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32X

INT

/z.

PRIVATE

INTERNATIONAL LAW

(WESTLAKE DIGESTED)

A. R. HASSARD, B.C.L.,

Of Osgoode Ha/ly Toronto ; Barrister-at-Law.

■ V,

' l;

% I

1 I

TORONTO :
The Goodwin Company, 79 Victoria Street.

1899.

i ifci a r 1 ' '•

' I

U2>

181556

PREFACE.

The imperfect arrangement of the contents of
Westlake'ft erudite treatise on Private International
Law, combined with the anterior information on the
subject which that work necessarily postulates, renders
almost indispensable some aid to the student who
through the medium of Westlake, first essays the task,
of mastering this most difficult department of Juris-
prudence. The present compilation, which includes a
statement of the njost modern Canadian authorities
on the subject, is the first publication with that design
in view. The extremely condensed statement of the
law, while it cannot compensate for, must in some
degree excuse, the absence from the following pages, of
a literary finish, which, it cannot but be regretted, is
so consistently absent from all modern expositions of
legal thought.

;

OsGOODE Hall, Toronto, January i8, 1899

FNTRODUCTION.

Private International Law is the department of
National Law which arises because there exist
different territorial Jurisdictions having^ different
laws.

Human laws are distinguished from Laws of
Nature, thus : — The former are always uniform. The
latter are not.

International Law is not law, because it is enforced
and imposed by no sovereign authority. It arises
from the Comity of Nations.

The great feature of Natural Law is that it is a
code of rules to be uniformly applied, — the breach
whereof is regularly punished by an authority irresis-
tible to the subject. If it can be broken with
impunity it is no law.

Law and Usage differ thus : — Breach of law is
punished ; breach of usage is not.

Usage resembles International Law, thus : — Breach
is not punished in either case. Still the Inter-
national Rules are called " Law."

Law is divided thus :

T ^fHuman Laws^t^ ,. ^r f Public.
^"''(Natural Laws^^"*^''"'*"'"''' ^'^'^iPrivate.

■'
•i

i !

CHAPTER I.

Characteristics of Private International

laSiW.

Private International Law is administered by
National Courts, and generally only to subjects of
the Nation where the Court is situated. Questions
of Private International Law may arise in any
action.

What law shall be applied ? — is the a^reat question
Private International Law is constantly re<|uired to
decide.

(a) As TO Court (Forum.)
Grounds determining a National Jurisdiction
where action lies, are —

PRIVATE

INTERNATIONAL LAW.

PRIVATE INTERNATIONAL LAW.

(1) that subject matter, — if a {a) thin^, is situate

if a {d) contract, was made
or if a (c) delict or tort, was
done
in the country where the action is brought.

In these, the tribunals, respectively, are known as : —

(a) forum situs, oy forum rei sitae.
(^) forum contractus.
(c) forum delicti.

Here the subject matter of the suit is the great
point.

(2) That all claims relating to a matter should be

adjudicated on together, i.e. forum concur sus,
e.ff., bankruptcy, insolvency, or administration ;
or —

(3) that defendant is personally subject to the Court,

i.e. forum rei.

This subjection of defendant is either by (a)
domicile, or (b) nationality.

In Rome, the forum ret implied a bond between
judge and defendant, e.g., both were Romans. In
England no bond is required. It is enough if
defendant is in the jurisdiction, and can there be
served. Then England has jurisdiction.

PRIVATE INTERNATIONAL LAW.

(b) As TO Law (Tf^x.)
The action being maintainable, what biw is to be
applied \ This is a question of ie.x or law. There
are four kinds of law :

1. hex loci rei sitae, or /c.r niius, i.e., law of place
where thinor is situated.

2. LeA' loci contractus, i.e. law of placo where con-
tract was made.

3. Lex loci delicti, i.e., law of place where tort
committed.

4. Lev concursus, i.e., law of place where tlie pro-
ceedings are being conducted.

Lex loci actus, applies to execution of instruments,
e.g., will in France before one witness, in Ontario
two are recjuired.

Lex fori is the last law which is always waiting,
seeking invocation. This is the Court's own law.

Such are the questions of Private International
Law, and i\vQ forums and laws which are competing.

» 'ii

PRIVATE INTERNATIOXAL LAW.

CHAPTER II.

History of Private International Law.

It came into England through Ecclesiastical and
Admiralty Courts, from the Continent . There the
statute theory prevailed. Three kinds of statutes
existed :

1. Statutes Real, governing things. They were
applied as Lex situs. They were strictly applied as
to realty — but not so strictly as to personalty.

2. Statutes Personal, governing persons. They
were applied as Icr domicilii. They appeared in
questions as to status and capacity .

3. Statutes Mixed, were where neither real nor
personal questions arose, and such questions might be
decided by Lex contractus, actus, or fori.

These statutes were applied in other jurisdictions,
and the theory or system was that in force on the
Continent by which a way was found to decide
questions arising between small states.

This system was only partly brought into England.

The Statutes Real theory was, being in harmony
with English system, i.,;., having lex situs decide as to

PRIVATE INTERNATIONAL LAW.

realty. In other words, in England the lex situs was
chosen in preference to lex actus or contractus.

The vStatutes Personal were not brought into
England ; the theory being, find defendant in
England and serve him, and there is jurisdiction.
Lex loci actus {e.g., notaries to draw deeds) was not
accepted in England. In 1861, however, Lord Kings-
down's Act as to "vills being allowed in England if in
accord with lex loci act an was passed.

There was no Private International Law in Rome.
Aliens were discouraged resi<ling there. But later on,
many aliens entered Roman soil. What law should
govern strangers ? The Praetor collected rules of
several states subject to Rome, and applied them to
the aliens — This was Jus Gentium. But later still
Emperor Caracalla made all Rome's inhabitants
Roman citizens, and Jus Gentium fell out of use.

By barbarian conquests new laws came in ; then
Roman Empire broke up, and when its parts were
separated, the people found some Private International
Laws requisite in their international dealings.

Holland says Private International Law is a body
of rules regulating the proper law for application, — i.e.
a body of rules for tinding rules.

There are two d^ctnnes as to the origin of Private
International Law.

' i

PRIVATE INTERNATIONAL LAW.

1. Theoretical,— (Westlake and Savigny and
Phillimore favour this) is not founded on natural jus-
tice, but on the principle that there exists a common
law for a commonwealth of States.

2. Positive,- (Story, Holland and Dicey favour
this) that Private International Law forms part of
the municipal law of any land. It has its rules like
law of contracts, and these rules are part of English
law. Otherwise ^rave injustice would be done.

PRIVATE INTERNATIONAL LAW

CHAPTER III.

"f<

General Observations.

The Canadian Provinces are as separate as to mat-
ters within their own jurisdictions as any independent
States.

Private International Law governs cases, e.y. in On-
tario, having a foreign element in them.

What laws govern when there is the foreign ele-
ment ?

Three <iuestions must be answered before this one
can be answered.

1. Is case one which Ontario Court can by Ontario
law entertain ?

This is question of jurisdiction or foruvi ,- U answer
is " Yes," then,

2. What body of law is to be applied ? This is
question of law or lex.

Then when foreign judgment is to be enforced, one
more question is to be answered —

3. Is the case one which by Ontario law the foreign
Courts moved can hear ?

PRIVATE INTERN ATIONAL LAW.

Ontario Court must decide these three points first,
and it can decide to apply a foreign hiw.
" Law of England" means either —

(1) Every rule enforced by English Courts; including
{a) those deciding the limits of jurisdiction and choice
of laws.

(2) Every rule excluding («/.)

If Ontario Courts decide that foreign laws govern, —
they with(h'aw Ontario local laws and apply the
foreign local laws.

Formerly jurisdiction depended on service within
the realm, for there was no law allowing service of
writ out of iurisdiction. Forum was forum- rei.

if «

Question of venue often ousted jurisdiction. Suit
on Tort or Contract could be brought in any country.
But in land actions, — ^v/., trespass to land — venue had
to l)e laid in country where land was situated. If land
was in France, no venue could be laid in England,
hence venue ousted jurisdiction.

This is changed by Judicature Acts, defendant out
of the jurisdiction can be served.

If writ was served in England objection that de-
fendant was a foreigner would not prevail, as long as
remedy could be enforced, — this was done by personal
jurisdiction English courts exercised over defendants.
It acted lu Personam, hence could foreclose foreign

PFUVATE INTERNATIONAL LAW.

lands, for this is a personal equity. Perm v. Lord Bal-
timore, 2 Wh. & Tu. 1047.

English Court will not order a sale of foreign lands.
Strange v. Radford, 15 O.R., 145.

English Court can't try action for trespass to for-
eign lan<ls, Mor title thereto. Mocainbifjue v. Brit. S.
Africa Co., '92, 2 g.B., 858 ; reversed by D-S A.C. (H.L.)
602.

English Court won't decide right to possession, nor
try action for damages for trespass thereto, nor action
for negligence as to foreign lands. See Brereton
V. C.P.R, 2n OR., 57.

English Court will hear action as to land in foreign
country.

(1) If there is a contract between parties as to land
{e.(/. will enforce specitic performance )

(2) If there is an equity between the parties.
Tort committed abroad can't be sued on in Ontario,

because the Judicature Act makes no provision for ser-
vice of writ abroad in such cases. But if defendant
can be served within the jurisdiction, the action lies.
The foreign element in any suit may concern :

1. Parties to suit.

2. Subject matter.
8. Act in (juestion.
4. Procedure.

PRIVATE "INTERNATIONAL LAW.

1. Pauties to !SU1T. —

i oreigu element may Domicile,

arise out ot btatus, which^ . , .,

( apacity.
comprises | Legitimacy.

Status is the relation between a person and the law
of his society, and the other members of that society.

Nationality is the relation between a person and the
sovereigfu state to which he owes allegiance.

Nationality is acquired by (1) birth, or (2) acquisi-
tion.

Domicile is person's relation to a certain state, which
relation arises from residence in its limits as a mem-
ber of its community. This decides personal law
governing him and his moveables.

Capacity is actual legal power to act as a free, sane
adult, — it becomes important principally when absent,
— e.g. infancy, lunacy, etc.

Legitimacy is a quasi-element, affects only person's
relation to others.

PRIVATE INTERNATIONAL LAW.

CHAPTER IV.

Westlake's Chapter XV. — Nationality.

Nationality is important because there is ^rowin^
up in Europe a tendency to substitute it for domicile.
A double status arises for all at birth.
1; Political, — making one a subject of his country.
2. Civil — by which one has rights, etc., municipally.
Two theories as to deciding Nationality : —

1. Descent. — Jus Sanguinis — favored in Rome.

2. Birth. — Jus Soli, favored in England and United
States.

In Rome, son of a Cwts Ronianus was a Roman
citizen, wherever born. This theory is growing.
Several states may claim one's allegiance at once.

At Common Law.

Rule. — By Common Law of England, Nationality
came only by birth, and persons born within British
control became British no matter what nationality
parents had, and no one not so born could be a
Britisher.

Two Exceptions : — 1. Children of foreign ambassa-

PRIVATE INTERNATIONAI- LAW.

dors born in England don't become Britishers, (by
" Privilege of Exterritoriality.")

2. When hostile army occupied part of England —
it ceased to be English soil for some Private Inter-
national Law purposes.

Foreigners there born remained foreign ; English
children there born remained English.

By Statute.

Statutes were — 25 Edward III., statute 2. ; 7 ^* nne
c. 5, s. 3. ; 4 George II c. 21, s. 1. ; 13 George III. c.
21. ; Effect of these Acts was to make anyone born out
of England, a natural born British subject, if his father
or grandfather had bejn such, and had not taken
foreign oath of allegiance.

Nationality is not inherited through a woman, and
a married woman tcikes her husband's nationality ;
i.e., English woman marrying a French man becomes
French.

Note. — The status acquired by these Acts was per-
sonal and not transmissible,— but it is now transmiss-
ible by R.S.C. c. 113.

Nationality is acquired by Naturalization or Deniza-
tion.

In England, Act of 1870, (R.S.C. c. 118.) alters
alien's position.

PRIVATE INTERNATIONAL LAW.

Alien could lease land for only 21 years, for residence
or business, and could not inherit or transmit estate.

S. 8. Now, ho can own lar ', and inherit an(^ truiH-
mit, — l>ut is not eligihie to office or franchise. He
can't own British ship, but can be mortgagee thereof,
Comstock V. Harris, 18 O.R. 407. Frenchman buying
English ship — it becomes French, and is forfeited if it
tiies a British flag.

Alien must be naturalized to get full British rights.

Alien, once naturalized, on returning to his home,
loses for the time his rights acquired by naturaliza-
tion, (unless treaties to contrary,) i.f. England cannot
protect him (when he is away) as if he were a Britisher.

Before Acts of LSTO — person naturalized could not
enter Parliament, now lie can, but one who has been
denizened cannot.

Denization — is inferior kind of Naturalization by
Letters Patent. Person denizened becomes as a new
man. His powers date only from them, and are not
retrospective as in naturalization. Therefore, denizen
can't inherit land nor transmit it to children born
before denization.

Advantage of Denization — No residence is need-
needed as condition precedent, — (generally used for
consuls, etc.)

Under Imperial Act, 1870 — person's naturalization

PRIVATE INTERNATIONAL LAW.

is only as to United Kingdom. If he came to Canada
he would be an alien.

Naturalization in a colony does not extend by recog-.
nition to the Empire. But this is in doubt, held in
1865 it does, and 1890 it does not.

Act of 1870 c(ives right to citizens to forsake their
British nationality. Before this the doctrine of double
nationality prevailed. It was, in 1870, changed in two
ways. One can now become an alien if he wishes.

1. Statutory Aliens. — Two classes of Britishers
can cease allegiance by making declaration of alienage.

(1.) Any one born in Empire, who is Britisher natu-
rally, but by birth became a foreigner and is still so.

E.c/., sons of Frenchmen born in England.

(2.) Any one born out of Empire, of British father.

Any one except infant, lunatic or married woman,
can make this declaration ; so can an alien naturalized
(if there is a treaty.)

By 8. 6 of Naturalization Act (1870), a change is
made, and now any Britisher voluntarily becoming
naturalized in foreign state, loses his British nation-
ality while there, and holds only one. lie Trufort,
86 Ch. D. 600.

Westlake s. 292. One entitled to two nationalities,
who tiles no declaration — e.fi. son of Britisher abroad,
— ^may be an alien by his acts. He is still a Britisher

I'RIVATE FNTERNATIONAL LAW.

for purpose of transmitting nationality (British) to
children. If he make the declaration he cannot.

S. 10 of English Act (2(3 of R.S.C., c. 113.) Chil-
dren of naturalized subjects, who during infancy re-
side with parents in Uni/i/ed Kingdom are naturalized
Britishers.

What if child born in Spain — and never resided in
United Kingdom ?

If his father was Britisher, he is ; if father only
naturalized, he is not, even though bo*'n after naturali-
zation, because father has only powers of a Britisher.
If father naturalized, and while child is yet an infant,
he comes to United Kingdom, child is Britisher then.
(Same rules govern as to Canada.)

Transfer of Nationality.
Rule. — Allegiance to t.//. England ends by cession.
(France gives Minorca to Egypt. Minorcans become
Egyptians.) Generally time is given by treaty to de-
cide. Minorcan must leave the island and go to a
French place, e.f/. a French colony, at once, if no time

given, to remain French. Calvin's case (2 Rul. C. 57o.)
Allegiance is due to sovereign in person.

'10

F'RIVATE INTKKNATIONAI. LAW.

CHAPTER V.

Westlake*s Chap. XIV.— Domicile.

In Rome everyone could be sued in his domicile for
all personal matters, and nowhere else for such mat-
ters, except in special forum of matter (e.g. case of
tort — where committed.) i.e. forum speciale ohliga-
tionis (or w^here he belonged by citizenship, he being
there personally.)

Under Roman law one can have various domiciles
at once. This in Rome was important, as to munici-
pal duties.

Domicile (in staturj) is more important than nation-
ality. It is what decides the personal law on which
majority, succession, testacy, etc., depend. It was

unknown in England formerly, — (old law was, serve
defendant in England.)

Domicile is not residence. It differs from residence
in that, one is a member of his domicile's crjz'l society.

Domicile is not allegiance, for one's foreign domicile
is consistent with English allegiance. Re Grove,. 40 Ch.
D. 216.

Though one's domicile is often his permanent abode,
it is not synonomous with " abode." One's doraicle

PRIVATE INTERNATIONAL \A

may be where he has no home, and he may live where
he has no domicile. Best opinion is he may have
many homes, but only one domicile. Residence
usually subjects one to domicile there.

P. 322 of Westlake — Trade domicile in case of war,
— belongs to Public International Law.

There are three kinds of domicile.

1. Naturale, — i.e. by birth.

2. Necessarium, — i.e. by operation of Inw.

3. Voluntarium, — i.e- by choice, — where one is aban-
doned and another chosen.

1. Naturale— (rt) Father's domicile at birth of
child governs child's,

(1) If child born when he's alive.

(2) A legitimated child — takes father's domicile at
time of legitimation (if child is then a minor.)

{h) Mother's domicile at birth of child governs
child's, •

(1) If father then dead.

(2) If child illegitimate.

(3) It father unknown.

(c) Child of unknown parents, — or foundling, —
domicile is where child is found. Legitimation can't
be performed in England — only in Scotland, etc.

2. Necessarium applies to wives and minors.

(1) Wife always takes husband's domicile. Dwell-

PRIVATE INTERNATIONAL LAW.

ing elsewhere won't alter, nor even raise a presump -
tion contrary. Neither Separation dejacto, nor deed of
separation can change it. Judicial separation can
alter it. Wife keeps husband's domicile after his
death, — second marriage gives her second husband's
domicile.

(2) Infant can't by his own act change his domicile
for new domicile can't be got until he is of age. His
domicile follows his father — unless illegitimate and
not legitimated, it is not every place that a child can
be legitimated when it follows the mother.

Last domicile of infant's parent which remains with
him — is his domicile of origin.

(1.) Generally — Guardian can't change ward's domi-
cile unless contra in (1) appointment, or (2) law of
place where he's appointed.

(II.) ir liiother is guardian — and nothing contra in
deed, or law of place where she's appointed, infant's
<lomicile follows mother, if change is (1) bona fide, and
(2) not for the mother's sole benefit. Re Beaumont
(t8l)3> 3 Chy. 490.

(I.) Lunatic who was never sane, is like an Infant,
and his domicile follows all changes of domicile of
his father until he becomes sane.

(11.) Lunatic who became so after attaining 21, —

PRIVATE INTERNATIONAL LAW.

his domicle can't change with committee, but remains
".'hat it was when he was sane.

Westlake, s. 254, Englishman going to France and
domiciled there except he has not French required
authority, and therefore cannot in French estimation
be deemed a domiciled Frenchman ; — English law
wrll treat him as to his moveables as if he were, be-
cause he did all English law asks to equal chauge of
domicile.

S. VoLUNTARiUM, or of cholce. Voluntary choosing
is the feature of this. If this domicile ends, that of
origin always arises. Origin domicile may end by act
of law, — sentence of death (not life exile.)

Domicile of choice is formed by residing in new
land (not that of origin) intending to reside there
an indefinite time, therefore forced residence abroad
(^.f/. by life exile) does not make new domicile, lie
Orleans, I S. & T., 253. "

Prisoner's flight to avoid aBrest does not make new
domicile, because there's no choice. Kersteman v.
McClelland, 10 P.R.,122.

One may end one's domicile of choice without taking
new one : but domicile of origin returns, e^., Leaving
country with intent to change domicile, and dying on
the way; his domicile of origin returns, — see below.

What constitutes Domicile ? Moorehouse v. Lord,

PRIVATE INTERNATIONAL LAW.

10 H.L. C, 272. Held required to become merged in
with people of the country, — i.e. to abandon his pat-
riotism. Udny V. Udny, L.R., 1 H.L. (Sc. Ap.) 441, re-
versed this.

Prt<na = Political status.

Domicilium = Civil status.

There need not be an intent to make new place
home to constitute a domicile of choice. Domicile
flows from residence, — intent is not material, nor is his
knowledge that it will change his domicile.

Domicile is inferred from many circumstances.

e.g. 1. Residence of man's wife and family.
2. Merchant's townhouse.
8. Where one exercises political functions.

4. Length and continuity of residence.

5. Being naturalized in a new land.

6. Buying partnership.

7. Where property is directed to be invested.
Intent in these cases may be material.
Merchant's town house is more important than his

country house, but contra as to countryman's.

Domicile of choice may be acquired or abandoned <
The person must leave one land intending to go to
another.

I. Westlake says in going from domicile of origin to
that of choice — change occurs on actual arrival, — if

PRIVATK INTERNATIONA I. I.AW

death occurs on the way, domicile is that of origin,
but on change from one domicile of choice to another
of choice, — if he intend to acquire the new one, — and
die on the way, domicile is the new one. This is
wrong, In both cases domicile is that of origin.

II. A leaves Canada for Mexico, intending to return
after a long (uncertain) time. The intent 13 useless.
Hegets Mexican domicile,if hearrives — if not, he keeps
Canadian, Doucet v. Geoghegan, L. R., 9 Ch. D. 441,

III. A change of residence for health's sake, — intent
to return when health is restored. This is a certain
time. He retains old domicile.

IV. A change of residence for health's sake, — knows
he'll die there — He retains first or old domicile. Be-
cause here he's forced to go, and root idea of this kind
of domicile is choice, therefore there's no choice. Hos-
kins V. Matthews, 8 DeG.M. & J. 13.

V. Abandoning domicile of choice without intend-
ing to create a new one, — e.g. leaving Canada and
going travelling. Domicile of origin attaches.

British domicile is not changed by accepting foreign
service under British Crown, except in India. If
question of domicile depends on intent, declarations
are good evidence. McMullen v. Wadsworth, 14 A.C.
631.

PRIVATE INTERNATIONAL LAW.

CHAPTER VI.

Westlake's Chapter XII.— Contracts.

Rights in Private International Law not affected by
domicile are —

a-d. Those relating to contracts (except marriage)
torts, procedure and immovables, (realty.)

All questions as to realty, and forms of conveyance
are governed by lex situs, questions of capacity are
settled by law of domicile.

Therefore descent is governed by le:^ situs, yet " Is
X. capable of being heir ? " is governed by law of
claimant's domicile.

England accepts this, except in one point — if child
can be legitimated by law of his domicile, England
calls him legitimate, only he can't inherit English
land. " His status as heir " is decided solely by
English Law. In all other points he is governed by
/ex situs.

(a) Rights as to contract. —

I. Formal Validity — e.g., seal, etc., is governed by
law of the place where contract is made, lex loci con-
tractus celebrationis, {lex loci.)

PRIVATE INTERNATIONAL LAW.

Foreign writers say he can comply with this (lex
situ8)or lex domicilii. English Law says it must comply
with lex actus only.

II. Contract's Substance is governed by parties'

intent. If performance is to be in another land, — pre-
sumed that law governs. — If parties have any country

other than that where made, in view, that country's
law will govern. If intent is expressed, such expres-
sion governs. Hamlyn v. Talisker, (1894) A.C. 202, —
where agreement made in England as to contract to be
performed in England, — express agreement that Scotch
law should govern, — held Scotch law governed.

III. Procedure. — This is often very closely allied
to solemnities or formalities of contract. E.g., Statute
of Frauds. Law is : — If particular kind of evidence is
needed in lex fori, that kind of evidence must be com-
plied with. (Indirectly this affects formality). L^'x loci
may reject evidence which lex fori would accept.

In France, receipt unstamped was inadmissible — it
is admissable in England — not to show contract, but
the fact of payment, — it is question of procedure, not
formality. Bristow v. Sequeville, 5 Ex. 275.

Contract illegal by law of place where made is bad
in England ; so also any contract to violate English
Law. Contract conflicting with English moral or

PRIVATE INTERNATIONAL LAW.

public interests is void in England, though valid where
made.

Contract to serve (as servant) refers to where hirer
lives and not to where service is to be done.

Lawyer's right to sue depends on law affecting his
bar, and not where he's retained. So also as to doctor.

Unknown principal's right to sue on contract of agent
with third party, depends on law of agent's and third
party's domicile.

PRIVATE INTERNATIONAL LAW.

CHAPTER VII.

Westlake's Chapter XI.— Torts.

(b) Torts are not affected by domicile, but by —

1. Law of place where tort committed, and

2. Law of place where suit brought.

These two must concur.
Tort must therefore be to be sued on in England —

(1) A wrong where committed, and

(2) A wrong by the law of England. The Halley
(Liverpool v. Benham) L R. 2 P. C. 193.

Proof of foreign law is a fact on which existence of
the right to damages depends.

Some one skilled in foreign law must prove it. He
need not be a lawyer, but must have more than an
academic knowledge of the law.

English Courts won't interpret a foreign statute, —
they will ask foreign lawyer to testify as to its legal
effect ; — i.e., to say wha*^. are the decisions on it It is
presumed foreign and English law agree. Re O'Brien,
3 O.K. 326 ; Langdon v. Robertson, 13 O.R. 497.

What if foreign lawyers differ ? Ontario Courts

PRIVATE INTERNATIONAL LAW.

will read foreign Act and decide itself. Rice v.
Gunn, 4 O.R. 579.

Where act is wronof where done but no suit —
law of place where wrongdoer lives governs. If act
is a wrong, but no civil suit lies in land where done,
— if it is a tort in England, can suit lie in England ?
No. If act is wrong — a tort where done, but civil
action lies only arter criminal action, — suit tor tort
lies in England without taking the criminal proceed-
ings in tue foreign land.

If wrong was done where there's no law — e.g. North
Pole, — there's no lex loci delicti^ but there are —

1. Lex Fori.

2. Law of victim's domicile, and

3. Law of aggressor's domicile.

The last of these governs.

W here act is not a wrong where done e.£: — N. Pole.

Westlake says last of above governs.

But England gives no action if law of aggressor^s
domicile either, (1) indemnifies, or (2) shields wrong-
doer, or (3) extinguishes remedy. Even if no action
of that kind in place where committed, then, unless
the tort is authorized or innocent or excusable where
committed, England gives no remedy. Machado v.
Fontes, (1897) 2 Q.B. 231— Brazil libel— no action

PRIVATE INTERNATIONAL LAW.

there because not recognized — yet action in England
lay.

If two English ships meet at sea,— English law
governs.

Rule of Road at Sea. — Statutes govern.

If English and Russian ships meet at sea, — old rule
prevails.

Collisions at Sea. — If captain is in charge — there's
no difficulty.

If pilot is in charge, there is a difficulty.

If pilot causes negligence, — what law governs ?

It is only if by law of pilot's land pilot controls
captain, — owners of ship are free. Lex actus measures
damages in tort. Put plaintiff in same position as if
payment made at right time and place.

PllIVATE INTERNATIONAL LAW.

CHAPTER VIIl.

Westlake*s Chapter XVIII.— Procedure.

(c) Procedure is not affected by law of domicile, but
by law of place where suit is begun, — lex fori., i.e. lex
fori governs as far as it can be separated from the
material questions in issue.

(d) Immovables — see Chapter XII. on Immovables.

J'RIVATE INTERNATIONAL LAW.

CHAPTER IX.

Parts of Westlake's Chapter II.— Status,

Penal Laws.

{(() Status.

The Law of Domicile cfoes affect the following :

1. Status or Personal Capacity.

2. Marriage.

3. Div'orce.

4. Laws re Moveables.

(a) Domicile governing status renders domicile an
element of status, — often the domicile decides status.
E.g., in France, majority is 24. One living in France,
and only 22, is of infancy status.

What law — if case is in English Court — decides
status :"

Rule : — If transaction occurred in land where party
whose status is questioned was domiciled the lex
domicilii governs such person's status.

Contract made in Norway, — there majority
is 25, — defendant residing in England was sued in Eng-
land, (he was domiciled in Norway) — defendant was 24.

PUIVATE FNTEUNATIONAL LAW.

Held an infant. Here the lex loci contractus and
lex loci domicilii are the same in fact.

What if these two laws are not the same ? E.g., if
act done in England ? Such act is not affected by any
foreign status, if it is (1) Alien to England, or (2)
Penal, — e.p., the relationship of master and slave are
alien to England ; so also polygamy. — These are not
recognized in England.

' (h) Penal Laws.

A Penai Status is one imposed on person to deprive
him of rights or to punish him.

Foreign Penal Status is not recognized in England ,
— e.g., status re religion, marriage. But the e^ect of
the foreign Penal Status — England will recognize
as existing as a fact in the foreign land.

What kind of Penal Laws will England enforce ?

England seems to favor holding a law not penal (in
Private International Law.)

Officer signed false certificate — by New York Acts,
he is liable for all debts while with Co'y. Plaintiff (an
informer) sued for $100,000. Fi fa. issued and sued
on here in Ontario. Contended this was Penal Law.
Held Not. Huntingdon v. Attrill (1893), A.C., 150.

A proceeding is not penal which results to benefit of
individual, and England will enforce it. England won't
enforce if it benefits the state.

PRIVATE INTERNATIONAL LAW.

Penal Status consequent on a foreign crime, — eg.
outlawry, — Eiisjland won't recognize .

Transactions occurring in land where one has no
domicile. What law governs ? Fact that status
is given to one by law of his domicile, — other Courts
should recognize. As to the effect of that status — they
can use their discretion.

E.g., A is an infant at 23 in France. England
realizes that as a fact, but will use its own law to
decide conseciuences of this Infancy Status. E.(/„ also
as to legitimation. England recognizes it (as a fact) in
Scotland, but its effect, making children legitimate,
England won't recognize far enougjh to allow of in-
heritance of English land.

Contracts entered into and to be performed in
foreign land where defendant is domiciled, — English
Court adopts foreign law to say if party was an infant.

If contract made and to be performed in England, —
defendant is domiciled in Holland ;

Is he an infant? Holland law decides (as to fact.)
Is he liable? English law governs (as to effect.)
E.g., if for necessaries — contract made by infant,

as decided by Holland law, {i.e. 24 years.)

He is Uable, — but effect in Holland is that he's
not liable. English effect governs.

PRIVATE INTERNATIONAL LAW.

Same principle governs law Parent and Child, — effect

is decided by English law.

D. is French, — travels in England — while there he

J . f wrong by French law.l xs ■ £

does an act (.-ight by English law,} ^^ '« ^''^^-

If what he did /right by French law 1 it is wrong, —
was (wrong by English ]a.w.je.g. murder.

I.e., everyone must observe England's criminal laws
while in England.

Thus we see status and capacity are separate.

^Tow coQsider act done in France, — domicile in
Spain,— SUED ON IN ENGLAND. Rule is :—

Law^ of domicile governs as to both existence and
effect of status.

Illustration that fact and effect of status are govern-
ed by law of domicile, when act and domicile are out of
England ;

Father domiciled in Scotland — parents reside, child
born, and marriage occurs in England, — legitimation
is good,- ^oritis governed by law of father's domicile-
Note well, — (1) This domicile of father must exist
at birth of illegitimate child.

(2) Father at time of marriage must be domiciled in
a land Billowing legitimation.

(3) This is the law even though illegitimate child
follows its mother's domicile.

;<.

PRIVATE INTERNATIONAL LAW.

N.B.— Child thus legitimated,— born in foreign land
is not British subject, even though its father was a
natural born one, (were he born properly he would
be.) In this particular legitimation does not relate back
to birth— also as to inheiiting English realty.

4f.

PRIVATE INTERNATIONAL LAW.

CHAPTER X.

Westlake's Chapter III.— Foreign Guard-
ians.

Foreign infant or lunatic being in England, English
Court can appoint a committee, even though one exists
in his land.

Two theories on this : —

1. Foreign guardian has no power in England.

2. Must be misconduct in foreign guardian to

justify interference.

Better opinion is : — England will appoint only when
it cannot avoid so doing.

British infant abroad — if even only British by
Stat. (i.e. born abroad — a child of English subject) and
out of jurisdiction English Court can appoint guardian,
— even if he has no property within jurisdiction.

If guardian appointed by Court of infant's domicile
— guardian can ue in England for personalty of
the infant in England. — So also as to lunatic.

If there's money in Court, — Court can hand it over ,
— generally Court will. Hanrahan v. Hanrahan, 19
O.R., 306.

Court can in its discretion treat foreign infant as its
ward

i ^

PRIVATE INTERNATIONAL LAW.

CHAPTER XI.

4f.

Westlake's Chapter IV.— Marriage and

Divorce.

(1) Marriage.
This is the only contract needing a ceremony.
Its validity depends on

1. Parties, capacity and status.

2. Formalities.

I. How is capacity decided? Westlake says by
law of domicile and lex actus.

Dicey says, former only.

It is doubtful, but lex domicilii is necessary anyway.
(Perhaps wife's is enough.)

Parties domiciled in England, — marry in France, —
they are such relatives that they can't marry in Eng-
land, but can in France, — is not good. It' they intended
to live out of England it is good.

II. Forms must comply with lex loci actus.
Except. 1. Exterritoriality — f.^., marriage on ship, —

or British man-of-war.

2. British Army — abroad, — soldiers, etc.,
may marry by British law.

» /i- tT';^:£K2tsit»a3!3^aagswaai*

gag?g'ffaMigi T" ij.n.i j i nML i Miint. ti )

PRIVATE INTERNATIONAL LAW.

3. Ambassador's house — both contracting parties
should be subjects of his country. " His house is his
native land." Can apply law of his native land.

4. Where impossible to observe local forms, because,

(1) No form there.

(2) No form recognized in civilized lands.

(3) No form morally proper.

If marriage is good in domicile — it is good in Eng-
land unless it is against English policy.

Religious vow — preventing marriage — England
repudiates — unless it makes marriage ab initio
invalid — England then recognizes it.
Fom and capacity, or status —

Consent — e.g. of guardians in domicile — if dis-
pensable there, then question is of forum in loci
celebrationis.
Consent — e.g. of guardians — if indispensable in
domicile, then question is of status in loci
celebrationis.
Absence of consent, — if question of status, invalid-
ates ; not so if question of forum.

When will form not be required to be satisfactory
to lex loci actus ? When it is (not DIFFICULT, but)
IMPOSSIBLE, — then law of domicile governs. — E.g. at
Rome, only priests can celebrate marriage. Protes-
tant marriage held good if marriage is by Methodist.

PRIVATE INTERNATIONAL LAW.

If lex loci actus allows polygamy, is such a marriage
to one only good ? —

No, because it is conditional. Test is : — One man
marrying one woman.

Rules. — (1) If one can marry indiscriminately- — it
is worthless.

(2) If one can't marry till present one dies — it is
good.

Difference between forms and essentials are —
former impede — latter prohibit.

Rule. — Everything goes to form in lex loci celebra-
tionis, but unconditional prohibition.

Penal incapacities are not recognized in England if
such penal incapacities have no being in England.

Marriage with dead wife's sister is called incest in
England — and is bad; but in Ontario it is no offence,
it is good.

Ecclesiastical Court in England before 1857 (date of
Matrimonial Causes Act) had jurisdiction in —

(1) Suit of Jactitation of Marriage — where one not
married claimed he was.

(2) Suit to declare null a marriage.

(3) Suit for divorce a mensa et thoro — for judicial
separation.

(4) Suit for restitution of conjugal rights.

To dissolve marriage — lay with Parliament — not

"i MJ. ' ia,gjmBJBa i |MM i

PRIVATE INTERNATIONAL LAW.

any court, until 1857, — the Divorce Court was estab-
iished, and it can grant divorces.

What law governs as to divorce ? This is a great
question.

Three Theories of Divorce. —

I. Marriage is mere contract, — divorce a discharge
thereof, and /."x / ntractus gowQvu^. Result is that
England could aJ'. a^isolve English marriages, and
no others. One** It was thought in England that this
was a valid theory, liul it is *Jot.

II. Penal Doctrine. — Divorce is punishment for
criminal offence, — and law of land where offence is
committed and that of domicile governed. This theory
is Scottish.

III. Status Doctrine. — Marriage is a status, —
domicile of husband is the place where action lies,
and law is lex doinicilii. Le Mesurier v. Le Mesurier
(1895) A.C. 517.

Two ways to make English marriage —

(1) Celebrate it in England.

(2) Celebrate it according to law of place where
celebrated.

Alimony — is a subsidiary question.
Mere residence gives jurisdiction for every thing but
divorce.

When will foreign divorce be good in England ?

PRIVATE INTERNATIONAL LAW.

(1) When it is good by foreign law — need not be
for cause English Courts would recognize.

(2) But if foreign Court applies a disability — e.g,
that parties are not to marry for four years — England
won't recognize it.

(3) If foreign divorce is conditional on parties
staying separate — held England will recognize this
condition.

(4) Submitted — husband must be domiciled in
jurisdiction of Court granting divorce. Green v-
Green (1893) P. 57.

Parties' domicile is that of husband.

But it is open whether or not wife can take new
domicile after she is divorced, and also if she can
when her husband has deserted her.

Submitted, and this is now law : —

Rule. — If husband were domiciled in England —
and deserts her — she can sue in England ; but if hus-
band has acquired a new domicile he is not amenable
to new domicile acquired by wife (if she can ac([uire
one.)

When is divorce not in effect required to be by
Court of husband's domicile ?

Rule. — When husband is divorced by Court not of
his domicile, and he marries elsewhere, and at place

pgBB»-'Bg j t atm-t-iii3i..jmMff yi— w

PRIVATE INTERNATIONAL LAW.

he's married the divorce is deemed good — his children
are legitimate.

Wife divorced — re-marries — divorce invalid, — she
can't get new domicile, — and even marriage in new
land is invalid.

Canadian law won't allow as good, a foreign divorce
from a Canadian marriage.

This conflicts with Courts.

Desertion alone is no ground for divorce.

English marriage is one in England or one where
husband is domiciled in England, and which is cele-
brated anywhere.

PRIVATE INTERNATIONAL LAW.

CHAPTER XII.

le-

Westlake*s Chapter VIII— Immovables

Immovables are Realty and Chattels real.

Title to realty passes by law of sovereign havinf]r
the eminent domain.

Lex situs governs — but owner being within other
Courts' jurisdiction may indirectly give that Court
jurisdiction. Strange v. Radford, 15 O. R. 145. Penn
V. Lord Baltimore, 2 Wh. & Tu. 1047.

Foreclosure of foreign land lies — must be a personal
equity. English Court won't hear suit involving title
to foreign land — not even land in Ireland. Burns v.
Davidson, 21 O.R. 547. [England won't do anything
for Ireland, not even give it Home Rule.]

Equity must be enforceable in a practical way.
Equity must arise from contract or trust.

If equity is not recognized positively by lex situs —
English courts won't enforce it. Not, however, until
equity is fully (1) repugnant to or (2) excluded by lex
situs — will England refuse to enforce it. If equit}^
merely has no existence in lex situs — England will
enforce it. Waterhouse v. Stansfield, 21 L. J. Ch. 881.

PRIVATE INTERNATIONAL LAW.

Contracts for sale of foreign lands will be specifi-
cally performed.

Fraud as to specific land is not entertainable.

Lex rei sitae says what immovables are, — easements
«tc., are such for P. I. Law purposes, — may be per-
sonalty for other purposes.

Law of limitation — is governed by leA: situs.

Limitation — is where remedy is barred— procedure.

Prescription — is where property's title passes —
substance.

Title can pass only by lex situs. Form of suit is
governed by lex fori, and so this law governs litigation
of title.

If it is deemed a Law of Prescription taking away
and passing to another the title — the lex situs governs
— if law of limitation, lex fori governs (though on this
latter writers differ.)

One of age by lex situs so as to give deed can give
a deed though not of age by the /ex actus. Adams v.
Clutterbuck, 10 Q. B. D. 403.

Agreement giving right to shoot over land in
Scotland — no seal — none required in Scotland — made
in England — held valid — lex situs governed.

Succession of Immovables. Forms of lex situs
must be complied with ; but a will not conforming
with lex situs as to form, — and therefore invalid to

PRIVATE INTERNATIONAL LAW.

pass realty — may pass personalty, — and put heir to
election — thereby operating on realty.

Capacity of Testator — lex situs governs as to land,
also effect of will on land, and also construction of
will, also as to validity of an imposed restraint.

Lex situs was eagerly seized on in England as to
Realty.

Lex situs won't validate a security on land {e.g,,
mortgage) or a contract which is void by lex loci
contractus.

Mortmain Act restrains disposition of English land
though charitable purpose is to be executed abroad.
Opinions differ on this.

PIIIVA'IE INTEKNATFONAL LAW.

CHAPTER XIII.

Westlake's Chapter VII. —Movables.

Is a thing movable ? — Lex situs decides. Held in
Jamaica slaves were part of the land, because lex situs
so declared. Ex parte Rucker, 3 D. & C. Bankr., 704.

If a thing is held by above test to be a movable,
then it has in P. 1. law no location for it follows per-
son of owner, and lex domicilii jjfoverns.

Exception : — Solitary Chattels are governed by lex
situs, but if one's entire movables are in question —
e.g., devolution of them, general assignment, etc., then
lex doniicilii governs. But one getting good title
to a thing where the thing is situated takes a good title
everywhere. Cammell v. Sewell, 6 H. and N. 727 ;
Minna Craig v. Ch. Bk. Ind. (1897) 1 Q. B. 55, and 460.

*' hi rem " — the thing is bound, not the parties.

Judgment of foreign court — not good in England if
that foreign court declined to notice a title properly
acquired in England. But if it were merely that
English law was misinterpreted, England would
recognize a foreign decision based on this misinterpre-
tation, because the person who lost in the foreign

I'UIVATK INTEU\ATI«»NAL LAW.

)

court should have appealed. The preceding sentence
is as to a repudiation entirely of English law, and not
ignoring of it.

Rule is: — Foreign Judgment in rem is invalid
(possibly) if court giving judgment gives no recogni-
tion to law of other lands as is required by P. I. Law.

General Assignment of movables occurs in three

ways.

1. Marriage. "1 ah i i

" [All governed by

2. Bankruptcy. ,

3. Death. j

lex iioniicilii.

Marriage. — Westlake p. 05-74.

Two Cfises. — 1. Where there is no marriage settle-
ment.
2. Where there is.

1. Where none. — Effect of marriage on both par-
ties' movables is decided by husband's (a) actual or
(b) intended domicile at time of marriage.

When were goods got ? — Moveables got before
change of domicile are not afiected. If got after
change of domicile —governed by law of matrimonial
domicile — i.e., where they eventually intend to settle.

2. Where settlement exists. — Parties' rights are
governed by the settlement. The settlement's validity
is governed by lex loci contractus. Parties' capacities
are governed by the law of their domiciles, and if

nil V ATE INTERNATIONAL LAW.

nothing contra, the law of husband's domicile will
govern (1) operation, and (2) effect of the settlement,
and (3) interpretation of contract (settlement). Ch ange
of domicile does not afFec* these points.

" Interpretation " = meaning of words used. This is
always a question of fact.

" Construction " = meaning of contract after mean-
ing; of words is found. It is a question of law.

Interpretation is governed by (1) lex loa contractus,
unless performance to be in other lanci, when it is
governed by (2) law of the place of performance.

S. 211. — To understand foreign settlement one must :
(1) Translate settlement, (2) interpret technical
words, (8) give evidence of foreign law applicable
to it, (4) give evidence of peculiar rules governing it,
(6) then construe. Succession is controlled by last
domicile of deceased.

PRIVATE INTERNATIONAL LAW.

CHAPTER XIV.

Westlake*s Chapter VI.— Bankruptcy.

English Court may go on with bankruptcy proceed-
ings even though such are proceeding in a foreign
land, — if for benefit of creditors.

Company domiciled in England or existing because
of English incorporation may be wound up there,
even if its ramifications are international .

Company domiciled out of England may be wound
up in England if it hf»s an office there, but can't be
dissolved. It can't be touched if there's no English
office. Debtor to English bankrupt paying debt by
foreign legal process is freed. 1883 Act of England
re Bankruptcy applied to debtor domiciled in Eng-
land at time of, or one year before presenting petition.

All goods, realty etc., vest in trustee, no matter
where property is, except property situate in foreign
lands, but including colonial property. Domiciled
British creditor going abroad and getting and bringing
to England property of debtor must put it in hotchpot.
Thus England acts indirectly on foreign goods. 80
also if foreign creditor has goods and wants to prove
on estate, English creditor need not.

PRIVATE INTERNATIONAL LAW.

U.S. bankruptcy has no effect on Canadian realty.

Any creditor may keep payment got out of foreign
realty and prove with other creditors innocently on
rest. But this is only if English trustees cannot get
benefit of proceeds.

PRIVATE INTERNATIONAL LAW,

n
n

CHAPTER XV.

Westlake's Chapter V.— Assignment of
Movables by Death.

Foreifijaer dying, England may grant adminis-
tration.

Various executors for English and foreign property
are exclusive.

Distribution of intestate's personalty is governed by
law of his domicile when he died, but immovable
are governed by /ex situs.

But dead man's property is all as if personalty now
in Ontario. R. S. 0. (1897) c. 127.

Court of domicile if it decides on rights of succession
is final, re Trufort, L. R. 36 Ch. D 600.

But debts are paid by lex situs. After they're paid
balance is governed by lex (domicilii.

Foreign administrator being in jurisdiction, not
enough ground for suit. He must have broken the
trust before he's liable.

Foreign administrator will generally be given ad-
ministration power here. Courts of Ontario, how-
ever, have discretion .

1 1

PRIVATE INTERNATIONAL LAW.

England distributing foreigner's assets, foreign
creditors rank with English creditors, i.e.^ lex fori
governs as to (1) collecting assets, (2) then dividing
them up, because this is procedure and lex fori governs
procedure, Milne v. Moore, 24 O. R. 456.

Does a man die intestate ? Is his will of mov-
ables valid ? Zcu domicilii decides.

Will of movables — validity depends on : —

(1) Testator's capacity.

(2) Will's form.

(3) Substance of will.

In Europe will was valid everywhere if it was valid
either (1) in domicile of testator, or (2) in place where
made, and testator moving before death and after
making the will was immaterial.

England formerly looked only to lex domicilii of
testator when he died, not after, in all cases.

A died in Paris — domiciled there — law changed
after A's death — no effect.

Lord Kingsdown's Act, 24, 5 V. c. 114 governs all
Britlshers' wills all over Empire, therefore it covers
Canada.

{A) Britishers — S. 1. Wills made(l) out of United
Kingdom — by (2) British subject, as to (3) Personalty
are valid if executed by these forms — i.e- forms re-
quired by

PRIVATE INTERNATIONAL LAW.

1. Lex actus.

2. Lex domialii oi testator when will made.

3. Lex domicilii originis — but only if it be a British
domicile of origin.

Make will good by any one of above, has chanfife
of domicile after that any effect ? Only this : — It
may give another form in addition to above. Never
invalidates.

{a) Britisher — domicile of origin in Ontario, visits
Montreal, there he makes his will and dies, wiU affects
personal property in England. It conveys English
property if form complies with law of Quebec,
(1 of above) or Ontario (2 and 3 of above).

(/;) Britisher — domicile of origin in Nova Scotia,
taken ill in New York, and makes will there and dies
there, it is good in England if by forms of Nova Scotia
(3)or New York (1), (there is no 2 unless it be 3). Apart
from Lord Kingsdown's Act, w411 executed according
to Law of Testator's Domicile, whether testator be
Britisher or not, is valid.

{c) Britisher — domicile of origin in Ontario, that of
choice in U. S. A., makes will in Italy and there dies.
England will probate it if it is good as to form by
Ontario Law = Origin (3\
U. S. A. \jQ.wf = doinicilii {2).
Italian Law = Lex actus (\.)

1 i

PRIVATE INTERNATIONAL LAW.

S. 2. Wills made in United Kingdom, — lex loci actus
is good (3 of above is excluded i.e., domicilii originis).
Must be by British subject — no matter where is his
domicile of origin or of choice, governs personalty
only.

But if will is made in U.. K. according to law of
testator's domicile it is good. This section adds to
that the lex loci actus.

{d) Britisher — domicile of origin is Ontario, that
of choice is U. S. A. makes will in England and dies
— it is good if by U. S. A. law, or Eaglish law (not
Ontario).

{e) American — makes will in England — it does not
comply with American law — it does with English law
— void because lex actus does not govern foreigner.

" Britisher " in this act means one by Naturaliza-
tion — Re Lacroix — 2 P. D. 94. Naturalization Act
gives aliens right to hold English property, they must
however be naturalized to come within this act.
Bloxam v Favre, 9 P. D. 130.

{B) Aliens — Alien law of (1) his domicile, (2) at
his death prevails. Alien includes e.g., a British
woman who marries a foreigner and resides abroad
she becomes an alien.

What is effect of change of testator's domicile after
making will ?

PRIVATE INTERNATIONAL LAW.

of
to

S. 3. Before the Act, will had to comply with law of
testator's domicile at the testator's death — and there-
fore such a change voided, — now it does not avoid.

id) Before Act — A, domiciled in France, made will
there in accord with French law, went to England,
became domiciled and died' there. Void in England.

Had A died in England, but domiciled in France,
will would have been good in England.

Since Act — wherever A died domiciled it now is
good. S. 8. " No will is atfected by change of testa-
tor's domicile."

Above is as to form. Is it also as to substance ? —
e.£: contrary to Mortmain. It is as to everything —
(Westlakei except testator's capacity.

{C) Capacity — Capacity by Lord Kingsdown's Act is
governed by lex domicilii of testator at death.

Condition in Restraint of Marriage- —

1. Before Act — validity depended on law of
testator's last domicile.

2. After x\ct — validity depends on lex actus alone.
By combined effect of ss. 1, 2 and 3, validity of will

of British -subject re form, if will is executed,

/ex doDiicilii when will was

made (Nova Scotia)
lex actus — (England.)
lex doviicilii at death (New
Jersey!

(1 ) In United Kingdom,
depends on three
places

PRIVATE INTERNATIONAL LAW

(2) Ozil o/Kiufrdom,,
on four places

lex actus — (France.)

lex domicilii when made (Nova

Scotia).
lex doinicilii originis — (Ontario.)
lex domicilii at death — (New

J.ersey.)

(7) Britisher — dojuicilii originis is Ontario — choice
— Nova Scotia — makes will in England — changes
v^hoice domicile to New Jersey, and dies, will is good
in form, if by law of Nova Scotia, England, New Jersey
— not Ontario, because it is excluded (s. 2).

If will were made in France instead of England —
in addition there's the domicile of origin. Pechell v
Hilderley (L. R. 1 P. & M. 673).

Part of law of one land and part of law of another
are worthless.

(Z>) Construction — Construction of will — Since
Act — governed by law of testator's domicile at time of
making of will — in above case (//) — Nova Scotia.

{E) Power — Execution of Power by Will — three
persons : Testator, Donee of Power, Object. Donee's
capacity is not testamentary capacity — it is just
capacity'' to execute power. Where an instrument is
in execution of a power of appointment, (power is
given by any instrument, but must be executed by
will) — two things govern :

PRIVATE [NTEKNATIONAL LAW.

fil

1. It must comply with rules governiojr the testa-
tor, or

2. It must comply with forms re({uired by an Eng-
lish will, re Huber (1896) Pr 209.

(h) €41. British woman, married Frenchman, and
went to live in France, there executed appointment in
accordance with English Wills Act— void in France,,
but good in England.

PRIVATE INTERNATIONAL LAW.

CHAPTER XVI.

''I

Weiftlake's Chapter XVII.— Foreign Judg-
ments

These are recognized in three ways^ :

1. May be adopted as domestic court's own, and fifa
lie on it. (Europe.)

2. May be evidence of new obligation. (England
and U.S.)

3. May be evidence of old obligation in domestic
suit on old obligation. (Norway and Spain.)

Fo reign judgment does not merge original cause, —
even simple contract debt. Trevelyan v. Meyers, 26
O. R. 430.

A foreign judgment is a simple contract debt.
North v. Fisher, 6 O. R. 206.

Security for costs by foreign litigant will he ordered
Crozat V. Brogden (1894) 2 Q. B. 30.

Application to issue writ for service out of jurisdic-
tion where tliere's a foreign judgment will be refused.
Call V. Oppenheim, I. T. L. R. 622.

Foreign judgment is not reviewable for errors in
law or fact.

PRIVATE INTERNATIONAL LAW.

It is for anything showing (1) no legal claim, or (2)
excuse for claim, — e.^. payment.

(1) It can be shown that foreign Court had no
geueral jurisdiction thus :

(1) Not having any by foreign law.

(2) Defendant not subject to it.

(2) It can't be shown that foreign Court had nospecial
jurisdiction, e.^: by its own rules, t\£: amount too great
or small. £.£-., County Court suit abroad, — sum over

C. C. limit — Sued in England on that judgment.
It is enforceable.

Defences to foreign judgment : —

1. Not final.

2. Fraud getting it.

3. Excess of judicial authority.

4. Want of jurisdiction in foreign court (1 of

above.)

5. Want of natural justice.
Foreign court's jurisdiction is presumed —

(1) Foreign judgment must lay on defendant a
present duty to pay it. Must be final and conclusive,
though subject to appeal, — and even though appeal
pending in court where judgment signed, — still suit
on it lies in e.£: England. In re Henderson, Nouvion
v. Freeman (15 A. C. 1.)

(2) Plaintiff's fraud, may be set up by defendant.

: i

PRrVATE INTEliNATrONAL LAW.

though it involves a retrial nf

This is denied in Woorlmtr «. r
242, but in case of H n , "^ ^=^«'""">. 14 A. R.
-the Woodr ; 1 "'" '■ ''^■'""'^-' 26 0. R, «i

670. ' "^ F^'-Klkote (1894) A. C.

•i^*^

vw.

fcion. Vadala

nan, 14 A. R.
»26 0. R. 61
JucJ^'e may
(1894) A. C.