i'e[)ro(hicin<>' in part the 
 proliibitions of the Senatus-cotts'iUnm VeUeiavmn. The 
 
 on IN" case 111 our r 
 
 epor 
 
 ts 1 
 
 learniiT iiiion 
 
 tlie contlict of 
 
 laws on this subject' is somewhat unsatisfactory. The 
 
 action was by a widow {iii'amst an insurance company m 
 tlie Trovinee of Quebec and ai^ainst "^be trustee of lier 
 hite liusband's insolvent estate to recover thi' amount 
 of an insurance policy obtained from the compuny by 
 tlie husband and issued in favour of his wife. Some 
 time after etlectino- this insurance tlu' husltand had 
 beco.iie insolvent and had induced his wife to transfer 
 
 ' Vol. 1, Ol)s. i;i, jip. isT siii|. 
 
 - Sorh/iij/, Priv. Int. Law, p. loS. 
 ■' Parctit V. Shvitrci; 2:i L.C..J . 12. 
 
MAKKIAliK, 
 
 this policy to liis tiMi-ttor tl>r the IxMirtit of liis cri'ditois, 
 ill order t(» olitain ;i coiiiiiositioii and di^cliafirc 'I'ln- 
 widow alleged tiiat tlie iiolity liaviiin" Ixh-ii issued in 
 Montreal, could not. liy the laws ot' this province, he so 
 transt'erre(l. hecause the wile caimMt hinil herself t'oi' iier 
 hiishand lU' transler her property to secure his liahilities, 
 and she petitioneil tor an injuuctioii to resti'ain thi' 
 trustee tVoni [iroceedinu' in the C'hancery Court of the 
 Province of Ontario to pi-oseciite this claim aijainst the 
 
 insurance eoni[iaii v 
 
 The t 
 
 ransl'er o 
 
 t tl 
 
 le poiicv anneal 
 
 to have hecn made in the l'i'o\iiice of Ontario where the 
 consorts were (h)mit'iled. and it wouM have lieeii 
 
 I i)el'- 
 
 1 
 tectly vali<l hy the laws of that province. The Superior 
 
 Conrt held that this was not 
 
 a case 111 w 
 
 hicl 
 
 1 a writ of 
 
 injunction could he grantetl under our procedure, hut 
 also expressed the ojiinioii that, even assumini!; the cor- 
 rectness of the [irocedu re, the i)laintifi's claim was not 
 teiiahle on the merits. The learne 1 jiidge arrival at 
 tills conclusion hecause tlu' [(ro})erty transferred was 
 raoveahle and hecause, hy tlu- secoiul paragraydi of 
 article of the Civil Code, inoveahle property is 
 governed hy the law of the domicile of its owner, Tlie 
 decision would have heen more satisfactory if it had 
 been based on the last [»aragraph of article »3, which 
 makes the capacity of jiersoiis depend on their domicile.' 
 The importance of this case is also lesseiieil hy the fact 
 tliat it does not present the difheulty which divided the 
 old authors, namely, whetlier the law of the domicile or 
 that of t'kc place where the act was (h)ne should control, 
 for in the [tresi'iit instance the transler of the wife's 
 
 m 
 
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 74 
 
 THE CONrLICT OF LAWS. 
 
 
 Marital 
 authority. 
 
 policy wsis made in tlie Province of ()ntari(», although 
 tlie insurance was effected in th « Province of Quebec. 
 
 The power of a huslnind over his wife under a foreign 
 law, e.g., to compel her to return to the conjugal domi- 
 cile, does not a[»pear to have been the subject of any 
 judicial decision here, but his rights in this regard would 
 probably not be recognized beyond the limits allowed 
 by our law, as it is a generally received principle that all 
 quasi-peiuil procee<lings are regarded as being strictly 
 territorial. It would seem to fo' v from this principle 
 that a foreigner who was merely resjidcpt with his wife 
 in this province, might, though dr illed in a country 
 where his marital authority was i, ( i- less extensive 
 than here, apply to our courts for rl%^tirution of conjugal 
 rights and obtain such relief as our law would afford in 
 such case. The doctrine of the English courts undoubt- 
 edly is that the authority of a husband as regards the 
 jierson of his wife while in Kngland is not affected by 
 the nationality or the domicile of the parties, but is 
 governed wholly by the law of England.' and the 
 Judicial Committee of the Privy Council has held that a 
 foreigner, resident with his wife in England, though 
 domiciled elsewhere, may apply to the English courts 
 for restitution of conjugal rights.- But Bar" and Laurent' 
 while admitting tiuit the liusband can only put in force 
 any measures of personal constraint upon his wife in so 
 tar as the law of the place of residence will allow, express 
 the opinion that, on tlie other hand, a Imsband can 
 never claim a higher right of compulsion over his wife 
 than his personal law gives him. 
 
 ' Dirt!/, ("onlliot of Liiw.s, p. 4iK). 
 - ConnvUy v. Connrlli/, 7 Moore P. C. 4:W. 
 •' Privdti' Intcriiational Law, pp. .".Tit-li.S). 
 * Droit Civil Iiitenmtioiml, v. ."», sec-. M, 
 
 * 
 
MAKKIAGK. 
 
 76 
 
 Tho patriot potef^fas containrf n\\ iidiiiixtur*' of tlu; civil i-nr-m 
 iind of tlie iK'iml Ijiws, aixl »*oiis('(|iu'iitly it is difHcult to ''"'•'• 
 ijivc it jui fxtra-tcrritorial ettbct to its fullest oxtt'iit. 
 rrobahlv our c(»urts would rei'ouiii/.*' tlu' ri^-lit ot corroo- 
 tion acc'ordini' to the law of tho domicilt'. hut not bevond 
 
 the limits allowed hv our own law 
 
 X. 
 
 () authority can 
 
 he found in our reports u|ion thisjioijit. In Knijiand the 
 authority of a [larent as regards the [terson (tf his ehild 
 while in Entcland is not affected hv the natioiuility or the 
 domicile of the parties, hut is ijoverned wholly hy the 
 law of England -'. 
 
 The right of a child to maintenanci' has been the sub- 
 ject of a recent decision in our iSuperior Court In Burnen 
 V. i?ro;r/r' it was held tluit the daughter-in-law has no 
 claim for maintenance against a tiither-in-law, where 
 it a[)itears that the latter was only temi)orarily within the 
 Province of Quebec when served with pnjcess. and that 
 hy the law of his domicile (New York State), which was 
 also the place ot plaintiffs marriage to his son, no obliga- 
 tion is imposed on a father-in-law to maintain or contri- 
 bute to the sup[)ort of children-in-law. The }ilaintitf in- 
 voked article 6 of the Civil Code which provides that our 
 laws relative to persons apply to all persons being in the 
 jtrovince, but the court held that even if the temporary 
 presence of the defendant in this t-ountry were suthcient 
 to subject him to tlie operation of our law which creates 
 an obligation on the part (»f a father-in-law to nuiinti 
 his sons-in-law and daughters-in-law ', still such obliga- 
 tion would cease as soon as he lett the [irovinci', and 
 consecpiently, as the defendant had returned to his domi- 
 
 .Vliniony. 
 
 un 
 
 ' lirovhrr. Droit Int. Prive, Vol. 1, pp. :{:C), :j;«l, :M4, MTy. 
 
 ■^ Divey, Conflict of Laws, p. 4111. -^ \\. .1. Q. 7 8. C. 2s7. ■• C. C. ItW. 
 
"I 
 
 76 
 
 TME CONKI.KT OF LAWS. 
 
 m'. 
 
 ('ill' ill the Stiito of Now York [trior to to tlio motion for 
 provisional alimony, the application must ho (lisinisse«i. 
 LcKitiiiiuiy. As Ici^lt imacj is a <|uo.stion of status, and as article (I 
 of tlic Civil Code makes a person's status dci>end on tlic 
 law of liis domicile, there can l»e n(» doulit that a cliild 
 horn in lawful wedlock accordins;to the law of the domi- 
 cile of its parents would he recogiuzed as loifitinuite here. 
 The Superior Court at St. Ilyacinthe has held eonform- 
 ahly to this principle that the quality of father and 
 of legitimate child is irrevo<'ahly governed hy tiie pt'rsona! 
 law at the time at whicii it has heen ac(piired, and that 
 this law also governs the mode of proof hy wiiich this 
 (juality may he proved. Accordingly, where the consorts 
 were <lomiciled in Vermont at the time of their marriage 
 ami at tlie time of the hirtli of their child, recourse must 
 he had to the laws of that sta c to determine its leifiti- 
 macy '. 
 
 Xumei'ous c<)iiflicts may arise in regard to legitimation 
 l)y the suhsefpient marriage of the parents. The law of 
 some counti'ies (c //. France) recognizes this mode of 
 legitimation, while in others {e.<j. England) the suhse- 
 
 (pient marruige of the parents (h>es not legitimise their 
 natural children. Our own code- admits legitimation 
 ]>er si(hsei}>(e»s nuitrimoniinti. hut (hu's not solve the difii- 
 eulties whicli may arise from a conflict of laws, nor <h)es 
 our jurisprudence furnish any precedents. If, foi' ex- 
 ample, a child is horn in England of parents tlien domi 
 ciled there, will leiritimation result from a marriage 
 celehrated in France after the ac(piisiti(>ii of a domicile 
 there hy sui-li jtarents':' In other words, should our 
 
 I.rf'elt, re v. Jh'i/iiinii, li H. tie .1. l!»4. 
 
 Art. -SM 
 
MAIilUACiK. 
 
 77 
 
 courtK liavc iH'i^anl to tlio (htinit-ilo ol' tlu' part'iits at the 
 tiiiu' of tho cliild's birtli or to tlicir dotinciU' at tlio time 
 ot the marriage 'i 
 
 LittU' assistance can l)e obtained iVoni the old French 
 hiw.' An arrrf rench'red in ItJ^JH in the Cnnti/ dn Que.snu;/ 
 ease is ot'ti-n referred to, hut it a[>[>ears to he haseil on 
 jiriiu'ii>k's which wonhl not l)e applicable under our law. 
 Henri deContv and Jeanne Duniav had a child born out 
 ot" Wedlock in Finance, and subsiMpiently reinoviMl to 
 Kn<^land where a niarrias^o was celebrated. The child 
 subsecpiently made a claim to property in France on tho 
 ground that the marriage of his parents had legitimised 
 him. The court is stated to have adopi"(l the I'on- 
 clusions of the Advocate-General, who admitted that 
 legitimation was a ([uestion of personal law {kh ade per- 
 ,'<nH(iUs.siine), but contended that as the ([Uestion related to 
 the succession ot a Frenchman and projierty in France 
 the child could succeed to his father'^ estate. Tlie deci- 
 sion thus appears to be based on the law of the situation 
 oi the property and tho nationality of the parties rather 
 than <»n any other consideration. 
 
 Boullenois, who cites tho al)ove case and misstates the 
 facts.' is himself of opinion that the legitimation would 
 depend on the nationality of the parties raJier than on 
 their domicile, although this autlior usually makes 
 (piestions of status and capacity depend upon the law of 
 the domicile. 
 
 If we turn to the modern French law we shall tind 
 that the doctrine is very unsettled. A decision of the 
 Cour do Cassation in 1857,' reversing the judgment of 
 
 ' Jonruiil (hs Audieuves, Vol. 2, p. Ml. 
 
 •^ Vol. 1, pj). yVlM. 
 
 •' SeethecTiticism hy Merlin, Quest. <ie droit, vo. "Lt-^iitimation," §2. 
 
 * Sirey, 1K58 . 1 . 2lt3. IJalloz, IHTu . 1 . 423. 
 
78 
 
 THE CONI-MCT OK I,A\VS. 
 
 I 
 
 the Court of Orleans, Ijolds that the niarriaij^e in France 
 of an Kiiglirtlmian (loniicili'd tlieri! with a Frcnelj woman 
 would loifitiniate rhildrcn l)orn in Franci; hcfore tlie 
 nnirriagc. This (h't'ision would he perfectly well 
 founded under a system of law wliich nnikes status 
 de}tend on domicile, hut it seems impossihle to reconcile 
 it with tlu^ jtrinciple introduced hy article •> of the Code 
 Nai)oleon which makes status depend on mitionalit}'. 
 As Brocher rennirks,' it can only he explained on the 
 theory that leiritimatioii hy suhse(pient marriage is a law 
 of puhlic ord' r wliich should he applied to natives and 
 foreigners alike hy the courts of the country where the 
 nuirriage is celehrated The reasons given in the judg- 
 ment contirm this view, for legitimation is stated to 
 have for its ohject and result "de reparer une faute 
 commise centre I'ordre social." Tins decision was suh- 
 sequently followed hy the Court of Bourges in 1858," 
 hut hoth Judgments are severeh' criticized hy Laurent,' 
 who contends that legitimation hy suhse([uent marriage 
 is not a matter of puhlic order. He also cites decisions 
 of the courts of Bordeaux in 1877,' an<l of Caen in 1852,'' 
 in favour of his own view tliat legitimation hy suhse- 
 ([uent marriage is regulated hy the personal law. And 
 as the i)ersonal law depends, under the Code Napoleon, 
 upon the nationality of the person, he concludes that 
 the question of legitimation must be decided hy the 
 nationality of the father at the time of the marriage. 
 Savigny'' holds that legitimation by subsequent mar- 
 
 ' Droit Int. l»nv«-. vol. 1 p. :i2\. 
 " Ihilloz, IS'iS . -2 . ITS. >■//•<•//, 1S.-).S 2 . -)i\± 
 •' Droit Civil Int., Vol. ">, iios. 2.s:j s(|(|. 
 * Dallar., 1S7H . 2 . IIKJ. '■• Sini/, iHTrl . 2 . V.V2. 
 « Priv. Int. Law, p. ;«)2. 
 
MARlUAfJK. 
 
 70 
 
 nagc. ,s ,vg„ atcl anconlin^ to tlu- tatlu-r's doniinlo at 
 ho time ot the marria^^o. and that th. time of the child's 
 h.rth IS immatenal, since it is tlie marriage un<l the suh- 
 .c.,,.en re..ogn.tu,n of the ^liation wh.eh eonfer on the 
 ch the r,ght._ of K.^itimaey. The ehild eannot h 
 >.u I to have hy ,ts hn-th any Hght to iegitinmtion, sinee 
 •^ 'IqHMM s altogether on the father's will whether he 
 "•arnes the n.oU.er at all, and whether he suhsenuentlv 
 aeknowledges that the eliild is his own 
 
 This view appears to he founde.l on sound reasoning, 
 ami Hhonld, ,t is snhmitted, he adopted by onr eonrts.' ^^ 
 
 chi,;i'S';;;;:;;;:/;:rit,::-::::.;::;r;^ 
 
 s.H-h leKiti.nation .Hnn..t found a clai fo 7 1 it ' r p '",•", ' '""" 
 
 
 iJij 
 
CHAPTER V. 
 
 DIVOIU'iO AM) SKI'AIIATION. 
 
 llivorcc III 
 
 liiiblic 
 jioliiy of 
 our law. 
 
 ' Hy article 18;') of our Civil CixU- marriage is dct'lared 
 to Ite iii(lisrt()hil)K' during tlio lifetiine ot the consorts. 
 There are no courts in the Province of (iuehec having 
 authority to pronounce decrees of divorce, and it might 
 at first sight appear as if no recognition should he given 
 hy our courts to foreign divorces, inasmuch as divorce is 
 unknown to and against the i>olicy of our law. Put 
 since the passing of the British North America Act, 
 1867, whi.'h empowers the Parliament of Canada to 
 enact laws concerning marriage and divorce, it cannot 
 he said that divorce is, theoretically at least, unknown 
 to our law. And although no general divorce law has 
 yet been enacted by Parliament, private legislation is 
 passed at almost every one of its sessions for the relief of 
 consorts in special eases, and such private acts have all 
 the eftects of divorces a vinculo nuitriinoiiii. 
 
 As M. Justice Gwynne said in Stevens v. Fisic ' .- 
 " The contention that what this decree purports to 
 effect, namely : Dissolution of marriage, is contrary to 
 the public policy of the Province of (Jui'hec, and that 
 therefore it should not he recognized, cannot prevail, for 
 although the Province of Quebec has no tribunal estab- 
 
 '8 L.N. 4(5. 
 
DIVoKCf: AND SKI'AUATION. 
 
 81 
 
 I'lHhod Nvitliin its litiiits coTnpetont to cjitertain (|uostions 
 of divoroe, and cjitiiiot by its cniistitiition estaldisli such 
 a court, yet that is because of the nature of its cousti- 
 tution, and because the subji'ct of Divorce is jdaced 
 under tlie exchisive .jurisdiction ot tlie Dominion I'arlia- 
 nient, whicli can establish sucli a court competent to 
 entertain all t*ases of divorce arising in all the Provinces, 
 and in the mean time, until it does, exercises itself juris- 
 diction over the subject, as n ntnrt, for the same cause as 
 bv the law of tlie State of New York is deemed sutticient 
 there, and in tlu' same manner as the Imperial Darlia- 
 ment did in England prior tn tlie establishment of the 
 Divorce Court there. That cannot be said to be against 
 the public policy of the Province of this Dominion, whit-b 
 the Province by its constitution has not, but the Domi- 
 nion has power to deal with, neither can it with any pro- 
 priety be said that the Province has any interest in refus- 
 ing which would justify its courts in refusing to recog- 
 nize tlie validity of the decree." ' 
 
 
 lo 
 
 lo 
 
 ' Coiiipari' the ol)strviitioiis of Lord Wtstbiiry in S/iair ▼. (ioii/tt 
 (L.Ii. ;{ H.L. SJ), spi'akin;j; of tlie siimilar CDiidit ion of tlii' Kniilish law 
 before tlie Divorce Act: " I'litil the itceiit IHiorn Act, tliis law was 
 administered liy Parliament alone ; and, altlu>uirh the decision of Par- 
 liament was in the form of an Act or privilcKium, and not a .judicial 
 decree, yet the Act was granted npon evidenc' proving that the case 
 came witliin the scope of certain estahlislu'd rnles. This proceeding 
 was in spirit a judicial, though in form a legislative, act. The justice 
 of divorce was recognized, hut no forensic tribunal was entrusted with 
 tlie power of applying the remedy. Hut the law and practice of I'arlia 
 nient were well known ; and, in fact, this House acted as a ('ourt of 
 Justice. It cannot, theiefoie. be correctly said, that divorce a vinculo 
 ntatrinionii was contrary to the principles and institutions of this 
 country. It follows that the validity of a foreign decree of divorce must 
 be ascertained in the same tnanner and on the same rnles by which the 
 conclusive eti'ect of other foreign judgments has to be determined." 
 
82 
 
 TIIK CONKFJCT (»K LAWS. 
 
 Knrriv'ii 
 
 I'lititli'il to 
 
 rri'ci^iiitixn. 
 
 Acctonliiigly our courts liiivc rccuyiii/A'd the validity 
 (trtori'i^n (livoiH'Crt iironouiiccd alu'oad ItycourtH dICoiii- 
 j»i'toiit Jurisdiction. The <HK'sti()ii of the jurisdiction of 
 forciifii courts in sucli cjihcs cjinnot b*' rcijardctl as dctini- 
 tivcly settled licrc, but a recent decision of tlio Judicial 
 donnnittee of tlie l'ri\ v Council in an appeal froiu the 
 Sujtrcine C't)urt of (^-ylon ' has laid thtwn a doctrine 
 
 \v 
 
 hid 
 
 I is entirely in accordan«e wi 
 
 ith tl 
 
 »e opunouH ex- 
 
 (if iiiliT- 
 
 IKlljillKll 
 
 coiniMtiMiv 
 
 pressed in the House ot Lords,- and which W(»uld most 
 probably be adhered to in an appeal from this province. 
 The Ju<licial Committee lield tliat the oidy true test of 
 jurisdiction to decree a divorce. ac«(»rding to inter- 
 national law, is the domicile for the time being of the 
 nnirrii'd pair; that wliere the jurisdiction exercised is in 
 accordance witli tlie principles of international law, the 
 decree ought to be res[)ected by the tribuiuils of every 
 civilized couvitry ; but that where it is derived solely 
 trom some rule of the municipal law of the [)sirticular 
 country, it camiot claim extra-territorial authority if it 
 trenches upon tiie interests of any other country to whose 
 tribunals the spou^ses are amenable. 
 
 Otlicr ciiii- 
 hiili'i'iitidiis 
 .'Mliiiiltcil^liy 
 
 nlir fdlllts. 
 
 In tl 
 
 le 
 
 ase of Sferens v. Fif</: ' other considerations 
 
 were allowed to prevail in favour of the recognition of a 
 divorce jironounced by a foreign court against a Inisband 
 domiciled in this province. Hut the authority of tliis 
 cane is undoubtedly seriously shaken by the <lecision of 
 the I'rivy Council in Le Mesnrier v. j>e Mesurier. 
 
 The facts of the case may be summed up as follows: 
 In 1871 the plaintiff (Virginia Gertrude Stevens) and the 
 
 p. 23.- 
 
 ' /.(■ Misnrii r v. L( Mcsurhr, IS!).'), A.C\ ."il7. 
 
 ■^ Jlanry v. Fnrnir, IS82, S A.C. 4:< ; Slimr v. (inultf, L.H. :{ H L. 55. 
 
 '5 L. N. 71) ; L. N. H29 ; 27 L. C. J. 22S ; s L. N. 42, ti'.i ; Cuss. Dig. 
 
DIVOHCK AND SKI'AKATION. 
 
 S3 
 
 lie 
 
 kto. 
 lip- 
 
 (Iftomhtiit (lli'iiry .Iiilius Fisk). wlm wt'iv- hotlHUuuiiiltMl 
 in tin- City of New \'(irk, wrmiinniiMl in tinit city with- 
 out jiDtciiiiptial coiitruct. Hy tin- laws of the State of 
 New York MO t'oniniunity ot i»rojK'rty i?* ereated between 
 persojis married tiiere without antenuptial tontratet, and 
 the wife iiohls and acquires projMTty in her own name, 
 entirely tree from marital control, as if shu weri' a feinc 
 .sole. At tlie time of' her marriaLTe Mry. Fisk had a for- 
 tune in her own riicht eonsistiiii; in moveahlc property. 
 About a year after the marria<;e this fortune was handcil 
 to Mrs. Fisk by her trustees, and slu' then-upon placi-d it 
 in the hands of iier iiusband who administered it until 
 1870. The consorts lived in Xew Yoik foi- about 
 eighteen months after the marriage, when they rt'nioved 
 to .Montreal. Mr. Fisk estaltlished himself in bii.sincss in 
 that city and madi' it his pi'rmancnt home, but Mrs. Fisk 
 vloes not ajtpear t(» iiave lived with him in Canada tor 
 much more than a year. After that tinu' she resided 
 alternatelv in Paris atid in New York. In 187G, when 
 she was residing in New York, .Mrs. Fisk instituted pro- 
 ci'edinijrs tor divorce aijainst her iiusband before the 
 Supreme Court ol the State of New York on the ground 
 of adultery. Mr. Fisk was personally served with pro- 
 cess in Montreal and api)eared in the divt)rci' jiroeeedings 
 by his attorn(.'ys. but made nt) (h'tence. In 1880 a decree 
 of divorce absolute was pronoun«'ed by tlu^ New ^'ork 
 court in favour of Mrs. Fisk, and in 1881 .Mrs. Fisk. as- 
 suming the ([uality ot a divorced woman, sued the 
 di'fendant at Montreal in ortlcr to obtain an account of 
 his atlministratio)! of her fortuni-. The princijtal grounds 
 of defence were ticit the plaintiff was still the wife of the 
 defendant, ami that beinu; still under marital control she 
 
ir 
 
 11 ■ 
 
 84 
 
 TIIK CONKFMCT OF I,A\VS. 
 
 ii I 
 
 hIiouUI Imvt' been aiitlioriziMl to take the action. In tlio 
 Superior Court, Torniucc, J., licld that the divorce! was 
 operative in thin ]»roviiu'e. The judgment cites with 
 ajtproval tlie doctrine of tlie American courtH ' that lor 
 x\w [nirpoHcs of divorce the wife may have a (h)miciU' 
 Kojtarate from lier liushand, and that tlie courtu of the 
 actual fxma /iV/c domicile of either mav entertain iurisdio 
 tion. ReferoiiiH! was also made to the fact that the 
 defendant had acquiesced in the itrocee<lini;s tor divorce 
 by his appearance theri'in and submission to the Jurisdic- 
 tion. Jn the Court of Appeals this judgment was 
 reversed liy u majority of one, Sir A. A. iJorion, C. J., 
 Ramsav and Babv, .M.. holding that the divorce was 
 inoperative in this province, while Monk and Cross, JJ., 
 were in favour of recognizing its validity. The judgment 
 of the majority of the court is based on the provisions of 
 article 6 of the Civil Code, which enacts that persons 
 domiciled in this province are governe.l, even when 
 absent, by its laws respecting stains and capacity, and 
 on the principle that the wife's domicile is tliat of her 
 liusband. As to the defendant's appearance without fur- 
 ther proceedings, that could not give an incompetent 
 court jurisdiction. The dissenting judges appear to have 
 attached some weight to the fact that the i>arties were 
 citizens of a foreign state and had never changed their 
 allegiance. They also thought that as the consorts were 
 married under a law which made the contract subject to 
 dissolution for cause, it would be unreason-ible and a 
 fraud upon the wite to let the husband deprive her of her 
 right to obtain a dissolution of the marriage by removing 
 to a country where this right was not recognized ; and 
 
 ' Bishop, Marriage & Divorce, Vol. 2, gg 125 sijq. 
 
DIVfiHCK AND SKI' AKATH iV, 
 
 86 
 
 nd 
 
 tlicy iilso coiiHidtM'iMl that tlu- (h't'oiiilaiit wiiH Koiiud l»v liix 
 voluiitiirv submission to tiic iiirisdittioii of t In- t'orrii^ii 
 tMMirt. Ill tlu' Supri'iiU' ('tnjrt of ('aiiinla flif jiwlLriiifiit 
 of till' Court of Appeals was rcvctstMl aii<l that ( f 
 the Superior (-oiirt rcstorctl hv a iiiai'Titv ••! four to (Oie. 
 The ('hief Justice (Sir W. Ritihie) was of ()|tiiiioti that 
 us the (K'teiidaiit had appeared and siiltiiiitted to ami not 
 questioned the jurisdiction of the court, he washouiul hy 
 the decree and shoiihl not he allowed to atHrni that the 
 court hud no jurisdiction. He also thoiiu'lit that sucli 
 uppeurunce and submission raised the lei^itimate presuniji- 
 tion iiiraiiist (he defendant that he had not chaiii^ed his 
 <loniicile a/«///<(> e( fuctn. Heiirv and (iwvnne, .1.1., con- 
 curre<l in the view that ^ll • uiti»earanee of the det'eiidaiit 
 without protest, precluded him from calliiiif in ([Uestioii 
 the validity of tlu' decree. Gwynne, .1., was also ot 
 opinion that us the c(»nsorts were natural born citizi'iisof 
 the Uiuted States, domiciled in New \'ork at the time of 
 the murria^e, und marrieil under the law of that State. 
 the marriage must be held to have bei'ii a Xew York 
 marriage, and the i)artios niiist be liehl to have become 
 upon the marria<i^e subject to the laws ot the State of 
 New York relating to divorce. lie also (piote«l with 
 approval the American <loctrine whii-h allt)ws a wife 
 to have u domicile separate from her husband for pur- 
 poses of divorce. Fournier, .1., exi»ressed no o[»inioii a- 
 to the validity of the divorci-. but was in t'avoiir of nuiin- 
 taining the action on other grounds. Strong, J., (the 
 present Chief Justice) was of opinion that the judgment 
 (d the majority of the Court of Apjieals as to the validity 
 of the divorce was right. 
 
 The great diversity of reasons given by the several 
 
 4 
 
 
 ■ ;< 
 
 » -ft 
 
8() 
 
 THE CONFLICT OF LAWS. 
 
 judgOK to wlioin this question was sultiuittod, makes tliis 
 (leeisioii extremely unsatisfactory. Tlie only point upon 
 wliich any eonsideraUle number of judges appear to have 
 agreed is as to the eonclusive effect of the defendant's 
 appearance without declining tlie jurisdiction of the 
 foreign court. Some of the judges holding this view go 
 tlie length of saying that such appearance would give 
 the foreign court jurisdiction provided it had jurisdiction 
 in the subject matter under the law of the foreign state, 
 wliile the others seem to regard the fact as a kind of 
 estoppel precluding the defendant from invoking the 
 want of jurisdiction in another proceeding. It may l)e 
 doubted whether in matters of status jurisdiction could 
 be conferred by tlie voluntary submission of the parties,' 
 and it would seem to make no difl'erence whether the 
 foreign court was competent under its local law. For, 
 as Mr. Justice Ramsay justly remarked, the competence 
 does not mean that the court shall be competent accord- 
 ing to the laws of its own state, but that its modes of 
 procedure be not an infringement of the rights of another 
 state. In other words, a court must be competent from 
 the internatioiuil and not from the territoria' stand- 
 point. ■ 
 
 As to the doctrine advanced by some of the judges, 
 that the consorts having been married in a state which 
 
 • There is, however, the iiuthorily of some Hii>;Iish mid Ainericaii 
 cases in support of the view that s>ihinissioti to tlie .jurisdiction would 
 bind tlie defenihint. See Zyclinsh-i v. Xjidinski, 2 Swiil). k Tr. 420 ; 
 L.T.H. (N S.) Vol. o (lS<il-2), p. osKI; lUuul v. lUnul, 2 Swab. & Tr. 1)4 ; 
 ('(thirl/ v. Cahrrll, :{ Swab. & Tr. 2:)!t ; Xihoi/et v. Mboi/et, L.U. 4 P.I). 
 1 : K inn in- v. Kinnicr, h'.\ Barbour, \'A ; TjK Barbour, 424 ; 4.") X. Y., Wo. 
 
 - Tiiis is exactly tlie principle laid down by the Privy Council in 
 the Le Mesurier case [sup. cit.) 
 
... I* 
 
 DIVORCE ANF) SEPARATION. 
 
 87 
 
 admitted tho possibility of <lissolving the tie, this 
 privilege followed the parties into their new domiitile, 
 the Chief Justice of the Court of Appeals justly observes 
 that the doctrine of an acquired right to a divorce is 
 denied by all the Frent-h writers. It is also opposed to 
 the tendency of the modern English jurisprudence on 
 the subject.' Nor should the nationality of the consorts 
 liave any eftect on the decision of this ([uestion, uuismuch 
 as our Civil Code expressly' makes status depend ui)on 
 domicile. 
 
 There is more to be said in favour of adopting the 
 American doctrine of a separate forensic domicile for 
 the wife in cases where the husband, by a sudden change 
 of domicile, may deprive the wife of a remedy to whicli 
 his misconduct would entitle her in the (Original matri- 
 monial domicile. It may be exceedingly unjust to the 
 wife in such cases to press to its fidl extent the legal 
 fiction which allows her to have no other domicile than 
 that, of her husband, and to ejiable him by a change of 
 domicile to impede or defeat her remedy. The relax- 
 ation of the strict rule seems to be supported by some 
 (lida in English cases, but the point is by no means 
 settled there.-' Tn the Fisk ease, however, there does 
 not seem to have been any ground for applying this 
 doctrine, for the consorts came together to this c(nintry, 
 and it was only after they had transferred their residence 
 and acquired a domicile here, that the difficulties be- 
 tween them arose. 
 
 Separation as to bed and l)oard, and separation as to 
 property, both exist under onv Civil Code, and there is 
 
 .liiillc'ial 
 ■'<|Mrati<iii. 
 
 M 
 1m- 
 
 
 ' Dircij, Coiitlk-t of Laws, pp. 'HW) siiq. 
 - DUrij, Conflict of Luws, pp. 27.")(i. 
 
88 
 
 THE CONFLICT OF LAWS. 
 
 no doubt that foreiiijii decrees of separation would obtain 
 recognition hero provided they had been pronounced by 
 a court of competent jurisdiction. The jurisdiction of 
 our own courts is determined by article 96 of the Code 
 ot Civil Proce(Uire (1897) which enacts as follows : " In 
 an action for sei»aration from bed and board, or for 
 sejtaration of property only, ^\ie defendant must be sum-, 
 moned either before the Court of the domicile of the 
 husband, or, if he has left his domicile, before that of 
 the last common domicile of the consorts." The assump- 
 tion of jurisdiction in cases where the husband has left 
 his domicile is a derogation from the rule contained in 
 article t) of the Civil Code, which enacts that the laws 
 of this province concerning status and capacity do not 
 apply to persons not domiciled here. The exceptional 
 jurisdiction conferred on the court of the last common 
 domicile of the consorts prevents the husband from 
 frustrating his wife's remedy by a sudden removal to 
 another jurisdiction. In other words, when the husban<l 
 abandons his domicile, a special forensic domicile is 
 established in favour of the wife for the purpose of 
 obtaining a separation. 
 
 It is uncertain whether our courts would assume juris- 
 diction to pronounce decrees of separation between 
 persons who had never had a domicile here, and whether 
 they would, under any circumstances, recognize the com- 
 petency of foreign tribunals to render judgments of 
 separation between persons domiciled here. 
 jiirisdirtion A recent dictum of the Judicial Committee of the Privy 
 
 in seii:ir- " 
 
 ■*' Council a|)pears to show that in the o[»inion of their 
 Lordships a residence short ot domicile would, under cer- 
 tain circumstances, be recognized as giving jurisdiction 
 
 0\<: 
 atioii cam 
 
DIVORCE AND SEPARATION'. 
 
 89 
 
 to decree a separation '. An expression of opinion on 
 this point was not necessary for the decision in the case, 
 but Lord Waison, in rendering judynuMit. made the fol- 
 lowing observations : " There are unquestionably other 
 remedies for matrimonial misconduct, short of dissolu- 
 tion, which, according to the rules of the Jas ijenfinni, 
 mav be administered bv the courts of the countrv iti 
 which spouses, domiciled elsewhere, are for the time resi- 
 dent. I^", for instance, a husband deserts his wife, 
 although their residence be of a temporary character, 
 those courts may compel him to aliment her ; and, in 
 cases where the residence is of a more permanent charac- 
 ter, and the husband treats his wife with such a degree 
 of cruelty as to render her continuance in his society 
 intolerable, the weight of opinion among international 
 jurists, and the general practice is to the effect that the 
 courts of the residence are warranted in giving the 
 remedy of judicial separation, without reference to the 
 domicile of tlie parties. But the considerations which 
 justify the courts of the residence in administering renu'- 
 dies for the protection of mutual rights incidental to 
 marriage, which do not involve the disruption of the 
 marriage bond, have little or no ap})lication to proceed- 
 ings taken for the purpose of putting an end to the mar- 
 riage, and remanding the spouses to the condition of 
 single persons.'' 
 
 If a residence short of domicile would justify a separa- 
 tion from bed and board, it should a fortiori warrant ;iie 
 court of the residence in decreeing a separation as to 
 property oidy. The decision of the Superioi' Court in 
 Molleur v. Dejadon - does not conflict with this view, for 
 
 ' Le Mesurier v. Le Meaurier, A. C. 18i)."j, p. .")17. - 1> U. L. 10.5. 
 
 ^r 
 
 Mi 
 
90 
 
 THE CONFLICT OF LAWS. 
 
 in that ease, although tho wife who sued for separation 
 of property descrihed herself as heing of the Province of 
 Quebec and her husband as heing of the same place but 
 then of tlie State of New York, the court found that in 
 fact both consorts had abandoned their domicile in this 
 province ten years before the institution of the action for 
 separation, and had lived together during those years in 
 the State of New York. Under these circumstances a 
 judgment of separation as to property pronounced by the 
 court of their former domicile was held to l)e absolutely 
 null and void. 
 
 In two cases decided in 1879 by Mr. Justice Mackay ', 
 it appears to have been held that an action for separation 
 as to property could not be maintained by a wife in this 
 province if the consorts were married under a law which 
 did not create community of property between them 
 (e. (J. the law of the State of Illinois in the tirst case, and 
 the law of England in the second). 
 
 — But in a previous case decided in 1862^ Mr. Justice 
 Smith had held that although there is no community of 
 property between persons married in Upper Canada, 
 their theti domicile, without any antenuptial contract, yet 
 an action for separation of property will be maintained in 
 favour of the wife, by reason of the insolvency of the 
 husband, since their removal to Lower Canada. This 
 decision appears to be more conformable to reason and 
 principle than the more recent cases. For even if com- 
 munity does not exist under the foreign law, ihe wife's 
 position as to the administration of her property may not 
 be as complete as with a judgment oT separation. It is 
 
 ' Wiffgins v. Morgan (<.» K. L. .54()) and Daltoti v. King (!) R. L. .">48). 
 2 Swedapjdc v. (iu-ilt, 7 L. C. J. ItXI ; i:i L. C. R. 1«7. 
 
 :i! 
 
DIVORCE AND SEPARATION. 
 
 91 
 
 otily in cases where the foreign matrimonial status ot the 
 wife couki he shown to be the exact equivalent ot her 
 position under a decree of separation that the action 
 might be considered unnecessary. 
 
 .''11 
 
 Ml 
 
 r 
 
CHAPTER VI. 
 
 MINORITY AM) TUTOKSHIP. 
 
 t'nt'cr- 
 taiiity 
 wtu'tiiiT 
 minor's 
 
 witli 
 (loink'il 
 
 The status and capacity of minors depend, under 
 article 6 of the Civil Code, upon tlieir domicile. We 
 liave already examined, in a previous chapter, the rules 
 for ascertaining the domicile of dei>endent persons, in- 
 cluding minors.' 
 
 The old French writers were not agreed as to whether 
 the minor's capacity should be governed by his domicile 
 rhanKc's of origlu or by his actual domicile at the time of the 
 particular transaction which gives rise to the en([uiry as 
 to his capacity. Some were in favour of making the 
 domicile of birth govern once for all the status and 
 capacity of the person, and urged in support of this 
 view the consideration that the development of the 
 individual is largely atfected by racial and climatic 
 influences, and that each nation is the best judge of the 
 mental and physical capacity of its citizens. It may be 
 observed thnt the domicile ot origin does not necessarily 
 coincide with a person's nationality. In America, for 
 example, where thousands of immigrants are constantly 
 pouring in from all parts of the old wc)rld, the children 
 of such immigrants, born in America, have their domi- 
 cile ot origin here, but their racial and hereditary ten- 
 dencies and aptitudes are as varied* as possible. 
 
 ' Supra, p. 67. 
 
MINORITY AND TUTORSHIP. 
 
 93 
 
 The general rule of tlie old law uiidouhtedly was, as 
 w'v have already seen, that a change of domicile liberates 
 a person from the laws of the old domicile and subjects 
 him to tlie laws of the new domicile.' (■onse(iuently the 
 capacity of persojjs, which depends on the law of their 
 domicile, should change with every eliange of domicile, 
 and there seems to be no reason, upon principle, for 
 making any exception to the general ruU' in the case of 
 minority. Boullenois, while admitting tlu^ correctness 
 of tliis principle advocates a derogation from the strict 
 rule wlienevcr justice or necessity may retpiire it. He 
 considers that when a person has attained the age of 
 majority under the law of his original domicile, it would 
 be unlair that, by a change of domicile, he should again 
 become a minor. Boullenois thinks it ecpially unjust 
 that when the law ot the first domicile regards him as a 
 minor, and consequently unfit for entering into contracts, 
 he should suddenly become enal>levl to contract because 
 liis domicile may have been changed by the act of his 
 parents or of those having authority over hirn.- 
 
 The diflicultv about all these arguments ali iacou- 
 renienti is that there is an utter and hopeless want of 
 unanimity among the authors as to what is right and 
 fair in each particular case. As Laurent justly ob- 
 serves,' they leave us in a perfect sea of doubt and 
 ofter no consistent or uniform rules when they attempt 
 'v! Citify their departures from strict legal principles. 
 
 1 he high authority of Savign}' and Bar in more recent 
 I .es may be cited in support of a modified adherence 
 lo the theory that the capacity of minors changes with 
 
 '■■■■■\\ 
 
 1 Supra, p. ol. 2 Vol. 'J, p. 12. 
 
 ■' Droit Civil International, Vol. 8, No. 6.5 sqq. 
 
 I 
 
 'J 
 
04 
 
 THE CONFLICT OF LAWS. 
 
 J)istiiu'- 
 tidii be- 
 twt'fii acts 
 cloiii' lu'l'ore 
 and uctH 
 done after 
 a c'lianftp 
 of iloniifile. 
 
 tlie (lomioile. Suvigny admits that if a domiciled 
 BerliiuT, wIiohg law fixes tlie age of majority at twenty- 
 four, tdianges his <lomicile at the age of twenty-two to 
 (■olognc, where the age of majority is twenty-one, he 
 will of neeessity hecome of age at that moment. This 
 consequenee, he says, is untjuestionahle and hardly 
 admits of a denial. Hut, on the contrary, if at the same 
 age an inhabitant of Cologne changes his domicile to 
 Berlin, Savigny holds that he should not })ecome a 
 minor again, because the independence thus obtained 
 has the nature of a vested right, which cannot, there- 
 fore, be taken from him again by a merely accidental 
 change of domicile.' 
 
 The plea of vested rights might very properly be urged 
 in support of the validity of any act done by tlie person 
 before leaving his old domicile and after he had attained 
 his majority under that law. 1 Uit it seems impossible to 
 regard in the light of a vested right the mere general 
 unexecuted capacity of acting. Bar, who admits that 
 this capacity to act docs not belong to the category of 
 vested rights in the ordinary sense, arrives at the same 
 conclusion as Savigny by a different process of reasoning 
 which he regards as based on strictly' legal grounds. It 
 is necessary, he says, that a person should have, in order 
 to an independent and voluntary acquisition of domicile, 
 capacity to act both by the law of his actual domicile and 
 by that of the country to which he intends to remove ; 
 the former, that he may undo the tie which binds him to 
 his native country ; the latter, that he may be in a posi- 
 tion to enter into the new allegiance. And the authority 
 of the state which permits one who is a minor by its own 
 
 1 Private International Law, p. 170. 
 
MIXOKITV AND TUTORSllI 1". 
 
 95 
 
 laws to OHtubliflli a iloinu'ik' ii)(U'|i('n(U'iitly u[K)n its ter- 
 ritory, rtilcntly rc'cogni/A's tlic cjiiiacity of this porson to 
 act, tacitly concedes the right t»t' majority '. Tlie only 
 <lifficulty alioiit this ingenious theory is that it assumes 
 that the cliange of domicile invariably results from the 
 in(lei)endent act of the person, whereas, in many cases, 
 the change nniv result from the acts of otliers. For 
 exam[>le, a married 'voman, who is of age by the law of 
 the first domicile, may 1 "come domic^iled I'lsewhere as a 
 consequence of her husband's change of domicile, and in 
 such case it cannot be conteiuU'd that there is a tacit re- 
 cognition of her ca[)acity by the country to which the 
 consorts remove. 
 
 The distinction between ac(juircd rights resulting from 
 acts completed l)etore a changeof domicile, and the mere 
 unexecuted capacity to act, is clearly made by Bourjon," 
 whose observations on the subject are n'orth quoting as 
 the best exposition of the strict legal theory : 
 
 " Si un horame, originaire <lu pays du droit ecrit, vient 
 s'etablir h Paris, avant d'avoir acquis I'age que la coutume 
 de Paris requiert pour tester, il ne pourra tester aussitOt 
 quo le droit ecrit le permet, maisseulement lorsqu'il aura 
 acciuis I'age re([uis par cette coutume; il est venu i\ Paris 
 incapable, il y reste tel jusqu' h ce que la loi qui regit sa 
 personne leve I'incapacite. 
 
 " La raison est, (pie c'est elle, alors, qui regit sa per- 
 sonne, et non le droit ecrit, et, par conse(juent sa capa- 
 cite qu'il ne pent avoir (jue par sa disposition, puisqu'il 
 ne I'a jamais cue par la loi meme de son premier domi- 
 cile ; raais si cet homme n'avait (luitte le paj's de droit 
 
 I 
 
 * Private International Law, p. .'{29. 
 
 •^ Tit. 11, ch. 4, sec. ■>, Nos. 11-14 (Kd. 1770, Vol. 1, p. 114). 
 
 'Mi 
 
WT 
 
 96 
 
 THE CONFLICT OF LAWS. 
 
 Supposed 
 
 I'XCI'ptiDll 
 
 ill favour 
 of prrBoiis 
 
 vitli minor. 
 
 vent (ju'aproH avoir ac'<iui8 I'agc pour tester, ot qu'il fnt 
 coiiKtati'! ([uo Hoii testami'iit est anterieur }\ 8(in (^hauge- 
 iiieut (le domicile, eii i'o cas le testament serait bou, 
 qii()i(pie le testatt'iir mourut a Paris avaiit I'iigo (jue la 
 eoutumc re(|iiiert pour tester ; c'est droit acquis et coii- 
 Hommc. 
 
 *'Cela est foudc sur ce que le chaugement <le domicile 
 lie peut lui t'aire perdre uii <lroit et une cajtacitt' (pi'il 
 avait ac(pii8 lors du cliaugomeiit, et qu'il avait consomme 
 avani icclui ; mais il taut ccttc consommation et(pril soit 
 constati'^ (pi'clle s'est t'aite avant le changement. 
 
 "La nt'cessite de cette consommation est i'ondce surce 
 que n'ayant pas consomnit- <lans Ic temps la taculte quela 
 loi de son ancieii domicile lui donnait, cette loi par suite 
 lui est etrangere, et il ne peut I'invoquer pour un acte 
 tait dans un temps oii la loi de son nouveau domicile, 
 celle i)ar conse(|Uent (pii regit sa personne, lui denie cette 
 t'aculte." 
 
 Whatever may be tlie occasional inconveniences of the 
 strict application of this rule, it has the merit of being 
 logical and consistent, and it may be doubted whether 
 the attempts to improve on it are likely to be more suc- 
 cessful in removing practical difficulties. 
 
 Another departure from the rule that a minor's cjipa- 
 city depends on his personal law is advocated by some 
 writers in cases where the rights of third parties are con- 
 cerned, and tlie jurisprudence of England, France and 
 the United States shows a tendency to hold that, for the 
 purposes of contracts, the capacity of minors should be 
 regulated by the lex loci contractus '. But our own juris- 
 
 J Dicey, Conflict of I.iuvs, p. 547 ; Story, Coiittict of Laws, No. 82 ; 
 Laureni, Droit Civil International, Vol. 8, No. 7L 
 
MINORITY A\I> TUTOKSIIII'. 
 
 97 
 
 |)ru(l('ii('o (loos Hot Jiiiike any such distitictiou even for 
 tlio jirotoctioii ot" iiiliiiliitaiitrt ot this jiroviiicu doiilint; 
 with Ibroign minors. Thus, althou^li uiidor our code a 
 minor enijatfi'd in trade is reputed of full ai;e for all acts 
 relating to his trade,' this rule does not apply to forei<^M 
 minors tradiui; in the province. It has lu'eii held ■ 'luit 
 a jniiior enjraged in trade, l>ut domiciled in the Trov'-ico 
 of Ontario, whost; law gives no recourse against such 
 minor unon aiiv contrai'ts made bv liim, caimot validlv 
 ohligt' himself in the Province of (iuehec to j)ay the 
 amount of a promissory note signed by his firm. 
 
 I'ossihly the most perplexing <iuestions in connection comii.t 
 With ramoritv are tliose whicli result trom conflicts |»e-'"-''"'n- 
 tween the personal law and tlu' law of the situation of''>i«i.s,(,F. 
 immoveable property. Article of our Civil Code com- 
 prises two rules which must inevitably come in conflict : 
 it provides that the laws of this provinei' govern the im- 
 moveable property situated therein, anil also provides 
 that the capacity of persons depends on the law of tiieir 
 domicile. When, therefore, the age of majority in the 
 person's domicile differs from that established by the law 
 ot tlie situation, the (piestion necessarily arises as to 
 whieli of these different laws must govern in regaril to 
 the capacity of the person to deal with immoveables. 
 For example, can a person domiciled in Prussia, where 
 the age of majority is twenty-four years, dis[tose at the 
 age of twenty-two of immoveables situated in this pro- 
 vince, where majority is attained at the age of twenty- 
 one ? Although the old French writers admitted that 
 the incapacity attaching to minors was based on motives 
 relating to the protection of persons and not on con- 
 
 I C. C. art. 323. '^ Jams v. Dickinson, R, J. Q. 7 S. C. 313. 
 
 7 
 
n 
 
 TIIK (U)NI"M(n" or LAWS. 
 
 minors. 
 
 Hidoratidiis counoctod witli iininovcahlo pr()])orty, still, 
 tlic t^ciicrally ucci'ptcMl tlu'orv was tliut wluMiovcr a coii- 
 Hict arosc^ Ix'twcon the .slutiil prrKoniiel and the statu f n'-el, 
 tlu" latter shiMild prevail. We shall see, however, when 
 we come to exaiuiiie this suhject in a si»eeial ehajiter on 
 Property, that there is, even aiuonjij tlie old autliors, 
 inueh wt'ighty anthority in favour ot the i)redoniinanee 
 of the personal over the real statute in (piestions ot'eapa- 
 city. And tlie modern law of Frane(> is decidedly in tlie 
 same direetion. Article 3 of tlie Code Napoleon pro- 
 vides, like our own code, tliat immoveahle pro])erty is 
 govcM'ued by the law of the situation, and also provides 
 that the status and capacity of pers(»ns depend on their 
 luitionality. There is, therefore, a conflict hi'tween the 
 law of the situation and tlie personal law exactly analo- 
 o-ous to that wliich results from the provisions of article 
 (j of our own code, the only diftereiice being that under 
 the French code the personal law dei»onds on natioiuility, 
 while in our code it depends on domicile. Nearly all the 
 modern writers on the Code Napoleon consider tliat 
 under the terms of article 3 the ([uestion of a person's 
 capacity to deal with immoveable jtroperty must depend 
 on his personal law,' and it seems certain that our courts 
 would give a similar interpretation to article 6 of our 
 own code. 
 
 More difficulty is experienced in deciding between the 
 ' personal law and the territorial law with regard to the 
 conditions which justify and the formalities which must 
 accompany the sale of the property of persons who are 
 atlniittedly minors under each of these laws. The diffi- 
 culty is practical as well as theoretical, and as it is in- 
 
 1 Ldinriif, Droit Civ. Int., Vol. 2, No. iSn. 
 
MhVORlTV AM* TUToKslllF. 
 
 90 
 
 tiimiti'ly ('oiiiu'(!tiMl witli tlu' iiit[n>iiitiiit'iit iiiul hinctionH 
 ot tutors, it hocoinc'8 iiecur^sarv to uxiiiiiiiie tho [irovisions 
 of our law on this Hul/nK-t. 
 
 Our Civil C/cxlo ' lays down the <^<Mu»rally accepted 
 rule that a tutor must ho appointed hy tho court of the 
 minor's doniicile, and the Code of (^ivil Procedure pro- 
 vides that thosi! who have not the I'roe exercise of their 
 rights must he represented, assisted or authori/iod in the 
 manner prescrihed hy the laws which regulate their par- 
 ticular status or capacity. - 
 
 Our courts would, therefore, nndouhtedly recogni/.e 
 the appointment or existence of a foreign tutor or 
 guardian umler the law of the minor's domicile, and the 
 power and autljority of such tutor or guardian over the 
 person of the ward. 
 
 As to the administration of the pro[»erty of the ward, 
 it nuiy safely he asserted that a foreign tutor would he 
 allowed to control and deal with movealde property in 
 this province."* 
 
 With regard to immoveahle property tiie ([uestion is 
 more difficult. On principle there seems to he no good 
 reason for making a distinction hetween movoahle and 
 immoveahle picperty in this res[)ect, since the adminis- 
 tration of the ' minor's fortune, whether moveable or 
 immoveable, is entrusted to others for the purpose of 
 protecting the minor, and not by reason of any concern 
 for the property as such. Accordingly some of the 
 modern writers on Private International Law maintain 
 
 tiilorti. 
 
 
 ' Art. '24!». '^ Art. 7>S. 
 
 'The rule would appear to bo (lillVrL'nt in England and in tiio 
 United States, as a foreign f?uardian re<|uires fresh authority from the 
 tribunals of those countries in order to administer moveable property. 
 J'hillimutr, Vol. 1, p. JlSl ; Story, CouHict of Laws, No. 'Mlii. 
 
1' 
 
 100 
 
 THE CONFLICT OF LAWS. 
 
 I'rnpcr 
 
 fc-.nirh 
 
 lor iipiMiinl 
 
 lIK'lll III' 
 
 tiitiirs. 
 
 that all the fornialitieB for authorizing the sale of a 
 minor's immoveable property, e.g. the holding of a family 
 council and the homologation of itn decision, must take 
 place at the minor's domicile, and consecpiently it is tlie 
 tutor of the domicile who must he em})Owered to deal 
 with the immoveables. As to the formalities of the 
 ju<licial sale itself, they would subject them to the law of 
 the situation, this being a matter of procedure.' 
 
 Against the application of this doctrine by our courts 
 there appears to be a practical difticulty. Most of the 
 cpses in which the question is likely to arise here will Ix" 
 concerned with inmioveables of minors domiciled in the 
 otlua- provinces of Canada, in some part of the British 
 Empire, or in the United States of America. In all 
 countries whose law is based on the law of England, the 
 le.r rei sikc is exclusively ai>plied to all incidents con- 
 nected with real estate, and the courts of those countries 
 decline jurisdiction in matters affecting foreign im- 
 moveables. Consequently, it might be dithcult, if not 
 impossible, to obtain an order from the courts of such 
 countries authorizing the sale ot immoveable property 
 in this province belonging to minors domiciled in the 
 jurisdiction ot those courts. 
 
 Another reason to doubt whether the system advocated 
 by Laurent and Savigny would be accepted l)y our 
 tribunals is that our law has been judicially iiuerpreted 
 as authorizing the appointment of a tutor to foreign 
 minors having property in this province. The case ot 
 Brooke v. Bloonijield,- decided ])y the Court of Appeals 
 in 1874, holds that minors domiciled in England and 
 
 ' Lnnroit, Droit Civil Iiitt'iiiational, Vol. 8, Xos. 7.j siiq. Saiifpiy, 
 ''ri\ute International Law, pp. 'M)o-~. " i\ R L.ijIW. 
 
MINORITY AND TUTORSHIP. 
 
 101 
 
 alleged to be " under the jurisdiction, authority and 
 guardianship of the Lord High Chancellor of Great 
 Britain," may niivertheless he provided with a tutor 
 ai)pointed in this province in the ordinary way when 
 they have property therein. The judgment iloes not 
 distinguish between moveable and immoveable pro[)erty, 
 but decides that the appointment of a tutor to the 
 English minors in the City of (iuel)ec, on the advice of a 
 family council summoned there, is legal. So far as the 
 re[)ort of the case shows, there was no property in the 
 district of Quebec, but there was property in the district 
 of Montreal. Sanborn, .1., who delivered the o^iinion of 
 the Court, thought that as, from tlu; luiture ot the case, 
 the appointment could not be made in the district where 
 the minors had their domicile, it was as legally made in 
 (Quebec as in Montreal. He mentioned the declarations of 
 the King ot France ot 15th l)eceml)er, 1721, 1st October, 
 1741, and 1st Fel)ruary, 174o, registered in Canada, 
 which provide for the appointment by the judges ot tlu' 
 colonies of tutors to minors domiciled in France for tlu' 
 protection and administration o\ [iroperty in siu;h 
 colonies, and expressed the opinion t' t it was not 
 intended by enunciating the general princii)les ai»pli- 
 cable to the appointment ot tutors in the Civil Code, 
 which are predicated n[)on the assiim[»tion that jtarties 
 are resident in the jtrovinri', to abrogate the existing 
 law in exceptional cases like t^ie present. The U'arned 
 judge also referred to article -tj-t ot the C'ivil Code," 
 which enacts that wlu'ii a minoi- lias immoveable prop- 
 erty in places remote from one another, oi- in ditlerent 
 districts, a tutor may be ap[>ointed for each [dace or 
 district wherein such immoveable i)roperty is situated. 
 
 HI, 
 
 
 A 
 
 
 ffi 
 
 \ lii; 
 
 a 4; 
 
J; 
 
 102 
 
 THE CONFLICT OF LAWS. 
 
 H 
 
 I' 
 
 p. 
 
 k '■ 
 
 III 
 
 But, iiltli()U^''li there is some controversy on the point, the 
 better opinion appears to he that the special tutors 
 referred to in ait. 264 of our Code and in art. 417 of the 
 Code Napoleon {pr<i-tu.tem\s) must he ajtpointed by the 
 court of the minor's domicile,' and not by that of the 
 district -where the immoveables are situated. Moreover, 
 the tutor in Brooke v. Blooivjield was not appointed in 
 the district where the property was situated, but in a 
 district where the minors had no domicile and no 
 })roperty of any kind. 
 
 In a more recent case" Mr. Justice Lynch expressed 
 the opinion that the Superior Court at Montreal could 
 validly a}>point a tutor to a minor domiciled in California 
 for the administration of property in the district of 
 Montreal. This was clearlv an obiter dictum, as the case 
 did not turn on that point. In the Court of Review' 
 the judgment was revers-^d on grounds which do not 
 affect the present question, but one of the judges 
 (Loranger, J.) incidentally remarked that the appoint- 
 ment of the tutor bv a court other than that of the 
 domii'ile ot the minor was absolutely null, adding that 
 this point was indisputable. 
 
 ( >ur jurisprudence on this (piestion is manifestly un- 
 satisfactory. It can hardly be maintained that the 
 Declarations of the French King, which are admittedly 
 and as their preamble shows in derogation of the general 
 principles on tlio subject, can have any application 
 beyond the special case for which they were made, i. e., 
 that of minors domiciled in France owning property in 
 
 ' Mifftiault, Droit Civil Canadien, Vol. 2, p. 171 ; Laurent, Principes 
 du Droit Civil, Vol. I, Xo. 412. 
 
 '^ I)ono/iu)V. JidHtiuc Jactjueii-Cartier, H.J .Q 10 SC. 110. 
 ^R.J.Q. IIS.C. 00. 
 
MINORITY AND TUTORSHIP. lf,3 
 
 the Frond, eolonios.' Eve,, ,„8umi>,g that these deelar- 
 nt,o,.s a,.est,ll ,„ tbrce here, whieh .e%un .lo„btf„I itv 
 «u.„ot create a general Jnri.liotio,, to appoint t. ors o 
 
 a, ule b4 C. C. does not authorize tlie .ippointnient of 
 u ors by the eonrts ot the ,Ii..rict where'tho n , v 
 
 .dlow the fore,gn .-epresentatives of the minors to obtain 
 
 le proper authorization at tl,c clomieile, wb^ev r 
 
 t^he eo,,rts of that ,lo,„icile will as,s,„„e jnH.lielio:,;: 
 
 ...» MtoJlL^'^LrS'r »S."'' '™' "'""'"«"' '"■ '"'»"• ■'•"'"•' 
 
w^ 
 
 CHAPTER VII. 
 
 CORPORATIONS. 
 
 fon''**n*^ Our law deals liberally with foreign corporations. By 
 [;;'ii";;V„,„ article 7!) of the Code of Civil rrocedure (1897) ail 
 contniit. foreign corporations, duly authorized under any foreign 
 law to appear in judicial proceedings, may do so before 
 any court in the province. This by implication recog- 
 nizes their power to enter into contracts here, and our 
 courts have, moreover, expressly recognized the right of 
 foreign corj)orations in this respect.' The following 
 statement of the law by Sir W. J. Ritchie, C. J., in an 
 appeal from New Brunswick,- would apply equally to a 
 case fnmi this province: ''The comity of nations dis- 
 tinctly recognizes the right of foreign incorporated 
 companies to carry on business and make contracts out- 
 side ot the country in which they are incorporated, if 
 consistent with the [turposes of the corporation, and not 
 prohibited by its cliarter, and not inconsistent with the 
 local laws of the country in which the business was 
 carried on, subject always to the restrictions and bur- 
 thens imposed by the laws enforced therein ; for there 
 can be no doubt that a state may prohibit foreign cor- 
 
 1 /.fii(iii/iic V, Frini/,-lin Cdiui/i/ limik, S I,. ("It. IW^ : ('oinircficKf 
 tt' Pdssinii/tsir I{. R. Co. v. Coiiisfock. 1 H. L. .'i.'-i). 
 
 - Caiiii(fia)i I'licific Hi/. Co. v. W'l'sfri-n Ciiioii Tiii'i/rdph (.'o.. 11 
 S.C.ll. 1.-).-). 
 
CUKi'OUATlDNS. 
 
 105 
 
 
 1/ 
 
 poratioiis from transaetinij^ any biisinoss wliatevcr, or it 
 may permit them to do so upon siicli proper terms and 
 eonditions as it may prescribe." 
 
 In the case under consideration tlie Western Union 
 Telegraph Company, incorporated in the State of Xew 
 York, had obtained by contract tlic exchisive riijht for 
 99 years to erect and maintain tek-uraph lines upon a 
 line of railway in the Province of New Brunswick, and 
 applied for an injunction to restrain the appellants from 
 buildiuii' a line of tele<i:rai)h in violation of its exclusive 
 right. One of the olijections urg-ed by the ap[)ellants 
 was that a foreign corjioration cannot invoke the aid of 
 the courts in Canada to have an agri^.ucnt enforced 
 giving it a monopoly of a particular business in any 
 part of the Dominion. Only one of the judges (Gwyime, 
 J.) sustained this pretension, holding that the comity of 
 nations does not reipiire the courts of this country to 
 enforce in favour of a foreign corporation a contract 
 dei)riving a railway company in ('anada of the righr to 
 l»ermit a domestic corjtoration, created for the i)urpose of 
 erecting telegraph lines in the Dominion, to erect such 
 a line upon its land, and de[»riving it of the right to 
 construct a telegra[th line ujion its own land. But the 
 majority (d the court overruled this plea and held that 
 the contrai't was not contrary to public ]iolicy or the laws 
 of Xew Brunswick, and that it should t' enfon-ed in 
 favour of the foreign corporation. 
 
 But the powers of a foreign corporation may be 
 restricted by the laws governing its own constitution. 
 Thus, wheie an insurance company incori)orated under 
 the laws of the Stjiie of Xew York was prohibited by its 
 charter from makiiiij insurance contracts outside of Xt'W 
 
 I'lilrji^ll 
 
 laws. 
 
 
 i I 
 
 
 
 f ^ 
 
 
 y !, 
 
 it 
 
 ii 
 
 '.} 
 

 
 106 
 
 THE CONFLICT OF LAWS. 
 
 Limitatiim 
 in spotiul 
 cast's. 
 
 Forcigu 
 railways. 
 
 York, it was held that a contract of insurance mad)' ])y 
 an ageni, of the company in Montreal with a person 
 domiciled there conld not be enforced against the com- 
 pany. It Avas argued by the plaintiff that a foreign 
 corporation should not be protected under tliis clause of 
 its charter from a claim made by a person contracting in 
 ignorance of this limitation, but the court held tluit 
 there was no law justifying the application of a different 
 rule to a foreign corporation and a Canadian company, 
 and that the plaintiff was bound to know the capacity of 
 those with whom he contracted, just as in the case of 
 married women and minors.^ 
 
 Again, as the late Chief Justice of the Supreme Court 
 points out in the above cited dictum, the powers of a 
 foreign corporation to carry on business may be taken 
 away altogether, restricted or subjected to burdens and 
 conditions by the local laws. For example, a foreign 
 bank could not establish an office and carry on the 
 business of banking here, and foreign insurance com- 
 panies are allowed to carry on their operations only after 
 having deposited with the Receiver General of Canada a 
 certain amount of securities for the protection of Canadian 
 policy holders, and obtained flie license required by the 
 Insurance Act. 
 
 As to foreign raihva^'s, they may be operated in Canada 
 under the provisions of section 288 of the Canadian 
 Railway Act -, which authorizes the directors of a 
 Canadian company to enter into any agreement or ar- 
 rangement with any otlier company, either in Canada or 
 elsewhere, " for the regulation and interchange of traffic 
 
 2 &. '. r. ■ i 
 
 '>>i:mil Ins. Co., 14 L.C.J <J0. 
 (•::p. 2U. 
 
CORI'ORATIONS. 
 
 107 
 
 passing to and from tlie company's railways, and for the 
 working of the traffic over the said railways rospoctivoly, 
 or for either of those objects separately, — and for the 
 division and apportionment of tolls, rates and charges in 
 respect of such traffic, — and generally in relation to the 
 management and working o\' the railways, or any of 
 them, or any part thereof, and of any railway <»r rail- 
 ways in connection therewith, for any term not exceed- 
 ing twenty-one years" — subject to the consent of two- 
 thirds of the stockholders and also to theap[)roval of the 
 Governor-General-in-Council. 
 
 Similar provisions are contained in tlie provincial rail- 
 way act,' the period of such lease being not more than 
 fifty years. 
 
 A foreign railway operating in Canada in virtue of 
 such an arrangement would, it seems, enjoy the statutory 
 privileges and benefits of the local railway over whose 
 road it runs, so as to be protected from liability for in- 
 jury to property occurring without negligence in its use 
 of the road so leased. - 
 
 Special provisions are made by section 47(U of the Re- 
 vised Statutes of Quebec in the case of corporations, in- 
 corporated under tlie laws of the Im[>erial Government 
 of Great Britain and Ireland, carrying ou or desiring to 
 carry on business in the provim-e. The Lieutenant-Gov- 
 ernor-in-Council may, by letters-patent under the Great 
 Seal of the l*rovince, grant to such com[)any, and such 
 company may thenceforth use, exercise and enjoy, with- 
 in the Province, any powers, privileges and rights set 
 forth in the letters-patent, for carrying on business, 
 
 S|ji'('ial 
 
 VTilllt of 
 
 
 m 
 
 U: 
 tt 
 
 ' Rev. Stat. Qucb. s. ."iilOT. 
 
 '^ Michigan Central Ry. Co. v. Weallcann. 24 S. C. H. :30i). 
 
108 
 
 THE CONFLICT OK LAWS. 
 
 Mdrliimins 
 
 fail rciroifi" 
 corpnni- 
 
 enjoy 
 irri'.itiT 
 ri^lils tli.iM 
 lioiiii'stii' 
 corpora- 
 tions y 
 
 wliii'li »u_i;'lit 1)(' grunted to u local ooiiij>iniy iiixlor the 
 iifOTU'i-ai act. Biitore ohtaiiiitig such letters-patent the 
 c( ri)orati<)ii must (leposit in the (»ffii'e of the I'rovineial 
 rSecretury a eertitied copy of the act of parliament, charter 
 or otiier instrument incorporatinij; it. 
 
 The general lawH of the country respecting mortmains 
 and bodies corporate, prohibiting them from acciuiring 
 immoveable property or property so re^juted, without the 
 permission of the crown, except for certain purposes only, 
 and to a fixed amount and value,' apply to foreign as 
 well as to domestic corporations. Thus in Chaufh'ere 
 Gold 3Tlnw(] Cn. V. Deshnral.s - the Privy Council held 
 that a mining company incorporated under the laws of 
 the State of Massachusetts for the purpose of carrying 
 on business there and in this province, could not validly 
 acquire lands here without the license of the Crown, and 
 consequently could not maintain an aetion for damages 
 for eviction against the vendor of their vendor. 
 
 But now, by section 47»32 of the Revised Statutesof 
 Quebec, every com[)any incor[)orated or existing in Great 
 Britain, in the United States or in Canada, has the right 
 to ac(|uire and hold any lands and real estate in this pro- 
 vince, for its occupation or the prosecution of its business 
 only, anv law to the contrarv notwithstanding. 
 
 In the case of the Chaadiere Gold MiniiKj Company 
 above referred to the Judicial Committee of the Privy 
 Council expressed the opinion that a foreign cor[»oration 
 could not be in a higher or better [)ositi()n than a Quel)e(' 
 corporation would be, whatever might lie the a^ect of 
 
 article 25 of the Civil Code whicdi iriv 
 
 iens the riii 
 
 ht 
 
 to acquire and transmit by gratuitous or onerous title, as 
 
 C. C. art. 'Ml. 
 
 L. II. ") p. C. 27 
 
if 
 
 COKl'UUATIONS. 
 
 10!) 
 
 well iis itv succession or liv will, all inovcaldc iiixi 
 immoveable property in Lower Cjiiiiida, in the same 
 manner as Britisli-born v)r naturalized subjects, and of 
 article 14 of tlie tormcr Code of Civil i'roci'dure wbicii 
 provideil as follows : — 
 
 " All foreign corporations or ju-rsons, duly authorized 
 under any foreign law to appear in judicial proceedings, 
 may do so before any court in Lower Canada. 
 
 "Any person who, according to the laws of a foreign 
 country, is authorized to represent a jicrson who has died 
 or made his will therein, leaving projterty in Lower 
 Canada, may also ajipcar as such in judicial i)roceedings 
 before any court in I^ower Canada." ' 
 
 So in the case of the Coinie.rfinit d' Passjinip^tic RR. Co. 
 v. Coiiistock- it was said that a foreign railway t-ompan}' 
 could not enter into Canada an<l make a railway here, 
 even if authorized by its chai'ter, berauso it would be 
 wliat is not jtermitted to our own sultjects unless bv 
 special charter, and comity does not recpiire us to extend 
 to others rights denied to our own citizens. 
 
 It seems doubtful, however, whetlu'r such a broad 
 statement of the doctrine can hi' regarded as strictlv cor- 
 rect. In the particular cases under consideration thei-e 
 was abundant reason for refusing to grant greater i)rivi- 
 leges to foreign than to domestic corporations. The 
 Chandicre G'dd Jlliiiin/ Ciiiiijxnn/'s case raised a tjuestioii 
 as to the applicability to foreign corporations of the laws 
 respecting mortmain, and this could wry [>ro}ierly be 
 regarded as controlled by the le.c rci sU(C. In the othei- 
 
 •These artk-k's are now ri'placeci by section '^ nf tlie \jitur<iliz;itioii 
 Aft (Rev. Stilt. Can., eh. li;i) and by articles 7!) and ^) of the Code of 
 Civil Procedure (ISitT), but tlie new law is substantially the same as the 
 old, '^ I K. L. (m. 
 
 ;rffl 
 
 m 
 
 II 
 
 W::,^/ 
 
w 
 
 R J-: 
 
 no 
 
 THE CONFFJCT OF LAWS. 
 
 Itii 
 
 case, the franchise and jirivilegoA ofraihvayrt were under 
 <lis('US8i())i, and this was nianit'estly a question of public 
 policy which must be governed by our law. 
 
 In a recent case ' it has been held by the {Superior 
 Court that a foreign corporation may exercise in this 
 province rights and powers whicli are denied to domestic 
 corporations by our own law. The Trusts Corporation 
 was empowered under the law of the Province of 
 Ontario to administer the abintestate succession of a per- 
 son who died domiciled there, ami petitioned for leave to 
 continue a suit pending in this province at the time of 
 the death ot the de cnjas. This application was allowed, 
 although under article 365 of our Civil Code a Quebec 
 corporation could not, by reason of the disabilities attach- 
 ing to its corporate character, act as administrator to a 
 succession. 
 
 ' Greenshieldsy. Aitken & likkerdike & Trusts Corporation ot On- 
 tario. R. J. Q. 11 S. C. 137. 
 
 If* 'r- 
 
CHAPTER Mil. 
 
 PIlOI»KHTV, OWNEHSIIll* AM) ITS MODIl-'irATIOXS. 
 
 i 
 
 Our Civil Code ' divides all property into two classes : 
 moveable and immoveable property. Although a similar 
 distinction is recognized in the legal systems of all civil- 
 ized countries, tlii'se tei'ius are not everywhere co-exten- 
 sive. Some tliinifs are reputed immoveahle in one coun- 
 try and not in another, and there is not always an exact 
 correspondence between the things? which are called 
 moveable in the various codes of modern nations. Thus, 
 tlie terms personalty and realty used by Englisli and 
 American lawyers are far from being identical with the 
 moveables and immoveables of our code, althougli they 
 are frequently treated as such.- Again, under our law ' 
 materials arising from the demolition of a building are 
 moveable so long as they are not used. Uiuler the law 
 of the Netherlands such materials would appear to retain 
 their immoveable character.' 
 
 A rule must therefore be found to determine the nature 
 of the property in question whenever a conflict of laws 
 arises. 
 
 M 
 
 
 ' Art. 1^74. '^ Footf, Private Internat. Jurisp. pp. ISl, 22:5. 
 
 ••' Civil Code, art. 38(». 
 
 * Laurent, Droit Civil International, Vol. 7, No. 1.54. 
 
 I? r^ 
 
112 
 
 THE CONFLIf'T OF LAWS. 
 
 f.r.r fori 
 <li'i'i(lrH iiH 
 III (limiiii- 
 llnii or 
 niitiiri' III 
 lirolMTt.y. 
 
 Confliit 
 
 bi'twrrii 
 mil ami 
 liri'Hniiiil 
 Htatuti'. 
 
 Our v^)^\v (Ic'cidc'H tlio (lucstioii tor our trilmDiilH, when 
 tlu'V Jiro Kci/A'd ot ii ooiitroverKy of this kind, by oniU'tiiiij 
 tlmt wlioiiovur tlu' (jucHtioii iuvcdvcd in a caHO betbroour 
 t'OurtH rclatcH to the diatiiution or nature otprojierty, the 
 law oftliirt province must be applied to the Kolution of 
 the dil'ticult}'.' 
 
 The same article contains the <;<'neral princii>le as to 
 tlu' law which u;ov('rns each of tlie two kinds of pro- 
 perty : — " The laws of Lower Canada govern tlie immove- 
 able i»roperty situate witiiin its limits. Moveable pro- 
 [terty is governed by the law of the domicile of the 
 
 owner 
 
 The generality of this lule diniinislies its usetulness in 
 practice, and in order to understand its scope it is neces- 
 sary to examine its api>lication to particular cases. It is 
 im}»08sible for the law to consider things absohitel}' per 
 se, i. e. without reference to persons having rights in or 
 to such things, and cons3(piently it is inevitable that con- 
 Hicts should arise between the law of persons and the law 
 of things — between the j^tatut 'perH<jnnel and the statal r.'el. 
 
 The limits within which the latter must be applied in 
 this province cannot be precisely indicated, in view of 
 the small number of decisions upon the subject, and also 
 on account of the difticulty ot applying in all cases the 
 rules of the old French law. The tendency of the early 
 writers was undoubtedly towards an excessive realism, 
 against which a reacttion has sen in. But, on the other 
 hand, it must not be forgotten that our code is based on 
 the old law, so that it would l)e equally perilous to fol- 
 low on this branch of our subject the guidance of modern 
 writers like Savigny, Laurent and Mailher de Chassat, 
 
 » C. C. art. 0. 
 
IMi(iIM;i;TV, nWNKKSIIII', KTC. 
 
 •1 
 
 whose ciuloiivour is to I'liniiimtf tlu' shtfiit r.d almost ul- 
 ton-ftlicr. We must, tliiTt'loiH', s»"i'k to tind u miildli' 
 (•oiu'sc iK'twi'i'ii tlu'sc! I'xtrniu; views, ami our theory must, 
 from tlie lack ofjurisjinideuce, be ot"u somewhat teuta- 
 tlve character. 
 
 At first slight, the ruK' expressed iu article <!, tluit the 
 laws of Lower Caiuuhi jn^overn the iMiiiiovcahlc jiro[)ertv 
 situated within its limits, would seem to justify the ap- 
 plication of our law whenever immoveal>les ari' concerned 
 and to all incidents conuKJted then-with. Hut such an 
 interpretation would he erroiii'ous. We have seen ' that 
 the ca}>acity of pi'rsons is governed by the law of their 
 domicile, and it is hy that law that their capacity must 
 ho tested even when they sell or otherwise alienate im- 
 moveables situated in this province. Under the law of 
 Enii;land the principle that immoveable j>roperty is ex- 
 clusively subject to the law of tlie situation is apjtlied to 
 tlie fullest extent, so that if a person isincai)able of trans- 
 ferring his immoveable property by the law of the situs^ 
 tlie transfer is invalid, althouo:h by tlie law ot his <h)mi- 
 cile no such personal incapacity exists. Conversely if he 
 lias t'apacity to transfer by the law of the sifus, the transfer 
 will be valid altliough an incapacity may attach to him 
 by the law of his domicile.- It is strange that no ease 
 seems to have been decided here in which the question 
 was squarely raised. Article 6 of our code contains two 
 rules wliich must necessarily come iu conflict. One of 
 them says that immoveables situated in this province are 
 governed l)y our law, and the other says that the cajta- 
 city of persons is goveri^ed l)y the law of their domicile. 
 As both rules are expressed in absolute terms, one must 
 
 ' Supra, pp. as sqq. - Sfori/, ConHict of Laws, s. -i;}!. l>nri/, 
 ConH. of Laws, p. 517. 
 
 8 
 
 Iiiiniovp. 
 ii'il' proii- 
 crtv. 
 
 Capacity 
 ill ili'aliiiK 
 with iiii- 
 movralilt'!). 
 
 i^ 
 
 
114 
 
 THE CONFLICT OF LAWS. 
 
 yield to the other when a eollision Jirises, Ainony* the 
 (•1(1 authors the f[uestioii gave rise to miieh controversy, 
 and while many of them appear to have onnneiutod the 
 doctrine that when the stdtut personnel came in eontlict 
 with the st<da( reel the latter must [irevail, they often re- 
 coil from the ap[)lication of this theory in particular 
 cases. 
 
 The doctrine of the predominance of the pergonal over 
 the real statute in matters of status and capacity is, 
 howevei', supported hy eminent writers, spch as Fro- 
 land,' ]5ouhier,- and I'othier,' wiio liold tliat the law of 
 the domicile respectiuij; capacity follows persons every- 
 where and affects their deahngs with property wherever 
 
 i situate(h 
 
 / We have already seen ' that according to the opinion 
 
 ' of the hest authorities the capacity of a married woman 
 
 to hypothecate immoveal)ies to secure her hushand'sdeht 
 
 should depend on the law of her domicile and not on tlie 
 
 law of the situation of the property. 
 
 On tlie whole it seems tolerahly certain that our courts 
 would not hokl that cpiestions of general capacity should 
 he governed by the law of the situation of the immove- 
 able i>roperty in regard to which such capacity may be 
 exercised, but by the hiw of the domicile. Greater diffi- 
 culty will, however, be experienced in solving (questions 
 relating to special limitations of the capacity of persons, 
 as, for instance, in t' case of the [)rohibition of gifts 
 between consorts. AVli'.ch will be fully dealt with in a 
 subse([uent chapter. In such cases, the motive of the 
 
 ' Mtiin., Vol. 1. di. 7. s. -1. p. I.'ti. 
 '•! Oout. <lc Bourp;., eh. 2:5, s. itl-SKi. 
 
 lutrod. (it'll, iiux Coutuiiies, 
 
 No. 
 
 ' Snprii, py 
 

 I'ROPERTV. OWNEHSlIIi', ETC. 
 
 11.") 
 
 ifti- 
 ons 
 
 ;ifts 
 \ a 
 the 
 
 prohibition in lh<> old law may have boon rather tor the 
 preservation of the property in the t'amily than tor tlu- 
 [)urposo ot creating a iiersonal diriability. and conse- 
 (piently the statute was regarded as territorial rather 
 than personal. But while we have umpiestionably taken 
 this prohil)ition from the old law, the motive for its pre- 
 servation or re-enaetmiMit may be very dift'erem rom that 
 whieh justitiod its existence in earlier times. For ox- 
 ample, the provisions of the old law tending to jirevent 
 the family possessions from passing into the hands «jf 
 strangers by testamentary dispositions have been swept 
 away by the introduction of the unrestricted liberty of 
 disposing by will. 
 
 On principk', it does not appear that any distinction 
 should be drawn between the general an<l the special 
 capacity of persons in regard to their dealings with im- 
 moveables Questions of majority, interdiction, marital 
 authorization, ca[tacity for disposing l)y gift, will, sale, ex. 
 change or otherwise, should under article (J of our code 
 bo determined by the law of the [)erson's domicile, even 
 when they are considered in connection with the aliena- 
 tion ot immoveables. This is the interpretation put by 
 modern commentators upon article 8 ot the CaxIc 
 Napoleon which, like our own code, provides that im- 
 moveable property is governed by the law of its situation. 
 M. Brocher thus clearly exjiresses the doctrine : — '• Hn 
 disant (pie les immeubles sont regis par la loi triin(;aise. 
 notre disposition ne se preoccupe «[ue do Taction directe 
 de la loi sur les foudsimmobiliers ; rintluence ([u'ils pen- 
 vent rccevoir de la volonte in lividuelle, agissant dans les 
 limites de sa propre compt'-tencH', rentre dans le statut 
 personnel ou dans celui des t its juridicpies suivant qu'on 
 
 m 
 
 
r 
 
 
 i,i 
 
 |l ■ 
 
 y' 
 
 ; i 
 i 
 
 t i 
 
 1 
 
 ■•1 •; 
 
 Formal 
 validity of 
 deeds con- 
 cerniiiK 
 imin(;ivi'- 
 abli'gj. 
 
 11(3 
 
 THE CONFLICT OF LAWS. 
 
 s'arrete a la capacity do Tagent ou aux consequences qui 
 doivent resulter du fait auquel il se livre.' '' 
 
 This is almost a reproduction of the language of Boul- 
 lenois, who defined the statut reel as " une loi qui reglait 
 les hiens sans parler de la personne ' ' — "• qui afiecte di- 
 rectement les hiens en lixant leur sort, et leur destination 
 par une disposition particuliere et independante de I'etat 
 personnel.- " Hut Boullenois was too much under the 
 / influence of the prevailing theory to apply this doctrine 
 with consistency, and he accordingly imagined a kind of 
 mixed statute {.stnttit persoDDel-r'-el) which governed 
 special cases not referahle to the Matiit par reel. 
 
 Again, there appears to lie no good reason tor extend- 
 ing the application of the law of the situation to the 
 formal validity of deeds transferring or dealing with real 
 estate, unless some positive law re(juires a particular form 
 to be observed. In all but these special cases the rule 
 locus regit actum enunciated in article 7 of the Civil Code 
 would undoubtedly apply, and our courts would recognize 
 the formal validity of deeds alienating immoveables 
 situated in this }>rovince, provided they were executed 
 according to the requirements of the place where the}' 
 were made. Thus, in Primier v. 31enard ' it was held 
 by the Superior Court (Gill, J.) that a deed by which a 
 wife renounced her dower on immoveables situated in 
 this province was valid inasmuch as it complied with the 
 formalities recpiired by the laws of Massachusetts where 
 it was made. 
 
 But where, as in the case of conventional hypothecs, 
 our code ^ expressly enacts that they must be in authentic 
 
 1 Droit Inteniiitional Piive, Vol. 1, p. 37H. 
 3 3 R. de J. liiM. ■* Civil Code. art. 2040. 
 
 -' Vol. 1, pp. 81, 8y. 
 
PROPERTY. OWNERSHIP. ETC. 
 
 117 
 
 form, or (when they affect lands held in free and common 
 soccage) in a certain statntory form,' this requirement 
 must be complied with on pain of nullity. Again, the 
 laws respecting the registration of real rights prescribe 
 certain formalities for giving effect to those rights, and 
 in deeds executed abroad these formalities must likewise 
 be observed. Thus, articles 2142, 2148 and 2144, enu- 
 merate the various recognized methods of authenticating 
 memorials of deeds executed abroad so as to enable them 
 to be registered against immoveable property in this 
 province. Consequently, it has been held that wViere 
 the usufruct of an immoveable in this province had been 
 sold by a private writing executed in the State of 
 Michigan, and not proved according to the foregoing re- 
 quirements of our registry laws, the registration was void 
 and inoperative." 
 
 There can be no doubt that the lex rei sit<r will govern 
 in respect of rights and obligations resulting from the 
 law and connected with immoveable property. Thus the 
 law of this province must unquestioiud)ly be applied in 
 all questions regarding the following rights in relation to 
 immoveables : — ^accessioii, usufruct, use, habitation, real 
 servitudes, expropriation, privileges and hypothecs. 
 
 Again, the law of the situation governs customary and 
 conventional dower when it consists of immoveables,' 
 
 Uiu'litH ,'inil 
 
 y.iviTIU'ii 
 l.y l;iw of 
 -liuiiitiiiii. 
 
 1 Civil Code, art. HOtl. 
 
 ^ Jit'lani/if V. Mann tt- Shnaiul (IIQ. L. H. 71t. The licad-iiote of this 
 case is .sonievvliat ini.sU'adinf;, as it makes tiiu court hold tliat in i-on- 
 traets disposing of real estate l)oth the M»- /or/ rontKtrfiis and tlie le.i- 
 >•('/ ,s//*»' must le complied with. The learned .judj^e merely held that 
 upon the evi('' ice adduced tiie title would he valueless according; to the 
 law of Micliig. out did not state that compliance with th^ir law was 
 essential. On tiiu contrary, lie appeared to Ix? of opinion that in a sale 
 of real rights the law of the situation nmst be followed. 
 
 ••' Civil Code, art. 1442. 
 
 
 m 
 
 '^m 
 
 M:'iil 
 
 •1^ 
 
 .Ji 
 
 ■t; 
 
 Ufi! 
 
 f; 
 
 '':P: 
 
 i^r- 
 
 . ^^!: 
 
 
I! s 
 
 ill ^ 
 
 118 
 
 THE CONFLICT OF LAAVS. 
 
 ForoiBn 
 
 iiiiinovi'- 
 
 itblcs 
 
 HDVorncd 
 
 l),v till' liiw 
 
 of thi'ir 
 
 Hitiiatioii. 
 
 the [irescription of immoveiible property,' tlio asssigment 
 of immoveables \)y l)ankrnptcy," fi'i<^ (]trobal)ly) the <le- 
 vohition of an abintestate succession in so far as immove- 
 ables are concerned.' 
 
 Althougli article 6 of the Civil Code deals merely with 
 immoveables situated in the province in declaring tliat 
 they are governed by our law, the converse principle 
 that foreign immoveables are governed by the law of 
 their situation is equally well settled, and our courts 
 have fre(iuently declined to give decrees which miglit 
 purport to aftect immoveable property situated outside of 
 the province. 
 
 Tlius, in S/cead v. McDonnell,* where in an action in- 
 stituted in the Province of Quebec damages were claimed 
 for trespass alleged to have been committed upon re;il 
 estate situated in the Province of Ontario, and the Su- 
 perior Court had ordered that a division line should he 
 established by experts in order to ascertain on which side 
 of the line the timber had been cut, the Court of Appeals 
 reversed the judgment on the ground that a court in this 
 province had no authority to name experts for the pur- 
 pose of establishing a boundary line in Ontario. 
 
 In Senmier v. Porter '' the Superior Court refused to 
 entertain an action against defendants residing in this 
 [»rovince for the cancellation of a lease of real estate in 
 the Province of Ontario. 
 
 Again, in Ross v. Boss,'' where the Superior Court had 
 declared a will void as to immoveables situate in Ontario, 
 New Brunswick, British Columbia and the United States, 
 
 ' Civil Code. jirt. 'JlSi). 
 
 - MoftlovdhI \ . (Iconilim Bay Lunibi r Co., 2 S. C. R. 'Myl. 
 •' See Chapter IX., infra. ■» 3 R. C. 42. •' 7 L. C. J. 42. 
 « 2.-) S. C. R. :«I7. 
 
PROPERTY, OWNERSIIII', ETC. 
 
 Ill) 
 
 the Supreme Court held that this portion of thejudgnieiit 
 should he struck out, inasmuch as tliere was no Jurisdic- 
 tion in the Quebea courts to deal with suchimmDveahles, 
 the que^ti;)n of thi,' validity or invalidity of wills as to 
 immoveable property being one exclusively for the fonun 
 rcl sitce.^ 
 
 Two reiient decisions of the Supreme Court in appeals 
 from the Province of Ontario may also be referred to, as 
 the doL'trines therein laid <lo\vn appear to be entirely 
 conformable to the principles of our law and would pro- 
 bably be applied to cases from Quebec. In Henderson v. 
 Bdnk of^ Hamilton - it was held that an Ontario Court 
 will not grant a decree for redemption of a mortgage on 
 lands in Manitoba at the suit of a judgniont creditor of 
 the mortgagor whose judgment being registered in 
 Manitoba is by the law of that province a charge upon 
 the lands, the judgment creditor and mortgagee both 
 havina: their domicile in Ontario. The foil 
 
 ownig 
 
 ex- 
 
 ' This (loijs not mean that tlio formal validity of a will aU'ectiii^; ini- 
 rnoveabli" pi-opsrty depends npoii fonipliani-e with the law of the situa- 
 tion. For oxaniple. as to initnoveahle prupL-rty situated in this proviiu-e , 
 our courts would recjjj^nize the validity and operation of a will made 
 according to the law of the |)lace of its execution, in conformity with 
 the rule locit^ rejH (i-fuiit, even thou,t;h it mifj;ht not be made in any of 
 the forms known to our law. But it is perfectly correct to say that the 
 only court which c:i'i authoritatively say whether a will is valid or in- 
 valid in re.;ard to imnuveihle |)roperty, is the court of the situation, 
 fjr that is the only forum through which an operative decree can i)e 
 granted, and conseiinently the only one whicli should assume to pro- 
 nounce a. judgment upon the ((uestion. 
 
 As Mr. Dicey otjservvi-i, this rule, whatever ha its historical origin, 
 is in conformity with the " principle of ell'ectiveness " which forbids a 
 court to give judgments which it cmno; render efl'ective, or which it 
 can ren ier el'ej.Live only l)y interfering with tlie authority of a f(n-eign 
 sovereign or the jurisdiction of a foreign court. tContlict of Laws, p. 
 215). 
 
 -' 2 } S. C. R. 71(i. 
 
 m 
 
 
 
 t if' 
 
 
15 
 
 120 
 
 THE CONFLICT OK LAWS. 
 
 tracts from the opiiiioii of the Chief Justice ex[)lirni very 
 clearly the reasons of the Judg'nieiit : — It is important to 
 (listiiigiiish between the jiidgmeiit and the charge or lien 
 created by the statute. Tliis is not an action upon the 
 judgment l)ut one to enforce tiie sta*"utory charge. The 
 a[»pellant's claim does not in any respect involve relief in 
 respect of any personal obligation, either against the 
 hank or against Lillieo, the judgment debtor. The 
 charge created by the statute is exclusively a real right 
 affecting the lands, unaccomi^^'^"'^d by any persoiuil 
 liability, and it creates no eq'i' • .">vceable in personaw 
 against any one. When law ciUu ''4uity were admin- 
 istered by separate courts, courts of equity held that 
 where personal equities existed " ^wi parties over 
 whom they had jurisdiction, though such e(|aities might 
 have reference to lands situate without the jurisdiction, 
 they would give relief by a decree operating not directly 
 upon the lands but strictly in personam. The well-known 
 case oY Fenn v. Lord Baltimore ' was a case of this kind, 
 and on a similar principle relief was given against a 
 defendant within the jurisdiction by decreeing foreclosure 
 in default of redemption of mortgages of foreign lands. 
 But in all such cases there was some personal obligation 
 in the nature <»f a trust or other eipiity which the court 
 enforced, as it was said, by attectingthe conscience otthe 
 party against whom it decreed relief. This indirect mode 
 of affecting lands over which the court could not proper- 
 ly have any direct judicial authority was, however, con- 
 fined to the class of cases mentioned, and was never ex- 
 tended so far as to give direct relief in respect of charges 
 on lands by decreeing a sale in the nature of an equitable 
 
 ' 2 White & Tiidors L. C. (i, ed. 1017. 
 
 

 PROPERTY. OWNERSHIP, ETC. 
 
 121 
 
 execution, or the raising of u bare charije sucli as the 
 statute iias conferred on tlie appeUant in the present ease- 
 Such decrees would have l)een unenforceal»le in tlie foi'- 
 eign jurisdiction and might liave brought the courts 
 decreeing tlieni into collision with tiie toruni within 
 wliose local Jurisdiction the lands wei-e situated. 
 
 It may be said that the relief which the ajtpellant 
 seeks and that which has l»een accorded to him i)y the 
 Judgment of the Queen's Bench Divi>ion, is a mere 
 decree or Judgment in per.soixim against the Bank ot 
 Hamilton. Tlie answer to this, however, is that the 
 right of the appellant is one limited to enforcing a direct 
 charge on the lands, and that the redemption of the lands 
 is merely ancillary to this, for even if we would hold the 
 appellant entitled to Judgment we could not allow that 
 pronounced by the Court of (Queen's Bench to stand un- 
 altered. That is a mere partial and fragmentary Judg- 
 ment, which, if it related to property within the Juris- 
 diction, would for that reason alone be defective for not 
 having gone on to direct ulterior relief by a sale of the 
 land. That a Judgment if one were pronounced for the 
 sale of the lands could not be fullv carried out without 
 the aid of the courts of the situs is aii[>arent, if we bear 
 in mind that Lillico, the Judgment debtor, is Avithout 
 both Jurisdictions, and that the title ot a purchaser could 
 not be perfected without either a (.-onveyance from him 
 or a vesting order which the Manitoba courts alone 
 would have jurisdiction to grant and entorce. 
 
 " The tendency of modern decisions has ])vcn to de- 
 cline Jurisdiction with reference to foreign land, and when 
 we consider that if the arguments invoked for the present 
 
 '■'Ai 
 
 \W 
 
 '■M^ 
 
 u«; 
 
 
 \i'"i i^ 
 
' 
 
 10) 
 1 ^-i 
 
 THE CONFI.ICT OF LAWS. 
 
 appi'llant wore to })revail wi' mii;lit be asked to uphold a 
 judLCmont of a Qiiuboe court in an liypothecarv action 
 respoctiiii^ lands in Ontario, or i)ice rcrsd a Judgment in 
 an acttion in the Ontario courts directinu- a sale of hv- 
 pothecated inimov^cables in the Province of Quebec, the 
 i!onvenience, good sense and sound jurisprudence of the 
 rules laid down in the later English authorities, which 
 have now culminated in the decision of the House of 
 Lords in the case of the British Si^uf/i Africa Co. v. The 
 Compnnhia de 3foramhit/ue,' become at once a[>parent. 
 It is unnecessary to write more I'ully, as Mr. Justice Osier 
 in his very able judgment delivered in the Court of 
 Appeal, and which proceeds on the same rutin decidendi 
 as the judgment of this court, has fully expounded the 
 l)rinciples upon which it must be held that the Ontario 
 courts have no jurisdiction to cutertai!< this action." 
 
 In Purdom v. Pair.j/ <t Co. " the decision was that the 
 courts of Ontario cannot entertain an action to set aside a 
 mortgage on foreign lands on the ground that it was taken 
 in pursuance of a fraudulent scheme to defraud creditors. 
 
 An attempt was made to distinguish between the debt 
 itself and the security — the foreign lands — and to main- 
 tain the attachment of the deolonly, l)ut, as the Chief 
 Justice remarked : '' It is not a: all clear that even if all 
 tliat was asked had been a mere attachment of the debt 
 such relief could be given, inasmuch as in that case the 
 mortgagor could not be compelled to pay the debt with- 
 out liaving the lands reconveyed to him, and this would 
 involve an administration of the law of Oregon by the 
 courts here as the sufficiency of such a reconveyance 
 would depend altogether on that law." 
 
 1 (18!«) A. C. (Ui^. - 2() S. C. R. 412. 
 
PROl'ERTV, (n\^NRUSI[Il', ETC. 
 
 123 
 
 McU'CJible property i?* geinTall}' siiitl to have no locality, ^' 
 which moans that it has no Hxcd situation like immove- 
 ables, hut may he transported trom one place to the 
 other. The old jurists aecordinij^ly reg-ardecl moveables 
 as going along with the person, and disregarded tlu'ir 
 aecichiutal situs for the purpose of determining i-ights re- 
 lating to such property. But the old nnixim mohil'm 
 scqai.infjir persotuun has been severely criticized by modern 
 writers as am])i2:uons and inconclusive. Our (-ivil Co(h> 
 
 prnp rty. 
 
 illi tfon- 
 ■r:illy 
 
 lias reiiroduced it in article G bv saving that "moveable 
 property is governed by the law of the domicile of jt..^'-'"'''"^- 
 owner" — which at least defines the persona of the old 
 rule as the o?r/;e/- of the jtroperty. I)Ut this still leaves 
 us without any guiding principle when the very cjuestion 
 in dispute cc^ncerns the ownership of the moveable. If, 
 for instance, a Frenchman and a German are litigating 
 liere as to the ownership ot moveables in this province, 
 the regnla reijnlans is wanting, for the domicile of the 
 owner, Avhich is to furnish the rule of law a[tplicable to 
 the case, cannot be ascertained until the court has dis- 
 covered who is the owner. 
 
 When the controversy is as to the prissession of the i.,r f„ri 
 moveable, or a privilege thereon, article (J of our code *ni stio.is 
 provides a rule by enacting; that our law is aiii)lied when- "■"> ""' 
 ever the question involved relates to privileges, rights of 
 lien and contestations as to possession. 
 
 But sometimes the local situation of moveable property /„•,■ .,;/,(» 
 determines the apphcation ot tiie law in relation thereto, appii.a. 
 Thus, the forms of transfer of bank stock or funds are 
 usually 'regulated by special laws, and the transfer of 
 British ships is governed by the Merchant Shipping Act.' 
 
 ' See Chapter XI, infra. 
 
 
 m. 
 
 \ ' 
 
 1,1 r 
 
 »r ■ * ■. ■■ 
 
 IT .,^^■:■ 
 
 1^^^' 
 
124 
 
 THE CONFLICT OK LAWS. 
 
 A^iiiii, tho liiil)ility of moveable property to succession 
 duty may dopond on its local situation under the terms 
 of statutes imposinu^ such duties.' Or a<^ain, the actual 
 situs of moveable i>roperty may confer jurisdiction on our 
 courts either in. rem or /n persovatn.- 
 
 But in nu^st cases it will be fouiul that rights and 
 obligations in relation to moveables How from contracts, 
 and consequently depend upon the law of contracts. 
 
 ' See Cliapter IX, infra. ■' See Chapter XVII, infra. 
 
 ii 
 

 
 vA i 
 
 WLf , fi 
 
 ■u '' 
 
 *1; 
 
 CHAPTER IX. 
 
 XniNTKMTATK SIT'CKSSIOX. 
 
 Throo theories luive been udvanee.! as to the law which 
 Khould govern an abintestate succession. 
 
 1. Accor.lin<r to the tirst and earliest view, wliich 
 involved the application ot the strict i)rinciple of territo- 
 riality, succession to all property whether moveable or 
 immoveable was subject to the law or its local situation. 
 The maxim was: Quot terrihrla, f<>f /,„ rcdifafcs. 
 
 2. By a second theory, which has received the appro- 
 val of a number of the recent speculative writers, tlie law 
 of the last domicile of the de rajas iroverns the whole of 
 his succession whether moveable or immoveable. This 
 theory considers positive laws as to succession to be 
 persoml statutes, and rests on the presumed intention of 
 the deceased to have his property distributed, in the 
 absence of express testamentary provisions, accordinir to 
 the law ot his domicile. It would be unnatural, it is 
 urged, to suppose that the deceased desired the different 
 parts of his estate to be distributed according to different 
 rules. Although this doctrine is supported rather by 
 theoretical writers than by positive law, it appears to 
 have been gaining ground in the jurisprudence of Ger- 
 matiy, and it has been embodied in an article of the 
 Italian Code. 
 
 IlilTcr. nt 
 
 tlll'OI JIH 
 IIH to lilW 
 
 ri'tfiil .tiiiir 
 
 lllVcli'll ion 
 
 nt mI>iii- 
 li'rtt.ii.. 
 
 MllCi-CHMioM. 
 
 ! r 
 
 m 
 
 mm 
 
 iftlf I 
 
 i 
 
 1 
 
r 
 
 12(; 
 
 THE roNl'F.ICT OF LAWS. 
 
 DoctriiH' (if 
 our <c lie. 
 
 :i. Tlu' lliiid system holds uii iiitiTiiU'diatc [Ktsitioii 
 bt'twc'cii the otlior two, l)y rcti-rriiig the (U'volutioti ot'tht; 
 niovt'iiljle inu't of the estate t(t the hiw ot the (h)iniciU', 
 jiiid tlial ol'tlie iiiiiiioveahU's to tliu hiw of their situation, 
 '^rhis theory has iteeii a(U)|)tod hy tlie jnrispriuh'iice of 
 Fninee, l'iiiy:hind and tlie United States. 
 
 At first si_jji:ht, our Civil Code ini_i::ht he interpreted as 
 estahlishint;' the si-eond or pt-rsonal system, for artiele 5!)!) 
 C'luicts that : "'The hiw, in r<'it'uhitin<; a succession, eon- 
 sidors ju>ither tlic oi'iii'in nor thi' nature of the prop- 
 erty composing it. The whoh' forms l)ut out- inherit- 
 ance which is transmitted and divided accordini;' to 
 uniform rules, or tiie dispositions made hy the proprietcn*." 
 And article 000 enacts that : '• The place where a succes. 
 sion devolves is determined l»y tlie ilomicile." Hut a 
 perusal of the observations of theCoditierson article ")9!>, 
 ■which was given as new law, shows that they niendy had 
 in view the establishment of uniformity in the devolution 
 of successions which opened in this [)rovince. Under our 
 law before the rode, which, upon this subject, was de- 
 rived trom the Custom ot Paris, complicated distinctions 
 were made between difterent kinds ot property, each 
 kind having its particular heir. The coditiers enumerate 
 twelve dift'erent sorts of property, whit-h gave rise to as 
 many systems in regard to succession, and their report 
 recommends that these distinctions should be set aside, 
 and that all kinds of property (moveables, immoveables, 
 2)i'opres, acquests, propres paternal and maternal, pvopres 
 nascent and aiu-ient, ifec.) should form together but one 
 inheritance, which is transmitted and divided according 
 to uniform rules and amongst the same heirs. It was, 
 therefore, not with the view of settling a rpiestion of 
 
AHINTHSTATK SUCCESSION. 
 
 127 
 
 lie 
 
 (of 
 
 private iiitcniatidual law that the ruiliticrs sim'gcstcd the 
 articli- wliitli was cnat'tcd l»y the leijishiHire, hut simply 
 ill oj-cKm" to reiiiedv the coiitlisioii existiny' in the local 
 riik'H for thi' (listrilnitioii of estati's. MoreovtT, the (^xje 
 IS I'oii, which has l'iiniishe(l the codiliers with the 
 
 loiuling priuciiiles ot the aiiieiMliiieiits to oiir law on this 
 suhject, contains two articles similai' to the ahove cited 
 provisions ol our code. Article T-'Jii (". \. -ays; "• Lu 
 loi lie considere ni !a nature ni TorijuMne (\-'H hiens pour 
 en rt'u'h'r la succession."" And article 110 C N. says : 
 '• JiC lieu ou la succi'ssion s'ouvrira sera (K'terinitu' par le 
 (h)niicile."' And yet tlu' courts in j^'ranee liave invari- 
 ahly held that the distrihutioii ot' an ahiiitwtate succes- 
 sion must, as reu;ards immoveahles situate(l in France, be 
 i'utirely rei^idated I»y the French law, and as to luovi'- 
 ables l»y tiie law of the domicile ol" the decH'ask'd.' As 
 M imanguat oltserves,- even tSavii;ny, who is the most 
 d juished advocate of the [lei'sonal theory, makes 
 
 concessions whicli go very far towards destroying the 
 prat'tical utility of the rule. For in regard to laws regu- 
 lating [irimogeniture, the exclusion of daughters so long 
 as sous exist, substitutions, and all similar emietmenls 
 having a political })urp()se, kSavigny admits ' that they 
 must be considered as real statutes end)raeing all pro- 
 perties situated in tlu' country, without regard to the 
 
 )ii! 
 
 domicile 
 
 of th 
 
 e owner. 
 
 jt seems probable, therefore, that our courts would 
 apply to the devolution of abintestate successions the 
 principle enunciated in article (J of our code, /.«., im- 
 moveables are governed by the law of the situation, and 
 moveables l)v that of the owner's domicile. 
 
 ' Demiin;:;eat sur F(T>lix, Vol. 1, p. liia, and iiin'ts tlicre cited. 
 
 wm 
 
 flW 
 
 ;M 
 
 ■^ Ibid, p. ni. 
 
 Priviite InteriiiUioiKil Law, jip. 2T.S-S0. 
 
V. 
 
 SWitMs aiul 
 powers of 
 I'orciKii 
 mlininis- 
 triitors. 
 
 128 
 
 THE CONFLICT OF LAWS. 
 
 But tlie rule as to moveables would prol)al>ly luive to 
 be stated with the (Hialitication tliat when there are no 
 persons entitled to succeed under the hiw ot tlie domi- 
 cile to moveables locally situated here, and the sui'ces- 
 sion would by that law fall to the sovereii!;n, such move- 
 abk's will fall to tlie crown in this country, and not to 
 the foreign sovereign. Such, at least, is the juris[)ru- 
 deni'e of the courts in France,' and the case would prob- 
 ably give rise to the application of that part of article (I 
 of our code which provides tbat the law of this province 
 governs wlienever the .[Uestion involved relates to the 
 rights of the cr(3wn. It is not inconsistent with th(> 
 doctrine that moveable [»roperty is sul))ect to the law of 
 the owner's domicile to say that, when such property' is 
 without an owner, it belouirs to the soverei<j:n of tlie 
 country in which it has been [>laced by the owner. 
 
 When a succession o[)ens in a foreign country an ad- 
 ministrator duly appointed under the lawsot that country 
 will be allowed to administer the succession in this pro- 
 \ ince, and the heirs-at-law have no right, adversely to 
 him, to obtain |)ayment of any sums due to the deceased 
 in this province.- And, by article 80 ot the Code of 
 Civil Trocedure, " any person who, according to the laws 
 of a foreign country, is authorized to represent a person 
 who has died or made his will therein, leaving pro[)erty 
 in Lower Canada, ma}" also a[»pear as such in judicial 
 proceedings before any court in Lower (Canada.' " It 
 
 1 Dem an grnf SUV Fcclix, Vol. L, p. 1:5(1. 
 
 ••! liriiiHlf V. Waillriiiti, H. .1. Q. (i S. C. 7!t. 
 
 •' This iirtick' is curiously worded. It is diHioult to imdorstiiiul why 
 the accidental circninstaiu'o of a man dyiiij; or maUin}^ his will al)road 
 should jiivc a foreign court .jurisdiction to deal with his estate or 
 to apiioint an administrator. I'poa principle the. recognition 
 of the appointment of an administrator should depend on its being 
 made by the cotirt of the place where the succession opens. 
 
 liiiiE 
 
ABINTESTATE SUCCESSION. 
 
 12'J 
 
 i4G 
 
 .1- 
 
 tnvrt 
 •son 
 n-ty 
 icial 
 It 
 
 why 
 iroad 
 te or 
 it ion 
 )ein>? 
 
 has even bcoii lu'Id in ii rccoiit caso ' that jiltli<)Ui!;li uixh'r 
 our law corporations caiuiot, in conscMjncnco of tlio dis- 
 abilities arisintr from their eorporatt' character, hv en- 
 trusted with the execution of wills or any other adminis- 
 tration which necessitates tlie takino; of an oath, or iin- 
 [)oses persotuil res[K)nsihility,- a foreign cor[)oration duly 
 empowered under the law of the Province of Ontario, 
 when^ tlie succession devolved, to administer the estate 
 of the deceased, may appear in oui courts iu that ea[)a" 
 city to continue in the place and stea<l of the deceased 
 proceedings pending lu're at the time of his death. 
 
 In th') case of E'/nitdhle Life Assurance Co. v Peminlf,'' 
 decided in l88:i, the Court of Ajt peal went still further 
 in the direction of recognizing the authority and powers 
 of a tV-reign administration. The deceased was domiciled 
 and died intestate in tliis province, and the representa- 
 tive of a creditor here sued the insurance company to 
 recover the amount of an insurance policy on the life of 
 the deceased. The company pleaded that they had paid 
 the amount to the administrator duly api)ointed to the 
 estate of the deceased under the laws of New York, in 
 compliance with a judgment of the Su[)erior Court of 
 that state ordering the payment, ami this plea was held 
 by the court of first itistance to be a good defence to the 
 action in this province. The majority of tlie Court of 
 Appeal confirmed the judgment and adopted the doctrine 
 laid down in the following passage from 8tory * which 
 was cited in their opinion : — " Where there are different 
 administrations granted in different countries, that is 
 
 ^ G-rccmilticlils y. Aitkrn ct" liivkerdikf A: Trusts Carpdrdtloii of 
 Ontario, R. J. Q. 1! S. C. V.M. 
 
 '^ Civil Code, art. '.W'). ■' !:{> L. C. J. :]»2. * CoiiHict of Laws. s. 518. 
 
 
 
 n 
 
 
130 
 
 THE CONFLICT OF LAWS. 
 
 Hi 
 
 (loomed tlio principal or primury administration which is 
 granted in tlio country of the domicile of tlie deceased 
 party ; for the linal distrihntion of his effects among his 
 lioirs or distrihutoos is to he decided by the law of the 
 domicile. Ifence any other acbninistration which is 
 granted in any other country is treated as in its nature 
 auxiliary merely, and is as wo have seen generally held 
 :iuhordinate to the original administration. But each 
 administration is nevertheless so far independent t)f the 
 others, that property received under one cannot be sued 
 for under another, although it may at the moment ho 
 locally situate within the jurisdiction of the latter. Thus 
 if property is received by a foreign executor or adminis- 
 trator abroad, and it is afterwards remitted hero, an exe- 
 cutor or administrator appointed here could not assert a 
 claim to it hero either against the person in whose hands 
 it might happen to bo, or against the foreign executor or 
 administrator. The only mode of reaching it if necessary 
 for the purposes of due administration in the foreign 
 tiountry would be to require its ti'ansmission or distribu- 
 tion after all the claims a<>;ainst the foreiii-n administra- 
 tion had been duly ascertained and settled." 
 
 But although the above holdings show the tendency 
 of our recent jurisprudence, our courts have not always 
 recognized the ap])lication of those principles. Thus, in 
 1859, the Court of Appeal seems to have been of opinion 
 that letters of administration proceeding from a court 
 of I'robato in the State of Michigan could not extend 
 beyond the territorial limits of the state wherein the 
 administration was granted, and wore therefore insuffi- 
 cient to support the claim of the administrators to repre- 
 sent the estate of the deceased before the courts in 
 
 3! m 
 
 if 
 
 V 
 
 ■■■■" 
 
ABINTESTATE SUCCESSIOX. 
 
 131 
 
 in 
 nion 
 Diirt 
 
 the 
 
 jpi'C- 
 
 s in 
 
 Canada.' This case, however, was (k^eided before the 
 enactment of the Code of Civil Procedure, which, by 
 article 80, clearly recognizes the extra-territorial author- 
 ity of a foreign administration. 
 
 Moreover, tiie (h)ctrine of the Court of A[»peal — that 
 because the foreign letters of administration did not on 
 their face purport to extend the authority of tlio admin- 
 istrators beyond the limits of the State of ^[ichigan, 
 such administration could have no extra-territorial effect 
 " upon the principles of international law " — does not 
 appear to be tenable. Foreign letters of administration 
 do not expressly purport to extend beyond the limits of 
 the state granting them, nor do foreign tut()rshi[»s pur- 
 port to confer [towers exercisable beyond the limits of tlie 
 jurisdiction of the court from which they are obtained. 
 But the ground u[)on which our law recognizes the 
 status and powers of foreign administrators and tutors is 
 that thoy enjoy that status and exercise those powers 
 within the foreiirn state, and because, as a rule, our 
 courts would have !u» jurisdii'tion to make such appoint- 
 ments. In a recent case concerning the right of a foreign 
 receiver to sue in this province, it was contended that 
 the plaintiff's appointment came from the Chancellor of 
 the State of New Jersey, and that the powers ot' su(!h 
 receiver were only co-extensive with the jurisdiction ot 
 the court making his appointment, and did not reach 
 property situated beyond the confines of the state. Hut 
 this pretension was rejected in the Su[)erior Court l>y 
 Mr. Justiee Davidson, who justly observed that "the 
 effect of foreign laws, beyond their own jurisdiction, dc- 
 peiuls largely, if not wholly, n\n))i tlie eoiiilf)/ or Ian: of the 
 
 ' Cotew. M<>rrisi,)<, \) L. C. K. \->.\. 
 
 w 
 
r 
 
 111 
 
 132 
 
 THE CONFLICT OF LAWS. 
 
 Vacant 
 Buccessiong. 
 
 SuPcPSBion 
 duties. 
 
 state in which their application is invoked.^' ' This remark 
 may be applied with equal force to the case of an admin- 
 istrator of a foreign succession. It is not because a 
 foreign law might assume to extend his ^towers into this 
 j)rovince that our courts would recognize his authority, 
 but because our own law allows him to exercise here the 
 powers that he possesses abroad. 
 
 When a person domiciled abroad dies leaving property 
 in this province, and no one appears to claim the succession 
 and the heirs are unknown, the succession will be deemed 
 vacant, and a curator to such vacant succession will be 
 appointed by our courts on the demand of a creditor.^ 
 
 Duties may be imposed by the state upon the trans- 
 mission of all property locally situated within its limits 
 without unduly departing from the principles of our law 
 on the subject, for this is also a right of the crown which 
 must be governed by the local law. The liability to 
 taxation of moveable property forming part of a succes- 
 sion which opens iu a foreign country depends, of course, 
 on the construction to be put upon legislative enactments 
 imposing taxes upon successions. Our own statute (Q- 
 55-6 Vict., cap. 17, s. 1 ; adding section 11916 to the Re- 
 vised Statutes of Quebec) enacts that : — "• All transmis- 
 sions, owing to death, of the property in usufruct, or en- 
 joyment of, moveable and immoveable property in the 
 province shall be liable to the following taxes calculated 
 upon the net value of the property transmitted, &c. 
 
 3 J> 
 
 .! i. 
 
 
 m 
 
 
 ii 
 
 '■ 
 
 HL. 
 
 
 ' Youtu/v. Covsumers' Cordage Co., R. J. Q. 9 S. C. 47L The judg- 
 ment of the Superior Court was subsetiuently reversed by the Court of 
 Appeals, but upon different grounds (R, J, Q. 7 Q. B. 07). 
 
 '■* Dechesnc v. Bcmdieu, R. J. Q. U S. C. 8. 
 
 '■> The punctuation is given above as in the authorized edition of the 
 statutes, but obviously the comma should be placed before instead of 
 after the word " usufruct." 
 
ABINTESTATE SUCCESSION. 
 
 133 
 
 This language would seem to iiulicate an intention to 
 tax all property locally found within the province, 
 whether the succeasion opens here or ahroad.' 
 
 w.-n?^^'"'i''''^''^°""'''°^^'^"'' ^'- "'^•^ '^n interesting, discussion 
 will be found upon the incideme of the dilJer 'UHs.on 
 
 by various acts of parliament. 
 
 jreut death duties imposed 
 
r 
 
 CHAPTER X. 
 
 art mil. 
 
 Is tlic rule 
 imporativi' 
 <ir pprmis- 
 sive '( 
 
 WILLS AND GIFTS. 
 
 Our code recognizes three forms of wills. They may 
 be made : 
 
 1. In notarial or authentic form ; 
 
 2. In the form required for holograph wills ; 
 
 3. In writing and in tlie presence of witnesses, in the 
 form derived from the laws of England.' 
 
 As a consequence of these facilities offered by our law 
 to testators, it is obvious that conflicts are less likely to 
 occur in regard to wills made in the province than with 
 respect to those made in countries where less latitude is 
 given as to the forms to be employed in testamentary 
 dispositions. 
 
 The formal validity of a will is governed by the rule 
 laid down in article 7 of the Civil Code : — " Acts and 
 deeds made and passed out of Lower Canada are valid, if 
 made according to the forms required by the law of the 
 country where they were passed or made." This, as we 
 have already seen, is merely a re-stateraent of the old 
 maxim of the consuetudinary law : Locus regit actum. 
 
 A considerable difference of opinion exists between 
 writers on Private International Law as to whether the 
 rule Locus regit actum is imperative or merely permissive. 
 
 ' Civil Code, art. S4)>. 
 
WILLS AND GIFTS. 
 
 135 
 
 For example, must a testator, who is temporaril} in a 
 f'oroigii country, follow, on pain of nullity tlie forms 
 i)f that country, or does the rule simply give liim the op- 
 tion of adopting the formalities of that country or those 
 of his own ? Nearly all modern writers are agreed that, 
 on principle, the rule ought to he regarded as [termissive 
 and not as imperative, but it is a more difficult matter to 
 determine whether the rule was imperative in France 
 under the old law, or, indeed, after the enactment of the 
 Code Napoleon, and whether article 7 of our Code which 
 says that " Acts and deeds made and passed out of Lower 
 Canada are valid, if made according to the forms required 
 by the law of the country where they were made or 
 passed" — imjilies that acts and deeds are invalid if not so 
 made.' 
 
 In the recent case of Ross v. lioss - the Supreme Court 
 of Canada has held that the rule Locus reijit actum was 
 not before the enactment of the Civil Code (nor since 
 under the code itself, art. 7) imperative, but permissive 
 only. The question was as to the validity of a holograph 
 will made In transitu in New York by a person domiciled 
 in Quebec, that form being one of those provided by the 
 law of his domicile for making wills, but not known tt) 
 the law of New York. The judgment was not, however, 
 unanimous, that vie^v beinff taken bv the Chief Justice 
 (Sir Henry Strong), Sedgwick and King, JJ., while the 
 two judges from this province (Fournierand Taschereau, 
 
 '.Srt((f//(//, Pris-. Int. Liiw, pp. M24-."). Bdi; Priv. Int. Law, p. 274. 
 Jirochrr, Droit Int. Prive, Vol. 1, pp. i;{2 S(i(i. Ltnirrnf, Droit Civil 
 Int., Vol. 2, Xos. 24ri sqc). F„ll.v, Droit Int. Prive, Vol. 1, No. 83« 
 Fiore, Droit Int. }*rivj^ Nos. 320, 4(M). Aiihri/ tt" liaii. Droit ("ivil, 
 Vol. 1, p. 112. Jialin, Droit Int. Prive, Vol. 1, pp. 3t)l sqq., Vol. 2, pp. 
 404 sqq. 
 
 •^R. J. Q. 2 Q. B. m-. 2.T S. C. R. 307. 
 
 11 
 
 I" 
 
 p 
 
 I 
 
 
 !• 
 
 
 I 
 
 
 
 ti 
 
 i 
 t. 
 
 s 
 
 1 ■: ■ 
 
 ■i 
 
 1 
 
 ■ f 
 
 ii- 
 
 . 1 
 
 w 
 
 ■I 
 
 n 
 
 ■] 
 

 136 
 
 TlIK CONFLICT OF LAWS. 
 
 J J) ii_u;r('('(l with tlie tivo judges ot the Court ot Appeals 
 in regard ill ij; the rule as iniperativt'. In view of this 
 coufliet of opinion, and of the unanimity of all the; Que- 
 l>ec judges in our two a[)pellate trihunals, theeontroversy 
 can hardly be regarded as definitively settled until the 
 question is decided hy the Privy Council, hut until that 
 tribunal is called upon to adjudicate on the point, the 
 law must he (considered to be as laid down by the 
 Supreme Court. Whatever may he the idtimate inter- 
 jtretation of article 7 of our Code and of the old law from 
 which it is derived, tliere can be no two opinions as to the 
 desiral)ility on grounds of justice and expediency, of 
 considering the rule locus regit actum as permissive or 
 facultative. As the Chief Justice of the Supreme Court 
 said in delivering his judgment in the ahove case : " To 
 hold it to be imperative would be harsh and unreason- 
 able, entirely at variance with the policy of the law of 
 Lower Canada since the Quebec Act, 1774, which favours 
 the exercise of testamentary power instead of discourag- 
 ing it, as was the policy of tlie old law of France, and 
 most arbitrary in making tlie sufficient execution of 
 a will depend upon the locality of a testator who, whilst 
 in tnntsitu, makes his will accordiuijto the law and forms 
 of his own domicile. Viewed as permissive only the rule 
 locus regit actum is, on the other hand, most beneficent 
 and reast)nal)le since it enables a testator who wishes to 
 make an authentic will to avail himself of the notaries 
 and public officers of a foreign country through which he 
 may bo passing at a time when he would not be able to 
 avail liimself of the instrumentality of the notaries and 
 public officers of his own domicile." 
 
 It is further provided by article 849 of the Civil Code 
 
WILLS AND GIFTS. 
 
 137 
 
 that willsmade in Lower ('iiiuiJa or elsewhoiv by military 
 men in active servici' out ot' ii^arrison, oi* liy niuriiujrs 
 diirinu" vovaiji's. on hoard sliii* or in hospi.al, wliieh 
 Would he valid in Kni;"land as rcifards tlicir form, ar(> 
 likowiso valid in Lower Canada. 
 
 The capacity of a testator to maki' a will is determined 
 hy the law of his domicile at the time of the execution of 
 the will. This follows from the ioint operation of articles 
 6 and 835 of the Civil Code. The former of thesearticles 
 makes tlie capacity of perscuis de[»end on their domicile, 
 und the latter enacts that the capacity <>f the testator is 
 considered relativelv to the time ol' makini;' his will. 
 This being the case, no change of capacity resulting from 
 a change of domicile could atfect the validitv of a will 
 made in the old domicile.' We have alreadv seen - that 
 in considering the capacity of a person to dispose of his 
 property no distinction should be made between disposi- 
 tions of moveable and those of immoveable property, and 
 it seems certain, though the p(»int does iu)t appear to 
 have been expressly decided, that the same rule would be 
 applied by ou.* courts to (piestioiis of capacity in regard to 
 testamentary dis[>osition:->. Thus a person (h>miciled in a 
 countr}' where minority lasts until the age of 24 (as in 
 Prussia) could not at the age or "22 dispose by will of im- 
 moveables in this }»roviiice, and conversely a person 
 domiciled in the State of Calitbruia, where testamentary 
 capacity is attained at the age of 18, could at the age ot 
 20 validly becpieath immoveable property situated here. 
 
 It is more difficult to deci<le as to the law which must 
 regulate the ca[»acity of a [)crs(tii to take under a will. 
 
 Willi of 
 'iiiht;ir,v 
 iiii'ii Mild 
 iinrini'is. 
 
 
 Capacity 
 111' I'l/utee. 
 
 ^Bourjoii, Tit. 2, ch. t, sect. :i, Xo.->. 11-14 {FA. 1770, v. i, p. 114.) 
 ■Supra, pp. ll:i sipj. 
 
18.S 
 
 THE CONFLICT OF LAWS. 
 
 IiitriiiHiu 
 Viiliility 
 of will. 
 
 m\(\ the (lUC'Htion dooH not soem to liavo presented itself 
 for decision in this jtrovince. Some writers are in favour 
 of applying tlie personal law of tlie legatee at the time 
 of tlu! testator's death, on the ground that it is simply a. 
 matter eoneerning tlie capacity of tlie heneticiary.' 
 But, as liar points out very forcibly,- the law, in declar 
 ing a perso»- to be " incapable " to succeed, means that 
 this person shall not be the successor, although all other 
 conditions necessary to his taking may be present. Con- 
 se(piently, the law which governs the devolution of the 
 succession cannot commit tlie decision of this point to 
 any other law. If this doctrine should commend itself 
 to our courts, the capacity of a legatee would probably 
 depend on the law of the situation as regards immove- 
 ables, and on the law of the domicile of tlie testator at 
 tlie time of bis death in so far as moveable property is 
 concerned. 
 
 The intrinsic validity of a will, i. e., (piestions as to 
 the proportion of his estate of which a testator may dis- 
 jiose, the validity of a clause excluding legatees who 
 might contest the will, &.c., would, it seems, depend on 
 the law of the testator's domicile at the time of his 
 death. No precedents are to be found in our jurispru- 
 ;lence, but there is a general consensus of opinion upon 
 this point.' But the validity of substitutions of im- 
 moveables, or of their establishment beyond a certain 
 number of degrees, would doubtless be governed by tlie 
 law of the situation, inasmuch as these are matters of 
 public policy. 
 
 Nos, 
 
 Sariipiy, Priv. Int. Law, p. 3SS ; Lmiirtif, Droit Civ. Int., vol. (i, 
 203 sc|(i. 
 
 Priv. Int. Law, p. .SOS. See also liolin. Droit Int. Prive, vol. 2, p. IJOIi. 
 F(dlx.\o\. 1, p. 212, s. 117, Diet'!/, ConHict of Laws, p. 099. Savigni/, 
 
 Private International Law, p. 28:5. 
 
i i*i 
 
 \VII,I,S AND (JIFTS. 
 
 131) 
 
 £1 
 
 As to tho constnu'tioii or iiitor[trotuti«)n of wills it 
 sooiiiH alinorit impossible to lay down any tixi-d rule. In 
 the attempt to do so the leading authorities on Privati' 
 International Law display the greatest diversity ot" opin- 
 ion. The doniieile of origin, the doniieile at the time of 
 the making of the will, the domicile at the time of th«' 
 testator's death, the [)laee wliere the will was executed, 
 the country of the testat»»r"s nationality, the place of the 
 situation of the property — each of these has been sug- 
 gested as furnishing the law or «-ustom according to 
 whieli tlie will should he construed.' 
 
 I'robahly the truth of tlie matter is to be found in the 
 following passage from Boullenois : — "Dans les testa- 
 ments, il n'est pres([ue pas [)Ossible de se determiner au- 
 trement (pie par les circonstances. La volonte du testa- 
 teur est toujours sujette a inter[)retation : cette inter- 
 pretation se prend suivant les circonstances, tantot de la 
 loi du domicile, tant5t de celle du lieu ou le testament a 
 ete fait, quehpiefois, encore, des termes du testament, et 
 c'est ce qui fait I'incertitude du jurisconsulte." - 
 
 Two cases arising in this province and finally decided 
 by tho Privy Council, have some bearing on the (piestion 
 under consideration. 
 
 In Mai'trn v. Lee ' a will had been made in the 
 English language in Lower Canada by a person there 
 domiciled, and the ([Uestion was as to whether the word 
 "children" used bv the testatrix might be interpreted to 
 include grainhdiildren and even more remote descendants, 
 
 ' I'd lulrrfcs J''rti lira ifit'.s^ \'o. Duiiatioiis ic TcNtaiueiits, Nos. ITiOi)? 
 loOH). .SfM-Zf/n//, l^riv. Int. Law, ji. 2s;<. Fd/i.v, Vol. 1, pp. 'Jiiit-J^, Nos. 
 ILj-llT. J>tc(i/, Contlii't of Laws, i>. ti'.io. Uniillnioi--. \'ol. 2. \i\>. ."in:! ^mi- 
 Ldurciif, Droit Civil Interiuitioiial, \'ol. (1, No. '.M. 
 
 •■! Lac. cif. » 14 Moo. P. 0. 142. 
 
 Inlcrpri'- 
 
 t;ltinll 
 ol will. 
 
140 
 
 THE CONFIJCT OF LAWS. 
 
 iicconliiiij to tilt' cxtoiisivc sitfiiHicatioii i^lvcii to the word 
 '• (Miliiiits '' ill tlic old Fri'iudi law. Upon t\\v coiiHtnic- 
 tioii of tilt' will taki'H a:^ u whole, their fionisliips hold 
 that the testatrix was reterriii<^ to her own children only, 
 hut they also throw out tlio following suggestion, without 
 giving any opinion upon tiio point: — " Tt may wtdl he 
 that this will liaving l)oon writton in tho English lan- 
 guage, tlu! proper mode of dealing with tho case may 
 have hi'on for tiie courts in Cana(hi to ascertain what, 
 according to the English law, was the moaning of the 
 word " children " as ust'd in tlio will, tho law of the 
 domicile, according to which the (;a8o must, of course, ho 
 decided, resorting to tlu; foreign law or language for the 
 jairpose of deciding the meaning of the words used in 
 the will. This, however, is a ([uestion of great im[)oi'- 
 tanee, more especially having regard to the numher ot 
 foreigners domiciled in this country, and of Englishmen 
 
 (lomici 
 
 led ah 
 
 iroau, who may prepare their wills in their 
 native languages : and their Lordships ari' anxious to he 
 understood as having given no opinion upon this point, 
 which was not, indeed, fulh' argued." 
 
 Ju the vaso of illcGihboii v. Abbott^ the testator had 
 conferred on his son a power of dividin*; the capital of 
 
 liis estate among his children at his death in such pro- 
 portion as the said son should decide hy his will. The 
 ((uestion was whether this power had heeii validly exer- 
 cised hy a division among four of the children to the en- 
 tire exclusion of the fifth. The Appellant, relying on 
 the ahovecpioted obiter dictum in 3Iarti)} v. Lee, contended 
 that, as the will was in the English language and couched 
 in English legal phraseology, our courts should have 
 
 L. K. 10. \i). VnAS. 
 
 L. N. 
 
 z\u. 
 
WIIJ.S AND (JU'TS. 
 
 II 
 
 considered the ineiinnii; and viYvrt of fluit iiliinseolouv 
 in the Eniflisli huiiT'iiiije and hiw at the date ofthe will, 
 and tliat the laiiijua^e ot'tlie will wonld, hy the law <>l 
 England as it then stood, have given no rii^ht to exelnde 
 any of the cliihlren hut only to direct the proportions in 
 wliieh they would share, ['[ion this part ot the case tlu'ir 
 Lordships said : — " The (piesiion whether John could ex- 
 clude any otio of his children from a share must, in tlieir 
 Lordships' opinion, ])e deci(U'(l according to tlu' law ot 
 Lower Canada, and not according to the iMiglish law. 
 They do not undeivtand the case ot' Martin v. Lee as de- 
 (•iding that u will executed in Lower Canada hy ajK-rson 
 domiciled in Lower Caiuida, if written in English, must 
 he interpreted with regard either to moveahle (U- im- 
 moveable property in Lower Canada according to the 
 rules of P]ngUsa law, and have the same effect given to 
 the [thraseology as if that [diraseology had hi'en con- 
 tained in a will executed in England hy a ]»erson domi- 
 ciled in England, or relating to land or other pro[)erty in 
 England. All that thev understand that case to decide 
 is that the word "children," used as it was in the will 
 then to i>e interpreted, was not intended to have the 
 more extensive meaning which may sometimes he given 
 to the word '• enfauts" in the old Frencli law. Lord 
 Justice Turner, at [>. 154, said. "The true question 
 therefore in ihia case is not whether the word ' enfants' 
 may include grandchildren and even more remote des- 
 eon ' " ts, l>ut whether upon the true construction of this 
 will it was intended to include them." See also remarks 
 at pp 'A and 155. 
 
 It could never have been intended by their Lordships 
 to lay down a rule of construction which might render 
 
142 
 
 THE CONFLICT OF LAWS. 
 
 Form II I 
 validity 
 
 of (lollil- 
 
 tioii. 
 
 Capncity 
 of donor. 
 
 Cajiiicity 
 of doilt'L'. 
 
 it lu'cessary to apply tlie ruk; in Shelley's ease to a con- 
 veyance or devise written in the English language of 
 lands in Lower Canada to a man for life, with a substi- 
 tution in favour of his heirs upon his death." 
 
 The api>lication of the rule lorti,^ regit actum in regard 
 to donations is recognized by article 776 of the Civil 
 Code, which enacts that gifts inter vivos (excejjt of move- 
 ables accoTn[)anied hy delivery) must under pain of nullity 
 be executed in notarial form, but that gifts validly made 
 out ot Lower Canada need not be in notarial form. 
 Although the decision of the Supreme Court in Itoss v. 
 Boss ' was given in regard to a vrill, it may be regarded as 
 [>robable that the rule would be held hy tliat tribunal to b(! 
 permissi\ e and not imperative in the ease of donatiojis 
 also, for the opinion of the majority of the court holds 
 that article 7 of the Civil Code, which would clearly in- 
 clude donations as well as wills, is permissive. Accord- 
 ingly a donation would be valid as to form if the donor 
 complied with the reipiirements of the place where it was 
 made, or those of his (h)mieile. 
 
 The capacity of the donor to make a gift inter vivos de- 
 [tends on the law of hh domicile. This is a necessary 
 consequence of the rule laid down in article 6 of the Civil 
 Code. 
 
 As to the donee, it seems that his capacity to receive 
 should (le[)end on the law of his domicile,- There 
 appears to be no good reason for assimilating donations 
 to testaments, as M. Brocher (hoes,' so as to make the 
 capacity of the beneficiary depend on the law which 
 regulates the succession of the person who confers the 
 
 1 -Ji) s. c. H. :«t7. 
 
 - La H re) it, Droit Civ. Int. Vol. ti, Xos. ^OUsgij. 
 
 ■'Droit lut. Prive, Vol. 2, pj). l'\ s(((i. 
 
WILLS AM) GIFTS. 
 
 143 
 
 benefit. For there is no direct relation between succes- 
 sions jind donations in tliis respect. But it has been urged 
 with some force that the disposition wliich rcn.U'rs a child 
 not born viable incapable of receiving a donation is one 
 of tliose prohil>itive laws whieh does not depend on the 
 will of the parties, and whicli is enacted for tlie purpose 
 of restri(!ting tlie donor's liberty of disposing.' On the 
 whole, however, it seems more probable that" our courts 
 woidd make the capacity of receiving depend on the do- 
 micile of the (htnee. 
 
 The rules for the interi.retation of a donation are con. 
 tamed in the provisions of article 8 of the Civil Code :— 
 "Deeds are construed according to the laws of tlie coun- 
 try where they were passed, uidess there is some law 
 to the contrary, or the parties liave agreed otherwise, or 
 by tlie nature of the deed or from other circumstances, it 
 appears tliat the intention of the parties was to be g.n-- 
 erned by the law of another place ; in any of which cases, 
 eftect IS given to such law, or such intention expressed or 
 presumed." 
 
 An illustration of this rule of constructioi, is to bo 
 found in the vix^eot' Lacoste v. Lesaqer 
 
 The question was wliether certain sums of money 
 received by a wife under a deed of donation liecame an 
 asset of the community or remained the property of the 
 wife. The deed of donation contained no express con- 
 dition that these sums should be the private property of 
 the wife, but as it was ma.h' in Havana by persons 
 domiciled there, and as under the Spanish laws in force 
 there no community exists lietween consorts in re^rar.! 
 
 ' AVu(, Droit Int. Privo, Vol. L', nn .'((iii-T 
 ■' H. .1. g. 7 S. C. l:r,. 
 
 ill 
 
 Inti'i-prc- 
 t;ition of 
 iloiiiitiona. 
 
 
 
r-' 
 
 144 
 
 THE CONFLICT OF LAWS. 
 
 Don lit ions 
 
 brtwccn 
 
 consorts. 
 
 Kovocution 
 for iii!i.'r:i- 
 titiliir. 
 
 to property ac(p;ireil by gift, the court held that iho 
 donors must be presumed to have made the donation 
 conformably to the Spanish law, and to have intended 
 to exclude from the communit}' the sums so given. 
 
 Among the most difficult complications arising from 
 the conflict of laws in regard to gifts are those which 
 relate to donations between consorts during the mar- 
 riage, but these will be more conveniently treated in the 
 chapter on marriage covenants. 
 
 A considerable difference of opinion exists among the 
 authors as to the law which should govern the revoca- 
 tion of a gift on the ground of ingratitude, and our 
 courts have not yet given any decision on the subject. 
 The best view appears to be that which assimilates the 
 right of revocation to a tacit resolutive clause existing 
 in the donation, just as if the donor had made and the 
 donee had accepted the donation under the condition 
 that it should be recalled in case of ingratitude. In such 
 case the court would doubtless presume that the parties 
 intended to be governed by the law of the domicile of 
 the donor at the time of the gift, and the right of revo- 
 cation would be unaflected by a subsequent change of 
 domicile, by the situation of the property, or b^^ the 
 place where the acts of ingratitude occurred.' 
 
 1 Bar, Private International Law, p, (iMo. 
 International, V^ol. <), Nos. 2HJ) 8(i(|. S(ifi(/)ii/, 
 I^aw, p. '.ilri. 
 
 Laurent, Droit Civil 
 Private Interntitional 
 
CHAPTER Xr. 
 
 ■ ti 
 
 CONTRACTS. 
 
 Tlie formal validity of a contract is irovenuMl by tl.o „.„,.. 
 rule laid down in article 7 of the Civil Code, /. .. contracts "S"'' 
 made outside of the province are valid if thev complv 
 with the requirements of the place where thev are made 
 And as the rule Lotas regit actum reproduced in this 
 article has been held by the Supreme Court of Canada to 
 be permissive merely, and not imperative, ' it would fol 
 <)w that the parties may also employ the form recoo-nized 
 by the law of their domicile. The application of this 
 principle is easy enough when both parties have the same 
 domicile, but are we to conclude that if they have differ- 
 ent domiciles they have the option of following the forms 
 of either ? For instance, would marria-e covenants be- 
 tween persons, one of whom was domiciled in Quebec and 
 the other in Ontario, be validly executed h, -e either in 
 the authentic form required by our law or under private 
 signature as required by the law of Ontario ? The doc- 
 trine laid down by the Supreme Court as to the permis- 
 e^ive or facultative nature or the rule Loca^ regit nctam 
 although enunciated in general terms, was aj»plied to the 
 ease of a will, and it may be doubted whether it would be 
 extended to the case of a contract when the parties have 
 
 ' liuss V. lioss, S) S. C. R. 307. 
 
 I 
 
 ;!;. 
 
 J; 
 
 r i 
 
146 
 
 THE CONFLICT OF LAWS. 
 
 <liltbroiit doniit'ilos. In Eii^laiid, wliere the lex loci con- 
 tmctii.s governs the formal validity of the contract, the 
 courts have always held that no contract is valid which 
 is not made in accordance with tlie local form, ' and the 
 juris2)rndence in France appears to he in the same sense, 
 filthough some theoretical writers are i-i favour of allow- 
 h\g the validity of a contract made eitlu r according to the 
 lex loci or to the i)ersonal law of the parties.- 
 
 In the case of Fnriti.ss v. Jj(.iroc(/ye' which was, it is 
 true, decided 1)efore the Supreme Court had put the 
 ahove interpretation on article 7 C. C, the Superior 
 Court at Montreal held that a contract of partnership 
 entered into at Bordeaux, France, hetween two persons 
 domiciled in this province, was null and void for non- 
 compliance with the formalities of the French law in 
 regard to the formation of such contracts, and an action 
 2)ro socio hronght here hy on ■ of the alleged partners 
 against the other was dismissed. 
 
 Most of the ordinary contracts are not suhjected to 
 any particular form, and consequently the (juestion of 
 the formal validity of contracts arises only in cases in 
 Avhich tlie local law requires a special form for a par- 
 ticular kind of contract. For instance, the Bank Act 
 (53 Vict., cap. 31, sec. 20) provides that the shares of the 
 ))ank shall he assignalile and transferahle according to 
 such form as the directors prescril)e, and similar pro- 
 visions are found in the Federal and Provincial acts for 
 tlie incorporation of joint-stock companies and in many 
 private charters. Transfers of this kind must neces- 
 
 I Diny, f.'onllict of Laws, p. j)4t(. 
 
 " Uo/lii, Droit int. Prive, Vol. I, pp. '.VV,\-~. 
 
 ■'M. L. 11. 2S. 0.405. 
 
CONTRACTS. 
 
 147 
 
 sarilj bo recorded in uniform i .a.ncr in tlio liooks of a 
 corporation, and conscqncntly the law requires compli- 
 ance with the form prescribed by the corporation. 
 Again, transfers of Britisli ships can only be ma<lein the 
 form required ])y the Merchant Shippiuir Act, and 
 transfers of inland vessels in conformity with the pro- 
 visions of the act respecting- the navigation of inland 
 waters. 
 
 Another exception to the general rule is found in 
 contracts concerning immoveable property. The^e must 
 often conform to the law of the situation, when seme 
 positive law requires a particular form to be observed 
 . hus by art. 2040 C. C. conventional hypothecs must be 
 1)1 authentic form, or (when they affect lands held in free 
 and common soccage) in a certain statutorv form (art 
 2041). "^ ' 
 
 The capacity of each of the parties to the contract,.,..., 
 depends on the law of his domicile.' 
 
 In England and in the United States there is a ten- 
 dency to regard contractual capacity in ordinary mercan- 
 tile contracts as dependent, not on the law of the domi- 
 cile, but on that of the place where the contract is made ' 
 
 But our courts make no distinction in this respect 
 between mercantile and other contracts. Thus, althou<rh 
 under our law a minor engaged in trade, is deemedlo 
 be of age for all the purposes of his trade, a minor <lomi- 
 ciled m a country whose law gives no recourse a-ainst 
 such minor, cannot validly oblige himself in this pnTvince 
 111 the course of his trade. ' 
 
 for con- 
 tracts. 
 
 ' Civil Code, art. (5. 
 
 - /hen,, ConHict of Laws, p. r,t7. Sfor,,, CouMict of Liiu s \o s' 
 
 • Junf.s V. Dlchinsot), R. ,1. Q. 7 s. C. ;U:i - • • - 
 
 n-l 
 
 
 ■ I 
 
14S 
 
 THE CONP'LICT OF LAWS. 
 
 Intcrprc- 
 t.'ition (if 
 contractH. 
 
 Tho rules for the interpretation of contracts are con- 
 tained in article 8 of the Civil Code, which provides that 
 " Deeds are construed according to tlie laws of the 
 country where they were passed, unless there is some 
 law to the contrary, or the i)arties iij».ve agreed otlier- 
 wise, or hy the nature of the deed or from other circum- 
 stances, it appears that the intention of the parties was 
 to be governed by the law of another place ; in any of 
 "which cases, effect is given to such intention ex[>resse(l 
 or ]»resumed." 
 
 The language of this article, it will be observed, gives 
 the court the greatest latitude for arriving at the inten- 
 tion of the parties, which, in matters of contract, is 
 supreme, unless some prohibitive law or considerations 
 of public policy or morality prevent the tribunal from 
 giving effect to such intention. In general the parties 
 may fairly be presumed to have had in view the customs 
 of thi! place where they enter into a contract and this is 
 especially the case wliere the performanceof the contract 
 is to take placi' there. But the /)ritiia facie presumption 
 ceases to exist wlien the cvmtract is to be performed in 
 another place, and in such case the lex loci sol/ftioitis is 
 usually resorted to. And sometimes the case will call 
 for the ai)plication of the first rule to one part of the 
 contract, and of the second rule to another jiart. For 
 example, in a sale of goods by a merchant in Montreal 
 to a mercliant in Xew York it might be that the per- 
 formance of the sellers part of the contract (e. g. de- 
 livery on board the train) would be governed by our law 
 wliile the buyer's obligation to pay would be governed 
 bv the law of New York. 
 
 But tlie court is not bound as a matter of law to apply 
 
1\. 
 
 CONTRACTS. 
 
 14!) 
 
 coMtructs. 
 
 oitluM" the ler solntiiDils or the Icr loci controctjis. Tlu^ 
 (liiostioii iri wluit law the parties intended to govern the 
 contract (»r even a part of tlie contract. In considerini^ 
 wliat law must govern great importance should he at- 
 tached to the U.i: loci solutionis tmd also to tlie lex loci 
 contractus^ hut neither of them is, of itself, conclusive.' 
 
 Again, the riglits and obligations Howing from a i-.n-.t or 
 contract must also be determined bv the law or custom 
 which the parties had in view, or may be presumed to 
 have had in view, according to the ruhis laid down in 
 article 8 C. C. 
 
 The wording of this article, taken in its narrowest and 
 most literal sense, might appear to indicate tiiat these 
 rules are intended to apply merely to the interprelatvm 
 of contracts. The article reads: "Deeds are c(»i,straed 
 according to the laws of the country wlii're they were 
 passed &c." But the French version is somewhat broatU'r 
 in its terms : " Les actes 5'//*/e/7)/Y'/e;?< e/ s'npprccient sui- 
 vant la loi dii lieu ou ils sont passes &c.," which clearly 
 implies that the rules enunciated in the article are ai)[)li- 
 cable to the determination of the legal eifect of contracts 
 as well as to their interpretation. Even without the 
 assistance of the French version our coui'ts would in all 
 probability extend rather than restrict the meaning of 
 the word "construed." Tn Loix/oh d- Brazilitni Baiii: v. 
 31(igiiire - the word " interjiretation " used in section 71 
 of the Bills of p]xchange Act, l89.'i, was held to include 
 the " legal etlect " of tlie di-awing, i-ndiu-sement or ac- 
 ceptance of a bill. A few examples may be cited from 
 our re})orts to illustrate the ai)plication of these rules. 
 
 ' See the cases of Ilnmh/n v. '/'n/is/.-rr DLifi/Zfr;/, Appeal Cases, 1894, 
 202, and Colonial litiiik v. Cinh/, 15 Ap, (a. 2(i7. 
 •^ R. .1. Q. S S. C. .'foS. 
 
 ^m 
 
 V" 
 
 II. J 
 
f 
 
 ii ^ 
 
 
 i'i 
 
 it 
 
 f 
 
 :!' '■ 
 
 . I. 
 1: 
 
 150 
 
 TIIK CONFLICT OF LAW'S. 
 
 Ill M(t')re V. JJarrl.s ' tin- Jiidiciiil Coimiiittt'i! of the 
 Privy Comicil held that a liill ot'ladiiii!;, made' in ]Cni::laiid, 
 l)y tlic master of an KnuTisli ship, is a i-ontract to he gov- 
 tTiiod and di'tcrniincd hy Enijlisli hiw. Tlic action was 
 hronii-ht liv a Toronto firm aii'ainst tiie owners of u line of 
 stearnshijis plying hetwcen London and Montreal for 
 dainaije done to nu'rchandize on the vovaije from Lon- 
 don to Monti'eal. The jndges in the courts helow had 
 founded tlieir decision upon our law, undei' which they 
 considered that a substantive defence existed to the action 
 on tlie ground of unreasonable and unfair delay on the 
 part of the plaintiff. But their Lordships were clearly of 
 opinion that the English law must be applied, and that 
 under tliis law the plea was bad. - 
 
 In Vennor v. Life Association of Scolland''' the Court of 
 Apjteals held that a bond signed in this province in favour 
 of a foreign insurance company must be interpreted 
 according to the law of tbis province, and that a jiower 
 contained in the bond to cancel an insurance polic}' guar- 
 anteeing it, must, under our law. be exercised before u 
 tender is made. 
 
 ]n Boijers v. Mississifipi i^ Dominion SS. CU' goods had 
 been orderetl by a Quebec iirm from an English iirm, and 
 had been ship[)ed by the latter by one of the defendant 
 Company's steamers from Liverpool to Quebec. The 
 Superior Court (Andrews, J.i regarded this as a contract 
 to be governed by the law of England, carrying with it 
 
 ' L. 1{. 1 Ap. Ca. -MX ; 2 Q. L. R. 147. 
 
 ■^ Coiuparc witli this the rofeiit Enjilish case of "Tlii" Industrie," 
 (1H<»41 1\ as, %vliero a charter party, in usual English form, made 
 in London hetween tlie agents of the (ierman owner of a German vessel 
 and the defendants, who carried on husiness in England, was held to be 
 an English contract to be construed according to English law. 
 
 ML. C. J. 808. 
 
 14 Q. L. R. i)». 
 

 rnXTHACTs. 
 
 l')l 
 
 tho rc'inody of stuppaov /// t,;,v!^:iu. ft wiis (•(.nfeiuk.d 
 that tliis remedy was a ri,i--]it of li,.,. and tliat in (-..nse- 
 quence uiir courts eould not recoi:ni/e it inasnmeli as, hv 
 article 6 of the Civil Code, our law must hv ai.piiiHl when- 
 ever tlic (inestion involved relates to ri,<,^hts of lien. IJut 
 the court expressed the oi.inion that the right of stoppas^o 
 intravsHii was not a mere lien, hut rather a^•io.ht uccruinir 
 to the vendor from the inherent defect in the title of a 
 vendee who has not, on his part, iultilk-d tlie primary 
 ohliiration inrumi)ent upon him of paying the price. 
 
 Again, in pJode Island Locomotire \Vovl,:s v. South 
 Eastern liaibra>/, ' where a sale and delivery of two 
 locomotives had heen made in the State of Rhode Island, 
 and the vendor took out an attachment in revendication' 
 in this j.rovince, where the locomotives then were, 
 asking that the sale be dissolved for non-payment of the 
 price, the proceedings were dismissed by the Superior 
 Court, on the ground that the lex loci contrnHas (the law 
 of Rliode Island) did not give the vendor anv such 
 remedy as that of attachment in revendic-ation "'or the 
 privilege of annuling the sale if the price wei-e not paid 
 The .-ourt held that article 8 of the Civil Code was 
 applicable to the case, an<l that article b\ providing iJ.at 
 our law is applied whenever the question inv..lvcd 
 relates to privileges and rights of lien and contestations 
 as to possession, could not create, on moveables brou<rht 
 into this province, a privilege or recourse which did liot 
 attach to them before their removal. This juduTnent 
 was confirmed by the Court of Apjieal. 
 
 We have seen thai article 8 C. C. subjects the inter- 
 pretation of contracts am' the rights flowing therefrom 
 I 31 L. c. .]. m. 
 
r 
 
 152 
 
 TIIK CONKLlfT OK LAWS. 
 
 to the Ijiw (»r the pliu-c where thi' eontract is iiiiuh', 
 except ill certain cases. One <>t" tliese oxceittions is 
 when hy the nature ol" the deed or iroiii other eiifuni- 
 stanccs, it ai>poar8 that the iiitiiition of the parties was 
 to be governed by the hiw of anotlier phice. A good 
 ilhistration of this exception is furnislied by the case of 
 The Queen v. Doatre,^ •where the .ludicial C(niiniittee of 
 tlie I'rivv Council held tliat a contract made with an 
 advocate of this ]»rovince for Ids piofessional services is 
 dependent on the law of his ]»rofessional donucile. and 
 not on the law of the placi' where the contract is made 
 or where the services are to be given. The action Avas 
 brought by a member of the Quebec bar tor the value of 
 professional services rendered to the Dominion Govern- 
 ment in connection with the Fishery Commission under 
 the Treaty of "Washington. It was not disputed that 
 according to tlie law c^f the Pioviiice of Quebec the 
 plaintiif could recover a (piavUmi lueniit for the value of 
 such services, but it was contended by the Canadian 
 Government that the plaintiti""si right to sue for his fees 
 must depend either upon tlie law of Ontario [lex loci 
 contractus) inasmuch as the arrangement was alleged to 
 have been entered into in the city of Ottawa, or upon 
 the law of Xova Scotia {le.r loci .solutionis) the Fishery 
 Commission havinu; held its sittings in the citv of Ilali- 
 fax, and that in neither case was any suit competent to 
 liim. But their lordships held that when an advocate 
 is b}' law and the custom of his [)rofession entitled to 
 recover payment for his ]»rofessional work, those who 
 engage his services nmst, in the absence of any stipula- 
 tion to the contrary, be held to have employed him 
 
 ' L. I!. !» Aj). t"a. Tio ; 2s L. (". .1. :!()i). 
 
CUNTRACTS. 
 
 153 
 
 iipou tlu; usual tLTius accordiu,.; to wlii,), such services 
 are reudcrod. 
 
 The validity of the discliarye ol a c-ontiart <lnj,oiids on n-hu,. 
 till' law lo Nvliic'h the i.artios intended to submit tlieni- ''.'"'•'''■ 
 Kflvcs, in aecordance with the rules laid down in article 
 H C.C.,ai)d such discluirije, if it extiii<ruishes tlie liability 
 accordinjT to that law, will operate as a complete bar to 
 the claim in this province. This principle, which is 
 ge.ierally admitted,' has been laid down bv the Oourt 
 <>t" Appeal in the ease of Th. E<iHita(,le Life Assuvnnce 
 CiK^ V. Pcrmult ■ The plaintiff represented a creditor of 
 u Caiuidian policy holder in an insurance eompanvdomi- 
 eded in New York, and claimed the amotmt of the p..l- 
 icy ior the benefit of tlie creditors of the assured. The 
 company pleaded that the policy was issued and made 
 payable in New York, tliat the indemnity was payable 
 there, and that tliey had paid the amount "to the admin- 
 ir^trator api)ointed to the assured under the laws of Xew 
 lork, in comi.liance with a jud^Tuent obtained by such 
 administrator in the Superior Court of Xew York. The 
 Court of Appeal held that the com])anv havincr Juwfullv 
 pcrtormed their part of the contract at Xew York, 
 where the contract was made, and where thev ai^reed to 
 pay, luul been validly discharged according to the law of 
 Xew York, and that this discharge operated a release 
 ot their ol)ligation i-vcrywhcre. 
 
 ^ III a recent case decided by ihc Exchi.(,uer Court of, ',;">, 
 Canada ' the question was raised as to the law which ''''•''• 
 .should govern the imputation of payments made under a 
 
 ^Jim; Private International Law, p. (i|(.. ]>;,■,.,, C.nllict o!' Law., 
 pp. .)/o-/. ^/or//, Confli.-t of Law s, iii; ;«(i-:j-|. 
 
 -■2C> L. C. J. :iS2. ■■' T/t,' QtircH v. 0,f//7r/c, ti Ex. (\ IJ. 21. 
 
 iitati ;ii 
 
154 
 
 Tin; ("OXKMCT OF I-AWS. 
 
 relVi'ciiit 
 to a i>iir- 
 tioiiliir 
 law or 
 custom. 
 
 luftLT of uiiiiraiitco. Tlio FiXcliaiijrro TUitik. of Montival, 
 liavin<^ l)('('()iiit' tiiiiiiic'uilly oiiilnirnissod, iiitiiliiMl tor 
 assistance to tlic D'cpaitniriit of Finance of Canaila, and 
 tliis assistanc(! was u;rantt'(l several times in tlie hope of 
 saving' tlie institution from insolvency. On the occasion 
 ol oiM' of tiiose advances tlie defendant, a director of tlie 
 bank. <rnaranteed its rei)ayment 1»\- a letti'r sit^ned in 
 Ottawa and there delivered to the I)('i»uty Minister of 
 Finance. I Jut the place of th.' bank's api)lication for 
 the a(l\,,iice, of the i»ayment of the Government eho([Ues, 
 of tile deposits, and of the g'iving of the receipts was. in 
 Monlri'al. It was (contended hy the (U'fen<lant that his 
 snrctyslii]) had been extini>;uished by payments made by 
 the baid\ which should under the law of the Province ot 
 Quebec be imputed to the amount secured by the 
 defen(h\nt. On the other hand, it was contended that 
 the law of Ontario should apply, and that under that 
 law no such iniputation or aitpropriation of payments 
 should be made. Davidson, .!., held that when a con- 
 tract is nuule in one country and is to be performed 
 eitliei" wholly or partly in another, then the proper hiw 
 of the conti'act,es[)ecially as to the mode of performance, 
 is the law of the country where the performance is to 
 take place, and consequently that in the present case 
 (h>miuant weight must be given to the law of surety8hi[) 
 as it I'xists in this pr()vin(;e. 
 
 It fre(piently happens that the parties to a contract 
 expressly state that it shall be governed by some parti- 
 cular law or custom, and in such case, as article 8 pro- 
 vides, effect is to be given to this intention. We shall 
 see, liowever, when we come to consider the material 
 validity of the c(uitract, that the parties cannot in this 
 
"^ 
 
 n 
 
 CONTRACTS. 
 
 105 
 
 way clinli' in'ohihitivc hiws siiii|ily \>y stjiliii*^ flint tlif 
 coiitraet hIiuII ix' li-overned l»y some t'orcii;!! law. \'.\- 
 ariipk's ot' express rcfcronci' to a partii-iilar law omistniii 
 arc often toiiiid in hills of ludinij; which stipulato that 
 jjjoneral avei'a<:;(' is to he nuuU' up aceordini; t(» the ^'ork 
 it Antwerp rules, 1S!»0, or that, the contrai-t is to he ijov- 
 erned by the French or Knglish law, aicording to the 
 Hhil»'s flag.' 
 
 Miuth diversity ot'o[»inion exists as to the law which 
 should govern the nnitcrial or essential validity of a con-' 
 tract The tendency, on the whole, is to recogni/e tin- 
 su[)renun'y of tlie law which the contratifing parties nniy 
 be pri'sunied to have in view, a*H'or<ling to the rides above 
 laid (h)wii tor discovering that intt'iition.- . Koll(»wing 
 this princiitle, the Court of Revii'W at Montreal held that, 
 where a contract of nuretyship had been enti-red into \n 
 Vermont without consideration, and it was proved that 
 bv the law of that state it was absolutciv nt'ccssarv to 
 the validity of a guarantee that there should Ik- a con- 
 sideration, the contract could not be enforced hei'e.' 
 But tliere are inn)()rtant e.\cei»tions aixl limitations to 
 this general rule. The autonomy of the i)arties cannot 
 in this regard be always and everywhere recognizi'd, for 
 
 ' 111 miuiy Itills of ladin^i; usfd ill t his couiii IT il is si ipulalfd tliul 
 tilt' coiitriiut .stiiill 111? governed liy " I5iit isli " hiw. Tin' iiiciiiiiiin of i ids 
 uini)i(;noiis exi)ressi()n, whieli inij^lit iiicliidt' I lie law of HtiKlaiid or that 
 of St'otlaiid, or indeed thai of any Hritisli colony, was dismsscd lint. 
 not dvviiWd ii\ H'lnlcl/ V. Hide/,- Dill,, unifl SS. Ca. (1{. .1. g. Ill S. C". 
 271-1'). See also W'ilnun v. I('//.sr;/( (2 H. de L. ilU; where the parties had 
 referred tiieir riLflits "to the laws, iisaj^es and eiistoins of Creat 
 Hritain." 
 
 - lioulUnois, vol. 2, pp. 472 s(|i(. Fn ti.r, vol. 1, pj). 2()."j s(|(|. Sfiir//, 
 C'oiitl. of liaws, S212. Sdrif/n;/, Priv. Int. Law, p. 217. />i(r;/. Conll. of 
 Laws, pp. 'm.i si\i\. 
 
 ■'Joslyn V. liaxto; I L. C. L. J. 117. 
 
 i:'<><rlltiill 
 % iliilily iif 
 luiitnirtK. 
 
*1 . 
 
 ^:w 
 
 Coiiti'iicis 
 jioli-y. 
 
 Ciintrarls 
 
 )iiilili<' mil 
 itiiil ifimi\ 
 morals. 
 
 15G 
 
 Till'; CUNFLICT OK LAWS. 
 
 tlicv iiiiisf iK)1 lie allowed to arltitrarily olude tlic law 
 wliicii would otlnTwisc Datiirally govern tlic contract. 
 Tims, if two iM'i'sous domiciled in tliis province slionld 
 entei' into a gamin g coiitra<'t 1 ere wliich was to be ear- 
 rie(l out lure, they could Tuanite.stly not witlidraw the 
 matter from tlu' o}>eration ol Our law by Him])ly insei'ting 
 a clause to the <>ftect that the contract should l)e gov- 
 erncil by the la\- oi some tbri^ign ('ountry wliich does not 
 [prohibit sucii conti-acts. 
 
 Again, the Jex fori will prevent our courts from en- 
 Ibrcing a contract which is op|»osed to our jmblic poli(;y, 
 for by article <) of the civil code the law of this province 
 is ai)plied whenever the qiiesti(^n involved relat(;s to public 
 i>olic\'. Thus, contracts made in a foreitru coimtrv to 
 raise loans for the purpose of caiTying on war with 
 Great Bi'itain o/ her allies would (Mjrtainly not be sanc- 
 tioned by our tribunals. Tt has also been held that the 
 jui'isdiction of the courts is a matter of imblic policy 
 whii'b camiot be restricted by agreement between the 
 contracting parties. Accordingly, wlicre a contract of 
 liii'e of persoiuil sei'vices execute<l at Boi'deaux, France, 
 containe(l the following clause : " ])an> le casde diiiicultt'; 
 pour Tcixecution des presentes, elles (h;vront etre reglees 
 par les tril)unaux de !>ordeaux, a rexclusion de toutos 
 autres juridictions " — tin Superior (Jourt (Wiii'tele, J.) 
 held that this sti[»ulation could not affect the competiMicy 
 of our tribunals.' 
 
 More difliciilty is exp<'rience(l in dealing with contracts 
 
 ■' whifh contraNcne tlu' law iA' jtiiblic ordei' ano goo(l 
 
 morals. There is no doubt a> to the invalidity of con- 
 
 ^./tidci/v. Socirh' l''rini<<i isc (\' I'uiisfihiilis il II. ('(ini'.ild (II L. .\. 
 1(K)». 
 
 
CONTHACTS. 
 
 J I 
 
 
 trar's whirl, arc inconsistent witl. tl„. :.,,.„] onlcr .,(' .,11 
 
 <--v>hz(..l so<.ictics, or which vi<,latc rule, of n.oralilv uni- 
 versally rcc^n./cl. Contracts to pron.otc the ..unnns- 
 sHM, ohnn.cs, to <-orrui.t the a.ln.inistration of justice 
 ;:'■ ^"/'""''- '■"" '' l-!y^ancM>s union, wouhl un,,ues- 
 ^"""- • '"" ''^' ^'"t'"-'-'"! hy our -ourts. Ii,„ ,i.ere 
 are nunierous cases Avhere contracts violate the rules 
 ot puhhc order an.l uiorality reeo,rnix.e,| h, ..,„. ,.ivil- 
 izc.l M.l. whih. they are alloue.l in anoth..- Must 
 thote.totthe/o7;.v:heap,.lie<lto dcei.le the validitv 
 
 ';ia/runnn^eontrac,,a sale of slaves, a transaction ii. 
 
 •-••l"<.M-e,l,tor.,acham,.ertou<a^reen.ent. a <.ontracf 
 
 '••twcvM anorncy and client wherehy the forn.er stipu- 
 
 iHtes tor a contin.irent fee out,,f ,h,. ,.,„j,ertv to he 
 
 rccoverec , ^tc Sc- v Sl,.,■^- ' .1 . . < » o( 
 
 tins ex<.ept,on a contract must he c'earlv founded in 
 
 --a! turpuude, and not sin.ply contra, V to the statutes 
 !" ''/" •■""..try where it is sought to l" • „,„o,v,.d : and 
 ^- -^t.>n.ns, in Xew York where the >ale of h.tterv 
 tK-kets ,s ,.rohd,ited, n.ai.itainin.i,. < in- validitv of a hond 
 
 -ndUH.ned lor tlu. ,KU.|orn.ance of certain duties e,.ioined 
 ''.•l''^^-"f Kentucky, which au.ho,-ized The ohlioe,,.,,, 
 sc lottery tickets for the henetit of a eolle,. h. „.. 
 ^t.ite,tho/.Woc..o/.^/on/.hein^ai.,.lied. Soh. KnHand 
 
 ;;;r7•^;'''f•'■'^--'•^v='|>mishsu^iectdon.h.iled 
 
 - l^-.^huH . lor the sde to a Hra.ilian domieil.din 
 ..-.1 ot slave, lawfully held Ly U,e hnv of n..a.i|. ,,,. 
 '';;';" vahd. .uch .omrae, hein;, then lawful hv the law 
 
 01 lirazil 
 
 fn France, however, the prevailing o,,i„i.,„ ,,,j,„^„,^ ,,, 
 ' fond, of Ldws, ji ^'isv,. 
 ' ■'''""''>« V. Jl/i,/i,r, H C. j;. X. js. mi. 
 
 • 
 
 US: 
 
158 
 
 THE CnXFLICT OF LAWS. 
 
 bu that the le.r fari w\\\ rot'ust" to reeoijni/.c or I'jforce 
 contracts which coiitravcno the rules of public order nw\ 
 good morals recognized by the local law.' 
 
 No precedents are to l)e found in our jurisprudence, 
 nor is much liglit tlirown upon the subject b}^ the old 
 Freiuli writers. It is submitted that the doctrine laid 
 <lo\vn liy Story is more in keeping witli the spirit of 
 our law than tlie opposite view. It is certain that our 
 courts will recognize the validity of some foreign con- 
 tracts which would be void as against public ordei' if 
 they were ma<h' and to be performed in this province. 
 Tlius, it ("1 hardly be doubted that oui" tril)unals would 
 admit the \ 1 ty of a contract made and to be [)erformed 
 abroad and valid by the foreign law, by which a ven(h)r 
 should stipulate that he shall not be liable to a warranty 
 against his personal acts. If this be granted, where 
 shall we draw the line of demarcation ? It is oidy 
 necessary to read the distinctions which some modern 
 authors have attempted to make in order to become 
 convinced that there is no logical reason for refusing 
 recoifnition t(» all contracts which do not violate the 
 universally accepted rules of morality and good order. 
 It is generally conceded that obligations must be con- 
 sidered as invalid if they arc forbidden by the law of 
 the place of performance, although they may be legal by 
 the law of the place where the contract is marie,-' but it 
 is difficult to see how the laws of public order pf this 
 province are affected by a contract made and to be [)er- 
 forme<l abroad. Take, for example, the cas(> of two 
 
 ' Fiih\r. Droit Int. Privt-, Vol. 1. pp. :il7 IS. /.(iiiirii/. Droit Civil 
 Internntional, vol. S, \o. li;i. Snn'i/iii/, Coiil!. of Lfiws, p. -2^2. 
 
 - Fii'li.i', vol. 1, pp. 2U\ s(i(|. //«*•, I'riv. Int. I/iw, pj). r);{,S-!), iViT. 
 Dicfji, Coiitllct of Laws, p. .")<)(). 
 
1???: :'■ 
 
 CONTRACTS, 
 
 159 
 
 foreigners entering- into a gaining eontraet; in their own 
 country, where tlie contraet is ]iertectly lawful and 
 entbreible. The losing party, who has no assets in his 
 own domicile, is sued on tlie cotitract in a (,'ountry 
 wliere (as in tlds province), grniing contracts do not 
 o-ive rise to anv action at law. Can it he said that the 
 courts oi' this eountry are justified in refusing to main- 
 tain th' .etion ^n the g''ound that it is against public 
 (ir.i' I or good morals? As a recent writer observes, 
 while the original cause of aetion may be discounten- 
 anced an<l repi-obated 1)y our law, have our eouits the 
 right to eriti( ist,' the morality ol'such a con tract validly 
 entered into between foi'cigners under their own law? 
 Tlie j)ayment of a gaming debt is not per se immoral ; 
 on tlie C'litriU'v, the repudiation of such a d(d)t may be 
 characteri,.vii as dishonouralde, and consequently the 
 action to recover it cannot ui itself be eonsidered as 
 against intiTuational notions of [lublic order,' 
 
 An exception is very generally made to the rule that 
 contracts are regarded as invalid if they contravene the 
 foreign law of the place where tliev are nade or where 
 the performance is to take place, [Prohibitions resting 
 on purel}' iiseal grounds are usually disregardeil, a-"., for 
 instance, in the case of customs duties, revenue stamps, 
 &c. In France, England and the United Stales the 
 tendt'ucy of the courts is to consider contracts as valid 
 although they violate such prohibitions. Among the 
 text-writers, some defend the prevailing jurisprudence 
 on the ground that as far a?< cust(»ms duties are con- 
 cerned states live in a kind of war with one another,- 
 
 I'Virfigu 
 rivcnuc 
 i.iwa. 
 
 ' Nolln. Droit Int. Friv«-, Vol. 1. pp. 2S(i.S. 
 
 - I'lirihsNiis, sec. lt'.)2. /\'iiitri(i<iii, vol. 1, v\i. f', s, iVi, 
 
IGO 
 
 THE rONFMCT OK LAWS. 
 
 Actio 
 I'niiliaiKi. 
 
 Itut <»tli('rK. includiiiii; most o{' the niodt'rn autliors, 
 rojindisitt' this the'ory ds unworthy of civilizod nations.' 
 Out' (.'ourts do not sei'ni to liavc he^-n called njton to 
 pronounce upon the question, ])ut the legislation regulat. 
 tug <'ontlicts of laws in matters relating to hills of 
 exchange has repro(hiced the view that our courts are 
 not obliged to rerard the etlect of the ivvenue laws of a 
 foreign t'ountry.- 
 
 The right oi' creditors to impeacdi contracts made by 
 their delitor in fraud of their rights {Ac(io Paidiaihi) 
 would, according to our , jurisprudence, depend on tlie law 
 of the [ilace where the contract is ma<le. Thus, in 
 Prentice v. Steele'' the C'ourt of Review held, cijutirming 
 the judgment of the Su[>erior Court, that where a }iolicy 
 of insurance had been issued and made p{ yal)le in New 
 York, and had been assigned in this i rovinee in fraud of 
 the creditors of the assured, the righto of the creditors to 
 obtain the avoi(hince of this transfer must be governed l)y 
 our law and not by the law of New York.' 
 
 But an exception must l)e made to the above rule in 
 ^:]\ y case of an action tending to impeach a liypotliee or 
 
 Puf/iirr, Assunvnces, ss. .58. Sfuri/, Conrtict of Laws, § 24.5-7. 
 I.fiK, nt, Droit Civil Int., vol. 8, Xu. 114. Jiror/ivr, Droit Int. Prive, 
 vo!. •-. p. 92. Dice!/, Conllict of Laws, p. iidl. 
 
 " .-Section 71 of the IJills of Hxcliange Act, 18iX», provides that where 
 ii i ill is issued out of Canada it is not invalid by reason only that it is 
 ! ..C starape<l acconlinK to the law of the plaee of issue. 
 
 ■■' M. i.li. 4 S. C. Ml!t and .5 S. C. 2!t4. 
 
 * It niijzht have been niore correct to rest this decision upon the hx 
 fori, whir;h, under tlie circumstances, would also have been the law of 
 Quebec. lioliii (Droit Int. Prive, \'ol. 2, p. ')21) makes the .^Ic^'o 
 Pfiiiliitna depend exclusively on the law of tlie tril)unal seized with the 
 case, or the law of the situation wiiere real rifjjlits are involved. For, 
 as tills writer observes, the question involves the rij:;hts of tliird parties 
 and the ell'ectsof fraud, and naturally falls within tiie competency of the 
 lex fori or of the /c.c /•<:/ .s//(i. 
 
CONTRACTS. 
 
 1()I 
 
 mortgiiirQ en toiviirii inimovcahk's, for tlicn flie lex ret 
 sitfc would govern, and tin- validity or invalidity of tlie 
 transaction would depend on tlnit law. No Quebec case 
 Jif.pears to have determined tliis, ])ul the Supreme Court 
 of Canada, in a recent ease from Ontario,' held that the 
 courts of tliat i.i'ovin.-c cannot entertain an action to set 
 aside a mortgage on foreign lands on t!ie ground that it 
 was taken in pursuance of a fraudulent scheme to defraud 
 creditors. The i)rinciples upon wliidi the cjise was de- 
 culed appear to he tlie same in our law as in tluit of On- 
 tario, and tlie ^anie decision would prohahly be reiKhued 
 ill a Quebec case. 
 
 ' Piinhjiii V. Patri/i'i.' Co. I'd S. C. H. 4\± 
 
 M 
 
 ii '■. 
 
 U 
 
CHAPTKR XII. 
 
 MAIIUIAGK COVENANTS. 
 
 yoriniil 
 Viilidityji'l 
 iiKiiriii;,'!' 
 (■(iiitriut. 
 
 IiitorpiP- 
 tatioii . 
 
 Tlie rulo Locus rcfjil actum a[)plies to the formal valid- 
 ity of mai'i'laije covi'iiaiits as well as to otlier contracts. 
 Ai'cordiiijifly. altlioug-li siurli covciiants must uiidoi- our 
 law ' he executed in notarial form, a marriage contract 
 executed abroad according to tlie lorms re([uire<l by the 
 foreii;n law would certainly be regarded as valid here. 
 The difficulty of regarding the rule Locus regit acluin. as 
 merely permissive and not im[»erative in the ease of 
 marriage covenants between persons having different 
 domiciles luis already been pointed out.- 
 
 The interpretation of nuiti-imonial covenants would 
 likewise l)e governed by the same rules which are applied 
 t(» ordinary contracts undei- the jtrovisions of article 8 ot' 
 the Civil Code. Xice (piestions may arise as to how far 
 the consorts couhl validly sti[>ulate hat the law ot some 
 foreign country should ri'gulate their nuitrimonial rights. 
 For instan.-e, could persons domiciled here and intending 
 to nuike this pr»»viiic'e their matrimonial domiv'ile legally 
 stipulate that their rights should beg(»verned by the law 
 of the State of Xew York? There can be lu) doubt lliat 
 such an agreement would derogate from the rights inci- 
 <lent to the authority of the lui-land over the person of 
 
 I Civil <;"odt', .'IP' 12()4. 
 
 - Siifiiii p. 1 ;.". 
 
'T-3 
 
 MARUIAOE COVENANTS. 
 
 16:^ 
 
 .1 
 
 of 
 
 iy 
 H'i- 
 
 r 
 
 the vvitb and belonging to him u.-^ the head of the conju- 
 gal asHociiition, for by the hivvs of New York the wife is 
 almost if not altogt'thei- in the position of a fenm sole as 
 regards marital authorization and powers of administra- 
 tion and alieinition. To that extent, therefore, su(di a 
 stii»ulation would uinloubtedly be null and void,' and it 
 may be doubted whether the whole of the elause would 
 not be void as against [lublic- policy. Or, to take another 
 instan(;e, could thr iniending consorts ado[>t tlu' regime 
 dotal recognized by the Code Napoleon, hut unknown to 
 our law ? In the case of Wilson v. Wilsoi)- the plaintitf 
 challenged the validity of a clause in a marriage contract 
 providing that the marriage rights of tlu' intending con- 
 sorts should be governed by the laws, usages and custrais 
 of Great Britain and not hy those of Caiuida. Tlu; 
 prinei[)al reasons urged against the validity of this stipu- 
 lation were : 1. That the words were too vague to enable 
 the court to ascertain what the parties intended, for 
 " Great Britain " would comprehend Scotland, whose law 
 is totally ditferent from that of England, and '1. that such 
 an agreement was uidawful as beiiig against pul)iic policy 
 and contrary to the law of the j»lace where it was made. 
 The Court of Appeals eontirmed the judgment of the 
 Superior Court which held that t'ommunity under our 
 law resulted from the marriage, but tln> report unfortu- 
 natelv fails to ojive the reasons of the iudirment, so that 
 it is imi»ossible to say whether the marriage covenants 
 were declared void for want of certainty or because such 
 a stii>ulation was invalid. 
 
 If no covenants have hciMi made the consorts are 
 })resumed to have intended to sul»ject themselves, as 
 I'egards their rights of [iro[)erty, to tlu' law ot' their 
 
 ' Civil Code, art. 12.V,). ^ -1 H. di- L. 4:!1. 
 
 iiiti'iitiriii 
 111 til)' 
 
 llpSl'llCP 
 
 "fi'xpriMs 
 ( untraot. 
 
 
164 
 
 THE CONFLICT OF LAWS. 
 
 lllus- 
 
 tiatidiiH. 
 
 mjitrimoiiial dornieile, tluit is, tlu' (loiiiicilo wliicli llio 
 c'oii8orts have at the time of tlie rnuri'iage. In most 
 eases this will eoineide witli the doraieile of the liiishaiid 
 at the time of the marriage, but it may he in some (»ther 
 pL'iee selected hy the consorts as their permanent home 
 and to wliieh tliey remove immediately after the mar- 
 riage. The place where the marriage is celehrated has 
 no efl'ect wliatsoever on the fixing of these matrimonial 
 rights, nor are they atf'ected hy any snhsequent change 
 of the matrimonial domicile Again, the nature or the 
 situation of the property of the consorts does not, in the 
 view taken hy (Uir courts, alter the rights of the parties 
 resulting from this presumed contract. Thus, there is 
 no community of property, even as to immoveal)les situ- 
 ated in this })roviiice, between consorts whose matrimo- 
 nial domicile at the time of the marriage does not create 
 such comnnmity, and a subsequent removal of their 
 domicile to this province would not change their rights 
 in that regard. Conversely, conmmnity of property ex- 
 ists between consorts nuirried abroad but domiciled here 
 at the time of their marriage, and such community will 
 persist through all subse([uent changes of domicile. The 
 above principles are established ])y an unvarying series 
 of judicial decisions, a few of which may be given by way 
 of illustration. 
 
 In Rogers v. JRatjers, decided in 1848, the ph-intiffs 
 sued as universal legatees of their tather, Richard 
 Rogers, to recover from the defendant, another of his 
 children, who had been disinherited by the father's will, 
 moveable and immoveable iiroj)erty of the testator. 
 The declaration alleged that m 1804 Richard Rogers 
 
 1 w L. c. .]. (it. :i n. dc L. 2."..-). 
 
^w- 
 
 MARUIA(JE roVKNAXTS. 
 
 li)5 
 
 atid TlionuiHiiio Pcarce wore niurriod in Kiiii:;liiii(l, where 
 they were then domiciled, witliout aiiteimptial contract, 
 that afterwards they eniisi!;rated to Lower CaiuKhi and 
 settled in the city of Montreal, where they died ; that 
 while in Lower Ciinada they acciuired moveable and 
 iminov{ud)le property; and that aecor<linif to the laws 
 an<l <'uatonis of England at the time of the marriage, no 
 community of property existed between husband and 
 wife. The defendant admitted these facts, but claimed 
 that by the operation of law community of property 
 existed ])etween the consorts immediately upon their 
 domiciliation in Lower Canada, and that in conse(pience 
 he liad a right to the usufruct of one half of the com- 
 munity property under his motlu'r's will. 
 
 The parties by their admissions expressly restricted 
 the issue to the ([uestion as to whether, after the transfer 
 of domicile to Lower Canada, tlu're was a community of 
 property between their father and mother, and the 
 Court of Queen's Bench (Rolland. C. J., Day and Smith, 
 JJ.) held that there was not: "considering that there 
 never was or could be a conmiunity of property between 
 the father and mother of the parties in this cause, they 
 having married in England, the place of their domicile, 
 and no contract of marriage having been previously 
 entered into, and that the transfer of their domicile to 
 Lower Camida, where they died, could not have the 
 eifect of establisliing su(;h a community of [)roperty 
 between them contrary to their presumed intentions at 
 the time of their marriage." 
 
 LaiH/aedoc v. Laniolette,^ decided in 1848 by the 
 Court of Appeal, was a case of a runaway marriage 
 
 • s L. c. R. 257. 
 
iP-r^'ii 
 
 IOC. 
 
 TIIK CONFLICT OF LAWS. 
 
 (•('k'ltriit('(I ill the Stiitii (»f Xcw York betwcni piirticrt 
 (loniicik'd \i\ this jiroviiico, tlic wife being u minor aiiil 
 not having oljtuincd her tutor's consent. The ccroniony, 
 whicli was |i('rlonni'(l hct'orc a justice of the ]»cacc, was 
 not |irccc(h'(l by any marriage covenants. After the 
 marriage thi' consorts returned to tlieir (h)miciU', and 
 about a moiitli hiter were again united in marriage, this 
 time Ix'fore \\\v priest of their [tarish and with the tutor's 
 sanction, This second marriage was [ireceded l)y a 
 contract stiiuihiting separation as to }»roperty. Inasmucli 
 as the litigation was bi>tween tlie consorts and the wife's 
 tutor, and the tutor was su]i[iorting the validity of tlio 
 first nuirriage, tlio court held that the consorts coidd not 
 attack it, and consequently (M)mmiinity of property 
 existed between them under the laws of tiieir domicile. 
 The case of yli7/7^ v. Jlallee,^ decided in 1877 by the 
 Court of Review, may be regarded as the leading case 
 on the subject, as the question was very tlioroughly 
 discusHcd witli a very full citation of tlie authorities. 
 The plaintiff sued as heir-at-law of her father to recover 
 an immoveable in this province. The evidence estab- 
 lislied th.'it her father and mother were married in 1856 
 in Burlington, State of Vermont, where they were then 
 domiciled, without {intenuptial contract ; that in the 
 same year tlic}^ came to this province, where they re- 
 mained until their death ; that the immoveable in (|ues- 
 tion was acquired by the husband since the change of 
 domicile; and that by the laws of the State of Vermont 
 at the time ot the marriage no community of property 
 existed in the absence of any contract. After her 
 husband's death the widow, claiming to liave been in 
 
 ' t g. L. n. VM. 
 
wn 
 
 MAKUIVGF, COVENANTS. 
 
 167 
 
 in 
 
 coiniiHMntyol'i'rniK'rty, sold niic linU'of'tlio iiniiiovciihlc in 
 ((uostion, iiiiti (k't'c'iuliiiit I'liiiiiicd midcr this coiivcviiiK-c. 
 
 Tho Snix'i'ior C'ourt (Stuart, .1.) iiiaintuiiit'd tlie valid- 
 ity of tlu' title derived from tlu' widow, holding tiiat 
 the law of ac([iu'sts and !i;ains durinuj niarriai^t' is a 
 real and not a personal statute, and that upon the ( hanj^e 
 of doUiii-ile of the consorts the wite became clothed with 
 all the rights and privileges of the luws ot' tliis province 
 concerning married women without a contract. 
 
 But the Court of Review (Mereditli, C. J., Casault 
 and Caron, JJ.) unanimously reversed this Judgment, 
 holding that according to the well established .juris- 
 prudence of the Parliament of Paris no community of 
 property existed between persons, who, having nuiri'ied 
 without contract in a place where community did not 
 exist, afterwards established their domicile and ac([uire(l 
 property in a country where the law of community did 
 exist; and that, according to the same jurisprudence, the 
 law of community was considered rather as a atatid per- 
 sonnel tlian as a shifiif reel. The Chief Justice, wlio 
 delivered the opinion of the ccnirt, supported this view 
 by mimerous citations from the old French authors aiul 
 from our own jurisprudence, and his learned dissertation 
 still remains the locus classicus on this subject. 
 
 In 1882 the same doctrine was re-attirmed by the 
 Superior Court (Torrance, J.), in a case which luis 
 already been examined in the chapter on (hjmicile.' The 
 holding was that community does not exist between 
 consorts married out of Lower Canada and whose 
 matrimonial domicile was in the State of Xew York, 
 where the law of community is not in force. 
 
 ' Conver.se v. Conccr.se, 5 L.N . m. Suiira, p. rrl. 
 
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 168 
 
 TBE CONFLICT OF LAWS. 
 
 Again, in l^SGjin another case which has also furnished 
 us with an illustration of the rules of domicile, the Su- 
 preme Court of Canada held that in the absence of mar- 
 riage settlement the mutual rights of the husband and 
 wife to each other's moveables, whether possessed at the 
 time of the marriage or afterwards, are determinable by 
 the law of the husband's actual domicile at the time of the 
 marriage, without reference to the law of the country 
 where the marripro is celebrated or where the wife was do- 
 miciled before m. . * iage. Although two of the judges dis- 
 sented from the judpT'; ent, they did not dissent from the 
 above doctrine, but v \y differed on the question of fact, 
 i.e. as to whether it - s^ ./• oved that the husband was really 
 domiciled in this provinoa at the time of the marriage.^ 
 
 > Wadsitorth v. McCortl, 12 SCR. 4fi«. Suf,ra, p. nJ. 
 
 "See also Young v. Deguiite, 2?.^ L.C.J, 104. In tho recent cji.se of 
 McNamara v. Conatantineau (3 R. de J. 4H2> the head-note appears to 
 indicate that the change of domicile of consorts who had married when 
 domiciled in tliis pi-ovince and without antenuptial contract, might 
 give tho wife the right of owning property, acquired in the new domi- 
 cile, a.s her own property. But the court found as a fact that there had 
 lieen no change of domicile, and no opinion was formally expressed in the 
 sense of the head-note. It seems that the case might have lieen dispo.wed 
 of according to the foregoing authorities without deciding whether 
 there had been a change of domicile, for community of jiroperty having 
 been once established between the consorts, this rrt/hnr persiste«l after 
 the alleged change of domicile, so as to prevent the wife from acquiring 
 8e|)arate property to any greater extent than she could under our law. 
 
 The authorities cited in the leading cases above noted make it per- 
 fectly clear that under the French law no sub.se<|uent change of domi- 
 cile can alFect the tacit contract which the law presumes to have been 
 entered into by the consorts at the time of tlie nmrriagc. 
 
 Curiously enough the question had never l>een expressly decided in 
 England until the recent case of De Xiruls v. Curlier (IHIH. 1 Ch. D. 403) 
 in which Kekewich, J., held that, as to moveable property, the respect- 
 ive rights of the consorts are governed bv the law of the original matri- 
 monial domicile and are not affected by ai.y change of domicile, even 
 though the property may have lieen accjuired during the new domicile. 
 Of course the tea- ret nifty would, in England, govern their rights, as to 
 immoveable property. 
 
^1 
 
 MARRIAGE COVENANTS 
 
 169 
 
 A diftereiit rule, however, h applied to customary or ix""''- 1« 
 legal dower, i. e. that which the law establishes in the »'y,'«f 
 
 rti sitm. 
 
 absence of stipulations of conventional dower. By art- 
 icle 1442 of the Civil Code customary dower, and conven- 
 tional dower when it consists of immoveables, is a real 
 right, and is governed by the law of the place where the 
 immoveables subject to it are situated. Accordingly, it 
 has been held that the right to customary dower does not 
 depend upon the law of the domicile of the husband at the 
 the time of the marriage, but that it a«'crue8 in regard to 
 immoveables in this jtrovince, althou' i> it would not 
 accrue under the law of the matrimonial domicile.' 
 
 There has always existed a certain amount of contro- iTohiLUion 
 
 •' of RlftH 
 
 versy as to the nature of the prohibition of gifts between J;j;,'*;;^j^ 
 consorts reproduced in article 1265 C. C. 
 
 Under the old French law, however, the vast majority 
 of the authors and the almost unanimous (trrets of the 
 courts regarded these prohibitive laws as forming r.&rt of 
 the stafuf reel, i.e., as being goveriied by the law of the 
 country in which the property was situated. If the 
 property was immoveable, the gift was valid or invalid 
 according as the ler rei sittf allowed or prohibited such 
 donations, without regard to the domicile of the consorts. 
 If the property was moveable, it followed the person of 
 the consorts according to the maxim ninhiUa se<jmmtnr per- 
 sonam, and it was in consequence governed by the law 
 of their domicile. The subjoined references will show 
 that nearly all the great writers of that time supported 
 this doctrine.- 
 
 ^ Efich.HPu V. Curillier, 'Jti LC.J. SO; .'{ L N . I'si. Prunier v. 
 Afetiar(i,'An. d^.J. 1.% 
 
 •^ Couufnnf, Cout. du Poitou, Prefncf. Ptif/ii. siir I'art. 243Cout. de 
 Touraine. Chopin, sur Paris, liv. 2, tit. n. 15. Uro/'-an, sur I^ouct, 
 
 1^ 
 
 li 
 
 ^1 
 
 HI 
 
 IT; 
 
 
 
 - i 
 
170 
 
 THE CONFLICT OF LAWS. 
 
 !! 
 
 I 
 
 During the period of transition between the old law 
 and the Code Napoleon, we find the authority of Merlin 
 in 8U[>port of the same doctrine. After reviewing the 
 opinions of a number of the old authors, and citing 
 iifteen arrets, ten of which are rendered by the Pari la- 
 ment of Paris, ranging from 1564 to 1784, and all hold- 
 ing that these prohibitive laws were part of the statut 
 riel^ he sums up by saying : " On ne peiit done plus 
 revoquer en doute la realite du statut ([ui laisse, 6te ou 
 moditie la liberte des avantages entre epoux." ' 
 
 Since the enactment of the Code Napoleon the Cour 
 de Cassation appears to have followed the old jurispru- 
 dence,- and the same doctrine is supported by Fmlix:^ 
 
 On the other hand, most of the modern theoretical 
 writers on Private International Law consider that the 
 prohibition it u simple restriction of the capacity of the 
 consorts to contract, and as such dependent on the law 
 which governs their status and capacity, without regard 
 to the situs of the [)roperty.* 
 
 L. c. n. 42. Vrevin, sur Chauny, art. .i9. Du Molin, Cons. 53. liouUe- 
 noia. Vol. 2, p. 104, Obs. 3.5. /.eforMH.Coiiiinunaute, p. 11, No. 18. Dour- 
 Jon, Droit Commun, Vol. 1, p. 116. RousHtnu tie Lncombe, Vo. " Dona- 
 tion," p. 234, No. 8. Ancini Denizart, Vo. " Avantage proliibe," 8. III., 
 No. 18. Ferriere, Diet, de Droit, Vo. "Avantages qui se font entre 
 conjoints," sub Jiv. (ivyot, Bepertoire, Vo. " Avantago," p. 712, tol. 1 
 Pothier, Donations entre marl et ft- ninrie. No. 18. Ricard, Don Mntuel, 
 No8. .'^25, :)37, in generally cited as the most illustrious name against the 
 accepted theory. In the work above cited he expresses the opinion that 
 the laws of the domicile of the consorts must govern, and not the law 
 of the situation. But as Bourjon observes {lor. cit.), Ricard subse- 
 quently changed his opinion, and in a supplement to the same chapter 
 (ch. 7, Nos. Ml Kqq.) expressed his adherence to the prevailing opinion. 
 
 ' Questions de Droit, Vo. " Avantages entre epoux," § 2. 
 
 «See Rej. 4 mars IKJT, S. .57. 1. 217 ; D. 57. 1. 102. 
 
 ' Droit Int. Prive, Vol. 1, Nos. «I0, 9:1. 
 
 ^^oi'tflfny. Private Int. Law, 297, 424. liar. Private International 
 Law, pp. 419 sqq. Demnnpeat, sur Fd'Iix, Vol. 1, pp. 109, 228. Philli- 
 more. International Law, Vol. 4, p. 318. Wharton, ConHict of I^ws, 
 8. 202, Laurent, Droit Civil International, Vol. 5, Nos. 221 sqq. 
 
MARRIAGE COVENANTS. 
 
 171 
 
 The Code does not appear to turniHli any pritu'ijde 
 applicable to this case beyond the general rules in article 
 6. which makes the status and capacity of persons <le- 
 pend on the law of their domicile, and ajtplies the law of 
 the situation to immoveables and that of the domicile of 
 the owner to moveables. 
 
 We are consequently thrown back to the old French 
 law, which must be api)lied unless its rules appear to be 
 too much at variance with the 8[)irit and tendency of our 
 modern law, by reason of changed conditions 
 
 It may indeed be contended that the whole tendency 
 of our modern law as expressed in tlie Civil Code and in 
 our jurisprudence is against the extension of the stntut 
 reel to all the cases in whic.i the old French law would 
 liave a[»plied it. The tendency of modern codes and de- 
 cisions is imiloubtedly towards giving more importance 
 to the law of personal status and capacity, and less to the 
 situation of the things with regard to which persons 
 exercise their capacly. And the reasoning by which 
 the old writers came to the conclusion that the prohibi- 
 tion of gifts between consorts was a sfatat reel, may not 
 appear very convincing. The argument was that these 
 enactments prevent consorts from disposing of their 
 property in favour of each other, and as the object of the 
 law was this property, the law was a stntut rel. The real 
 motive which justified the prohibition under the old sys- 
 tem — i. e., the desire to prevent the transfer of {>roperty 
 from one family to another — could no longer be invoked 
 under our law since the introduction of the unrestricted 
 liberty of willing. 
 
 If we look at the origin of these prohibitions in the 
 Roman law, they appear to have been intended to pre- 
 
 
 ;l 
 
172 
 
 THE CONFLICT OF LAWS. 
 
 f ■ ■ 
 
 i 
 
 : . 1 I 
 
 
 >;<Kf 
 
 Rffect of a 
 change nf 
 domicile. 
 
 serve the purity of the marriage tie, by preventing one 
 consort from acquiring the property of the other by the 
 abuse of authority or of conjugal affection.' Looked at 
 in that light these prohibitions would more naturally ap- 
 pear as limitations of the capacity of the spouses, and as 
 being in consequence governed by the law of their per- 
 sonal status and capacity. 
 
 Our courts might therefore be disposed to adopt the 
 modern theory which considers such enactments as a part 
 of the statut personnel. 
 
 Let us now examine the effect of a change of domicile. 
 The general rule undoubtedly is that a change of domi- 
 cile liberates a person from the laws of the old domicile 
 and subjects him to those of the new domicile By ap- 
 plying this principle to the question under consideration 
 we should have to conclude that consorts, after acquiring 
 a domicile in this province, become subject to its laws 
 concerning their status and capacity, and consequently to 
 the provisions of article 1265 C. C. It follows that gifts 
 which are made after this change of status and capacity 
 would be invalid. 
 
 Another view, however, has been advanced, namely, 
 that the capacity or incapacity of the consorts* in this 
 regard must be governed b}' the law of the original 
 matrimonial domicile of the consorts, and that no subse- 
 quent change of domicile can alter their position. The 
 Superior Court (Gill, J.) has recently so decided in the case 
 of Eddy V. Eddy,'^ in which the facts were as follows : 
 
 ' Moribus apud iio.s receptuin est. ne inter viruin et uxoreni dona- 
 tionys valercnt : hoe aulem receptuin est ne niuttio aniore invicctn 
 spoliflrentur, doimtionibu.s iion teniperantes, sed profusa erga .se facili- 
 tate. y>. 1 Jf'. (le Douat. inter vir. et tu-or. 
 
 •' Polhier, Introd. Gen. aux Coutumes, No. IH. '•' 4 R. de .1. 78. 
 
MARRIAGE COVENANTS. 
 
 
 The consorts were married without antemiptial contract 
 in the State of Vermont, where they were domiciled then 
 and for pome years after tlie marriage By the laws ot 
 t)iat State consorts so married are separate as to property 
 and may confer benefits on eacli other infer vhms during 
 the marriage. Some years after tlie marriage the con- 
 sorts left Vermont and ac([uired a domicile in this 
 province, which tliey [(reserved until the wife's death. 
 After the change of domicile the husband eonferred 
 divers benefits on his wife, by paying the price of 
 immoveables which had been purchased here in her 
 name, and by gifts of jewellery. The action was brought 
 by the husband against his daughter, who was the 
 universal legatee of the wife, to recover these gifts 
 as made in violation of the prohibition <'ontained in our 
 Code (art. 1265). The court held that the law of Ver- 
 mont and not the law of Quebec governed the validity of 
 these donations, and that, having married under a system 
 which did not forbid gifts during the marriage, the con- 
 sorts carrie«l that capacity with them into their new 
 domicile.' It does not seem, however, tluit this doctrine 
 is well founded either on principle or on authority. 
 
 There is no doubt that under our law, as well asunder 
 the old Freneh law, the matrimonial domicile, i.e. the 
 domicile of the consorts at the time of the marriage, 
 fixes their matrimonial status once for all, in this 
 sense, that they are deemed, in the Jibsence of marriage 
 covenants, to have ado})ted the law of that domicile for 
 the determination of their property rights. Thus, if 
 
 > The Judgment of tlie Supi-rior Court wiis Hu1iser|nently modifieil 
 by the Court of Appeal, but no opinion wuh expreH»ted as to the validity 
 of the gifts. 
 
 ill* 
 
 ■ ! 
 
 I 
 
 S.3 
 
174 
 
 THE CONFLICT OF LAWS. 
 
 they arc domiciled in Quebec ut the time of the marriage, 
 community of property will exist between them, and 
 will perwiHt throughout all subBequent changes of dorai- 
 <;ile. If they are domiciled in Vermont at the time of 
 tlie marriage no sucli community will exist, but they 
 will be separate as to property under the laws of Ihat 
 state, and their subsequent removal to Quebec will not 
 create community as to moveable or immoveable pro- 
 perty acquired in their new domicile.' But while this 
 doctrine is well established, it is based on the assumption 
 of a tacit contract (in vim conventionis tacitfE) between the 
 consorts, and such a tacit contract cannot any more than 
 an express contract extend to matters which cannot 1)8 
 the subject of a contract. Where the prohibition to 
 benefit each other exists, the consorts could not validly 
 contract themselves out of a disability enacted by such 
 prohibitory law, and where it does not exist it does not 
 seem that they should be allowed to put any such 
 restrictions on their ftiture liberty by entering into 
 covenants precluding the possibility of future gifts.- 
 
 If we now examine the authorities, we shall find thai 
 Bouhier appears to be the only one of the old French 
 writers who maintained that the validity of gifts between 
 spouses must be judged by the law of the original 
 
 ' Snprn, pp. 10,'J sqq. 
 
 ■■' As Savigny justly remarks (loc. cit.) : It cannot be maintained 
 that the marriage entered into at a place under the Roman law, and 
 afterwards transferred to another place, was constituted under the 
 tacit contract that an elfectual donation bettveen the spouses could 
 never take place at any time. The prohibition of gifts is rather a 
 mere restriction of freedom to which the spouses must accommodate 
 themselves, not u legal institution in. ported into the marriage by 
 voluntary submission." See also JJalluz, Vo. Disp. entrevifs et testa- 
 mentaires. No. KiSO ; Vazeille, Donations, Vol. 3, p. 'XVii, on Art. 10B6, 
 C. N. No. 5. 
 
MARKIAC.E COVENANTS. 
 
 17.J 
 
 niatriniotiiul doinitile. and upon tliis wuy otnolving the 
 difficulty Merlin roniarkH {loc. cit.) : " II tiiut avouer (|ue 
 ce dernier parti serait le plus connnode , nuiif* comnie 
 ce n'est pas aiix juriHconsultes j\ taire den IoIh, et qu'ils 
 ne peuvent se conduire que par «le8 principes, on ne doit 
 pas s'y arrAter." Houhier'n opinion n>nmined iHolated 
 and in direct conflict with the numerouw judicial de- 
 cisionw rendered under the old regime. 
 
 Among the text-writerH the few who, like Ricard in 
 his first edition, maintained that the prohihition was a 
 matter concerning personal capacity, also maintained 
 that a change ot domicile operated a change in that 
 capacity, and that in all cases the validity of the donation 
 must <lepend on the law of the domicile of the consorts 
 at the time of its execution.' 
 
 As to the realists, while they maintained that in regard 
 to immoveahlcs no change of domicile could have any 
 efl'ect, since the law of the situation must always govern, 
 they also agreed with tVie supporters of the personal 
 theory that as to moveal)le property the domicile of the 
 consorts at the time of the gift must he considered. 
 
 The best exponent of this view is Pothier who ^ makes a i>*»tinction 
 proper distinction between donations executed before and ^l^tiu^r^ 
 those executed after the change of domicile from a permis- aoJUJ^n"' 
 give to a prohibitive law. If in the case above cited any 
 
 ' Don Mutuel, No ;S7. 
 
 ' Donations entre nmri et fcmnie, No 19 :— 
 
 "Les donations entre-vifs ayant toute li-ur perfection lorsqu'elles se 
 font, c'est la loi du domiuilequu les conjoints par niariiigeont au temps 
 que se fait la donation qui doit seule decider si la donation <|ue I'un 
 di's conjoints a faite des bietis do cette espei;e li Tautre conjoint, est 
 perniise ou dt^fendiie ; et I'on n'a aucun c';;ard a la loi du domicile qu'ils 
 avaient au temps qu'ils se sont mari^s. 
 
 " C'est pourquoi, si. des conjoints qui, lorsqu'il^ se sont maries, 
 avaient leur domicile sous la coutume de Paris, qui defend tons avan- 
 tages entre conjoints, ont depuis transfeiv leur domicile sous la coutume 
 
 J 
 
176 
 
 THE CONFLICT OF F-AWS. 
 
 1' 
 
 •1^ 1 
 
 1: 
 
 1: t; 
 
 (loiiatinns had been made by the liusband to big wife while 
 they were still domiciled in Vermont, our eourts would 
 doubtlcBs recognize the acquired rightH resulting there- 
 from, at lejist as regards moveable pro[>erty, but as to don- 
 ations executed after the acquisition of a Quebec domicile, 
 these ought to be declared invalid, whether the prohibi- 
 tion in art. 126'> C C. be regarded as a statut personnel or a 
 statat reel. While it is perfectly reasonable to say that 
 rights already vested by the law of the original domicile 
 should not bo divested b \' a change of domicile, it is diffi- 
 cult to understand how the bare expectation of future un- 
 executed donations can be looked upon as a vested right.' 
 This o[tinion is alr^o HUpported by all the lea<ling 
 modern writers on Private International Law. Savigny, 
 Bar, Wharton, Phillimore, Demangeat - all concur in re- 
 ferring the validity of such donations to the law govern- 
 ing the personal status and capacity of the consorts at 
 the time of the execution of the gifts. 
 
 de Noyon, (|ui peniiet It-s donations entru inari et feninic ; la donation 
 que I'nn des dits conjoints aura faite des biens de cette especc k I'autre 
 conjoint, depuis leur translation de domicile a Noyon, sera valable. 
 
 " Vice rerun, si des conjoints qui avaient Icur domicile li Noyon 
 lorHqu'ils se sont maries, ont transfere leur domicile a Paris ; quoique 
 la coutume do Noyon, oil ils se Mont maries, leur permit «le se donner 
 entre-vlfs les biens de cette espece, ils nepourront plus, depuis leur trans- 
 lation de domicile A Paris, se les donner. 
 
 "Mais celle ((u'ils su seraient faite pendant qu'iU avaient encore 
 leur domicile a Noyon sera valable (juoiqu'ils aient depuis tranafere leur 
 domicile a Paris." 
 
 ' In fact the change of status and capacity consecjuent upon a change 
 of domicile may Ite assimil ited to that which results from a change of 
 the law in the original domicile. If the consorts had never left Vermont, 
 and the legislature of that state had enacted a law containing the pro- 
 visions of art. 12(5.T C. C. there can be no doubt that from that moment 
 the consorts would have l>ecome unable to confer benefits on each 
 other, although gifts previously made would have remained valid. 
 Sarigny, Contl. of Laws, p. 424; Endlich, on Statutes, s. 2tO, 281 ; Aubry 
 & Rau, Vol. 1, s. HO, 1, (f. 2 Loc. mtp. cit. 
 
CHAPTER XIII, 
 
 nililiS OF EXCHANOK A\l> PIU>MI8Hf)RV N'OTRS. 
 
 Section 71 of the Bills of Kxchange Act, 1890, enaetH 
 certain rules which arc to govern in matters relating to 
 bills of exchange when foreign and home laws conflii^t. 
 By section 88 of the act the same rules apply, mutatis 
 mutandis, to promissory notes. Section 71 of our statute 
 is copied from section 72 of the Imperial Act of 1882, 
 and consequently the decisions of English Courts on that 
 statute may be usefully referred to when our own 
 reports are silent. 
 
 Section 71 of our act reads as follows : — " Where a 
 bill drawn in one country is negotiated, accepted or 
 payable in another, the rights, duties and liabilities of 
 the parties thereto are determin ed as follows : 
 
 (a) The validity of a bill as regards requisites in form 
 is determined by the law of the place of issue, and the 
 validity as regards requisites in form of the supervening 
 contracts, such as acceptance, or indorsement, or accept- 
 ance supra protest, is determined by the law of the place 
 where such contract was made. 
 
 Provided that : — 
 
 1 . Where a bill is issued out of Canada, it is iK)t 
 invalid by reason only that it is not stamped in acconl- 
 ance with the law of the place of issue ; 
 
 Formal 
 validity. 
 
 I 
 
 J 
 
 i 
 
 ' 1 
 
 I i 
 1 L 
 
 rt 
 
 .3 
 
 A 
 
178 
 
 TIIK CONFLKT OK LAWS 
 
 lit 
 
 -n: 
 
 v' 
 
 :i: 
 
 
 !!i 
 
 II ■ 
 
 Iiitt'riiri'- 
 tatiiin. 
 
 2. Whore a l)ill, iHHUcd out of Cniiudti, coiifoniis, as 
 roganlH requisitos in foinj, to \\w law of Canada, it may, 
 for the imrjiOHe of enibreiiig jiaynient thereof, he treated 
 an valid an hetween all pei-HouH who negotiate, hohl or 
 heeonie partien to it in Canada ; 
 
 (/>) »SuhJe(^t to the pruviHionM ot this Act, the inter- 
 pretation of the drawing, in(h)rsen)ent, acceptance or 
 acceptance supra protewt of a hill^ \h determined hy the 
 law of the place where 8U<'h contract is mad" ; 
 
 Provided, that where an inland hill \h indorsed in a 
 foreign country, the indorsement shall, as regards the 
 payer he interjjreted according to the law of Canada; 
 
 (c) The duties of the holder with respect to present- 
 ment for acceptance or payment and the necessity tor or 
 sufficiency of a protest or notice of dishonor, or other- 
 wise, are determine<l by the law of the place where the 
 act is done or the nill is dishonored ; ' 
 
 (d) Wliere a hill is <lrawn out of, but payable in 
 Canada, and the sum payable is not expressed in the 
 currenc}' of Canada, the amount shall, in the absence ot 
 some express stipulation, be calculated according to the 
 rate ot exchange for sight drafts at the place of payment 
 on the day the bill is payable ;- 
 
 ' In Hank of Amvrivn v. Copland (i L.N. 154), decided before the 
 Act, it WHN held that where a note i.s made payable in a foreign country 
 the law of that country governs us to the time of protesting and days of 
 grace. 
 
 '^Section »! applies the same rule in the case of a bill dinhonoured 
 abroad. In addition to the amount of the bill, interent and expenses of 
 noting and protest, the holder may recover from the drawer or any 
 endorHer, and the drawer or an endorser who has been compelled to 
 pay the bill may recover from any party liable to him, the amount of 
 the re-exchunge with interest thereon until the time of payment. 
 
 The following decisions which are anterior to the Bills of Exchange 
 Act, may be noted. 
 
to 
 of 
 
 BILLS OF EXniANC.K AND rUOMISSORV NOTES. 179 
 
 {e) Whero u bill ih drawn in one country und is pay- 
 able in af»()tlu»r, tbe dui^ dafr tlu-root in dt'tornuni'd 
 ivcc'ordin^ to t\\v law ot'tbe |»lvci» wbore it is |iayabl(<. ' 
 
 (/) If a bill or uo\v, prestMitt'd for aeceptanci', or pay- 
 able out ot Canada, is protested tor non-acceptanci' or 
 niMi-paynient, a notarial copy of tbe protest and of tbe 
 notice of disbonor, and a notarial certiticute ot tbu 
 service of sucb notice, sball be received in all courts, a^ 
 prima facie eviilence ot sucb proti'st, rh'it'(» and service." 
 
 It bas been Justly observe*! tbat tbe \vord "country" 
 used at tbe beginning of tbe sectio!- isno*^ defiite 1 in tlie 
 act, and tbat, strictly speaking, tbe wb( le ()f tbe 
 D<'minio!i of Canada is »)ne country foi he purpose ot 
 bills and notes, this subject being nit bin tbe exclusive 
 legislative power of tbe federal parliament.-' (!onse- 
 quently, section 71 of tbe act might not, in strivLness, 
 
 CojH-ntt V. ^frMf1J^fer,^ l.V.I. 'Mt*. .V dnift (Imwn in New Yort, 
 and acTuptcd in Muntreul ptiyiibiu Kenorally, the considenition for 
 which was curtnin Koodn purchased in New York, is payahh' in current 
 Canada fundH. 
 
 Daly V. drahnin. Hi L.C.R. i:*7 ; H L.C..T. 34(). Where a defendant, 
 sued on a note made in the United States payahle on demand to a 
 citi/en of that country, tendered after action l>rouKiit an amount in 
 Canadian currency equal, at the then current rate of excliauKe, to the 
 amount of the note in American currency, with costs, jud)<nient was 
 neverlhelesH Kiven for the amount of the note in Canadian currency. 
 
 Chapman v. McFie, 1 H.L. \VfL A prominsory note made and 
 dated at Rouses Point, in the State of New York, an<l sued on in the 
 Province of Quel)ec, was held to l)e payal)le in Canadian currency. It 
 does not appear from the report where the note was nmde payal)K>, l»ut 
 the Court of Review, reversing the judKment of the Superior C lurt, 
 seems to have based its decision on the ground that the consideration 
 for the note had been paid in Canadian currtMicy. 
 
 McCoy V. Dineen, 8 L. C. J. ;ttt>. A promissory note made ano 
 dated at Malune in the State of New York, t)ut payal)le to (jearer 
 generally, must be paid in Canadian currency when sued upon liere. 
 
 ' See Bank of Ainerica v. Copland, 4 L.N. 1J>1. 
 
 * Maclaren, Bills, Notes and Cheques, p. JMia. 
 
 I 
 
 ;l 
 
 ! 
 
180 
 
 THE CONFLICT OF LAWS. 
 
 Interpro- 
 
 vincial 
 
 uuiitlictK, 
 
 ill 
 
 apply to interprovincial conflicts of law, although tor 
 the purposes of private international law the various 
 provinces of the Dominion are treated as different coun- 
 tries. 
 
 It seems, however, that interprovincial confli(;ts could 
 hardly arise in regard to the matters covered by section 
 71. For as regards the fornuil requisites of ])ills of 
 exchange, the interpretation of the drawing, indorse- 
 ment or acceptance of such hills, and the <lue date 
 thereof, the law is tlie same in all the provinces of the 
 Dominion, having been m{i<le uniform by the Act of 
 1890 itself. One point of difference between the Prov- 
 ince of Quebec aiul the other provinces has been pre- 
 served by the act, ?.e., as to the duties of the holder in 
 regard to the noting or protest of the bill for the pur- 
 pose of holding endorsers, but section 51 regulates pos- 
 sible conflicts in this respect by enacting that "subject 
 to the provisions of this act with respect to notice of 
 dishonor, it shall not, except in the Province of Quebec, 
 be necessary to note or protest any such bill in order to 
 preserve the recourse against the drawer or indorser ; 
 but in the case of a bill drawn upon any person in the 
 Province of Quebec, or payable or accepted at any place 
 therein, in default of protest for non-acceptance 01 non- 
 payment, as the case may be, and of notice thereof, the 
 parties liable on the bill other than the acceptor are 
 discharged, subject, nevertheless, to the exceptions in 
 this section hereinafter <'ontaiiud." 
 
 The principal sources of interprovincial conflicts will 
 be found in relation to matters and questions not covered 
 by tlie terms of section 71, which is not by any means 
 exhaustive ; but the lacume of the section in this regard 
 
 J: 
 
■ 
 
 BILLS OF EXCHANGE AND PROMISSORY NOTES. 181 
 
 will be felt ii» international just as much as in inter- 
 provincial conflicts. 
 
 The application of section 71 is further liniite<l by the 
 words : " Where a bill drawn in one country is neifo- 
 tiated, accepted or payable in another.'' It cannot, 
 therefore, be looked to for the solution of conflicts of 
 law in an)' other descripdon of cases. Thus, if a bill 
 were drawn, negotiated, accepted and payable in a 
 foreign country, and were afterwards sued upon in this 
 province, the acceptor having l)ecome resident here or 
 the court otherwise having jurisdiction, the proviso (1) 
 in paragraph (a) of section 71 would not apply to vali- 
 date a bill which was invalid bv reason of its not beinj; 
 stamped in accordance with the law of the place of issue. 
 Again, in the same case, the provisions of paragraph (f) 
 as to evidence of protest, would be inapplicable. 
 
 The first paragraph (a) of section 71 applies our rule 
 Locus retjif actum to the formal validity of this particular 
 kind of i-ontract, or rather of each of the series of con- 
 tracts comprised in a bill of exchange. AVe have already 
 seen that with reference to contracts the rule must prob- 
 ably be regarded as imperative and not merely pcrmirv- 
 sive,' and as to bills and notes the wording of this para- 
 graph seems clearly to indicate that conndiance with the 
 law of the place of issue (except in the cases mentioned 
 in provisos (1) and (2). is imperative, for it states that the 
 validity is determined by that law. 
 
 Proviso (1) adopts the principle already referred to, 
 that a state is not boutiil to have regard for the revenue 
 laws of another state. ' 
 
 J'roviso (2) modifies the rule luriis regit ncfmn, not by 
 
 ' Sfipra p. 14.5. '^ Supra pp. l.ii>-(i(l. 
 
 

 182 
 
 THE CONFLICT OF LAW'S. 
 
 P'1 
 
 f^i: 
 
 }t<- il 
 
 making it permissive (tor that implies that the lex actu.s 
 or the lex domic'dii. may be adopted at the option of the 
 contracting parties), hut V)y enacting that the le.r fori mny 
 in certain cases he applied, /. e. tor the purpose of enforc- 
 ing payment liere, and only as to parties negotiating, 
 holding or hecoming parties to the bill in Canada. Thus, 
 a bill invalid as to form according to the law where it 
 was issued, might, if <lrawn in conformity with our law, 
 he enforced against a person accepting or endorsing it 
 here, while an action against the drawer or against a 
 person endorsing it abroad could not be maintained.' 
 
 Paragraph (b) makes the interpretation of the various 
 contracts composing a bill of exchange depend on the 
 law of the place where such contract is made. This is a 
 far less elastic rule than that provided by article 8 of our 
 Civil Code for the interpretation of contracts, which 
 makes the intention of the parties supreme, and gives the 
 court latitude for the applicatioji of the lex loci contractus 
 or the le.r loci solutionis according to circumstances.^ It 
 is generally admitted that, on principle, the obligations 
 of an acceptor of a bill of exchange should be interpreted 
 by the law of the country where the bill is made payable, 
 and not by the law of the country where the bill is ac- 
 cepted, as the above paragraph implies. Mr. Dicey ' 
 explains this anomdy by showing that the framers of the 
 English act probably derived this rule from Story, and 
 
 1 In rf MarstMllec Extension Riiilway & Land Co. (I*) Ch. D. oiW)— 
 BilU of ExchanKe were drawn in BVance by a domiciled Frenchman in 
 the French language, in English form, on an English company who duly 
 accepted them. The drawer indorsed the bills and sent them to an 
 Englishman in England. Hfld : that the acceptor could not dispute the 
 negotiability of the bills by reason of the indorsements biing invalid 
 according to French law. 
 
 •^ Supra, pp. I48-». ^ Conflict of Laws, p. «07. 
 
 m 
 
BILLS OF EXCHANGE AND PROMISSORY NOTES. 183 
 
 that they reproduced his words rather than liis real mean- 
 ing. For Story really intended to lay down the rule 
 that each contract emhodied in a bill sliould be inter- 
 preted according to the law of the j>lace of performance.' 
 The word " interpretation " used in this paragraph •• int.<r- 
 
 ... 1 • 1 -1 '-I'tatioil" 
 
 must not be taken m its narrowest sense, but mcludes •" lu.i.'s 
 
 iftfiii 
 
 the legal etfect of the contract — the rights and obliga-"^'*' 
 tions of the })artie8 thereunder. This comprehensive 
 meaning has been given to the same language in the 
 Englisli act,- atid a recent decision of our Superior Court 
 at Quebec maybe cited in support of this view, and also 
 as an illustration of the application of the rule laid down 
 in this paragraph. 
 
 In London ih Brazilian Bank v. Maijuire ' a bill of ex- 
 change was drawn by the master of a barque in Buenos 
 Ayres on a firm in New York for disbursements neces- 
 sary to enable the bar([ue to [iroceed on her voyage, and 
 was endorsed in blank by the mortgagee of the vessel in 
 Buenos Ayres. The bill was subsequently transferred 
 to the plaintiff bank in Quebec where action was brought 
 against the endorser upon the bill after it liad been dis- 
 honoured. The defendant pleaded that under the law of 
 the Argentine Republic where the draft was drawn and 
 endorsed, the holder was obliged to diligently collect the 
 amount out of the freight, hull and cargo before apply- 
 ing to the endorser, and that by the plaintiff's neglect to 
 do so the endorser was discharged. The plaintiff de- 
 murred to this plea on the ground that the law 0+" New 
 York, where the bill was payable, governed the obliga- 
 
 ' Bills of Exchanf^e, ss. liVi 4. 
 
 * Alcovk V. Smith— \ Ch. (lHi)2) 2;K Chalmers, on Bills of Exchange, 
 p. 241. 
 
 a R. J. Q. 8 S. C. •.\5». 
 
 W 
 
 m 
 
 f. 
 
ir; 
 
 
 184 
 
 THE CONFLICT OF LAWS. 
 
 
 tions of the endorser, and not tlie law of the Argentine 
 Repul)lic. Andrews, J., held that under paragraph (h) 
 of section 71 the ohligations of the endorser must he 
 governed hy the law of the Argentine Republic, and 
 that tlie word '' interpretation '" meant the legal effect of 
 the endorsement, including tlie ol)ligations of the parties 
 thereunder. 
 capuiiij. j^^ jjas been observed before, the provisions of section 
 71 do not comprise all possible cases of conflict. For 
 example, the capacity of tlie parties to a l)ill or note is 
 not dealt with, for it would be straining the meaning of 
 the word " interpretation " to make it include capacity. 
 By section 22 of the Bills of Exchange Act, capacity to 
 incur liability on a liill is co-extensive with capacity to 
 contract. This depends, in the Province of Quebec, on 
 the domicile of the party contracting, according to the 
 general principle already examined.' 
 
 ' Supra, p. 147. 
 
 If, 
 
 i;; !l 
 
 II |i 
 
 f?'l 
 
CHAPTER XIV. 
 
 MF]RCHANT SHIPPING, AFPKKIOHTMFNT. 
 
 Tlie principles of maritime law are, in general, not 
 reconcileablc with the usually accepted rules of Private 
 International Law. This departure from ordinary rules 
 finds its justification in necessity. There would be a 
 practical impossibility, for example, in allowing the usual 
 rules governing the capacity of persons to con*:ract or 
 the formal or intrinsic validity of contracts to apply to 
 contracts made by the master of a ship in difi'erent parts 
 of the worhl, with citizens of all nations, in respect of 
 property owned by persons domicile<l in difi'erent [)laces. 
 Most contracts of this kind must be made hurriedly, and 
 the means of verifying tiie status and capacity of the 
 persons who may ])e bound thereby, or the formal or in- 
 trinsic requirements of the law of any particular port, 
 will generally be scanty. The only safe and practical 
 rule which can be followed is to adopt the law of the 
 ship's fiag to govern in nearly all matters relating to a 
 vessel, its captain and its crew. As IMackburn, J., said 
 in Lloijd v. Gnibert ' : — "The fiag of the ship is notice to 
 all the world that the master's authority is that con- 
 ferred by the law of that fiag, — that his nniiidate is con- 
 tained in the law of that country with whidi those who 
 
 » ;« L. J. (Q, H.) 241 ; L. R. 1 Q. B. 115. 
 
 Spi'oial 
 riili'8 n'- 
 ((iiireil in 
 ii.:iritiino 
 
 casi'it. 
 
 Law of 
 till' Hag. 
 
 ^:| 
 
 : 11 
 
 U.. 
 
186 
 
 THE CONFLICT OF LAWS. 
 
 f!f 
 
 '■; 'i 
 
 I! i' 
 
 ¥1' 
 
 
 1 
 
 ■ 
 
 1 
 
 IP 
 
 
 '.'l' 
 
 
 j. ' 
 
 1,' 
 
 /. 
 
 
 
 Morchnnt 
 Shipiiiiitf 
 Act. 
 
 (leal with him must make themselves acquainted at their 
 peril." This leading principle has heeii recognized by 
 the jnri8j)rudence and legislation of all the great mari- 
 time countries.^ 
 
 Our own law in regard to British ships ifj contained 
 in the Merchant Shipping Act, 1804 (Imperial), in all 
 matters to which its provisions extend and are appli- 
 cable. The general tendency of this legislation is to 
 apply the law of the flag, except in a few specified cases. 
 Thus, the qualiiication for owning a British ship, the 
 formalities for registering British ships, for the mort- 
 gage or transfer of such ships or shares therein, the 
 liability of beneficial owners, and a number of other 
 matters contained in the first part of the act, are govern- 
 ed by British law. 
 
 The second part of the act tleals with Masters and 
 Seamen, including the engagement of seamen and their 
 discharge, their rights in respect of wages, the disposition 
 of the proi>erty of seamen dying during the voyage, 
 provisions for the health and accommodation of seamen, 
 for their protection from imposition and for discipline on 
 board ship, &c. Section 265 enacts that : — " Where in 
 any matter relating to a ship or to a person belonging 
 to a ship there appears to be a conflict of laws, then, if 
 there is in this part of this Act any provision on the 
 subject which is hereby expressly 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 ie 
 registered." As will be seen on reference to sections 
 109, 113, 114, 115 and 124, the act contains numerous 
 
 ' Maclachlan, on Merchant Shipping, pp. 180 5. 
 
MERCHANT SHIl'l*lN(i, AKFKKKJIITMENT. 
 
 187 
 
 provisions which are inado ai)pru'al)U> to toreigti shi[>rt 
 engaging seamen within liritish territory. But where 
 this legislation does not expressly apply, our eourts 
 would, under section 2(J5, apply the law of the Hag, just 
 as they applied it in cases relating to the 8hii)ping of 
 seamen by foreign shi[)s in British territory before the 
 enactment of these provisions. Thus in Piii>-z v. Kleln,^ 
 where seamen brought action in (Juebec against the cap- 
 tain of a Russian ship for wages, and the <lefendant 
 pleaded a subsisting contract by which the plaintiffs 
 were not entitled to their discharj^e until thev arrived in 
 England, at the port at which they had shipped, the 
 court held that the question must be decided according 
 to Russian law, for although the articles were signed 
 within British jurisdiction, they were Russian articles, 
 and were signed on board a Russian ship under the 
 Russian flag, and the contract etitered into by the par- 
 ties must be held to be a Russian contract. Accord- 
 ingly, although the ship's articles were of such an inde- 
 iinite character as to be void if the case had to be deter' 
 mined by our law, they were admitted as good under the 
 law of Russia." 
 
 The third part of the act contains elaborate provisions 
 relating to passenger and emigrant ships, and the 
 definitions of the expressions '' passenger steamer " and 
 " emigrant ship "' contained in sections 267 and 268, 
 show that these provisions are intended to ajtply to 
 foreign as well as to British ships under certain circum- 
 stances. Thus "passenger steamer" includes every 
 foreign steamship carrying passengers between places in 
 
 ' 13 L. C. R. 4:^3. 
 
 2 See also Carroll v, Ballard, 12 L.C.R. 247. 
 
 i i 
 
188 
 
 THE CONFLICT OF LAWS. 
 
 1^^ 
 
 the United Kingdom, and "emigrant ship" means every 
 seu-going ship, whether British or foreign, currying a 
 certain proportion of steerage passengers on certain 
 specified voyages from the British Islands, and includes 
 a ship which, having proceeded from a port outside the 
 British Islands, takes on lioard at any port in the 
 British Islands a certain number of such passengers. 
 
 The fourth part of the act, relating to fishing boats, is 
 throughout of a local character, and does not, except 
 where otherwise provided, apply even to Scotland or to 
 any British possession 
 
 The fifth part of the act, containing provisions for the 
 safety of vessels, applies, generally, to British ships, but 
 also, in certain cases, to foreign vessels. Thus, section 
 418 enacts that collision regulations shall be observed by 
 all foreijiii ships within British jurisdiction, and in any 
 case arising in a British court concerning matters arising 
 within British jurisdiction foreign ships shall, as regards 
 collision regulations, be treated as if they were British 
 ships. As to collisions occurring beyond the limits of 
 British jurisdiction, section 424 provides that an order- 
 in-council may direct the application of the British rules 
 to the ships of any foreign country desiring it. Again, 
 sections 446-450 contain restrictions on the carriage of 
 dangerous goods and apply to foreign as well as to 
 British ships in British waters, and section 451 regulates 
 the loading of timber in British ports upon British or 
 foreign ships. And section 462 authorizes the detention 
 of foreign ships taking on board cargo at a port in the 
 United Kingdom, when they are unsafe by reason of 
 overloading or improper loading. 
 
 The sixth part of the act relates to investigations as to 
 
MKKCIIANT SHIPPING, AKKREKillTMKNT. 
 
 189 
 
 sliippiii^ casuuUics and to naval court.-'. Those investi- 
 gations a|>ply to all kinds of siiips on or near the coasts 
 of the United Ivintj(h)ni, but the nrovisiojjs relating to 
 naval courts apply only to British ships. (Sections 16 / 
 and 486). 
 
 The seventli part of tlie act deals with tlie powers of the 
 owner to land and take delivery of goods imported in any 
 shiu troni tbreign parts into the Uiiiti'<l Kingdoni, the 
 master's lien for freigiit and the rights of warehousemen. 
 These [>rovisions would therefore apply to foreign as well 
 as to British t-'iips. 
 
 The eighth |»art of the act limits the liability of the 
 owners of a ship, British or foreign, in certain cases of 
 loss of life, injury or damage, and appTu's to the whole of 
 Iler Majesty's dominions. 
 
 In the ninth part of the act the provisions as to wrecked 
 or stranded vessels on or near the coasts of the United 
 Kingdom apjtly to foreign vessels, but in regard to sal- 
 vage payable for saving life the services must be rendered 
 wholly or in part within British waters in onU^r to justify 
 the courts in awarding salvage tor saving life on foreign 
 ships. But with the consent of a foreign government, an 
 order-in-council may direct that the provisions of tlie act 
 may apply to its ships beyond British jurisdiction. 
 
 The tenth part of the act lespecting pilotage ajiplies to 
 all ships British and foreign (Section 572), but extends to 
 the United Kingdom and the Isle of Man only. 
 
 The eleventh and twelfth parts deal respectively with 
 lighthouses and the Mercantile Marine Fund, and 
 present no features of any interest in this iinpiiry. 
 
 The thirteenih part of the act deals with legal pro- 
 ceedings. Section 688 authorizes the arrest in the 
 
190 
 
 THE CONFLICT OF LAWS. 
 
 'i i 
 
 I') 
 
 mi 
 
 territorial wattM'H of the United Kingdom of a foreign 
 ship that liart occasioned (hinuige in any part of the 
 worW to any property l)elon_iring to Ili-r MajeHty or to 
 any of Her MaJcHtyV subjects. 
 
 The fourteenth and coiuluding part of the act pro- 
 vides that wlien tlie government of any foreign country 
 desires that any of tlie provisions of this act wliich do 
 not ai>ply to the ships of that country, should so apply, 
 an order-in-council may order tliat any of these pro- 
 visions shall apply to the ships of that country, and to 
 tlie owners, masters, seamen and apprentices of those 
 sliips, when not locally within the jurisdiction of tliat 
 country, in the same manner in all respects as if those 
 ships were British ships. 
 
 As the foregoing summary shows, the Imperial legis- 
 lation on the subject departs in some cases from the rule 
 that the law of the tlag governs, by applying some of its 
 provisions to foreign as well as to British ships. But 
 tliese exceptions will be found to exist mainly in cases 
 where foreign ships come within British territorial 
 waters, and the security of life or property is in question. 
 
 The act still leaves unsettled a number of possible 
 cases of conflict of laws, among the most important of 
 which are collisions on the high seas. The difficulty 
 does not arise in regard to the rules of navigation, for 
 in cases of collision between a British and a foreign ship 
 on the high seas it has been uniformly held by the 
 Privy Council that the rule of the sea must govern and 
 not the rules of the Merchant Shipping Act, the Parlia- 
 ment of Great Britain having no jurisdiction over foreign 
 vessels on the high seas, and no right to impose upon 
 them its own rules of navigation without the consent of 
 
w 
 
 MEHCIIANT SllirriNCJ, AFFKKUJIITMKST. 
 
 l!)l 
 
 otluT nations.' We havi' seen tliat nt'ction 424 of the 
 act lsn4 jdovidoH for thi' apidioatioii of tin- Hritislj nili's 
 for prt'VtMitiiig collisioMH lu-yond tlu* jurisdii-tioii to the 
 ships of foreign oomitrii's desiriiiir it, and undrr the 
 Hiniihir provisions contalt'od in the Mcnhant Shippini; 
 Act of 1862 the British rui's for [trcviMitinti: collisions 
 were applied by order-rn-jouncil at the retjUest of a 
 nund)er of foreijfn eo'intries - to their ships, whether 
 within British jurisdiction or not. 
 
 In a recent case decided in ()iiel)ec ' the (luestion was A.ci.ipnti 
 
 ... ,"" Hritisli 
 
 raised as to the law which shouhl tjovern the liahilitv of;i'«p«iu 
 a steamship company domiciled in (iuehec. to indemnify '^'J^Jj.'^"""' 
 the widow and children of a jterson in their employ as 
 travelling agent or superintemlent, and killed on board 
 the steamship by the insnfHciency of a derrick and its 
 gear. At the time ot tlie acci<lent the ship, which was 
 a British ship registered in England, was taking on 
 cargo from Port of Spain, Trinidad, and was lying about 
 two miles oft' the shore. The defendants pleaded, 
 among other things, that by the law of Trinidad at the 
 time of the accident, which was the common law of 
 England as it was previous to the introduction of Lord 
 Campbell's act, 9 and 10 Vict., c. 93. tlie rule actio per- 
 sonalis moritiw cum jyersona prevailed, and consequently 
 the wife and children had no action. They further 
 
 ' Steren.sv. Gourley, The Cleatlon, 14 Moore, 92. WUllamH v. (hitch, 
 Jlie Chnncvllur, 14 Moore, 2(>2. Hamhiirf/ American Steam Navigation 
 Co. V. North of Scotland liankiny Company, 1.5 Moore, 262. 
 
 '■' AuHtria, Argentine Republic, Belgium, Brazil, Bremen, Chili, 
 DiMimiirk, Equator, France, Great Britain, Greece, Hamburg, Hanover, 
 Hawaiian Islands, Hayti, Italy, Lubeek, Mecklenburg • Schwerin, 
 Morocco, Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, 
 Roman States, Russia, Schleswig, Spain, Sweden, Turkey, United 
 States, Uruguay. 
 
 a Dupnnt V. Quebec SS. Co. R. .T. Q. US. C. 188. 
 
 II 
 
 "1^ 
 
102 
 
 THE roNFLICT OF LAWS. 
 
 Ill 
 
 li ••t|. 
 
 t ; 
 
 i:;li 
 
 ■*■( 
 
 I: 
 
 I.- 
 
 CoUigioiis 
 on till' 
 hii;li sras. 
 
 jdcadcd that if the law of KnglaJid wan t<» govern, thoro 
 waH no aotion hy ivawoii of tlic (loctriiu! ot conunou 
 ernploynit'iit, wliich givcH no right of action against tlio 
 employer for dainagcH HUfstaine<l l»y the negligence of a 
 fellow wervant. The Superior Court (Roiithier, J.) held 
 that as tlie cause of action waw a (luasi-delict whicli 
 occurred witliin the territorial limitH of Trinidad, and an 
 hy the rulew of Private Ititernatioiuil Law the lex loci 
 (U'lirli rdiiuiiissi must govern, the plaintiffs could not 
 maintain the action under the law of that island. The 
 Court of Review, (Caron, Cimon & Andrews, .IJ.) 
 reversed this judgment, holding that the shii), heing a 
 British ship registered in England and suhject to the 
 Merchant Shipping Act, was at the time of the acci- 
 dent a part of the territory of England, and those on 
 hoard of her were therefore not suhject to the laws of 
 the island of Trinidad in respect of their mutual riglits 
 and liahilities connected with the loading and navigation 
 of the sliij). As to the English law, the court held that 
 the doctrine of common employment was based on an 
 implied consent of the party liired to take the risk of 
 accidents caused hy the fault of his fellow employees, 
 and that such consent could not be read into a contract 
 of hire wliich was really a (Quebec contract. 
 
 The greatest difficulty consists in ascertaining the law 
 of reparation or damages which is applicable in cases of 
 collisions occurring outside of territorial waters. Story 
 puts the case of a collision on the high seas occurring 
 without fault on either side between an English ship, 
 whose law would in such case establish no contribution 
 between the ships, each party bearing his own loss, and 
 a foreign continental ship, whose law divides the loss 
 
MKKCIIANT SHIIM'IN*;, AFFREKJIITMENT. 
 
 vy6 
 
 !1 
 
 ;! 
 
 (Miually iH'tWfcM tho Hhijis. " llctw," lu> asks, "is tho 
 lonH to Ik' lioriu'? Will it make any ditli'icncc wlu'tlicr 
 tlu' procrtMliiii; aj^ait)wt tlic ship or owners tor i-cMn'ss is 
 in Kn;rlan(l, or in the pi-opcr continental eonrt? Iltiiu 
 rij;ht depends (H) the hiw ot the jtlaee wlieic the pi-oveed- 
 ins^H arc ha<l against tho shij* (»r the owner, then there 
 will ho no roeiproeity in tlie administration ot" the imUo. 
 In a ease HO eontessedly novel in its presentation, it will 
 be found very diftieult to afHrm any ifround ot'principle, 
 upon which tho law of one country rather than tliiit ot 
 the other, ouj^ht to prevail." ' 
 
 A caso of this kin<l was decided hy tho Vice-Admiral- 
 ty Court in Qtiohoc in I860.-' A collision had taken 
 place on tho high noas Ix^tweon a French hriii; and a 
 Norwegian hanpio under circumstaucos, which, in the 
 opinion of tho court, sIiowimI that tho case was one of in- 
 evitahle accident which neither [>arty could possilily have 
 prevented hy the exercise of ordinary care, caution and 
 maritime skill. Tho court undoubtoiUy had jurisdiction 
 as the proceeding was in rem and tho vessel against which 
 the proceedings wore brought was within the local juris- 
 diction of the court. The question as to the law which 
 should be applied does not appear to have boon discussed, 
 but the learned judge seems to luivo had no doubt in his 
 mind that the ^ej;/o/*« should govern, for he decided, with- 
 out reference to the law of Franco or Norwav, that the 
 loss must be borne by the party on whom it had fallen* 
 in accordance with the rule of our owjj law. 
 
 A conflict of laws mav also arise when a collisioti 
 
 I 
 
 if 
 
 s 
 
 1 Conflict of r^aws, s. 42;^g. 
 
 * The Anne Johannt: Stuiirt's Cases in the Vict'- Admiralty Court, 
 p. 43. 
 
 13 
 
 i J. 
 
 \\ 
 
 i 
 
 i 
 
 i 
 
 f : 
 
194 
 
 THE CONFLICT OF LAW'S. 
 
 i.: 
 
 "m 
 
 }l 
 
 m 
 
 if 
 
 
 !i!| 
 
 ''$. 
 
 Loo ill 
 IcgiBlatioii. 
 
 on the high seas is due to tlie fault of one or both of 
 the ships, for the legal consequenees of the delict and 
 the rules as to damages may vary. The tendency of the 
 modern ICuropoan authorities is to hold that when the 
 ships l)el(>ng to diiferent nations, the remedy should he 
 given if the law of the injured ship allows it, but to no 
 greater extent than the law of the delinquent ship pro- 
 vides.^ But in England it has been held that a foreign 
 ship seeking the remedy must take it according to the 
 law of the country where the suit is brought-, and our 
 courts would doubtless follow English precedents rather 
 than continental authorities on the subject. In an action 
 against a British ship for damages suffered by a collision 
 which took plact' in a foreign port, the Judicial Commit- 
 tee of the Privy Council held that, the claim being based 
 on acts committed within the territory of a foreign state, 
 the party claiming reparation from a British court was 
 not entitled to the benefit of the foreign law against the 
 provisions of the statute law of England, in respect of 
 compulsory pilotage, by which no such liability existed 
 as provided by the Belgian law, as an English court will 
 not enforce a foreign law and give a remed}' in the shape 
 of damages in respect of an act which, according to its 
 own principles, impi)ses no liability on the person from 
 whom danuiges are claimt^l.' 
 
 By the provisions of the wu'ious Merchant Shipping 
 acts the legislature of any British possession may repeal 
 wholly or in part any jirovisions of the Imperial Act 
 (other than the part relating to emigrant ships) relating 
 
 1 Bar, Private Internatioiuil Law, i)p. 720 sq(i. 
 
 • The Vernon— I \V. Robinson New Adni. Hep. ail!. 
 
 » Tfie Hallrii—a Moore N. S. 2(52. 
 
m 
 
 MERCHANT SHIPPING, AFFREIGHTMENT. 
 
 195 
 
 to ships registered in that possession, and may also regu- 
 late *'^ 2 coasting trade of that possession.' Under this 
 authority' our Dominion Parliament has passed an act 
 respecting the Registration and Classification of ships in 
 Canada,- which provides various forms for tht transfer or 
 mortgaging of such ships, ])ut which also provides (sec. 
 48) that documents executed in Quehec may he made and 
 passed in the form and according to the manner prescribed 
 in that province. The same parliament has also passed 
 an act respecting the Shipping of Seamen,' the provi- 
 sions of which are extended to ships in the merchant 
 service of every foreign country and to all persons in 
 relation to such ships, subject to the terms of treaties 
 with foreign nr.tions and to the rights and privileges of 
 consuls, vice-consuls and otlier accredited agents of for- 
 eign states. (Sections 126-7). Again, most of the pro- 
 visions of the act respecting tlu' Navigation of ( ■unadian 
 Waters' including the rules for preventing collisions and 
 the penalties and lialiility resulting from a breach of 
 these rules apply to all foreign ships within Canadian 
 waters. (Section !)) '. So also tlu' Wrecks and Salvage 
 Act" applies to foreign vessels stranded or wrecked 
 within the limits of Canada. (Sec. 17). 
 
 This local legislation will be found to follow very 
 closely the enactments of the Imperial Parliament on the 
 same subject, and the exception'd cases where the local 
 law is ajiplied to foreign ship^, instead of the law of the 
 "flag, are also generally restricted to provisi(nis i'ov the 
 safety of life and property within territorial waters. 
 
 1 Sec Sections 7:^."i-(i of th;- act of l^l'l. - Rev. Stilt. Can. Ch. 72. 
 
 » Rev. Stat. Can. Cli. 74. * Rev. Slat. Can. Ch. 79. 
 
 » The Aurora— 10 L. C. R. 44.5. " Rev. Stat. Can. Ch, SI. 
 
 fll ^ 
 
 '1 Ik . 
 I ■ 
 
196 
 
 THE CONFLICT OF LAWS. 
 
 Affreight- 
 ment. 
 
 The hiring of a ship, or of space therein, for the con- 
 veyance of merchandize, is governed by the rules appli- 
 cable to ordinary contracts, except where maritime law 
 or custom derogates from general principles. It is not, 
 however, one of those contracts which must always be 
 governed by the law of the ship's flag, for it is made by 
 the ship-owner or his agents just as often as with the 
 captain, and is not one of those contracts which, like 
 loans on the security of the ship or cargo, or the engage- 
 ment of seamen, are within the special sphere of the 
 master's functions, and necessarily subject to the law of 
 the flag.^ The law governing the contract of affreight- 
 ment depends, as in the case of ordinary contracts, on a 
 variety of circumstances from which the intention of the 
 parties may be gathered, and the nationality of the ship 
 is only one of the facts which must be taken into con- 
 sideration in determining that intention. "We have al- 
 ready noticed a case in which the Judicial Committee ot 
 the Privy Council held that a bill of lading made in 
 England by the master of an English ship must be re- 
 garded as an English contract governed by the law of 
 England as to its incidents.- The decision was not based 
 exclusively on the fact that the ship was a British reg- 
 istered ship, but also on the consideration that the place 
 where the contract was entered into was in England. 
 As has been observed ', bills of lading frequently contain 
 an express clause by which the parties agree that the 
 contract shall be governed in whole or in part by some 
 particular law or custom, and our courts would doubtless 
 give eflfect to such stipulations unless they were arbitra- 
 
 ' Supra, p. 1K5. '^ Moore v. Harris, 2 Q. ^j. R. 147. Supra, p. 150. 
 :' Supra, p. 154. 
 
 I 
 
 i'th 
 
MERCHANT SHIPPING, AFFREIGHTMENT. 197 
 
 rily inserted in a contract for the purpose ofeludin.. the 
 law which would otherwise naturally govern its vafiditv 
 or eitect.' ■^ 
 
 It is useful to note that our Civil Code contains a few 
 provisions for the solution of the conflicts of laws or 
 customs which may occur. 
 
 The obligation of the master to take on board a pilot 
 iH, by article 2423, dependent on the law of the countrv 
 where the ship happens to be at any time. 
 
 The delivery of the goods must, by article 2429 be 
 made m conformity with the terms of the bill of ladin- 
 and according to the law or usage observed in the place 
 01 dehverv. 
 
 By article 2446, when undeclared goods are found in 
 the ship the master may recover freight upon them, at 
 the usual rate paid, at the place of loading, for goods of 
 H like nature. 
 
 Article 2460 enacts that if the time, conditions, an,l 
 rate of demurrage be not agreed upon, they arc regulated 
 by the law and usage of the port wluM-e tlie claim 
 arises. 
 
 Ill: 
 
 ^ Cf supra, pp. 155-6. 
 
 tl 
 
CHAPTER XV. 
 
 'i 
 
 Delicts 
 committed 
 within thi' 
 Province. 
 
 DELICTS AM) t^UASI-DEIilCTS. 
 
 By article 1053 of our Civil Code, every person cap- 
 able of discerning? right from wrong is responsible for 
 the damage caused by his fault to another, whether by 
 positive act, imprudence, neglect or waut of skill. The 
 general principles creating responsibility in such cases 
 are very similar in most civilized communities, but in 
 their ai)plication to particular i-ases much diversity will 
 be found to exist. For instance, there are important 
 differences as to the liability for clamages for libel, for 
 participation in a duel, for seduction, for collisions at 
 sea, etc., etc., and there will in consetpience often be a 
 conflict between the law of the [)lace where reparation is 
 sought (le.r fini), and that of the place where the act 
 creathig lialnlity occurred (le.>- loci delicti commissi). 
 
 When an offence or ([uasi-off'ence is committed within 
 the Province of Quebec and the action for damages is 
 brouirht before our courts, there is no conflict, the lex 
 fori and the lex loci delicti commissi being the same. 
 Such a case appears to come within the meaning of 
 article 6 of the Civil Code, which enacts that the laws of 
 Lower Canada relative to persons apply to all persons 
 being therein, even to those not domiciled there (saving 
 the exception as to laws governing status and capacity). 
 
 IS 
 
'^'^m 
 
 DELICTS AND QUASI-DELICTS. 
 
 199 
 
 ii/l^ 
 
 Accorduiglv, it' a delict is coiniiiittcd in this iHMvince by 
 iiiitivos or toivigiicrs. the law to he }H)[)lit'd by our courts 
 is uud()ul)todly our own law and wbcthor the law ot' the 
 oftendiiii!; or injured party does or does not create civil 
 liabilit}' in sutdi ease is immaterial. For, as Wnr very 
 justly observes,' the territorial hnv ?nust di'sire. in r-o tar 
 as obligations e.r delicto are eoneerned, to subject t'oi-eiirn- 
 ers. as well as its own subjects, to general regulations in 
 the interest of public order and security, and not to 
 create an exception in their favour which wo\d(l offend 
 the public sentiment of justice. 
 
 But the case is verv diiferent when a delict is alleged 
 to have been cominittP'i vbroad, and damages are sought 
 for in (*ur courts. There is a [»retty general consensus 
 of opinion among international jurists that it would in 
 most eases be unjust to test the lial)ilitv of the delendant 
 bv the le.r fon\ and that it is the lex Inci actus which must 
 furnish the rule for deciding the case. As C'ockburn, 
 C. d., said in a leading English case : " To hold tlu' con- 
 trary would be attended with the most inconvenient and 
 startling conse(|Uences, and would be altogether con- 
 trary to tliat comity of nations in matters of law to 
 which effect should, if possible, be given. An act might 
 not only be lawful, but might even be enjoined by the 
 law of another country whii-li would be wrongful and 
 U'ive a right of action \ ^- our law. and it certainlv would 
 be in the hi<!:hest deu:ree uinust that an individual who 
 has intended to obey the law binding upon him should 
 be held liable in damages in another country where a 
 ditierent law may [)revail. Thus an arrest and imprison- 
 ment might be perfectly justitied by the law of a foreign 
 
 ' Private International Law, p. (W4. 
 
 D.'licts 
 '>iririiittO(l 
 
200 
 
 THE CONFLICT OF LAWS. 
 
 f m 
 > '1 
 
 !^ 
 
 E ll 
 
 country un<ler circumstances in which it would bo action- 
 ai)le licre. It would be impoHniljle to liold that in such 
 a case an action could be maintained in an P]nglish 
 court." ' 
 
 Although our own jurisprudence is very scanty upon 
 this l)ranch of the conflict of laws, the decisions which 
 are rci»orted are distinctly in iavour of applying the 
 law of the place where the delict or ([uasi-delict occurs- 
 Thus, in an action for damages against a railway com- 
 pany for setting tire to a barn by sparks emitted from 
 the smoke- stack of a locomotive, the proof established 
 that the barn was situated in tlie Province of Ontario, 
 and the Superior Court (Tait, J.) held that the responsi- 
 bility of the dcfen<lant was ii;overned by the law of 
 Ontsii'io.- 
 
 The case of Dapout v. Quebec SS. Co:' has already been 
 discussed,' but does not seem, when correctly understood, 
 to conflict with the above doctrine. Damaijes were 
 claimed by the widow and children of an em[)loyee oi a 
 steamship company, killed on board one of its vessels in 
 the territorial waters of the Island of Trinidad by the 
 insutliciency of a derrick. The steamship comi)any, by 
 one ot its pleas, alleged that under the law of Trinidad, 
 at the (late of the accident, the rule actio personalis mori- 
 tar i-iiiii persona prevailed, and the tamily of tlie deceased 
 could not in consequence maintain the action. In the 
 Superior Court Mr. Justice Routhier dismissed the action 
 for the following reasons: "Considerant (pie la cause 
 d'action alleguee par eux {i.e., the plaintiffs) est un 
 
 1 PkiUips V. Eyre, L. R. 4 Q. B. 225. 
 
 - (ik'xyow and London I)ih. Co. v. Can. Pac, Ry, Co., 34 L. C. J. L 
 
 ' U. J. Q. 11 S. C. 188. * Supra p. 191. 
 
 i\- 1 
 
DELICTS AND QUASI-DELICTS. 
 
 201 
 
 quasi-delit, et (juo co 4U{if<i-(K'lit iiurait ou lieu dans le 
 Port do Spain, dans I'lle de Trinidad ; considt'rant qu'eii 
 droit international les actions resultant do dc'lits ot 
 quasi-delits doivont etre Jugi'es suivant la loi du pays on 
 lis ont lieu ; considerant que la loi do Trinidad on cette 
 niatit^re est la loi commune (common law) de rAn«^le- 
 terre, et cjiie cette loi n'accorde pas Taction prise en cette 
 cause, qui dans un cas de cette nature est oteinte en 
 vertu de la vioillo maxime (ictio personalis morilur cum 
 persona^''' etc. 
 
 The Court of Review reversed this iudiirmetit and 
 condemned the company to indenniity the widow and 
 children, but not, as the head-note of the rojiort seems 
 to imply, hy a[)plying purely and simjily the law of 
 (inohec {lex fori). The judgment of the Court of Review 
 is based on the theory that the ship on which the acci- 
 dent occurred, being a British ship registered in P^ng- 
 land, was therefore at the time a part of the territory of 
 England and subject to the laws of England and not to 
 those of Trinidad. The court then really did recognize 
 that the law to be looked at was that of the place where 
 the accident occurred (i.e., the territory of Englandj> 
 although, as has already been [)oiuted out,' the court 
 managed by an indirect method to apply our law to the 
 interpretation of the contract between the parties so as 
 to exclude the presumed intention which the law of 
 England would have read into it. And as the law of 
 England, without this presum[ttion which was thus ex- 
 cluded, would have given a right of action to the family 
 of the deceased (the old maxim of the common law, 
 actio -personalis moritur cum personCt, having been abolished 
 in Englan<l). the company was held liable. 
 
 ' Supra p. l!»2. 
 
 il 
 
F?5 
 
 202 
 
 THE CONFLICT OF LAWS. 
 
 ■= i'^\ 
 
 ii:. 
 
 Digtinetioii TIiIh cjiHo, Tnoroovor, sui^yef^ts a (listinetion between 
 
 are 
 
 actionable .,,.^3 wliicli, tlioui^h iiot (ictionnhle by the lex loci 
 fuiacta. iievertbeloss uiijustitijiblo (H- wroiiu't'ul in the broadest 
 nense of the terms. Athongb the judgment of tlie (yourt 
 of Review maintained the action on other grounds, Mr. 
 Justice Andrews made tlie foHowing observations on 
 this point : "' In tlie ease before us, as pointed out in tlie 
 pUdntifts' factum, it cannot be pretended tluit the act of 
 negligcntl}' killing a man by letting defective tackle of 
 a ship fall on him, is liot in itself a wrong ever^'where ; 
 nor is it pretended tlnit the company defendant would 
 not, as a general rule, be liable for wrongs done by their 
 servants, the master and crew of their shi[i. What the 
 defendants wisli us to hold is that althouijh the wrong; 
 was done, yet the remedy does not exist, first, because 
 by the law of Trinidad (K-tio pei'sonalis inoritar cniii per- 
 soiid, and second, that by the law of England the master 
 and crew of the ship and the deceased being both em- 
 ployees of the defendants, we nuist read into the de- 
 ceased's contract of hii'ing the rule of English law that 
 he was to take the risks of the Jiegligence t)f his' 
 co-employees. I think this we cannot justly and reason- 
 ably do. I am therefort' to reverse and give a just 
 compensation to the widow and children." 
 
 The opinion of some Englisli judges apjiears to be in 
 favour of maintaining an action for acts committed 
 abroad which are unjustifiable, although not actionabhi 
 bv the law of the foreii'-n country in which thev have 
 taken place,' and ji similar modification ot the general 
 
 ^ Scotf y. Seymour, 1 H. & C. 219; Charteved McrcantUr Bank- v. 
 Nethrrldiifls Co., 10 Q. B. D. (C. A.) .521. In a recent case {Machidlo v. 
 Pontes, W. N. 1897, .50) tlu' English Court of Appeal has lield that an 
 action may be maintained in EIngland for a libel published in Brazil, 
 which, under Brazilian law. though not innocent or justifiable, would 
 not there support an action for damages. 
 
m 
 
 DELICTS AND QUASI-DELICTS. 
 
 203 
 
 rale aeeni.s to luive been iii»i)r()vc(] by tlie Scotch 
 courts.' 
 
 The (loctriiic of tlie iXi)plication of foreign law to 
 delicts comniittcd abrojul must, in ail i.robability, be 
 (iualificd here to this extent, that our courts would not 
 enforce a foreign law and give a remedy in the shape of 
 damages in respect of an act which, at-cording to their 
 own principles, imposes no liability on the i>erson from 
 wlom damages are claimed. Tliis is. the holding of the 
 Judicial Committee ot the IVivv Council in u collision 
 case already referred to,- in which damages were claimed 
 against a British ship resulting from a collision in Bel- 
 gian waters through the fault of tlie pilot wbom the ship 
 was compelled to employ. .Mthough the Belgian law- 
 would have im[>osed a liid)ility on the ship, notwith- 
 standing compulsory pilotage, the -Judicial Committee 
 refused to entertain the action, and it seems likely that 
 the same ride would be ai)i)]ied in jin appeal from the 
 I'rovince of Quebec. 
 
 ' Horn V. .V. li. Ry. Co. (Ct. of Sessions Rep. 4tli Ser., Vol. .5, p. 1055) 
 2 Thr llalleii, » Moore, X. S. 2(i2. 
 
 Vo romodjr 
 whi'ii lex 
 I'liri urcatcs 
 no liability. 
 
 ! .'I 
 
CHAPTER XVI. 
 
 1^ 
 
 "' "J 
 
 
 
 
 
 
 
 
 
 J 
 
 
 
 I ■{ 
 
 1 
 
 li 
 
 Immovp- 
 ablns gov- 
 erned by 
 law of 
 situation. 
 
 PUKSCItlPTION. 
 
 ]}elbre the enactment of the Civil Code the rules to 
 be adopted by our courts when a conflict of laws occurred 
 in reference to prescription, were by no means settled. 
 In the leading case of Wilson v. JJeiners,^ which was de- 
 cided upon the law in force before the code as to the 
 prescription applicable to a promissory note, we And a 
 great variety of opinions expressed by tlu> judges of tlie 
 Court of Review and of the Court of Appeal, some hold- 
 ing that the case must be decided by the lex fori, others 
 by the lex loci coniraetKs, and one of them appeared to 
 think that it was either by the lex loci contractus or by 
 the lex loci solutioni.s, without deciding which.- 
 
 These controversies are now set at rest by the follow- 
 ing provisions contained in articles 2189-2191 of the 
 Civil Code : 
 
 Art. 2189. I'resci'iptions in respect of immoveable 
 l>roi»erty are governed by the law of the place where it 
 is situated. 
 
 Art. 2190. As regards moveable property and per- 
 sonal actions, even in matters of bills of exchange and 
 
 1 10 L. C. J. 261 ; 12 L. C. J. 222 ; 18 L. C. J. 24 ; U L. C. .1. 317. 
 
 ■^ See a criticism of this judgment by Mr. Girouard (now Mr. Justice 
 Girouard) in 1 R. C. 125. See also the case of Hogan v. Wilson (Stuart's 
 Rep. 145), where the lex loci contractus was applied. 
 
i'Res(;kii'tk)N 
 
 205 
 
 promirtsory notos luul corninoroial mnttors in goiieral, 
 one or more ot" tlio following i>resfriptions may he in- 
 voked : 
 
 1. Anv ijrescription entirely atMiuiri'd nnder a toreiu:n ""'"''<'' 
 law, when the eanse of action did not arise or the debt |,','^" °/j,jg,^ 
 vva« not stipulated to he paid in Lowi'r Canada, and sueh 
 [)re!serii>tioii has been so aecjuired before the possessor or 
 
 the debtor bad his domicile therein ; 
 
 2. Any itrescription entirely accjuired in Lower Can- 
 ada, reckoning from the date of the maturity of the 
 obligation, when the cause of action arose or the debt 
 was sti[)ulated to be paid therein, or the delator liad his 
 domicile therein at the time of such maturity ; and in 
 other cases from the time wlien the debtor or [lossessor 
 becomes domiciled therein ; 
 
 8. Any prescription resulting from the lapse of succes- 
 sive periods in the cases of the two preceding paragraphs, 
 when the tirst period elapsed under the foreign law. 
 
 Art. 2191. Prescriptions commenced according to the 
 law of Lower Oaiuula are completed according to the 
 same law, without [)re)udice to the right of invoking 
 those accpiired previously under a foreign law, or by a 
 union of periods under botli laws, conformably to the 
 preceding article. 
 
 The first reported case since the code came in force 
 \s that of Ililhburyh V. 3Ltt/er^ decided in 1873 by the 
 Superior Court, and the head note of the report is to the 
 effect that the prescription of a promissory note made in 
 a foreign country and payable there, is to be governed 
 by the Uxfori and not by the lex loci contradas, which 
 would seem to be in direct contradiction to the provi- 
 
 ' 18 L. c. J. 69. 
 
 l\ 
 
 >iii 
 
i 
 
 m 
 
 200 
 
 TIIK CONFLICT OK LAWS. 
 
 HionH(»rurt. 211)0, § I. IJiil the rcusoiiH ol'tlic jii(li:;in('iit 
 do !)(»! Wiirnmt tlic broad stiitciiu'iit confirmed in tlio 
 lit'iid-iiott'. Till' iictioii was instituted on 7tli l)('cend)er, 
 1872, in Montreal uji^ainst tho deteinlant, who was then 
 (hjinicih'd tlieru, upon a promissory note nuuK' by liini in 
 the City ot New York on the 18th duly, 180(), and pay- 
 ahl<' there on the 21st January, 18()7. At tli(? tijiu; tho 
 note became due the defendant '"as domiciled in New 
 York, and lie contiinu'd to have his domicile there until 
 the l')th of March, 180'.), from which date he was domi- 
 ciled in Montreal. The defendant pleaded the preHcrij* 
 tion of five years under art. 2200 ot the Civil (.ode, and 
 the plaintitf answered that by the laws of the State of 
 New York, which governed the case, such a note was 
 oidy prescribed by the lapse of six years. Mackay, J , 
 held that tlie prescri[>tion of iive years under art. 22110 
 C. C. had been acquired, ami dismissed the action. It is 
 obvious that the tacts of the ease brought it within the 
 provisions of § 3 of art. 2l!>0, whicdi allows the defen- 
 dant to invoke av;/ prescription resulting from the lapse 
 of sui'cessive periods, when the first ela[>sed under the 
 foreign law, and that as the time du'-ing which the de- 
 fendant was domiciled in New York after tlu' maturity 
 of the note added to the time during wdiich he was 
 domiciled in this province exceeded five years, he was 
 entitled to plead prescription nnder our code. 
 
 In another ease decided in the Circuit Court in 1886,' 
 an e(pially misk^ading head-note will be found. The re- 
 ported holding is to the' effect that the prescription of 
 an account for board and lodging, contracted in the 
 United States, is governed by the la\v of the domicile of 
 
 » Lafaillr v. Lnfaillc, 14 R. L. 4(>G. 
 
 J 
 
I'KK.SClill'THiN. 
 
 207 
 
 1 SI 
 
 !) L. N. 1!K), 
 
 lii 
 
 the (lohtor (le.rfnri),^ :iii<l not hy tliiit oftlie pliK't' wIkm'c 
 the coiitriu't wiis iiiiKlc (/(■'• /'>'•/ rmilriiflns). Tlic liictH 
 showed tliai llu'cljiim wiis for hoaril and lotli^iiii; I'lir- 
 iiiHlicd af Miiii('li(Mf(M', Static of Xcw Hainpsliirc, in 1H71 
 and 1872. Towards tlio cud of the year \X1'2 the dc- 
 tetidaiit ciinif to livi* in tho Province of Qiichcc and was 
 there d()mi<'ili'd from that (hitc initij tlic iiislitutioii of 
 the action iiiorc than ten yearn hiter. ('hai^iioii, f , vci'y 
 [»roi>crly lichl thai iiinU'r § '2 of art. 21!>U C. (J. i)rcscri|i- 
 tion had hccn entirely ac([uired nncU'rour hiw sincc^ the 
 (h'fen(hint aciuirod a (h)niiciU' here. Imt did not express 
 himself in the terms of the holdinir attrihiite(l to him l»y 
 the reporter. 
 
 In (h'oss V. Sii'ni\- also decidi'd in the Circuit Court in 
 188<i, till* opinion wasexi>resscd hy Mr. .Justice Miichanan 
 that the (piestion ot [)res('ri]»tion was one ot procedure to 
 ])e regulated hy the lex furl accorditig to article of the 
 Civil Code. This expression of opinion was, however, 
 unnecessary, as the court found tlia'. the dtdendant had 
 heen domiciled in this })rovince for more than five years 
 since the maturity of the promissory note sued on, an<l 
 consequently the dehtor could invoke the prescrii)tioii 
 a(!([uired here under the terms of article 2l!<0, § 2, of the 
 Civil Code. 
 
 ii 
 
 1 ; 
 
Pf 
 
 CHAPTER XVII. 
 
 PROCEDURE. 
 
 Lex fori 
 (iovcrnB. 
 
 .Turisdic- 
 tion. 
 
 There is a general eonsensus of opinion in favour of 
 regulating all matters ot procedure and practice by the 
 law ot the tribunal in which the litigation is pending. 
 It could hardly be expected that the courts of any country 
 should depart from their own rules of procedure and 
 adopt the methods of foreign courts. In so far as sub- 
 stantive rights are concerned a court may very properly 
 apply the foreign law- under which these rights were 
 created, but as regards the enforcement of such rights 
 the machinery and methods of the trilninal itself must 
 be accepted by the litigants who submit their contro- 
 versies for decision. It would, indeed, in many cases be 
 impossible to adopt the practice and procedure of foreign 
 courts, by reason of the difterences in their constitution 
 and powers. 
 
 In conformity with these principles article 6 of the 
 Civil Code enacts that our law is applied whenever the 
 quest ( .1 involved relates to " the Jurisdiction of the 
 courts and procedure, to the mode of execution and at- 
 tachment." 
 
 The subject of jurisdiction may V)e looked at from two 
 points of view : lo with regard to cases in which our 
 own courts assume jurisdiction when some foreign ele- 
 
PROCEDURE. 
 
 20'J 
 
 raent is involved ; and 2o in respect of cases where the 
 competency of foreign tribunals will be recognized by 
 our courts. 
 
 The second of these two aspects has, for the sake of 
 convenience, been examined under the different sul)jec'(s 
 of this work, concurrently with the rules for the recogni- 
 tion and application of the foreip' law upon each subject 
 (s. V. Divorce and Separation Administration, Bank- 
 ruptcy and Insolvency, Foreign Judgments, etc.) 
 
 Logically, of course, there is a great distinction be- 
 tween the rules governing the recognition of the jurisdic- 
 tion of foreign courts, and those which prescribe the 
 adoption or rejection of foreign law in any particular 
 case. But the two inquiries are often so closely con- 
 nected, that in many cases it is difficult to discriminate 
 between them, and accordingly it seems preferable to 
 abandon a scientific arrangement in favour of practical 
 convenience. 
 
 Some of the rules concerning the competency of our 
 own courts have also been occasionally referred to as 
 incidental to the treatment of some of the divisions of 
 Private International Law (s. v. Divorce and Separation, 
 Immoveable property, etc.), but a fuller considerati<m of 
 the subject is now necessar}'. 
 
 Our Civil Code contains the following two articles, 
 which lay down very general rules : — 
 
 27. Aliens, although not resident in Lower Canada, 
 may be sued in its courts for the fulfilment of obligations 
 contracted by them even in foreign countries. 
 
 28. Any inhabitant of Lower Canada may be sued in 
 its courts for the fulfilment of obligations contracted by 
 him in forei'^n countries, even in favour of a foreigner. 
 
 14 
 
 't f 
 
 li 
 
m 
 
 210 
 
 THE CONFLICT OF LAWS. 
 
 III! 
 
 Extprri- 
 toriality. 
 
 It 18 obvious that article 27 does not intend to confer 
 jurirtdiction on our courts on the ground that the person 
 sued is an alien. It merely enacts that the alienage of 
 the party sued does not oust the court of its jurisdiction, 
 if that jurisdiction can be otherwise sustained. 
 
 The correlative right of appearing as plaintiffs in cases 
 before our courts is conferred upon foreigners by articles 
 79 and 80 of the Code of Civil Procedure (1897), which 
 will be referred to presently. 
 
 A limitation of the rule that aliens are subject to the jur- 
 isdiction of our courts is imposed by the principle of exter- 
 ritoriality. As this is a question of public law we must look 
 to the law of England for the rules governing this subject. 
 They are succinctly stated by Mr. "Walker ' as follows : — 
 
 a. Foreign sovereigns travelling within a state in 
 their proper character, together with their per- 
 sonal attendants, are held exempt from the local 
 jurisdiction. 
 
 b. Ambassadors and other diplomatic agents are 
 granted a similar exemption from the local juris- 
 diction within the territorial limits of the state to 
 which they are accredited. 
 
 r. Foreign men-of-war are by the universal consensus 
 of nations allowed when within the territorial 
 waters a tolerably complete exemption from the 
 
 jurisdiction of the local sovereign. 
 
 (/. The grant of a free passage implies a waiver of 
 all jurisdiction over the troops during their pas- 
 sage, and permits the foreign general to use that 
 discipline and to inflict those punishments which 
 the government of his army may re(|uire. 
 
 ' Alftimal of Public Inteniatioiml Law, pp. (W s(iq. See also Dicey 
 Coiifli« t 1)1 Laws, pp. 20!) aqq. 
 
^w 
 
 PROCEDURE. 
 
 211 
 
 Article 28 lays dowM the obvious rule that an inhabit- 
 ant of this province cannot decline the jurisdiction of the 
 courts of his own domicile even when some foreign ele- 
 ment is involved in the controversy, e. g. when the 
 obligation is contracted abroad, or when the other con- 
 tracting party is a foreigner. The article also impliedly 
 recognizes the right of foreigners to enforce ol)ligation8 
 in our courts. 
 
 There are, however, exceptions to the rule laid down 
 m article 28. When our courts are incompetent ratione 
 matericB, the fact that the defendant is domiciled here 
 would not give them jurisdiction. 
 
 For example, our courts will not entertain an action A-uons 
 against defendants in this province for the cancellation ••■-'^"'n- 
 of a lease of real estate situated in the Province of o„. '""""""" 
 tario.' -Soy has a court in this province any authority to 
 name experts for the purpose of establishing a boundary 
 line in Ontario.^ Again, there is no jurisdiction in the 
 Quebec courts to declare a will void as to immoveables 
 situated in the other provinces of Canada or -w the 
 United States. ' 
 
 The principal rules concerning the jurisdiction off-MH.- 
 our courts of original civil jurisdiction in cases which''"'"!''" 
 present some foreign element, may be deduced from the-'-'""' 
 provisions of the following articles of the Code of Civil 
 Procedure (1897) :— 
 
 94. Ill matters purely personal, other than those men- 
 tioned in Articles 96, 97, 98, 103 and 104, the defendant 
 may be summoned : 
 
 1. Before the court of his domicile ; and in the ease 
 
 ' Henitner v. Porter, 7 L. ('. J. 42. 
 - Shead V. McDunuell, 3 H. l', 42. 
 
 ^ Rons V. Ross, 2.) y. ( '. H. ;{ i;. 
 
212 
 
 THE CONFLICT OF LAWS. 
 
 of election of domicile for the execution of an act, before 
 tlie court of the dt)micile so elected ; 
 
 2. Before the court of the place where the actiou is 
 personally served upon him ; 
 
 3. l^efore the court of the place where the whole cause 
 of action has arisen ; 
 
 4. Before the court of the place where the whole or 
 part of his property is situated, when he has left lii* 
 domicile in the province, or has never had such domicile, 
 but has property therein, and the cause of action has not 
 arisen therein. 
 
 05. A tire or life insurance company may be sum- 
 moned by the insured, his heirs and assigns, for rights 
 arising out of a lire insurance policy, before the court of 
 the place in which the insured moveables or immove- 
 ables were, and for rights arising out of a life policy, 
 before the court of the place in wliich the insured had 
 or has his domicile. 
 
 96. In an action for separation from bed and board,, 
 or for separation of property only, the defendant must 
 be summoned either before the court of the domicile 
 of the husband, or, if he has left his domicile, before that 
 of the last common domicile of the consorts. 
 
 99. When a personal action is founded upon several 
 causes of action arising in different districts, it may be 
 brought before any court which has jurisdiction by reason 
 of one of such causes of action. 
 
 100. In every real or mixed action the defendant ma}'' 
 be summoned before the court of his domicile or before 
 that of the place where the object in dispute is situated. 
 
 101. When a real action has for its object an immove- 
 able or immoveables, situated partly in one district or 
 
PROCEDURK. 
 
 213 
 
 ■circuit and partly in another, the suit may be l)rought in 
 either, or in the district or circuit where the defendant 
 has his domicile. 
 
 102. In matters of succession, the parties are sum- 
 moned before the court of the place where the succession 
 devolves, if it opens in the province ; otherwise, before 
 that of the place where the property is situated, or of 
 the domicile of the defendant or of any one of the de- 
 fendants. 
 
 103. In matters purely personal, if there are several 
 defendants in the same action residini; in different dis- 
 tricts, they may all be brought before the court of the 
 district in which one of them has been summoned, pro- 
 vided that such summons be not made with the inten- 
 tion of withdrawing the real parties from the courts 
 which would otherwise have jurisdiction. 
 
 In real actions they must be suinmoned before the 
 court of the place where the object in dispute is situated. 
 
 In mixed actions, before the court of the place where 
 the object in dispute is situated, or before the court of 
 the domicile of one of the defendants. 
 
 Our courts also have admiralty jurisdiction under the .vdmiraity 
 provisions of the "Colonial Courts of A.(lmiralty Act,'"'"'"^ 
 1890" (53-4 Vict., c. 27, Imp.), and "The Admiralty 
 Act, 1891 " (Dominion). Under the second section of 
 the Imperial Act Colonial Courts of Admiralty " may 
 exercise such jurisdiction in like manner and to as full 
 an extent as the High Court in England, and shall have 
 the same regard as that court to international law and 
 the comity of nations." 
 
 The High Court in England has jurisdiction in rem 
 against any ship or property (such as cargo) connected 
 
 in 
 
m- 
 
 i 
 
 214 
 
 THE CONFLICT OF LAWS. 
 
 StatuB of 
 foreignt're 
 before our 
 OOurtB. 
 
 wityi a ship, if the ship or res is in England or within 
 three miles of the coast of England J 
 
 The Canadian Act divides Canada into a number of 
 admiralty districts, each having a registry of the court, 
 and section 13 allows suits to be instituted in any dis- 
 trict registry when 
 
 a. The ship or property, the subject of the suit, is 
 at the time of the institution of the suit within the 
 district of such registry ; 
 
 b. Th' ijt or owners of the ship or property, or 
 the . . . or owners of the larger number of 
 shares in the ship, or the managing owner or the 
 ship'H h'i=«bari'^ ; ^side at the time of the institution 
 of the suit w'Uhu' the district of such registry ; 
 
 c. The port of registry of the ship is within the dis- 
 trict of such registry ; or 
 
 d. The parties so agree by a memorandum signed 
 by them or by their attorneys or agents. 
 
 As to the rights of foreigners to be parties to suits 
 before our courts, the Code of Civil Procedure (1897) 
 contains the following provisions : 
 
 By article 78, " those who have not the free exercise 
 of their rights must be represented, assisted or author- 
 ized in the manner prescribed by the laws which regu- 
 late their particular status or capacity." 
 
 By article 6 of the Civil Code it is the law of the 
 domicile which regulates status and capacity, so that a 
 foreign guardian, authorized by the law of his ward's 
 domicile to represent him in judicial proceedings, could 
 likewise represent him before our courts. Again, a wife 
 requiring marital or judicial authorization to sue in the 
 
 ' Dicey, Conflict of Laws, p. 2(hi. 
 
I'ROCEDURE. 
 
 215 
 
 courtH of her domicile would be obliged to obtain that- 
 authorization in order to institute proceedings here. But 
 a married woman domiciled in the State of New York, 
 whose law allows her to sue as if she were a feme sole, 
 would also be allowed to take proceedings before our 
 courts without marital or judicial authorization, for 
 article 79 C. C. P enacts that : 
 
 " All foreign corporations or persons, duly authorized 
 under any foreign law to appear in judicial proceedings, 
 may do so betbre any court in the province." 
 
 It is further provided by article 80 C. C. P. that : 
 " Any person who, according to the laws of a foreign 
 country, is authorized to represent a person who has 
 died or made his will therein, leaving property in the 
 Province, may also appear as such in judicial proceed- 
 ings before any court in the province.'' 
 
 "Where a will had been executed and probated in the 
 State of New York, and an executor then resident in 
 that State had subsequently acquired a domicile in this 
 province, it was held that he could be sued here tor an 
 account, under the terms of the statutes 22 Vict., ch. 6, 
 and C. S. L. C. ch. 91, from which the above article is 
 derived.' 
 
 In Greenshields v. Aitken & Bickerdike & Trusts Cor- 
 poration of Ontario,^ the Superior Court (Gill, J.) held 
 that the word "person " in article 14 of the old Code 
 of Procedure, which is identical with article 80 of the 
 present code, includes corporations, and accordingly, 
 that a corporation empowered under the law of Ontario 
 to administer the estate of a person whose succession 
 
 ' Hogle V. Hogle, 1 R de J. 1S8. 
 R.J.Q. use. 137. 
 
216 
 
 THE CONFLICT OF LAWS. 
 
 
 ETidence. 
 
 I IB 
 
 oi»enp<l in that province may appear in judicial pro- 
 ceedings in that capacity in the province of Quebec, 
 although by our law corporations cannot be entrusted 
 with the execution of wills or the administration of 
 estates. 
 
 The subject of evidence gives rise to some of the most 
 perplexing questions in Private International Law. By 
 some authorities it is regarded as a branch of procedure 
 which must mvariably be governed by the lex fori. Others 
 make a distinction between the rules of evidence which are 
 connected with the method of conducting the suit, and 
 those which affect the substantive rights of the parties. 
 This distinction appears to be recognized by the leading 
 authorities under the old French system. There were the 
 rules ordinatoria judiciorum which referred to the mode of 
 procedure, and were governed by the lex fori, and the 
 rules called litis decisoria, which served as a basis for the 
 judgment, and were to be determined according to most 
 writers by the law of the place where the contract was 
 made or the facts occurred. In support of this opinion 
 it is urged with considerable force that the contracting 
 parties should be enabled to know at the time they 
 enter into the contract how that contract can \ye proved ; 
 whether a writing is necessary, or whether verbal testi- 
 mony will be sufficient ; if a writing is required, what its 
 requisites are, and if verbal testimony suffices, how 
 many and what kind of witnesses must be secured. To 
 leave such matters to be governed by the law of the 
 tribunal before which the action is brought, would too 
 often result in making a bondfde claim unenforceable. 
 Thus, if the lex loci contractus allows proof by parol of a 
 contract of sale, no matter what the price or value may 
 
PROCEDURE. 
 
 217 
 
 amount to, and the case happens to be tried in a country 
 where the law prohibits the proof of such contracts by 
 testimony when they exceed a certain amount, it seems 
 like a denial of justice to refuse to enforce a bargain 
 entered into by parties who probably took into con- 
 sideration the law of the place where they contracted, 
 and who could not foresee where the subsequent 
 litigation might arise. 
 
 Accordingly, most of the old French authors appear 
 to be in favour of applying to such cases the lex loci con- 
 tractus, and the jurisprudence of the Cour de Cassation 
 is in the same direction.^ Our own jurisprudence on the 
 subject is rather scanty, but, so far as it goes, also adopts 
 the lex loci contractus rather than the lex fori. 
 
 In the case of Wilson v. Perry,- the Superior Court 
 <Berthelot, A. J.) followed this opinion. The action 
 was for the value of the use and occupation of an 
 immoveable situated in Upper Caiuida, and the plaintiff 
 also alleged an express promise to pay. Proof was made 
 that by the law of Upper Canada the evidence of a 
 single uncontradicted witness was sufficient to establish 
 a claim of this kind, and the court held that inasmuch 
 as the cause of action had originated in Upper Canada, 
 the sufficiency of the evidence must depend on the law 
 of that province. 
 
 In the case of Le/ehvrev. Dignian-' the Superior Court 
 (Tellier, J.) held that the proof of the filiation and 
 legitimacy of children born in Vermont of parents 
 domiciled there, must be established according to the 
 
 ^BouUeuuis, Tit, IV., ch. II, Obs. 40 (vol. 2, pp. 458 sqq.) Guyot, 
 Rep. Vo. ' Preuve," pp. oT-Wu Dnnty, Preuve, Ad. au ch. I, No. 11, p. 49. 
 Cass., 24 aout 1880; D. 188(). 1. 447. 
 
 M L.C.J. 17. *3R. de J, 194. 
 
 1^ 
 
 If! 
 
21 S 
 
 THE rONFLKlT OF LAWS. 
 
 iti 
 
 Kvjdcncc 
 i Doom nil' T- 
 cinlciiKi'8. 
 
 laWH of that utat*!, but it'thono lawn appujired to be niltMit 
 aw to th(^ inodc! of [.roof in mich cawoH, recourse must be 
 had to our own law. 
 
 A^ain, in Doutrc v. The Qkcc.h,^ whore an advoeate 
 proceeded by {)etition of right againnt the government 
 ot Canachi upon an agreement entered into in the Prov- 
 ince of Ontario for profeHsional services as tiounsel 
 before the Fisheries Commission sitting in the Province 
 of Nova Scotia, the Exchecpier Court of Canada 
 (Fournier, J.) lield that the rules of evidence in force in 
 the Province of Ontario were applicable, and the su[)pli- 
 ant's evidence on his own behalf was theretore admis- 
 sible. 
 
 In so far as our law of evidence in commercial cases is 
 concerned, there are indications in our code that the 
 rules restricting the admissibility of parol evidence are 
 to be regarded as matters of procedure. Thus, article 
 1235 C. C. enacts that: — "In commercial matters in 
 which the sum of mone^ or value in question exceeds 
 fifty dollars, no action or exception can he maintained 
 against any party or his representatives unless there is a 
 writing signed by the former," etc. This language shows 
 that it is the remedy which is denied, and consequently 
 that this depends upon the lex fori. 'Hiis interpretation 
 has been put by the English courts on the section of the 
 Statute of Frauds from which article 1235 C. C. is 
 derived. Thus, in the leading case of Leroux v. Brown,^ 
 where a Frenchman made a verbal contract in France 
 
 M L. N. 34. This case was subsequently appealed to the Supreme 
 Court of Canada (1 Ex. C. R. 355), and to the Privy Conncil (9 Ap. C. 745), 
 and the .judgment of the Exchequer Court was confirmed, but no ruling 
 was given as to the admissibility of the evidence. 
 
 2 12C. B. «01; 22L. J.C. P. 1. 
 
ntnOKDUKK. 
 
 2111 
 
 witli nu Mii^lirtlirMati to servo liiiu, in Fruiico, Hiich con- 
 tract bt'iiij;; vulifl iiikI outorccal)!** Wv tlic law of Fnuico, 
 it waH luild tliat no action could he ])ron^lit in Kn^Iand 
 on Htjcli ail a^nuiintiiit without the incinoran(him in 
 writing r(f(iuircd by the 4th wection of the Statiitt; of 
 FraudH, inaHiniicii an that enactment ai»j»lied to pro- 
 cedure. 
 
 In tlie case of -•' "tain writint'rt executed out of the '''^";''°' 
 Province, the fohowini^ proviniouH are contained in "^I'^'.^Ji'*^ 
 article 1220 of the Civil Code : ''^"'""''* 
 
 " The certificate of the secretary of any foreign wtate 
 or of the executive government th(!reof, and the original 
 (locumentH and cojticH of documentH hereinafter enumer- 
 ated, executed out of Lower Canada, make prirncl facie 
 proof of tlie contents thereof without any evidence l)eing 
 necessary of the seal or signature affixed to such original 
 or copy, or of the authority of the officer granting the 
 same, namely : 1. Exemplifications of any judgment or 
 other judicial proceeding of any court out of Lower 
 Canada, under the seal of such court, or under the signa- 
 ture of the officer having the legal custody of the record 
 of such judgment or other judicial proceeding ; 2 Ex- 
 emplifications of any will executed out of Lower Canada, 
 under the seal of the court wherein the original will is of 
 record, or under the signature of the judge or other 
 officer having the legal custody of such will, and the 
 probate of such will under the seal of the court ; 3. 
 Copies of the exemplification of such will anl I'the pro- 
 bate thereof certified by the prothonotary of any court in 
 Lower Canada, in whose office the exemplification and 
 probate have been recorded at the instance of an inter- 
 ested party and by the order of a judge of such court ; 
 
 1^ 1 
 
il 
 
 l!!i( 
 
 220 
 
 THE CONFLICT OF LAWS. 
 
 Foreign 
 <!ominiB- 
 liona for 
 taking 
 eyidence. 
 
 j 
 
 i 
 
 y 
 
 H 
 
 fliK'h probate ia uIho received aw proof of the deatli of the 
 tcHtator ; 4. Certiticates of marriage, baptism or birtli. 
 and burial of jtersoiis out of Lower Canada, under the 
 hand of the clergyman or public officer who officiated, 
 and extracts from any register of such nuirriage, baptism 
 or birth and burial, certified by the clergyman or public 
 officer luiving the legal custody thereof; 5. Notarial 
 copies of any power of attorney executed out of Lower 
 Canada, in the presence of one or more witnesses and 
 authenticated before the mayor of the place or other 
 public officer of the country where it bears date, the 
 original whereof is deposited with the notary public in 
 Lower Canada granting the copy ; 6. The copy taken 
 by a prothonotary or a clerk of a circuit court in Lower 
 Canada of any power of attorney executed out of Lower 
 Canada in the presence of one or more witnesses anc 
 authenticated before any mayor or other public officer oi 
 the country where it bears date, such copy being taken 
 in a (tause wherein the original is produced by a witness 
 who refuses to part with it, and being certified and de- 
 posited in the same cause.' The original powers of at- 
 torney mentioned in the preceding paragraphs numbers 
 five and six, are held to be duly proved ; but the truth 
 of the exemplifications, probates, certificates or extracts, 
 and the original powers of attorney mentioned in this 
 article, may be denied and proof thereof be required in 
 the manner provided in the Code of Civil Procedure." 
 
 It frequently happens that a foreign court requires 
 to take the evidence of persons residing in this province, 
 and this is usually done by issuing a rogatory com- 
 mission addressed to one or more persons designated to 
 
 I See Marston v. Pelletier, 21) L. C. J. :i35 ; 14 R. L. 25L 
 
I'ROCKDUKE. 
 
 001 
 
 I 
 
 roc'eiv(> the tU'poHitloiiHof witiit'SrteH and to trmiHmit tlioni 
 to the foreign court. Wv luuKt therefore see how far 
 our own courts will aswiHt foreign courtu in tlu( way of 
 conipelling the attendance of witncHses, and forcing 
 them to answer interrogatories or to produce documents. 
 
 The Imperial S^tatute, 22 Vict., cap. 20, jirovides for imi-riai 
 the takiuif of cvi(icnce in suits itendini; before tribunals «i'i'iyinB 
 
 . ... 1 r tu nritlJh 
 
 in Her Majesty's donnnions oiuy. It enacts that when '"■»»• 
 any court of competent Jurisdiction in Iler Majesty's 
 <lominions has authorized, by commission or other 
 process, the obtaining in any proceeding of the testi- 
 mony of wittiesses out of its jurisdiction and within the 
 jurisdiction of another Hritish court or judge having 
 authority under tVie act, such last mentioned court or 
 judge may enforce the commission by commanding the 
 attendance of witnesses, ordering the production of 
 documents, punishing disobedience to orders, &c., just as 
 it would enforce its own orders in a case depending in 
 such court. A person who, upon such examination, 
 wilfully and corruptly gives false evidence is deemed to 
 be guilty of perjury. But a witness may refuse to 
 answer questions tending to criminate himself, or other 
 incompetent questions, which he would not be obliged 
 to answer in a case pending before the court enforcing 
 the commission, and may also refuse to produce docu- 
 ments which he would not be compellable to produce at 
 a trial in such case.' 
 
 Under the authority of this statute a decision was 
 given in a case in which a commission had been issued 
 from the Court of Queen's Bench, Manitoba, for the 
 examination of a witness in this province. Objection 
 was taken to the production of certain books called for 
 
 1 See Appendix B and C. 
 
■)')'; 
 
 THE CONFLICT OF LAWS. 
 
 Canadian 
 Act. 
 
 l>y tho [)laintiffs, and the comniissioiier having deciilcMl 
 ill favour of their production, his ruling was suhmitted 
 for revision to a judge of tlie Superior Court at ^fontreal. 
 
 Jette, J., in virtue of the powers conferred upon him 
 hy the above statute, confirmed the decision of the com- 
 missioner.' 
 
 The " Act respecting the taking of evidence relating 
 to proceedings in courts out of Canada"- contains pro- 
 visions very simihir to those of the Imperial Act just 
 referred to, but it extends these facihties to courts in any 
 foreign country, as well as to those in any other of Her 
 Majesty's dominions. It seems very doubtful, however, 
 whether the provisions of this Act are binding on the 
 courts of civil jurisdiction in the Province of Queliec. 
 The last section appears to suggest a possible conflict 
 between the legislative powers of the Dominion Parlia- 
 ment and the Provincial Legislatures. It says that : 
 " This Act shall not be so construed ih to interfere with 
 the right of legislation of the Legislature of any Prov- 
 ince requisite or desirable for the carrying out of the 
 objects hereof. ' " 
 
 In Sn>ifh v. Hempstead,^ where an application was 
 made under the Dominion Act 31 Vict. cap. 76 (repro- 
 duced in the above quoted chapter of the Revised 
 Statutes) to comjjel the attendance of a witness to be 
 examined under a rogatory commission issued out of a 
 foreign court, the witness objected that this legislation 
 was ultra vires of the Dominion Parliament, inasmuch as 
 it had reference to a matter of procedure, which is with- 
 in the jurisdiction of the Quebec Legislature. Torrance, 
 
 ' Crnuforil v. Morton Dairy Farming Co. fi L. N. 18S . 
 
 a Kev. Stat. Can. ch. 140. ■' See Appendix D. * 1(5 L. C. J. 140. 
 
PROCEDURE. 
 
 
 J., hold that tills was a matter of international comity, 
 and that the act was one which the Dominion Parlia- 
 ment might very properly pass, inasmuch as matters of 
 international comity are more under its control than 
 under the control of the Legislature of Quehec. If by 
 "matter? of international comity" the learned judge 
 meant the rules which our courts are bound to follow in 
 cases where a conflict of law arises, it is difficult to 
 understand how the Dominion Parliament can have any 
 control at all except over subjects assigned to it by the 
 constitutional Act of 1867.' It would surely not be 
 pretended, for example, that that Parliament could regu- 
 late conflicts of laws in regard to the status and capacity 
 of persons, the forms of deeds, or moveable or immove- 
 able property in this provin(;e, except perhaps incident- 
 ally in connection with subjects over which the Domin- 
 ion Parliament exercises legislative powers.- While, 
 therefore, the above-men tiot^od Act may very well be 
 considered infra vires of the Dominion Parliament in so 
 far as the taking of evidence in criminal cases is con- 
 cerned, it does not seoui possible to maintain that our 
 courts wotild be bound to a[)ply it in civil eases. 
 
 The right of the creditor to levy by execution on his i:"'";"''*"*. 
 
 ' By section Vi2 of that Act tin; Piirliainent of Canada has .I'.I 
 powers necessary or i)ropL'r for performing tlie ol)ligations of Canada, 
 or any province tlieiiof. as part of the British Knipire, towards foreign 
 countries, arising under treaties l)t't\veen tlie empire and such foreign 
 countries. Accordingly, if trt-aties hinditig tliis colony were math' 
 l)etween the lujperial auth >riries and foreign cDUiitries to regulate con- 
 tiicts of laws, the Canadian I'arliainent could undoubtedly legislate so 
 as to secure the carrying out of siuh tr.-aty ol)ligations, l)ut apart from 
 such a case it does not seem to be vested witii any legislative powers in 
 regard to conflicts of laws. 
 
 - As, for example, in iy'i Vict. ca|i. S-i, sec. 71, enacting rules for con- 
 tlicts of laws i:i regard to hills of exchange. 
 
 V' 
 

 224 
 
 TJIE CONFLICT OF LAWS. 
 
 r ! It 
 
 debtor's property is, according to all tlie leading auth- 
 orities, entirely a matter of procedure depending on the 
 lex fori.^ In a recent case,- however, a distinction was 
 made between the modes of execution of Judgments and 
 the right, to execute, the former being admitted to be 
 governed by the law of the place where the procedure 
 is taken, while the latter was regarded as something 
 entirely different and forming a substantial element of 
 the contract. The facts were as follows : A railway 
 company, incorporated under the laws of Vermont, 
 having become insolvent, was placed in the hands of 
 receivers by judgment of the Circuit Court of Vermont, 
 which vested them with all the assets of the railway and 
 authorized them to operate it. The receivers took 
 possession of the assets under this judgment, and by the 
 laws of Vermont the creditors of the company could 
 not after that date execute any judgment against the 
 railway. Some of the cars and locomotives of the com- 
 pany, of which the receivers had previously taken 
 possession, and which were on the tracks of the Grand 
 Trunk Railway in Montreal, in the course of the oper- 
 ation of the railway by the receivers, were seized by a 
 creditor in execution of a judgment obtained in this 
 province. The judgment creditor was a mere prete-nom 
 
 ' Dumoulin (Tom. 3, Com. ad Cod. Lib., tit. 1, 1. 1, p. 554) : " Unde, 
 an instrumentum habeat executionem, et quomodo debeat exequi, 
 attenditiir locus ubi agitur vel fit executio. Ratio, quia fides instru- 
 menti concernit meritum ; sed virtus executoria et morbus exequendi 
 concernit processum." 
 
 Boullenois, vol. 1, pp. aZi sqq. 
 
 Story, Conflict of Laws, § § 571, 572. 
 
 Foote, Private Internat. Jurisp., p. 517. 
 
 Dicey, Conflict of Laws, pp. 712-14. 
 Barker v. Central Vermont Ry., R.J.Q. 13 S.C. 2. 
 
 r ii 
 
rROCEDURE. 
 
 
 for an American creditor, and the promissory note npon 
 which the judgment was ohtained was signed and made 
 payable in Vermont, where the maker (the railway com- 
 pany) and the payee were both domiciled. The receivers 
 opposed the execution of the judgment here on the 
 ground that the seizing plaintiff in the cause was hound 
 by the law of Vermont, which prevented him from 
 executing the judgment against property of which the 
 receivers had taken possession under the judgment ot 
 the Circuit Court of Vermont, and which vested them 
 with the assets of the company against the creditor.-. 
 Archibald, J., held that as the contract was made in 
 Vermont between persons domiciled in that state, the 
 consequences attached to the contract by the laws of 
 Vermont must be applied by our courts, and inasmuch 
 as one of the conditions and consequences of the con- 
 tract with the railway company, made applicable to it 
 by the laws of Vermont, was that the right of execution 
 and sale of the property of the railwa}^ should cease on 
 the appointment of receivers, this judgment creditor 
 could not be allowed to proceed to execute his judgment 
 against such property merely because it had passed from 
 the territorial jurisdiction of the court of Vermont into 
 that of the courts of this provitice. 
 
 It seems impossible, however, to admit the i)roi>o- 
 sition that the right of execution is "one of the con- 
 ditions and consequences of the contract," as the learned 
 judge puts it. An obligation ex delicto or ex leije is just 
 as much executory as one ex contractu, and it cannot be 
 asserted that the results of a breach of the ol)ligation are 
 within the contemplation of the parties to any greater 
 extent in one case than in the other. In any case it 
 15 
 

 ' 'I' 
 
 226 
 
 THE CONFLICT OF LAWS. 
 
 i'l. ti 
 
 must be contemplated by tbe parties tbat in the event of 
 a breach a judgment may be rendered by a court of 
 competent jurisdiction elsewliere than at the place of 
 the contract. And when such court has rendered a 
 judgment ordering the defendant to [)ay a sum of money, 
 it does not seem possible to restrict the power of that 
 court to enforce obedience to its orders by any consider- 
 ations as to what the defendant intended Avhen he con- 
 tracted the obligation. The intention of the parties to 
 tln' contract may possibly influence the court in allowing 
 or refusing a recourse which may be presumed to have 
 been contemplated or excluded by the nature of the 
 contract. Thut:-. we have already seen that in one case 
 an English contract of sale was held to carry with it the 
 remedy of stoppage in transitii^^ and that in another case, 
 a sale made in Rhode Island was considered as exclud- 
 ing any such remedy as that of attachment in revendi- 
 cation or the right to obtain a dissolution of the sale for 
 non-payment.- But these considerations were urged 
 before the rendering of a judgment for the very purpose 
 of obtaining a judgment which would define the extent 
 of the remedy allowed to the plaintitf. In the case of 
 Barker v. Central Vermont By., on the i-ontrary, judg- 
 ment had been obtained in our Superior Court, and this 
 judgment, which was not attacked, ordered the payment 
 of a sum of money as in any ordinary case. It neces- 
 sarily follows that the compulsory execution of this 
 order by the officers of our court could not be affected 
 
 1 A'of/crs V. Mississij'P' <£•' Dominion S.S. Co., liQ.L.R. 90. Supra, 
 
 p. mi 
 
 "- lihodr Island Locoviotiir Worku v. South Eastern Ry., 31 L.G.J. 
 86. Supra, p. 15L 
 
 
I'ROCEDURE. 
 
 227 
 
 l)y any presumed intention of the parties when they 
 entered into the ori<]!;inal contractJ 
 
 The provisions of our Code of Procedure by wliieli nf^ipia' 
 phiintifF may in certain cases have the person of liis 
 deI)tor placed in judicial custody, also give rise to diffi- 
 cult problems. 
 
 By article 895 of that code a writ of summons and 
 arrest {capias ad respnndendam) may be obtained against 
 a defendant who is about to leave the Provinces of 
 Quebec and Ontario with intent to defraud his creditors, 
 or who secretes his property with a like intent ; but the 
 debt must have been created or made payable within the 
 limits of Quebec and Ontario. - 
 
 But can a debtor Ijc arrested here for acts committed 
 abroad which by our law would bo considered as a 
 secretion of his property with intent to defraud his cred- 
 itors? This question was raised in GiiuU vs. liohertson^^ 
 decided by the Court of Review in 1877. Tlie defendant 
 lived in the Province of Ontario and was arrested while 
 temporarily in Montreal by a writ of capias ad respoinlen- 
 dum, based on an affidavit alleging secretion of property 
 with intent to defraud. The facts relied upon by the 
 plaintiff to establish secretion were proved to have taken 
 place in the Province of Ontario, and for this reason the 
 capias was quashed by the Superior Court. This judg- 
 ment was reversed by the Court of Review by a majority 
 
 1 It seems, however, that this jiulLijinunt recoiJiiiizin.u; the rijilit of 
 the receivers to prevent the seizure iiiul sale of the railway's projjerty 
 in this province, niij<ht possibly be sustained on other grounds, which 
 will more properly be examined in dealing with the sub.ject of Bank- 
 ruptcy and Insolvency. See j). 2'M, Infrri. 
 
 ^ Article H()() of the former Code of Procedure enacted that a c((})utH 
 could not issue "for any debt created out of the Province of Canada." 
 
 ■■' 21 L. C. J. 281. 
 

 228 
 
 THE CONFLICT OF LAWS. 
 
 judgment, so that the jiulgcH were equally divided as to 
 the posHihilit}' of maii)tainiiig the arrest. The judge of 
 first instance and the dissenting judge in Review were 
 botli of opinion that capias could not issue except for 
 acts of secretion committed witliin the Province of 
 Quebec. Upon this point Dorion, J., remarked : " This 
 court has no more power over the property and efiects 
 situated in Ontario than it they were in China or any 
 other foreign country. They would be subject to the 
 laws of such countries and could be disposed of according 
 to such laws. What is called here secretion may be a 
 perfectly honest transaction abroad, and if the plaintiffs' 
 pretensions were maintained, a man might be punished 
 here for that which would be no offence in his own 
 country." This reasoning might have considerable 
 weight if it had been proved in the case that the acts 
 charged against the defendant were lawful in Ontario, 
 but no such evidence was made, and the learned judge 
 should, according to the principle ap^dicable in such 
 cases, either have presumed the Ontario law to be the 
 same as our own, or at least referred the matter for 
 opinion to an Ontario court. Assuming that such an 
 opinion had been obtained, there would seem to be 
 reasons for making a distinction which has already been 
 adverted to on the subject of delicts. If the acts com- 
 plained of were considered lawful and innocent in the 
 country in which they occurred, our courts might pro- 
 perly refuse to maintain an arrest against a person for 
 such acts. But if the foreign law does not regard such 
 acts as innocent, but simply denies the remedy which 
 our law would give, then our courts would be justified 
 in applying our law to enforce the remedy. Unfortun- 
 
PROCEDURE. 
 
 229 
 
 iitely the opinions of the judges who formed the majority 
 111 the Court of Review (Tornmce & Papinoau, JJ.) do 
 not seem to deal with the real difficulty. Torrance J,, 
 held that the defendant could he detained if he came 
 within the jurisdiction, and cited the following passage 
 from Story : "The l>etter opinion now estahlished, both 
 in England and America, is that it is of no consequence 
 whether the contract authorizep an arrest or imprison- 
 ment of the party in the country where it is made, if 
 there is no exemption of the [)arty from personal liability 
 on the contract.' " This citation does not appear to have 
 the slightest bearing on the question at issue, for it was 
 not pretended by the defendant that the liability to ar- 
 rest did not exist because the contract was made in a 
 country where such contract did not authorize an arrest. 
 In fact the debt in this case was created in Montreal, so 
 that this question could not arise. The contention was 
 that the facts charged as constituting secretion occurred 
 abroad. Papineau, J,, appeared to think that the arrest 
 was justified under article 6 of the Civil Code which en- 
 acts that " the laws of Lower Canada relative to persons 
 apply to all persons being therein, even to those not 
 domiciled there." But it might as well be argued that 
 this article created a liability m delicto for acts com- 
 mitted in a country where such acts were perfectly law- 
 ful and innocent, provided the defendant could be served 
 within the jurisdiction. 
 
 1 ConHict of Laws, § .571. 
 
M ' 
 
 El ' 
 
 m < 
 
 I'rocopcliiiKs 
 should br 
 lit domiciles 
 of debtor. 
 
 CHAPTER XVIII. 
 
 BANKRUPTCY AND INSOLVENCY. 
 
 Contticts of law and especially of Jurisdiction have 
 arisen in connection with the li([uidation of companies 
 having tlieir legal domicile in one country and carrying 
 on business elsewhere. The rational principle appears 
 to be that proceedings in bankruptcy or insolvency 
 should be carried on at one place only, /. e. at the domi- 
 cile of the debtor ; ' and this doctrine was approved by 
 the Supreme Court of Canada in Merchants Bank of 
 Halifax v. Gillespie'' where it was held that the 
 Canadian Winding-up Act (35 Vict., c. 23) was not 
 applicable to a company incorporated in England under 
 the Imperial Joint Stock Companies Acts (1802-7), and 
 Strong, J., remarked that it is a universally recogiuzed 
 principle that a company or partnership is only to be 
 wound up in the forum of its domicile. Upon the same 
 principle it was held in McDonnell & Tyre & Kenney,'' 
 that no judge in the Province of Quebec has a right to 
 interfere with insolvency matters originated in the 
 Province of Ontario, Avhere the insolvent has his domi- 
 cile, even though the assignee reside in the Province of 
 Quebec and the affairs of the estate be conducted in 
 Montreal. 
 
 ' Savigtiy, Conttict of Laws, pp. 257 aqq. 
 »15 L.C.J. 145, 
 
 MOS.C.R. 312. 
 
BANKRUPTCV AND INSOLVENCV. 
 
 231 
 
 This, however, vvoiihl not prevent auxiliary proceed- 
 ings in another jurisdiction. For instance, in Allen v. 
 Hanson,^ it was held that the Winding-tip Act (Rev. 
 Stat. Can. ch. 120) which hy its terms a[)plies to incor- 
 porated companies doing business in Canada, whereso- 
 ever incorporated, is intra oires of the Parliament of 
 Canada ; and that in the matter of a Scotcli comi)any 
 incorporated under the Imperial Acts (1862-6), having 
 its head office in Glasgow, and having debts and doing 
 business in Canada, a winding-up order made by a 
 Canadijm court on the petition of a Canadian creditor 
 with the consent of the Scotch liquidator, as auxiliary 
 to the winding-up proceedings in Scotland, is a valid 
 order. 
 
 But while the abstract princii)le as to the competency 
 of the tribunals of the domicile is recognized by our 
 courts, the practical effects of this recognition are, in 
 some respects, not very extensive. 
 
 The right of a foreign receiver or li([uidator to ai)pear 
 and plead before our courts cannot be doubted, as it has 
 been recognized in a number of leading cases.- It may 
 also be regarded as certain that the powers of such 
 receive, or liquidator are not merely co-extensive with 
 the jurisdiction of the courts making their appointment, 
 but reach moveable property situated beyond the con- 
 lines of the state.' 
 
 But the chief difficulty arises when a foreign receiver, 
 
 1 IHS.C.R. 007. 
 
 '^ Or/ja'l V. StrrU; Ki L.C.J. 141. Giles v. Janjiu-s, M.L.R. 7 Q. B. 
 450, (files V. Ph'iar,ul\ M.L.R. 1 S.C :i22. Al/en v. Hnnson, 10 Q. L. R. 
 79, per Dorioii, C..J ., at p. 87. 
 
 ■^ Young V. Consumers Coriluge Co., R.J.Q. 9 S.C. 471. Sujjra 
 pp. 131-2. 
 
 Auxiliary 
 proccciliiigt 
 
 St itUH of 
 
 t'orfiK'i 
 
 ri'ii'ivcrs 
 
 li'|iiiil!tt(ira 
 ill our 
 loiirts. 
 
 : 
 
232 
 
 THE CONFLICT OF LAWS. 
 
 u 
 
 %■ I 
 
 Ciinflict i.f 
 iiili'rc'Ht lir 
 I WITH 
 fr)r(MKn rr- 
 rc'iviT iiikI 
 l(i(;ul 
 (•ruilitorH. 
 
 in the oiideavour to take possession of the insolvent's 
 property in this province, comes in conflict witli the 
 chiims of local creditors. 
 
 Thus, in Osgood v. Steele,^ the (Jourt of Appeals, 
 conflrming the judgment of the Superior Court, lield 
 that a receiver, appointed under the Statutes of New 
 York to an insolvent insurance company (wliose powers 
 and functions are the same as those <»f a foreign assignee 
 in bankruptcy), cannot intervene in a case pending in 
 our courts, wherein moneys belonging to the company 
 have been attached, and claim to be [»aid the moneys so 
 attached (less plaintiff's costs) tor distribution in New 
 York, the legal domicile of the company. Tlie court 
 distinctly recognized the right of the foreign receiver 
 (under article 14 of the Code of Civil Procedure) to 
 appear in judicial proceedings before our courts, but 
 held that, under article 6 of the Civil Code, our law 
 must be ap[>lied whenever the question involved relates 
 to contestations as to possession, the jurisdiction of the 
 courts and procedure, and the mode of execution and 
 attachment ; that the attachment in this case was clearlv 
 within the exception of the code to the generality of the 
 rule that moveable property is governed by the law of 
 the domicile of the owner, and that, in consequence, the 
 foreign receiver could not withdraw the seized property 
 from the jurisdiction of our courts. 
 
 A similar judgment was rendered by the Court of 
 Review in Canadian Inland Steam Navigation Co. v. 
 Columbian Ins. Co.' 
 
 Again, in Allen v. Hanson,^ Dorion, C.J., made the 
 following clear statement of this doctrine : — " All the 
 
 1 16 L.C.J. 14L -n ILL. 190. 
 
 10 Q. L. R. 87. 
 
 
HANKKUI'TCV AND INSOI.VKNCV. 
 
 233 
 
 French authors, witliout exet'ittion, are of opinion, in 
 accordance with the juriHprndonce, that ilrococdingH in 
 inflolvency in a foreign country do not control cither tlie 
 nioveahle or imnioveabU' property of the insolvent to \w 
 found in P^-ance, as against Frencli creditors, who are 
 entitle<l to all the remedies secured by the French law 
 against their debtors. The courts here, as m France, 
 will recognize the proceedings of a i'oreign tribunal in 
 matters of insolvency to the extent of recognizing the 
 capacity of assignees or trustees to represent the estate 
 of bankrupts in this province, when no adverse interest 
 has been accpiired in this country over such estate, other- 
 wise they will only be allowed to claim property in the 
 Province of Quebec, subject to all the equities and 
 adverse rights of creditors and others, to be determined 
 and settled according to our laws and not accordii-g to 
 the laws of the country of the domicile of such insol- 
 vent. Article 1981 Civil Code. It is contended here, 
 that liquidators appointed in Scotland can alone dispose 
 of the property in this country of the insolvent com- 
 pany, and that they have the right to remove the pro- 
 ceeds to Scotland in order to distribute such proceeds 
 according to the laws of the domicile of the comi)any. 
 If this could be done, the judgment which sanctioned 
 their appointment Avould have conferred upon them 
 greater powers than tlie insolvent company would have 
 had. The company could never have removed or 
 attempted to remove its property from this country, U) 
 the prejudice of the creditors here, without giving them 
 the right to attach such property and prevent its being 
 taken abroad (Art. 834 C. C. P.), and the contention 
 that the assignees or liquidators, who are merely the 
 
 11 
 
 111 
 
234 
 
 TIIK CONFLICT OV I,AWS. 
 
 lepil julmiiiiHtrutors of th(i ostato, could dorivo from a 
 foreign jiidgnu'iit moro authority over the property of 
 the insolvent company than the company luid, cantiot be 
 i'utertained here." 
 
 In a still more recent case*,' the Court of Appeals haa 
 held, cotdirming the JuilgUKMit of the Superior Court,- 
 that tile Tupiidator appointed in the course of the volun- 
 tary \vindi!ig-up of aconipany formed in Kngland under 
 the Joint Stock Companies' Acts, 1862-8:}, has no right 
 to the possession »>f moneys of the company in this prov- 
 ince, previously attached by process under a judgment 
 rendered against it, and an intervention by him to (puish 
 the at(a(;hnient was held to have been properly dismissed 
 on demurrer.' 
 
 A new and interesting instance of this contlict be- 
 tween toreign receivers and execution creditors is fur- 
 nished by the case of Barker v. Central Vermoni Itail- 
 loaif,' which has already been adverted to in another 
 connection.' The receivers of an insolvent railway 
 com})any incorporated under the laws of Vermont had 
 taken possession of all the assets of the company and 
 were operating it under the authority of a judgment ot 
 the Circuit Court of that State. By the laws of Vermont 
 the creditors of the railway could not after that date 
 execute any judgments against it. An American cred- 
 itor transferred a promissory note of the company to n 
 person domiciled in Montreal who was a mere , •p'tf aom 
 
 1 Powis V. Qiicfirc linnk, R. J. Q. 2 Q. B. .">«?. 
 
 " H. J. Q. ;} S. C\ 122. 
 
 •' Sei.', in the same sense, Pava\ul vs. Touriuny & Niiu/arn Dis'rict 
 Mitfntt/ Fire Ins. Co., 10 Q. L. R. 54. Compare, also, Bruce vs. A 'Irr- 
 Hon, 2 R. do L. 75. 
 
 •« R. J. Q. 13 S. C. 2. '" Supra, pp. 224 squ. 
 
 
HANKUm'TCV AN'h FNSOFA'EN'CV. 
 
 235 
 
 iiiul wli(» ohtaiiiod a jtuli^iiu'tit ii<^aiiirtt the coiiipiiMy in 
 tlu' Sni)eri()r Court at Moiitri'ul. The judt^inciit cmlitdr 
 then pr.)Coo(lo(l to uxceuto tho jiid^nu'iit and seized carK 
 and h»eoin()tivos ot" the company wiTudi wore in Montreal 
 on the traekrt of the? Grand Truniv Railway in the course 
 of the operation ot" the company hy tiiu recoivorn. An 
 op[)omiti()n to the H(^izure was nnide hy the latter on the 
 ground that the real plaintiff in the <'au.se (the American 
 creditor) was l»()un<l hy tho laws of Vermont and could 
 not attach the assets with whitdi the receivers w«'r(! duly 
 vested, merely hy rtsason of their heing temporarily in 
 this province. The reasons of thejiulgment maintainiiii; 
 this oi)p()sition havt; already heen criticized,' hut it might 
 he possihle to sustain it on other groun<ls. The receivers 
 were duly vested with the control and possession of 
 these moveable assets when they were still within the 
 jurisdiction of the Vermont Court, and it may he doubted 
 whether the receivers, hy bringing them into this prov- 
 ince temporarily ami kcseping them in their jxissession 
 and control all the time, coidd be divested of their rights 
 previously accpiired under a foreign law. In a case 
 decided by tho Superior Court and confirmed by the 
 Court of Appeals in 1886,- it was said that article G of 
 tho Civil Code (!Ould not create on m()veai)les brought 
 into Lower Canada a privilege or recourse to which they 
 were not subject before coming there, and it would not 
 seem unreasonable to argue, e conoerso, that a lion or 
 right of possession duly acquired under a foreign law 
 would not be lost by bringing tho moveables into this 
 province for a temporary purpose. 
 
 ' Siij)r(i, p. 22ii. 
 
 '^ lihuilc Island Locoinotiic Works v. South-Eustern Hy., 31 L. C. J. 
 
 I 
 
236 
 
 THE CONFLICT OF LAV'S. 
 
 Immovi- 
 al)l('s in 
 V.q. not 
 transtVrrod 
 by foivijin 
 l);iMkrii]ik y 
 
 But possi- 
 bly traiis- 
 t'crrcil by 
 Knglisli 
 baukruptty 
 
 As Dorion, C. J., said in the case above cited, our 
 courts will recognize the capacity of foreign assignees 
 to represent the estate of bankrupts here irhett ro adverse 
 interest has been acquired in this country over such estate. 
 Accordingly, a judgment maintaining the possession 
 and control which the receivers already had of the 
 moveables they brought with them into this country, 
 docs not seem to violate any of the principles upon 
 which our judges have hitherto protected adverse in- 
 terests previously acquired by local creditors. 
 
 The Supreme Court of Canada decided in an appeal 
 from the Province of Ontario that a bankrupt assignment 
 made under the provisions of an Act of Congret-s of the 
 United states, will not transfer to the trustee in bank- 
 ruptcy immoveable property in Canada.' There can be 
 no doubt that the same decision would be given by the 
 Supreme Court in a Quebec case, for the judges referred 
 to the almost universal consent of authorities, that of 
 courts and judges, as well as of text writers, as being 
 against the contention that bankruptcy proceedings have 
 any extra-territorial operation as regards immoveables.- 
 
 A question may arise, however, as to whether an 
 English bankruptcy nnder the Impei'. ,1 statute of 1883 
 (46 & 47 Yict., cap. 52) would not (tperate as an assign- 
 ment of the bankrupt's immoveable proi)erty here. 
 This act provides that the bankrupt's property vests, on 
 his being adjudged bankrupt, in the trustee for the 
 benetit of his creditors : and " property " is defined as 
 including " money, goods, things in action, land, and 
 every description of property, whether real or personal, 
 
 ' Mnvtlondld V. Grorffian liny Lumber (h>., 2 S. C 11. IMM. 
 -See also tlio remarks of Dorioii, C, J., in Allen v. Hanson, 16 
 Q. L. H. 88. 
 
BANKRUPTCV AND IXSOLVKNCV. 
 
 237 
 
 
 and whetlier situate iu England or elsewhere.'' It has 
 been contended tliat the ettect of this statute is to make 
 a bankruptcy thereunder operate as an assignment of 
 any land situated within the British dominions, e. g. 
 Scotland, Victoria or Canada, subject, of course, to the 
 requirements of the local luw as to registration or To 
 other conditions necessary to effect a transfer of real 
 estate situate in the locality. The possibility of com- 
 pleting the trustee's title so far as may be required by 
 the local law appears to result from the terms of si 117- 
 119, which provide that aid is to be given to each other 
 by British Bankruptcy courts.' On the other hand, Mr. 
 Foote is of opinion that a colonial court would probably 
 not consider itself bound by the English statute as the 
 more natural interpretation of the Bankruptcy Act 
 appears to be that it was intended for [Scotch, Irish and 
 English courts, and also for such other British courts as 
 are not under legislatures of their own.- 
 
 In considering the effect of a discharge from any debt 
 or liability under bankruptcy proceedings out of the 
 province, a distinction must be made between a dis- 
 charge obtained under a bankruptcy act of the Imperial 
 Parliament, and one obtained under a foreign law\ For 
 it has been held by the Judicial Committee of the Privy 
 Council that an insolvent wlio has *)btained a certificate 
 of discharge in England may oppose it as a bar to an 
 action taken against him for a debt contracted in Cal- 
 cutta ; ' and in another case, that an adjudication in 
 bankruptcy, followed by a certificate of discliarge in 
 
 1 Willinms, Bankruptcy, 6th Ed., p. 190, Diceu, Conflict of Ijiws, 
 pp. ;«5-(). linlduHH, Bankruptcy, 4th Va\., p. 114. 
 '^ Private Internat. Jurinprudence, p. 212. 
 » Eduards v. Ronald, 1 Knapp, 259. 
 
 Kff.'ct of 
 
 foiciKii 
 
 ilisiliarKP. 
 
 
Zoo 
 
 THE (CONFLICT OF LAWS. 
 
 England under the Imperial Act, has tlie eftbct ( put- 
 tinji: an end to any elaiins in tlie Island of Barbadoes.' 
 
 The eliei^t here of a diseharge obtained under any 
 otlier foreign insolvency law does not seem to have ever 
 been considered by our courts. In England, the view 
 appears to be that a discharge under the bankruptcy 
 law of a foreign country will be recognized as having 
 extra-territorial effect, provided the debt or liability has 
 been contracted (or, possibly, is payable) in such 
 country.- ]iut, as Bar justly observes,' the operation of 
 such a discharge should not be extended so as to prevent 
 the realization on the debtor's property which may l)e 
 going on simnlt<uieously in some country othei' than that 
 where the bankruptcy proceedings are pending. " It 
 cannot," he adds, "■ be held that the law of the court of 
 the bankruptcy is desirous of extending the discharge 
 which it gives so as to exclude the prosecution of claims 
 over estates, or over individual assets of property, whicli 
 it would itself have applied in paying creditors, had it 
 not been prevented by tlie territorial limits of its juris- 
 diction. No one can say in tliis case that the prose- 
 cution of the claim in another court is contrary to bona 
 fides. It is rather a step in supplement of the operations 
 ot the court of the principal bankrujitcy, and has not 
 those miscliievous consequences which the prosecution of 
 claims upon estate subsequently acquired by the bank- 
 rupt involves." 
 
 ' am V. Ihtmin, '^ Moore, N.S., 211. Put a discharge obtained by 
 an En^ilisn Joint Stock Conipanj' under the ArranKcnient Act of l.STO 
 would not have the sanu eH'ect, for the .Judicial Comniittec has lield 
 that this statute does not extend to tlie colonies. Xrir Zealand Loan 
 it- Mercantile Agencij Co. v. Morrition, [18i)H] A. C. ;W9. 
 
 - Dicey, Conflict of I^aws, p. 44y. •' Private Internat. Law, p. 10;i9. 
 
CHAPTER XIX. 
 
 11 
 
 FOREIGN JirOGMKNTS. 
 
 The tirst requisite for tlie recognition by our courts of 
 the decree of a foreign tribunal is that it sliould linvo been 
 pronounced by a court having jurisdiction in tlie matter. 
 It is not sufficient that the foreign court sliould have 
 j.irisdiction according to the local law ; it must be com- 
 petent according to the rules of Private International 
 Law.1 A foreign court has an international competency 
 which entitles its decrees or judgments to recognition 
 in the following cases : 
 
 1. When the defendant is domiciled within the juris- 
 diction of the court. 
 
 2. When the cause of action arose within the jurisdic- 
 tion of the court, and the defendant is personally served 
 with the action within such jurisdiction. 
 
 3. When the defendant is possessed of property, not 
 merely illusory, within iho jurisdiction of the court.- 
 
 If the exemplification or copy of judgment sued upon 
 does not on its face show the international competency 
 of the foreign court, and if there is no evidence to bring 
 the case under any of the above conditions, an action 
 bascMl merely on the foreign judgment will be dismissed;' 
 
 ' Sfacei/ V. neaudiii, !) L, N. 'Mi. J Ihid. 
 
 ^ Ihid. See also Kerr v. Lanthicr, I'J 1{. L. 170; Mm/ v. JUfchie 1(1 
 L. C. J. 81 ; a R. L. 440. 
 
 Iiitcriia- 
 lioiiiil coin- 
 IM'tcncy of 
 
 1 oiirt. 
 
 

 240 
 
 THE CONFLICT OF LAWS. 
 
 Proof ..f By article 1220, § 1, of the Civil Code, exempliticii- 
 
 juagnunt. tions of luiy judgment or other judicial proceeding of 
 any court out of Lower Canada, under the seal of such 
 court, or under the signature of the officer having the 
 legal custody of the record of such judgment or other judi- 
 cial proceeding, make prima facie proof of the contents 
 thereof,' without any evidence heing necessary of the 
 seal or signature affixed to the original copy, or of the 
 authority of the officer granting the same. 
 
 By article 209 of the Code of Civil Procedure the 
 denial of any document specified in art. 1220 C. C. must 
 be accompanied with the giving of security for the costs 
 of the commission required to obtain the proof of such 
 document.^ 
 
 Where, however, the defendant does not deny the 
 truth of the contents of the document, but merely denies 
 that he is the verson agaiiist whom the foreign judgment 
 was rendered, the above articles do not apply, and the 
 burden of proof is on the plaintift' to establish the iden- 
 tity of the defendant with the person against whom the 
 foreign judgment was obtained.' 
 
 If the copy or exemplification of the foreign judgment 
 does not reveal the cause of the indebtedness, the plain- 
 tifit' may be ordered to file an account, and proceedings 
 will be stayed until he does so.' Even in a detiault case 
 the court will require the plaintiflf to prove the cause of 
 
 J In navies v. Bauron (R. J. Q. II S. C. 123; R. J. Q. 6Q. B. i>47 ; 
 2 R. de J. 465; 3 R. de J. H'JO), it was held that a foreign judgment 
 makes primd facie proof of tlie law of the foreign country. 
 
 - A denial unaccompanied by such scoirity would be without any 
 legal effect. Dunhav v. Almour, M. L. R. 3 S. C. 142. 
 
 - Benflcy v. Stock, M. L. R. 4 S. C. 383 ; Marquette v. Smith, R. J .Q. 5 
 S. C. 376. 
 
 * Holme V. Cassils, 21 -L. C. J. 28. 
 
 Formal 
 requisites. 
 
 
FoiiEKJx jui)(;m?:nts. 
 
 241 
 
 action.' Wien the plaintiff has been ordered to tile a 
 detailed account or bill ofparticnlars sliowing the nature 
 oftlie claim upon which the foreign judgment is based, 
 and fails to do so, the defendant may move to have a 
 further delay to file such, particulars, and ask to have 
 the action dismissed if thoy are not produced witliin this 
 additional delay. ■^ 
 
 After the competency of the foreign tribunal is estab- 
 lished and the formal requisites of the exemplification or 
 copy of Judgment are complied with according to the 
 above principles, there still remains the question as to how 
 
 far the judgment is conclusiveor examinable on the merits. 
 Our law distinguishes between judgments rendered in any 
 of the other provinces of Canada, and judgments rendered 
 out of Canada. The Code of Civil Procedure, 1897, con- 
 tains the following provisions on the subject : 
 
 210. Any defence which was or might have been set 
 up to the original action, may be pleaded to an action 
 brought ui)on a judgment rendered out of Canada. ' 
 
 211. Any defence which might have been set up to 
 the original action, may be pleaded to an action brought 
 upon a judgment rendered in any other province of 
 Canada, provided that the defendant was not personally 
 served with the action within such other Province or did 
 not appear in such action.' 
 
 1 Chapman v. Gordon, S L. C. J. 19(5. 
 
 2 Hoppock V. Demers, V.i L. C. .1. 224. 
 
 ''It follows from the rules above laid down as to the necessity of the 
 international competency of the foreign tribunal, that the want of 
 
 'JI'^"'?K ""' '*''■"'«" ^""'•^ ^'"^ '^'^^'^V^ ''« ««t "P. although it 
 might not be a good plea to the action before that court, if it were com- 
 petent under its local law. 
 
 if ul^Jl^^^ "r !'? ''""^ <C.S.L.C. Cap. 00, s. 2) no defence wa.s allowed 
 It the service had been personal (whether in Upper Canada or in Lower 
 
 availal)h>. 
 
 J I 
 
 m 
 
 M 
 

 242 
 
 THE CONFLICT OF LAWS. 
 
 m 
 
 212. Any such defence cannot be pleaded it the 
 defendant was personally served in such Province, or 
 appeared in the original action, except in any case 
 involving the decision of a right aiiecting immoveables 
 in this Province, or the jurisdiction of a foreign court 
 concerning such right.' 
 
 213. In any action against a corporation, an} service 
 made within another Province in conformitv with the 
 law thereof is considered as a personal service within 
 the meaning of the two preceding articles. 
 
 A recent decision of the Supreme Court of Canada,- 
 deals with the interpretation to be given to a somewhat 
 similar statutory enactment in Nova Scotia. By chap- 
 ter 104, order 35, rule 38 of R. S. N. S., it is enacted as 
 follows : — 
 
 Canada) or if a defence liad been made in the original suit. This 
 exphiins the decision of tlie Court of Review in 1878 in Alcock v. Home 
 (22 L.C.J. 145; 1 L.N. 78) where action was brought here on a judg- 
 ment obtained in Ontario against a defendant on whom personal ser- 
 vice in the original suit had been made at his domicile in the Province 
 of Quebec. The court held that the defendant was bound by the judg- 
 ment. The above provisions of the Consolidated Statutes of Lower 
 Canada were amended by Q. 40 V. c. 14, from which article 211 of the 
 present Code of Procedure was taken. Under the new law the defend- 
 ant who is sued in this province on a judgment rendered by a pro- 
 vincial court in any other province of the Dominion, nmst have been 
 pcrsorxRWy served irif /tin S2(ch other j)rorince, in order to be estopped 
 from setting up a defence which might have been set up in the original 
 suit, nntetiv. Lauzon (2 L.N. 117); Cole v. Duncan (R.J.Q. 12 S.C. 
 1.52). It was also held under the same statute that its dispositions 
 could not be pleaded by an answer in law, but that the ()uestion must 
 be determined at the trial on the merits {(Ireeit v. Brooks, M.L.R. 4 
 S.C. 475). In Northeru Ry Co. v. Potion (17 L.C.R. 71) it was held 
 that the pendency of an appeal to the Privy Council from a judgment 
 rendered in Upper Canada, when security had been given for the costs 
 only, is no defence to a suit brought upon .such judgment in Lower 
 Canada. 
 
 ' The exception contained in this article is new law. 
 
 2 Lau- V. Hansen, 25 S.C. R. (59. 
 
FOREIGN JUDGMENTS. 
 
 243 
 
 " The record or other evidence of a judgment rendered 
 in any other province or country against any person 
 domiciled in Nova Scotia, shall not he conclusive 
 evidence in any action hrought on such judgment 
 m any court of this province of the correctness of such 
 judgment, hut the defendant may controvert all or any 
 of the facts on which such judgment is founded, or the 
 cause of action in the suit in which such judgment was 
 given, and may raise the same defence in such suit on 
 such judgment as he could have done as fully as if such 
 suit had heen brought for the original cause of action " 
 
 The appellants had taken proceedings in Kew York 
 against the respondent's ship "Rolf" for damages 
 caused by a collision, and the United States court 
 decided that the appellants' own ship was solely in 
 fault for the collision. The respondent brought action 
 in Nova Scotia, where the appellants were domiciled, for 
 damages resulting from the same collision, and when'the 
 appellants pleaded that the collision was due to the 
 fault of the "Rolf," the court held that thev were 
 estopped by the foreign judgment fnmi contesti^ng the 
 question as to whose negligence caused the collision. 
 This holding was conlirmed by the Supreme Court, and 
 King, J., made the following observations upon the 
 eftect of the statute above quoted : " This is an enact- 
 ment available only by persons domiciled in Nova Scotia. 
 It is intended as a weapon of defence, and not of offence. 
 It is not lightly to be supposed that the leirislaturei 
 while leaving the foreign subject to be proceeded against 
 in Nova Scotia upon the judgment obtained abroad by 
 the person of Nova Scotia domicile, intended that the 
 latter should be protected against the consequences of 
 
!>i4 
 
 THE CONFLICT OF LAWS. 
 
 his own unsuccessful incursions into the foreign field. 
 The closing words of the clause seem to show that noth- 
 ing of this kind was intended. The domiciled defend- 
 ant in the Nova Scotia action is to he free to open up 
 the foreign Judgment sought to be enforced against him 
 'as fully as if such suit (in Nova Scotia) had been 
 brought for the original cause of action ' The defendant 
 in the foreign suit cannot be said to have had an original 
 cause of action in the proceedings abroad. I therefore 
 think the Act cannot be invoked tor the appellant." 
 
 The same reasoning would seem to apply, mutatis 
 mutandis, to the provisions of article 210 of our Code of 
 Civil Procedure, and its provisions could probably not 
 be invoked successfully under circumstances similar to 
 those in the above case. 
 
 Thus, a plaintiit' who, after taking unsuccessful pro- 
 ceedings in a foreign court, should endeavour to maintain 
 
 another suit for the same cause in tliis province, would 
 probably not be permitted to re-open the controversy if 
 the defendant pleaded the foreign judgment as a bar to 
 the action. 
 
 In some cases the application of the rule contained in 
 article 210 will compel our courts to try and decide cases 
 which they are incompetent to entertain ratione materm. 
 For instance, our courts decline to entertain suits affect- 
 ing foreign immoveables,' and, according to the recent 
 jurisprudence of the Privy Council already referred to," 
 they have no jurisdiction .to pronounce decrees of divorce 
 between persons domiciled abroad. And yet if proceed- 
 ings are taken here to enforce a foreign judgment 
 
 1 Supra, p, 211. ^ Supra, p. 82. 
 
FOREIGN JUDGMENTS. 
 
 245 
 
 ijrantiiig damages for trespass on ft)roign lands, or to 
 declare operative in this province a decree of divorce 
 rendered by a foreign conrt of C()m[)etent jurisdiction, 
 our law allows the defendant to reopen the whole (pies- 
 tion by pleading all that was or might have been 
 pleaded in the foreign court, and our own tribuiuds will 
 thus necessarily be seized of controversies which they 
 have no original jurisdiction to hear or decide. 
 
 A judgment obtained in a foreign countrv vvill have i'..niKi. 
 the effect of interruptniu; the prescription of the debt, '"••••'■'ii'tsi 
 and the only prescription which can bi^ opposed to a for-"""- 
 eign judgment is that of thirty' years.' 
 
 An exception to the rule that our courts will enforce ••"<i«"";""' 
 a foreign judgment, upon an action broua-ht for that "'*'"'"' ""[ 
 purpose, is made in the case of judgments for penalties or 
 sentences of a court ot criminal jurisdiction in a foreign 
 state by which the exercise of the civil rights of persons 
 is suspended or abridged, Ju(!gments of this kind are 
 regarded as strictly territorial and not entitled tojudicial 
 recognition beyond the jurisdiction of the court which 
 pronounced them. 
 
 Thus, in Addams v. Wordei),- tlu' Court of Ajjpeals 
 refused to recognize the effect of a judgment of the 
 Court of the State of New York condemning the plain- 
 tiff to five 3'ears' imprisonment in the State's Prison and 
 depriving him of all his civil rights during the term ot 
 his sentence. 
 
 In Huntington v. AttriH,' the Judicial Committee of D.ttnition 
 the Privy Council, in an appeal from the Province ofactions. 
 
 1 Ahnour v. Harris, M. L. R. 2 Q. B. 4:J9 ; n L. N. a70 Danbar v. 
 Almour, ]M. L. R. 3 S. C. 142 ; 10 L. N. 301. King v. Demers, 1.5 L. C. J. 
 129. -i 6 L. C. R. 237, su/jra, p. 4(i. « [1H93] Appesil Cases, 1.50. 
 
 I 
 
246 
 
 THE CONFLICT OF LAWS. 
 
 i'l' 
 
 m 
 
 Ontario, had occasion to examine tlio question as to wliat 
 constitutes a penal action. The res[)Oiulent was sued in 
 the Province of Ontario upon a judgment of a New York 
 court rendered under section 21 of the New York State 
 hiws of 1875, c. 611, which imjtoses liahility for false 
 representations contained in any certificate or report 
 made, or puhlie notice given, by the ofiicers of an incor- 
 [lorated c()nii)any. The respondent pleaded that the 
 Judgment was for a i)enalty infiicted l)y the municipal 
 law of New York, and that the action, being of a penal 
 character, ought not to be entertained by a foreign court. 
 The Judicial Committee accepted the exposition of the 
 law laid down by the Supreme Court of the United States 
 in Wisconsin v. Pelican Insurance Co.,^ as disclosing the 
 proper test for ascertaining whether an action is penal 
 within the meaning of the rule. Lord Watson, render- 
 ing the decision of the Committee, said : " A proceeding, 
 " in order to come within the scope of the rule, must be 
 " in the nature of a suit in favour of the State whose 
 "law has been infringed. All the provisions of Muni- 
 " cipal Statutes for the regulation of trade and trading 
 " companies are presumably enacted in the interest and 
 " for the benefit of the community at large ; and persons 
 " who violate these provisions are, in a certain sense, 
 " offenders against the State law, as well as against indi- 
 " viduals who may be injured by their misconduct. But 
 " foreign tribunals do not regard these violations of statute 
 '" law as offences against the State, unless their vindica- 
 " tion rests with the State itself, or \vith the community 
 " which it represents. I*enalties may be attached to 
 " them, but that circumstance will not bring them with- 
 
 127 U. S. (20 Davis) 2G5. 
 
FOREir.N .iitd(;mknts. 
 
 247 
 
 " in the rule, oxc-cpt in cases where these penalties are 
 " reeoveral.le at the instance of tiie State or of an ofHcial 
 '' duly authorized to prosecute on its heinilf, or of a 
 '' memher of the puhlie in the character of a common 
 " informer. An action hy the latter is regarded as an 
 " actio^ po/mlaris pursued, not in his individual interest, 
 " but in the interest of the whole community." 
 
 It was also held in the same case that it was the duty 
 of the Ontario Court to decide whether the statute in 
 question was pcjial within tlu; meaning of the interna- 
 tional ride so as to oust its juris.liction, and that such 
 court was not bound by the interpretation thereof adopted 
 by the courts of New York. 
 
 The pendency of proceedings in a foreign country u«,...>aeu, 
 between the same parties and for the same causes has 
 been held not to be a good defence to an action in this 
 province.' 
 
 ' Uns^cll V. Field (Stuart's Rep. .558), where tlie Provincial Court of 
 
 ^Z^tTr '?r'';"^ ''""' ""^ "'"' —lingto French authorities, 
 apart of the public law which nii^ht l,e regulated by treaty, not .ie' 
 penden upon comity." The learned judges thought that both under that 
 law and under the English law litispendence in a foreign country wl 
 no bar to a suit. It is difficult to understand how this matter could be 
 regarded as a part of the public law, not dependent upon comity It is 
 
 fn^lIrnT'T °' ^''''''^"' International Law to be decided accord- 
 ing to rules bn.d.ng on our courts. The more recent case of Ilouard 
 Guernsey Mfg Co. v. Ki.„ (R. .7. :. ■, s. C. 1S2, is hardly n.ore .lu^iZ 
 tor,^ .nasn.uch as Mr. .Tustice Andrews seems ,o have bLd his op ni^^, 
 on the Engl.sh law, purporting to follow the case of Ru.srll v. Field in 
 
 Llit^tS r"'"'-: ''^ '■'^'"■' "' '''■''' -- d°- not indicate 
 « hat aw the court considered as applicable, but in any event it is clear 
 that the la w of England could not control the case 
 
APPENDIX A. 
 
 Tlio following is ihc text of tin- Imi)crial still iitc, 22 i*t L':! Victoiiii, 
 I'lmptiT (iH. ii'fiTi't'd to at pfi/fc! 'X\ Kiijii II. 
 
 Am Act to nll'ord fiicililics for tlic iiiori' cciiain aHciTlninmi iil of 
 
 thi' law adiiiliiisU'rcd in one |);irt of llcr .Majesty's iloiiiiiiions 
 
 wlu-n pli-adfd in tlie (Courts of aiioMicr part tliiTt'of. (i:illi 
 
 August, l.sr>!t.) 
 
 ' W'luriiin j^ii-at iiMiirovcmcnl in tln' a(iininistfation of the law 
 
 ' wonlil cnsnt' if f icililii's witc ad'oi-di-d for more cfrlainly asccrlaiiiin;^ 
 
 ■ tilt! law adnunistert'd in one part, of lli'r Ma.jt'sty's doniiiiions wlicii 
 
 ' ])l('a(lt'd in the Courts of aiiotluM' part tlicrt'of :' Hi' it therefore I'liac'- 
 
 I'd. by the Queen's Most Kxcellciit .Maji''-ly, by and with the ailvicc and 
 
 consent of tlie Lords Spiritual an<l ']'( iniioral, and Coniinons, in this 
 
 present I'arliainent assembled, and by I lie authority of I lie sanie, as 
 
 follows : 
 
 1. If in any action dependiiijj; in any Court within Her Ma.jivsty's 
 <loniinions, it shall be the opinion of such Court, that it is necessary or 
 expedient for the proper disposal of such aetioi: to ascertain the law 
 ajipliciible to the facts of the case asadininistered in anyother jiart of Her 
 Majesty's dominions on any point on which tlie law of such other pari 
 of Her Majesty's (h)ininioMS is dillereiit from that in wliich the Court 
 
 ituat(N it shall 1) 
 
 itent to tin; (' 
 
 I't 
 
 iliicli 
 
 •li 
 
 eompet 
 
 <lepeud to direct a case to l)e prepared settiim' forth the facts, as these 
 may be ascertained by verdiel of a Jury or oilier mode comp;;tpnt, or 
 may be aj^feed upon by the parlies, or seltlecl by such jici-soti or jier- 
 sous as may have been aiipointed by Ihe Court for that pui'pose in the 
 event of the parties not agrfeing, and njion such case being approved 
 of by such Court or a Judge thereof, they shall settle the (|uestions of 
 law arising out of the same on which they desire to have the oi)iiii()n 
 of another Court, and shall pronounce an order ri'iiiitting Ihe same, 
 together with the case, to the Court in such other jiart of Her Majesty's 
 ilomiiiions, being one of the Sujjerior Courts thereof, whose ojiinion is 
 desired upon the law administered by them as applicable to the facts 
 set forth in such case, and desiring them to pronounce their opinion on 
 
250 
 
 THE CONFLICT OF LAWS. 
 
 1 i 
 
 the qnestuins snhmittcd to tlieni in tl'c ti-rins of the Act ; .'iiid it sliall 
 be competent to any of the jiarties to tlie action to present a |)etition 
 to the Court whose opinion is to be obtained, i)ray>nf; such Irst- 
 mentioned Court to hear parties or their counsi-l. and to pronou..ce 
 tlu'ir opinidU thereon in terms of tliis act, or to pronounce tiieir 
 opinion without hearinj? parties or counsel ; and the Court to whicli 
 sucli petition shall be presented shall, if they think fit, appoint an 
 early day for bearinj? i)a»'ties or their counsel on such ease, and shall 
 thereafter pronounce their opinion upon the (juestions of law as ad- 
 miristercd l)y them which are submitted to them by the Court ; and in 
 ord'-r t;) Mieii- pronounciuK such opinion they shall be entitled to take 
 such further prDcedure thereupon as to them shfill seem proper. 
 
 2. Upon such opinion Deing jironounced, a copy thereof, Ci'rtified 
 by an odicer of such ('ourt, shall be f^iven to each of the parties to tlie 
 action by whom the same shall be required, and shall be deemed and 
 held to contain a correct record of such opinion. 
 
 'i. It shall be competent to any of the parties to the action, after 
 having obtained such certified copy of such opinion, to lodge the same 
 with an ollicer of the Court in which the action i>)aybe de])ending, who 
 may haveliie otticial charge thereof, together with a notice of motion, 
 setting forth that the p vrty will, on a certain day named in such notice, 
 mo'.e the Court to apply th'j opinion contained in such certified copy 
 thereof to the facts set forth in tiie case herein-before specified, and 
 the said Court shall thereupon apply such opinion to such facts, in the 
 same manner as if the same liad been pronounced by such Court itself 
 upon a case reserved for opinion of the Court, or upon sj)ecial verdict of 
 ajtiry ; or the .'ast-mentioned Court j.hall, if it think fit, when the said 
 opinion has been obtained before trial, order such opinion to be sub- 
 mitted to the jury with the other facts of the ease as evidence, or 
 conclusive evidence as the Court may think fit, of the foreign law 
 therein statert, and the said opinion shall be .so submitted to the jury. 
 
 4. In the event of an appeal to Her Majesty in Council or to the 
 House of Lords in any such action, it shall be competent to bring under 
 the review of Her Majesty in Council or of the House of Lords the 
 opinion pronounced as aforesaid by any Court whose judgments are 
 reviewable by Her Majesty in Council or by the House of Lords, and 
 Her Majesty in Council or that House may respectively adopt or reject 
 such opiii on of any Court whose judgments ure respectively reviewable 
 by tlui>'., as the .same shall appear to them t<> be well founded or not 
 in La^^. 
 
 .-). In the construction of this Act, the word "Action" shall 
 include every judicial proceedin;< instituted in any Court, Civil, 
 Criminal, or Ecclsiastical ; and the words "Superior Courts" shall 
 include, in ii'»(.y/rmf/, the Superior Courts of Lav; at Wisf minster, tkt 
 
APPENDIX. 
 
 Lord Chancellor, the Lords Justices, the Master of the Roll;; or any 
 Vice-Chancellor, the Judj;e of the Court of Admiralty, the Jiid^'e 
 Ordinary of tlie Court for Divorce and Matrimonial Causes, and the 
 JudKe of the Court of Probate ; in Scothoul, the High Court of Justici- 
 ary, and the Court of Session actiuf? by either of its divisions; in 
 Ireland, the Superior Courts of Law at Dublin, the Master of the 
 Rolls, and the Judge of the Adnuralty Court ; and in any other part 
 of Her Majesty's dominions, the Superior Courts of Law or K(iuily 
 therein. 
 
 APPENDIX B. 
 
 Imperial statute, 22 Victoria, chapter 2(i, r.'f(>rred to at page 221, 
 supra. 
 
 An Act to provide for taking evidence in suits and ])roce('d = ngs 
 pending before triliunals in Her Majesty's dominions in jUaccs 
 out of the .jurisdiction of such tribunals, (li)tli April, IS.l!).) 
 
 Whrrras it is expedient that facilities be ofl'ered for taking evidence 
 in or in relation to actions, suits, and proceedings pending before tri- 
 bunals in Her Majesty's dominions in places in such (lon\inions out of 
 the jurisdiction of such tribunals : Be it enacted, &c. 
 
 1. Where upon an application for this purpose it is made to ;ip])ear 
 to any Court or Judge having authority under this Act that any Court 
 or tribunal of competent jurisdiction in Her Majesty's dominions has 
 duly authorized, by commission, order, i.t other process, the obtaining 
 the testimony in or in relation to any act-'. . suit or proceeding pend- 
 ing in or before such Court or trilmnal cf ,;,.._ -.vitness or witnesses out 
 of the jurisdiction of such Court or tribunal, and within the jurisdic- 
 tion of such lirst-mentioned tlourt, or of the Court to which sucli Judge 
 belongs, or of such Judge, it shall be lawful for such Court or Judge to 
 order the examination before the person or persons apjtointed, and in 
 manner and form directed liy such commission, order, or other process 
 as aforesaid, of sucii witness or witnesses accordingly ; and it shall l»e 
 lawful for the said Court or Judge by the same order, or for such 
 Court or Judge, or any other J uilge having authority under this Act, 
 by any sul)sequent order, to command the attendance of any pi-rson to 
 be named in such order for the i)urpose of iteitig examined, or the pro- 
 duction of any writings or other documetits to lie mentioned in such 
 order, and to give all such directions as to the time, place and manner 
 of such examination, and all other matters connected therewith, as 
 
 I! 
 ^i il 
 
E 
 
 252 
 
 THE CONFL CT ()!• L.-VU'S. 
 
 may appear re:isniiiil)le iuid Jii.sl,iiii(l any sueli ord'T maybe ciiforctfl 
 and any diHuliedieni'p tht-rcof pniiishcd. in like nianiior as in ease of an 
 order made, by such Court or .ludrre in a cause dependins^ in Hucli 
 Court or before such Jud^^e. 
 
 L'. Every person examined as a witness under any surh commis- 
 sion, mder, or otber process as a,foresai<l, wlio siiall ni)on siu'h examin- 
 ation wilfully and corruptly ;^ive any false evidence, shall be deemed 
 and taken to be f;uilty of perjury. 
 
 .'!. I'rovided always, That every |)ers()n 'vhose attendance shall be 
 so ordeied sliall be entitled t<> the like conduct money, and paymenr for 
 expenses and loss of time, as ui)oii attendaiu-e at a trial. 
 
 4. Provided also, That every person examined under any such com- 
 mission, onb'r, or other process as afoi'esaid, sliall have the like riuclit to 
 refuse to answer questions tending to criminate himself, and other 
 (|uesfionH which a witness In any cause pendinic in the Court liy '\hich, 
 f -by a.FudiLce whereof, or before the Judj^e by whom the order for e.\- 
 ,1 idnation was made, would be entitled to : and that no person shall be 
 compelled to iiroduce under any siu'b order as aforesaid any writini; or 
 ollu'r document that he would not bi" ciimpeliable to |)roduce at a trial 
 of such a c lusi'. 
 
 ."). Her .Majesty's Superior Courts of common law al \\'esl minster 
 and in Dublin respectively, tlie Court of Session in Scotland, and any 
 S\ipr('nu' Court in any of Her Majesty's colonies or possessions abioad, 
 and any JudKe of any sucli Court, and every .Iudj;e in any such colony 
 ()!• i)ossession who, by any order of Her .Majesty in Council, may be 
 ai)pointed for this purpose, shi>,ll respect ixely be Courts and Judges 
 haviufj; authority under this Act. 
 
 ('). It shall be lawful for the fiOrd Chanclbn- of (ireat Hi'itain, with 
 the assistance of two of the .lud.!j;es of the Ctnirts of common law at 
 Westminster, so far as relates to Knp;land, aiul for the Lord (,'hancellor 
 of Ireland, with the assistance of two of the .Indices of the Courts of 
 (•onunon law at Dublin, so far as i-elates to Ireland, and for tw(j of the 
 Judfjes of the Court of S'ession, so far as relates to Scotland, and for 
 the chief or only .T\nlfie of tin- Supreme Court iti any nf Her .Majesty's 
 colonies or j)ossessions abroa<l, so far as relat': ■ to such colony or posse.s- 
 sion, to frame such i-ules and oiders as shall be necessary or i)roper for 
 jru'inff elTect to the provisions of this .Vet, and reiiulutinjr the procedure 
 under the same. 
 
APPENDIX. 
 
 253 
 
 APPENDIX 0. 
 
 Imperial statute, 4H-I!) Victoria, chapter 74, referred to at page 221, 
 supra. 
 
 All Art to iimeiul the law relat in,:^ to taiviiifj; evidence hy Commission 
 III Iiidla and the Colonies, und elsewliere in Her Majesty's 
 dominions, (lltli Amjnst, ISs."),) 
 
 Be it enacted by the tiiieen's most Rxcellent Ma.ie-<ty, liv and with 
 the advice and consent of the Jiirds spiritual and teiniioral, and 
 Commons, in this present Parliament assembled and by the authority 
 of the same, as follows : — 
 
 1. This Act may be cited as the l-^vidence by t'ommission Act, 1HS5. 
 
 2. Where in any civil proceediii;^ in any court of competent juris- 
 diction an order ''or the examination of any v, iiiiess or jierson lias 
 been made, and a commission, mandamus, order, or re(juest for the 
 examination of such witness or pi'rsoii is addi'cssed to "any court, or to 
 any judge oi a court, in India (*r the Colonies, or elsewhere in Her 
 Majesty's dominions, beyond the jurisdiction of the court ordering the 
 examinatioM it shall be lawful for such court, or the cbii'f judge 
 thereof, or such judge, to nominate some lit person to take such 
 examination, and any deposition or examination taken before an 
 examiner so nominated shall be admissible iu evidence to the same 
 extent as if it had lieen taken by or before sucli court or judge. 
 
 ;{. Where in any crimiiril proci'ciling a mandanuis or (U'der for the 
 examination of any witness or pi'r-Min is addressed to any c iiirt , or to 
 any Judge of a court, in India ov tiie ("olonies, or elsewhere in Her 
 Majesty's doniinions, beyond the jurisdiction of the court oidering the 
 examination it sliall be lawful for such court, or the chief judge there- 
 of, or sucli Judge, to nominate anyjuuge of such court, or any judge 
 of an inferior court, or magistrate within the jurisdi(;tion of such tirst- 
 nientioned court, to take the examinati'm of such witness or person, 
 and any deposition or examination so taken sliall be admissiltle in 
 evidence to the same extent as if it had been taken liy or before the court 
 or judge to whom tiie maiulamus or ojiKr was addressed. 
 
 4. The provisions of the Act passed in the twenty-second year of 
 Her Majesty, chapter twenty, intituled " An Act to jirovide for taking 
 " evidence" :ii suits and ^proceedings iiciidiiig before the tribunals in 
 " Her Majesty's doininions in [ilaces out of the jurisdiction of such 
 "tribunals" (which may be cited as the Kvidru'-e by Coimnission 
 Act, ls.")!h, as amended by this Act, shall apply to proceedings under 
 this Act. 
 
254 
 
 TllK CONFLICT OF LAWS. 
 
 i). Tho jKiwcr (o iiiuke rules coiiftTrcd by section .six of t lie Evidence 
 by Commission Act, l^oit, sliiill Itc deemed to inelude a power to make 
 rules with refj;ard to all costs of or incidental to the examination of any 
 witness or person, iiicludi.i.u; the remuneration of the examiner, if any, 
 whether the exaniiiiiitioii he ordered ])ursuaut to that Act or under 
 this or any otliiT Act for the time hcinjj; in force relatiufj; to the exami- 
 nation of witness(;s beyond the Jurisdiction of the court ordering the 
 examination. 
 
 (). When i)ursuant to any such commission, mandamus, order, or 
 reii\U'st, as in this Act referred to, any witness or person is to be 
 examined in any jilace beyond the jurisdiction of the court ordering the 
 examiiifition, such witness or jierson may be examined on oath, allir- 
 mation, or otherwise, according to the law in force in the place wliere 
 the examination is taken, and any deposition or examination so taken 
 shall be as etl'eclual for all lairjioses as if the witness or person had 
 been examined on oath before a jierson duly authorized to administer 
 an oalh in the court ordering the examiiuition. 
 
 APPENDIX D. 
 
 An Act respecting the taking of evidence relating to proceedings in 
 Courts out of Canada. See p. 222, siij)r(i. 
 
 Her Majesty, by and with the advice and consent of the Senate and 
 House of Commons of Canada, enacts as follows : 
 
 1. In this Act, unless the context otherwise requires, — 
 
 (a) The expression '"court" means and includes the Supreme 
 Court of Canada, and every Superior Court in any i>rovince of Canada ; 
 
 (b) The expression "judge" means and includes any judge of the 
 Supreme Court of Canada and any judge of any Superior Court in any 
 province of Canada ; 
 
 (c) The exjire-ssion "cause" includes a proceeding against a 
 criminal. 31 V:, c. 70, s. (5, jxirf. ; - 40 V., c. ;i5, s. 1, j)ort. 
 
 2. Whenever, upon an application for that purpose, it is made to 
 appear to any court or judge, tliat any court or tribunal of competeiit 
 Jurisdiction, in any other of Her Majesty '.s dominions, or in any fore'gn 
 
AI'I'KNDIX. 
 
 205 
 
 countrj', before wiiieli any civil, coinniercinl oi* iriniinal iiiattcr is 
 pciuliiifi. is desirous of MbtulniiiK tlie testimony in relation to s\i(h 
 matter, of any pjirty or witness witliin tlie .jnrisdietion of such tirst 
 mentioned court, or of tlie court to wliich sucli Judiic l)elon}j;s, or of such 
 judjre, such court or jud^e may, in its or his discretion, order the 
 examination u|)on oath upon interropitories, or otherwise, before any 
 jierson or persons named in such order, of such party or witness accord- 
 injily, aiul by the same or any subsetiuent oi'dcr may command the 
 attendance of such party or witness for the purpose of beine; examined, 
 and for the production of any writinjjs or other documents mentioned 
 in such order, and of ai.y other writings or documents relating to the 
 matter in question that are in the jjossession or power of such party or 
 witness. :U V'., c. 7t), s. 1 ; — K) V ., c. ',ii>, s. 1, piirf. 
 
 8. r})on the service upon such party or witness of sucli order and 
 of an ai)i)ointinent of a time and place for the examination of such 
 party or witness, sijjned l)y the person named in such order for takinjj; 
 the same, or if more than one person is named, tlwn by one of the per- 
 sons named, and upon payment or tender of the like conduct money as 
 is properly pa.yablc u))on attendance at a trial, such oi-der Uiay be 
 enforced in like manner as an ord(>r made by such court or.jiulge in a 
 cause depending in sucli court or before such judge. .'U Y., c. 7<), s, 2. 
 
 ■1. Every person whose attendance is required in manner afore- 
 said, shall be entitled to the like conduct money, and payment for 
 expenses and loss of time as upon attendance at a trial. 'M V., c. 7(), s. H. 
 
 .">. Any person examined under any order made under this .Vet 
 shall have the like right to refuse; to answer (luestions tending to 
 criminate himself, and other (juestions, which a party or witness, as 
 the case may be, in any cause pending in the court by which, or by a 
 Judge whereof, such order is made, would be entitled to, and no person 
 shall be compelled tc produce, under any such order, any writing or 
 other document that he could not lie compelled to produce at a trial of 
 such a cause. 31 V., c. 70, h. 4. 
 
 0. Any person authorized to take the examination of parties or 
 witnesses by any ordei' made in imrsnaiice of this Act, may take sucli 
 examination upon the oath of the parties or w itnesses, or upon atlirm- 
 ation, in cases in which by the law of the province wherein such 
 examination is taken, afth-mation is allow ed instead of oath ; and 
 such oath or affirmation shall be administered' by the person so 
 authorized or, if more than one, then by ot-e of such persons. 31 V., 
 c.7<), s. .1, part. 
 
 7. The court may frame rules and orders in relation to procedure, to 
 the evidence to be produced in support of the application for an order 
 for examination of parties and witnesses under this Act, and generally 
 for carrying this Act into ell'ect ; and in the absence of any order in 
 
 if 
 
 1 
 
256 
 
 THE CONFLICT OF LAWS. 
 
 relation to such evidence, letters rogatory from any court of justice in 
 any other of the dominions of Her Majesty, or from any foreign 
 tribunal, in which sucli civil, commercial or crirninal matter is pending, 
 shall he deemed and taken to he suflicient evidence in support of such 
 application. 81 V., c. 76, s. (5, part ; 40 V., c. H5, s. i, juirt. 
 
 8. This Act shall not be so construed as to interfere with the right 
 of legislation of the Legislature of any province requisite or desirable 
 for the carrying out the objects hereof. 31 V., c. 76, s. 7. 
 
 APPENDIX E. 
 
 NoTp; ON Criminal JuitisnicTioN. 
 
 Conflitts of 
 
 juris- 
 diction. 
 
 CTimos 
 coiinuiti»?>'<l 
 
 citizens. 
 
 Conflicts of laws, properly so-called, do not arise in criminal mat- 
 ters, inasmuch as our courts never apply any foreign law in dealing 
 with criminal cases, the law of the forum being exclusively applied both 
 as to substance and as to forms of procedure. 
 
 The only conflicts which can arise are in matters of jurisdiction, and 
 even here the occasions are not numerous, owing to the general recog- 
 nition by civilized nations of the principle that all crime is local and 
 that .jurisdiction over the crime belongs to the > c)niitry where the crime 
 is committed. The nia.xim : extra ft'rrituriuni jus <tirvnti Impunc non 
 pnretur is |)ecnliarly applicable to legislation in criminal matters. 
 
 An exception to tni-- well established rule is, however, admitted. 
 A state may, and occasionally does, assume jurisdiction over certain 
 crimes committed abroad by its own subjects. As to the legislative 
 power ot 'he British ''arliament to control the conduct of British sub- 
 jects even m foreign countries. th»ve can be no doubt, and this exterri- 
 torial jurisdiction has lieen asHprted in the case of several crimes. Of 
 course thi.s jurisdiction can be exercised only «hen such subjects 
 return within the territory of Great Britain -o as to make them amen- 
 able to the process of its courts. Instances of siuli legislation are to be 
 found in -^tatut^s providing for the trial and puttishment n{ British 
 subjects ■ >r munler. manslaughter, piracy, sin vv trading, breaches of 
 the Foreign Enlistment acts, bigamy, etc although these otfences 
 may be committed in foreign territory or on Uie high seas. 
 
I 
 
 ^ 
 
 APPENDIX. 
 
 25T 
 
 But while the eon.pclency of the Imperial Parliai.u.nt to loKislat* 
 in th.s d.reol.on is undoubted, the questiou has more thai, one- l>een 
 raised as to the power of the Canadian Parliament to enact such laws 
 
 thil re'Irf "" '° '''^''""' '""' ^'''''' '""^ '° '""'^^ controversy in sua.u. 
 
 " relating to 
 
 Sections 275 and 27«i of the Criminal Code (1892), provide as follows • *"**"'^- 
 <i7o. Bigamy is — 
 
 " (a) Tlie act of a person who, being married, goes through a fonn 
 of nmrriage with any other ,)erson in any part of the world ; or 
 
 (b) Ihe act of a person who goes through a form of nmrrfagc in 
 
 ma'rHed ;'or '" ""''' ""' ''"" """" "'■°'" '" "•• '''' knowsti," 
 
 n.nJ l H ^'"' ''''^ "^ " '""■•'''" "''^ ^^'^^ ' '"■°"«'' '^ f""-"! Of '"arrhige with 
 more than one person simultaneous!, or on the same day. R. S. C. 
 
 bv the^'lnvt n? h" °^ """■'■''f '^ ' '•'* -'^"^ f'"-'" recognized as a vahM for,,, 
 recogn /ed, ,s such that a marriage celebn- ^d there in that form in 
 
 ^:rvt::fo!"'TuZ ^''; "'-■ -^ ^"^ '^"^^^ ^^''"- ^^^ <^"^-^^ ' 
 
 w ^f ,^^ ' • ^°'' '''" '''"■''^^^' "^ ^'''^ ^<"'-f '■"». •"' valid, „ot. 
 
 ^ thstanding any act or default of the person charged with bi.^amv if 
 
 .,n1; ■"/'""'""'^^""^ to contract marriage shall be no .lefence 
 
 upon a prosecution for bigamy. «» n-nce 
 
 ,iage- ^" °"'' '""'""'' '"'■''•''"'•" •'■■ -"'"'-' ^'"•""«'' '"^ f°''"> "f -Hr- 
 
 his uit* . ^1'"^ r '.'"' '" •''°°'' '■''''''' ""'' "" '-^'^^onable grounds, belioveH 
 his u ife or her husband to be dead ; or 
 
 seve',7vL// thenT'';"" ''"■ !"'-'^''"'' ^'"^ '''^^" ^o'^finnHlly absent for 
 
 hat h s ^^Tfe o , ^ ""T "T' '*' "' '^'^^ '^ ""^ P^^^^^' *« ' -^^e known 
 
 years ; or "'^^'"'^ "'''^ ^"'^'^ ^' '^">' ^'"'<^ ^'"-'"^ ^^'-e ««ven 
 
 riage for " ''' ''' '^' ^'''' *"''" '^''°''^'^^' ^^""^ ^'^^ ''°"^' of t''^ first mar- 
 
 com^cJiint^:;;:,^:: "is^^^c'is 'r- ''''''-' ^-^'^ ''^- ^^ --•^ °^ 
 
 of 1,„ "•■ '""^ ^''''■"'" '^''•''" ^'^ "^'^'^ 'o '^« c'onvicted of bigamy in res.K-ct 
 ('ai^ada vi ^rt ; "; rn ' ,''^' T'"'"""' '"^'""'^ '" ^•'^"'''^- '-^'- 
 
 " "7f. F *^ tl'i-ough such .orm of mai-riage 
 
 ofrvm.; ai^ ,s ;::e:^:r,c:7;;;;;-r:^;; --^'^^ «^ - '""*^^"'>''^ 
 tion f"or a like xr^ ,"';;';'"■'," :'•" ""'"•" "^'"'- '^ p'--"'-^ <•--- 
 
 17 ■ ■ 
 
258 
 
 THE CONFLICT OF LAWS. 
 
 There enactments were held inira rlrrs by the Cliancery Division 
 of the Hiy,li Court of JuHtiee for Ontario in liriiina vs. Jirhrh/,^ l»nt 
 afterwards in Jirifhia vs. Ploinnan • ilie Queens Uencli Division of 
 the same court lield tliat tlie above sections were ulfni vires in so far as 
 they constituted the KO'nK through a form of nmniiiire abroad l)y a 
 British subject resident in Canada, and ieavinji Canada wiili the intent 
 to go thronj^li such form of nuirriaKe, an oU'ence. 
 
 In 18!>7 a siK'cial case was referred by tiie Covernor-Ceneral of 
 Canada in Council to^jthe Supreme Court of Canada, submitting the 
 following questions for hearing and consideration : 
 
 1. Had the Parliament of Canada authority to enact sections 'lift 
 and 27(i of the Criminal Code, 1S92 ? 
 
 2. H the said se(;tions or either of them are ullra cirr.s in i)art only, 
 then (a) what portions of|the said sections are idfra riirs ; ('j) to what 
 extent are the said sections, or either of them, iilird virrs f 
 
 The majority of the Court held ■' that these sections were intra 
 vires of the Parliament of Canada, but the four .ludges composing that 
 majority did not all agree \ipon the reasons for arriving at this con- 
 clusion. Gwynue and Cirouard, .I.J., held that the Parliament of 
 C'anada could pass an Act airecting Her MajeslNs subjects who, being 
 married and resident in Canada, go through a form of marriage out of 
 Canada, having left Canada with the intent of going through such 
 form of nuirriage, to the same extent as an Act ii' like terms pa'-sed by 
 the Imperial Parliament could afVcct Her Majesty's subjects resident 
 in the United Kingdom, who being married should go through a form 
 of marriage outside of the United Kingdom, having left any part 
 thereof for the purpose of so doing. They considered that the Dominion 
 Parliament is suhordinnti- in the sense that it is subject to the special 
 laws of the Hritish Parliament, but omuiputetil, so long as its legisla- 
 tion is not repugnant to that of the Empire. 
 
 King and Sedgewick, .T.T., expressed no ci)inion on the above point, 
 but held that the legislation was infi'u rircs because it created a new- 
 crime resulting from a compound act, no i)art of which is an oflence 
 without the rest, and each part of which is an essential ingredient of it. 
 According to this view, what is made punishable is the combination of 
 act and intent involved in having the intent in Canada to do a certain 
 act outside of Canada, and leaving Canada for the purpose of carrying 
 out such intent, and then actually carrying it out. 
 
 The Chief .Justice (Sir H. Strong) dissented from the view adopted 
 by the majority. While admitting that the Imperial Parliament might 
 confer upon a colonial legislature powers in this respect co-equal with 
 its own, he considered that such authority had not been actually con- 
 ferred ; the vague general terms of the British North America Act of 
 
 14 O.R. r,2r,. 
 
 2.-, O.R. ()u6. 3 27 S.r.K. 401. 
 
y Division 
 irrli/,^ l)ut 
 liviaion of 
 n 80 far as 
 road !)>• a 
 tlie intent 
 
 Jcnoral of 
 itting the 
 
 actions 27n 
 
 part only, 
 \j) to whnt 
 
 vere infra 
 osing that 
 ; this con- 
 iameiit of 
 .vho, being 
 iagt' out of 
 ough sucli 
 ; parsed liy 
 s resident 
 gh a form 
 any part 
 ; Dominion 
 he special 
 its h'gisla- 
 
 love point, 
 tted a new 
 an oll'ence 
 dient of it. 
 bination of 
 a certain 
 3f carrying 
 
 !\v adopted 
 nent might 
 ■equal with 
 itually con- 
 rica Act of 
 
 AIM'ENDTX. 
 
 259 
 
 lHfi7, which merely gives power to legislate on criminal law and pro- 
 cedure, being insufliciunt, upon proper principles of inter])rctation, to 
 warrant legislation in regard to oil'ences committed outside of Canada. 
 The learned Chief Justice also considered that the offence created by 
 this legislation is made to consist in a nuirriage anywhere without the 
 Dominion of Canada, and although the condition is imposed that the 
 party must have left Canada with the intent of celebrating sucli a 
 pretended marriage, yet the so leaving Canada is not the offence consti- 
 tuted by the Code, but the criminal act is the marriage without the 
 territorial jurisdiction of Parliament. 
 
Ii 
 
INUKX. 
 
 A«'o««|>tanco. of hill.> it ex- 
 clmiigo, liuv irovcMiiin;;. .. 
 
 AcccNNioii, K'JVtTiu'd l)v /('.»• 
 ri'i sitir ", 
 
 Actio l*aiiliaii)i, <it'|)(Mi(is 
 
 on 1(1 \v ol' coiitnict 
 
 hut on /c.r iri .siftr for iiu- 
 moveabk's 
 
 AdiiiiiiiNtrntiuii, of estate 
 in P.Q. by foreign corpora- 
 tion 
 
 status and powers of ifor- 
 ei^n administrat'irs 
 
 Adiniralty, .jurisdiction in. 
 
 AfrreiKhliiMHl, law tjov- 
 eridng cimlracr of. 
 
 Aliens, disabilities of 
 
 naturalixatioii of 
 
 rights of .' . 
 
 status of, in our courts. 
 
 Alimony, law governin,u; 
 right to 
 
 Aliegianuo, etFect of, on 
 
 status and capacltv 
 
 doctrincof perpetual, aban- 
 doned 
 
 Ambassa»iors,a8 experts on 
 foreign law 
 
 privilege of exterritorial- 
 
 -'ty 
 
 AniniUN manendi, as aii- 
 plied to domicile 
 
 Authorization, of husband, 
 law govern inji 
 
 B 
 
 i'A<ii: 
 ITS 
 117 
 KMI 
 101 
 
 HI) 
 
 12K..S2 
 21;M4 
 
 l!M!-7 
 Jo 
 42 
 
 \:i 
 
 211 
 7.") 
 •AH 
 
 r.\ 
 :u 
 
 210 
 49-.-)l 
 (>7 72 
 
 Bankriiptey. proceedings 
 should be at debtor's don'ii- 
 cile . o'jo 
 
 but auxiliary proceedings 
 
 allowed elsewhere 2.'ll 
 
 status of foreign receivers 
 
 and li(|uidators 2;tl 
 
 conflict between them and 
 
 local creditors 2:{2t! 
 
 immoveables in V.Q. not 
 transferred by foreign 
 
 l)ankrui)tcv .....' 2;iO 
 
 but possibly by English 
 
 bankruptcy.... 2;{t! 
 
 dis'-harge i"n foreign, effect 
 
 of 2;i7-M 
 
 Bills of F:\chanKe, statute 
 
 regulating conflicts 177 
 
 formal validity if. ... 177.,s, lHl-:i 
 interpretation" of accept- 
 ance, endor.satiou, etc 17.S 
 
 capiicity for jsf 
 
 Hills oCiailinK;, law govern- 
 
 i"K 150, lOli 
 
 express reference to parti- 
 cular law or custom loM3i3 
 
 British law, meaning of 
 ex|jression 1,>5 
 
 British nationality, how 
 ac(iuired and lost ;«>-i;! 
 
 British Hnhjeets, rights of, 
 i'l 1' Q ;ffl 
 
 C 
 
 Capacity, depends on law 
 
 of domicile ;J7 
 
 to tnai'ry ((7 
 
 of married woman (j7 
 
 of minor ()2 
 
 of testator i:i7 
 
 of legatee I:i7-S 
 
 of donor 142 
 
 of donee Hti'4 
 

 
 IMAGE EVALUATION 
 TEST TARGET (MT-3) 
 
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 !f ilM ilM 
 ? *- IIIIIM 
 
 ill 1.8 
 
 
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 U. Ill 1.6 
 
 
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 ^l 
 
 
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 °m 
 
 Photographic 
 
 Sciences 
 Corporation 
 
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 23 WEST MAIN STREET 
 
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202 
 
 THE CONFLICT OF LAWS. 
 
 PACK I 
 
 for contracts u" 
 
 for }MlIs of ExclmiiKe 1S4 j 
 
 to alieniitc iiniMuvcahlcs 
 
 [m, 7L!>7, li:i 
 
 <'apia»i, does not lie for 
 
 fori'ij^n debt 227 
 
 hut probably for secretion 
 committed abroad 227-!( 
 
 Child, rlKlits of parent over. 7") 
 
 di«»i(M> (Domicile of) 51 .52 
 
 CiiizenHhip (Itritiiih), how 
 ac(|uired and lost 39-43 
 
 C«mI<>h. rules of private in- 
 ternational law contained 
 in t< 
 
 Cullisioiis, on the high »eas, 
 law governinK 192-4 
 
 Comity, meaning of the ex- 
 pression }:. 
 
 C<>mmi>«8ions i*o(irat<i>ry, 
 from foreign courts, how 
 enforced 220-2;{ 
 
 Companies (see corpor- 
 ations) 
 
 C/uiiNtriiciioii (see interpre- 
 tation 
 
 Con 8 II Is, as experts on 
 foreign law 31 
 
 C«uitrac't«, formal validil v 
 
 of 14.5-7 
 
 capacity 147 
 
 of minors 90, 147 
 
 interpretation of 14H 
 
 etlectof 141) 
 
 applicjition of /*.<• fori con- 
 
 t rftctHtiov h:c loci Kolnfioiiis 14!) 
 
 discharge of 1.5;{ 
 
 imputation of payments. . . 15:{-4 
 containing express refer- 
 ence to particular law or 
 
 custom 154-5 
 
 essential validity of loo (i 
 
 against public policy lod 
 
 contra bonon mores' 15(i-!( 
 
 in fraud of creditors l(K)til 
 
 CorporatioiiK, riglits and 
 disabilities of foreign.... 104-10. 
 
 [21o-lti 
 winding ud of 2;^0-3S 
 
 Criminal •JuriHiliction . . . 2o(i-.59 
 
 Delicts, committed in P. Q,, 
 governed by our law IIW 
 
 I'AliK 
 
 conjmifted abroiul gener- 
 al! v governed bv /<•.»■ acfits.. WtO- 
 
 (201 
 
 on board Ilritish ships 200-2 
 
 tlistinction bet ween action- 
 able and wrongful acts 202-3 
 
 no remedy when lex fori 
 
 creates no liability 2(U 
 
 Dependent Persons, 
 
 domicile of .57 
 
 nai ionality of 44 
 
 Diplomatic AK<^nt8, 
 privilege of exterritori- 
 ality 210 
 
 DlHcharge, of contract, law 
 
 governing 153 
 
 »ajder foreign bankruptcy, 
 'lect of 2:i7-« 
 
 '>. virce, not against public 
 
 policy of our law 80, 81 
 
 foreign d»cree8 entitled to 
 
 iecognition ><2 
 
 test of iniernational com- 
 petency for 82-7 
 
 Domicile, definition of 49 
 
 diirerent from residence. . . 49 
 
 of origin _ oO 
 
 of choice .50, .51 
 
 change of .50 
 
 ellect of change.51. 07-72, 104-8,172 
 
 cases on .J''^Z 
 
 of married woman .57, 07 
 
 of minor o7 
 
 of interdict 57 
 
 (litlertiu'e between inter- 
 national domicile ano dom- 
 icile for celebnition "^ . . 
 marriage 52-5 
 
 Donations, fornnil validity 
 
 of 142 
 
 capacity of donor 142 
 
 capacity of donee 142-3 
 
 interpretation of 143^4 
 
 between consorts 144, ltJ9-70 
 
 revocation of 144 
 
 Dower, governed bv U.r rei 
 .sifn-..: 117, 109 
 
 Dutiew, on successions 132 
 
 K. 
 
 119 
 
 Effectiveness, principle of. 
 Kvidenc-e, generally govern- 
 ed by law of contract 210-18 
 
INDEX. 
 
 263 
 
 PACK 
 
 ill coninierciiil matters proh- 
 
 aMy hy le.i- fori 'l\i< 
 
 proiif of wriliiinh executed 
 
 out of proviiici' 'iilO 
 
 eoniniissioiiN for taking. . ±2l)-:{ 
 
 ExoL-utioii, ri(;ht and modes 
 of .governed l)y Ivx J'ovi., . . 22H-.'J 
 
 KxecutiirH, .status of for- 
 eign, in our courts L'l") 
 
 Bxpntriatioii.liow obtained il 
 
 Kxtorritoriulity. principle 
 of -Jilt 
 
 KxterpltoHal ettfect, of for- 
 eign divorce S2 
 
 of foreign administration. . 12.s 
 of foreiKn banliruptcy 'I^ilX 
 
 FlafCt Inw of. . . 
 
 ForciK'ii'i'M (See Aliens). . 
 F<>roiK» c'orporatioiiM 
 
 rights and disabilities of 
 li(|uidation of 
 
 ForoiKii JudKiii**"!** ("^c*^ 
 judgments) 
 
 Forelirn JuriMpriitleiiff, 
 use of 
 
 F«>r<>if(n Lu%v, amliiKuity of 
 
 expre.ssion 
 
 includes rules of Private 
 
 Int. Law 
 
 must be established liy 
 
 evidence 
 
 otherwise assumed to lie 
 identical with domestic law 
 practice in France as to 
 
 proof of . 
 
 Englisti practice 
 
 experts qualified to prove . 
 foreign judgment as proof 
 
 of 
 
 Imperial act for establish- 
 ing 
 
 ForeiKn iiiarriaKc acts. . 
 
 FnrpiK" «i>vopei|{iis, ex- 
 territoriality of 
 
 Form, of marriage eelo- 
 
 l)ration 
 
 of wills 
 
 of don^itioiis 
 
 of contracts 
 
 of marriage covenants 
 
 of bills of exchange 177 
 
 of deeds coiicei'iiing im- 
 
 l«r, 
 
 llli-IO 
 
 10-12 
 \i 
 21 
 2M 
 24 
 
 27 
 
 2S 
 
 :i() 
 
 :i2 
 
 :<:{ 
 »I2 
 
 2111 
 
 mm 
 
 IMl 
 142 
 
 145-7 
 
 162 
 
 , lHl-2 
 
 I'AliK 
 
 moveable.^. 70, IIU. 147 
 
 of foreign judgments 240-41 
 
 Freiiuh law, a.s a source of 
 
 our own 7 
 
 limits of its »pplic.ibilitv . 1) 
 
 a 
 
 (iil'iN (^ee Donations) 
 
 (•ood inoralM, contracts 
 
 against l.'Wi 
 
 <iiiar(liaii (see Tutor) 
 
 m 
 
 Higli NeiiN, collisions I, the 192 
 
 lloiiH>, idea of, imp' cu in 
 domicile 4i» 
 
 Hiisliand, authorization of. (!7-72 
 power over wife 71 
 
 HiiHbatid and wife, pro- 
 prietary rights of KW-H 
 
 gifts lietween l(fl)-7ii 
 
 HypothoON, form of 11(117, 147 
 
 governed by Ir.r rri sitn . . . 117 
 of married women 72 
 
 T 
 
 lniiii«>veal>los, capacitv to 
 
 ileal with 71, !t7. \Vi, V.fJ 
 
 formal validity of deeds 
 
 concerning 70, IKi. 147 
 
 what rights are governed 
 
 by tfj' rei nifir 1 17-lH 
 
 eilect of marriage on. . .l(i:j-7. KH) 
 li.r rri aittf governs for- 
 eign 11S.122 
 
 jni'i.sdiction as to foreign. 211 
 ellecfs of wills on foreign 1 1'J 
 
 in I*. Q. not transferred l)y 
 
 foreign bankruptcy ". 2:1(1 
 
 but jHJSsibly liy English 
 bankruptcy .' 2:1(1 
 
 liiipiitatioii of payiiiontH, 
 law governing l."5:{-4 
 
 Indeiiendeiit perHOiiH, dom- 
 icile of iiO.->l 
 
 Indian iiiarriaK^H, valid- 
 ity of w.m 
 
 IiulorNeinpnt, of bills and 
 notes, law governing. . . 17><, 1S:{ t 
 
 Ini'antH (see .Minors) 
 Insolvency (see B a n k • 
 ruptcy) 
 
261 
 
 THE CONFLICT OF LAWS. 
 
 PACK 
 liiNuraiifC coiiinaiiieN, 
 
 riK))tM nnd (lisnuilities of 
 
 fort'itrn 1(»5« 
 
 liitfiiiion, of particH to roii- 
 
 triiftH 148-32, 1540 
 
 Intertlift, )li)niicile of 57 
 
 Intt'rprptatioii, of wHIm. . . . i:iU-42 
 
 of donations 14:^4 
 
 of contraciK 14H-1) 
 
 of niiirriaft*' covenants Wl'A 
 
 of bills of tixchangi' 17H, IKi 
 
 .1 
 
 com iK'tfiicv of court nrntliT- 
 
 inn ■ 2:« ! 
 
 proof of -40 
 
 forninl rtMpiisitcH of 240-41 I 
 
 (U'f( iiccs availalile a^ainKt . 241-45 
 
 interrupt prcHcription 245 
 
 in penal actions. 245 
 
 •liirlsdictitMi, in divorce 
 
 cases H2 
 
 in s.-pxration case W-td 
 
 its to foreign iininov >!i.iles.!10-I22. 
 
 1211 
 
 of onr civil courts 200 21H 
 
 in iidniiralty 21IVH 
 
 •IiiH K<*>iti»i><, meaning of 
 expression U, 4 
 
 li 
 
 Tjaw. of foreijrn country, 
 
 nieanin;: of term 14 
 
 of the tlan 183 
 
 of (Jreat Britain or " Brit- 
 ish" law, meaning of the 
 
 expressions 155, 16!1 
 
 merchant 4 
 
 Ii«>Kitiiiiauy, governed by 
 personal law 70 
 
 Ij(>i{itiiii»ti<)ii, hy subse- 
 »iuent marriu'ze 70 
 
 liPX actiiM. (xoverns delicts 
 committtd abroad.. 100 
 
 Lex <loiiiicilii, governs in 
 mutters of status and 
 
 capacity 'M 
 
 capiuity to marry <i7 
 
 of married woman 07 
 
 of minor 02 
 
 of testator VVl 
 
 of donor 142 
 
 t>A(>K 
 
 to contract 147 
 
 distribution of moveable 
 
 succession 120-7 
 
 proprietaiv rightH of c(»n- 
 
 sorts ■ 103-8 
 
 Lex fori, governs in que»- 
 
 t "ins of lien 123 
 
 contestations as to pos- 
 
 Hession 128 
 
 privili'gea on moveables. . . 12:i 
 t'> what extent in delicts. 'Ati 
 in matters of i>rocedure. . . . 208 
 liex loci «M»iilrat'tuN, how 
 far applied to interpretation 
 
 of contract 148-31 
 
 to interpretation of billH of 
 
 exchange 178 
 
 as governing contracts 
 
 with minors 00, 147 
 
 Lex loci (ieiicti (;oiiMiiiHHi, 
 
 as aHWting delicts 10»»-202 
 
 liCX lu«ri H«>ititi<><iii*, how 
 farapplied to interpretation 
 
 of contracts 148-.51 
 
 governs validity of dis- 
 charge of contract 1.5H 
 
 Lex rei sltji* {or Lex situs), 
 as atl'ecting marital author- 
 ization 70 
 
 sale of minor's property . . . 08-10:^ 
 gifts l)et ween consorts. . . . 100-176 
 jurisdiction of our courts. 118, 211 
 
 mortmains 100 
 
 formal validity of deeds .116, 147 
 governs generally in rights 
 relating to immoveables. . 117 
 devolution of immoveable 
 
 succession 126-7 
 
 prescription of immove- 
 ables 2t)4 
 
 transfer of Immoveables' by 
 
 bjinkruptcy 118, '£Vi 
 
 rights of dower 100 
 
 foreign inimoveiibles 118 
 
 when applied to moveables 12:{ 
 
 Lien, rights of, governed by 
 
 liu-/ori 12H 
 
 Limitation nt' actioviH {atr 
 [•rescript ion » 
 
 Liqiiitlatoro, >tatus of for- 
 eign, in onr courts 2:11 
 
 contlict with local creditors 232 
 
 LiH pendeiiH. in foreign 
 country no bar to action 
 here 247 
 
INDEX. 
 
 265 
 
 123 
 
 128 
 12:{ 
 2(« 
 208 
 
 117 
 
 204 
 <, 2:16 
 
 lis 
 12:1 
 
 12:i 
 
 PAOK 
 
 LoctiM rrult netuin, hh ap- 
 plied to iniirriaKC 50 
 
 deeds of iiiinioveuhles 110-17 
 
 wills r.uQ 
 
 contracts Uo-7 
 
 marriage covenants 1 In, 1C.2 
 
 bills of exchange 181-2 
 
 the rule held to Iw |)erinis- 
 xive and not imperative. . . 1:14 « 
 
 Man-oAwar, exterritorial- 
 ity of 210 
 
 Mariners, form of wills 
 made by 1^7 
 
 Mnritiiii<E> law, special rules 
 
 re(|uire<l in ij<j 
 
 rules of navigation govern- 
 
 «'*l I'v ItMi 
 
 Marital authorization, ne- 
 cessity for, depends on law 
 of domicile fl7-72 
 
 Marital power, over wife 
 to compel return to donii- 
 fil*" 71 
 
 Marriafce, formal validity of o!t 
 
 in uncivilized country U2-m 
 
 subsUtntive validity of «{ 
 
 capacity for 07 
 
 polygaiuous, not recog- 
 
 >»i?«'l 4«, (15 
 
 ertect o*, on property of 
 consort\ KKM) 
 
 Marriage covenantN, for- 
 mal validity of Hi2 
 
 interpretai ion of l(!2-;{ 
 
 tacit or jnesumed 103-S 
 
 Married woman, national- 
 ity of- 14 
 
 domicile of ,57 
 
 capacity of 07, 171 
 
 suretyship of 72 
 
 Matrimonial douiicile, 
 governs proprietary rights 
 of consorts , kcj-h 
 
 Merchant Hhipping, acci- 
 dents in territorial waters. l!»l-2 
 collisions on the high seas, l!)2-4 
 
 Imperial act l.S(i !Ki 
 
 law of the flag ls5 
 
 rules of naviuation H»0!»1 
 
 Military men, wills made 
 
 by ];)7 
 
 Minora, domicile of . . . 57 
 
 18 
 
 PA(»K 
 
 nationalitv of 44 
 
 capacity of yjj.e, 147 
 
 Moliilia Neiiuuntur perNo- 
 nam, a|)piication of the 
 maxim 7:^,12:1 
 
 Monopoly, granted to for 
 eign cor))oration l(J5 
 
 MortgajKe {sci' Hypothec) 
 
 Mortmain, law of. applies 
 tofondgn corporations. .. 108 
 
 MovewbleN, geiierallv gov- 
 erned by dondcile of 'owner 123 
 sometimes by leu- fori or 
 
 lej- Hifiis 12:^.4 
 
 succesKion to 12(i 7 
 
 N 
 
 Xali«>nality, ellect of, on 
 
 status ;^ 
 
 how changed ' ,', 4().4;{ 
 
 of married woman 44 
 
 of njinor 44 
 
 Naliira '-/.ation, ho\v ob- 
 tained 42 
 
 ellect of 42 
 
 Parent, power of correction 
 over child 75 
 
 i'artnerxhip, formal valid 
 
 J^y «>f 14«t 
 
 Payments, imputation of, 
 in contract 15;i-4 
 
 Penal actions, delinition of 245-7 
 judgments in, not recog- 
 
 „"'''«'«••• 4«-8, 24<> 
 
 PerHonal property, not 
 svnonymous with move- 
 ables Ill 
 
 IMIoti ge (compulsory) efiect 
 of, on liability for delicts, 1(4, 20:i 
 
 Polygamy, not recognized 
 by out courts 40 (J4 
 
 Positive method, of treat ' 
 ing conflicts of laws 5 
 
 I'ossession, of moveables 
 governed by our law 123 
 
 Prescription, of immove- 
 ables governed by lex rei 
 
 siffi 204 
 
 of movenbles, rules govern- 
 
 i"K 2a5 
 
2()6 
 
 THE COXKLUrr OF I.AWS. 
 
 I'ACiK 
 
 PrivilPKett, on Immoveables 
 
 governed by lex rei silir. . . 117 
 
 on nioveabk's governed by 
 
 le.v furi 123 
 
 Privy Council, jurispru- 
 dence of the Judicial Loni- 
 niittec of the 11 
 
 I'roeotlure. governed by Uw 
 fori 208 
 
 l*r<>inlH8ory iiotrH, govern- 
 ed by sHnie rules as billH of 
 exchange 177 
 
 l»rtM)l', of foreign law 23-;*) 
 
 of writings executed 
 
 abroad 210 
 
 of forei2:n judgments 240 
 
 {scv (lino Kvidence) 
 
 Property, nature and dis- 
 tinction of 111-12 
 
 conflict between atutiit 
 
 ri'rl and tttntut personnel . . 112-13 
 
 Quai^i delicts (St-e Delicts) 
 
 11 
 
 Railways, rights of foreign. 106-7 
 
 Real property, not .synon- 
 ynion.s with ini moveables.. Ill 
 
 Receiver, status in our 
 
 courts of foreign 231 
 
 conflicts with rights of 
 local creditors, ... . 232 
 
 ReligioiiH tllNabnitioA, how 
 far recognized 40 
 
 RenatriaTion, how obtain- 
 ed 41-2 
 
 Rei^idence, distinguished 
 from domicile 40 
 
 Revenue laws, of foreign 
 countries, contracts violat- 
 ing 150 
 
 Revocation, of donations, 
 
 law governing 144 
 
 Rogatory coinnilHslons, to 
 
 take evidence for foreign 
 courts 220-2:^ 
 
 RlKhtH, ac(|uired under for- 
 eign law — 2 
 
 vested, of minors as to 
 majority 94-0 
 
 l>A(iK 
 
 of married woman as to 
 capaiity to receive gifts 
 from husband 175-6 
 
 M 
 
 Sale, right to cancel fur non- 
 payment of price 151 
 
 stoppage in fniiisifu 150-151 
 
 Henatusctinsuituni Vellei- 
 anuni, governed l>y law o2 
 wife's domicile 72 
 
 Hcparation, iis to property. 80-01 
 from IkuI and board H7-0 
 
 8ervitu(le8, governed by le.r 
 rei aihv 117 
 
 Shares, in companies, form 
 of transfer of 140-7 
 
 Slav»Ty, statusof, not recog- 
 nized 46 
 
 Sovereltfu. privile^-e of ex- 
 territoriality 210 
 
 Status, depends on <lomicile. 37 
 also allected by nationality 38 
 certain kinds of, not recog- 
 nized 40 
 
 penal, (ietinition of 245-7 
 
 Statutes, I'mperial, Cana- 
 dian and foreign, how 
 proved 3;} 
 
 Stutut personnel, conflict 
 with htatut leel ...0,07, 112, 107 
 
 Htatut reel, as allecting mar- 
 ital authoriziU ion 70 
 
 t^aie of minor.s' property. . . 07 
 devolution jf abintestate 
 
 succession 127 
 
 donations between con- 
 sorts I(i9 
 
 Stoppage in transitu, (see 
 8ale) 
 
 Suretysliip, by married 
 woninn governed l>y lt;v 
 
 rlutnicilii 72-3 
 
 imputation of payments in 
 contract of 153-4 
 
 Suc<resslon«, theories as to 
 
 law gni\ crning 12Ji-fl 
 
 law of tiuel)ec as to devo- 
 lution. l,20-7 
 
 vacant 12H, 132 
 
 administration of 110, 12H 
 
 duties on 132 
 
INDEX. 
 
 207 
 
 _ I'AOK 
 
 T 
 
 TcHtaiiientM, (sec Wills) 
 
 Theoretical iiipthud, of 
 treating conrtiits of laws 5, 10 
 
 T<»rtH, (see Delicts) 
 
 TreatieN, provisions of H, 
 N. A. act for enforcinj^ 13 
 
 Tutors, rights of foreign.. . m 
 •lucstion as to control of 
 
 inimoreahies . . IH)-I(K) 
 
 proj)^- forum for apjioini- 
 nient of mo 
 
 ^ l'A(iK 
 
 ' t ^ 
 
 Uncivilized (>oiiiiti'i(>M, 
 
 niarriiigc ci>lt>lirat('(l in. . «:i.o 
 UstifVuct, of inunovc'at)lcH 
 
 governed hy /, ./• n'i hHh ... 1 17 
 WillH, formal validity of . . . 131-7 
 of military mumi aiid ma- 
 riners i;j7 
 
 capacity of testator ... 137 
 
 of legatee Y.\;.n 
 
 intrinsic validity of l:w 
 
 interpretation of \'.V,)\-> 
 
 ellecl of. on foreign immo- 
 
 vealileH llHl!) 
 
 WiiuliiiK-iip, of companies. :i;«)M