IMAGE EVALUATION TEST TARGET (MT-3) A // V 5? fe f^/ fA 1.0 I.I 1.25 Ilia I i*3 2 III 3 6 llf IIM ' IIIIIM llIM U IIIIII.6 "'A ^ /a m* v> 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 k i 1 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 — ?1 PRIVATE i 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. 9 (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. li » 'ii 10 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. 11 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 resiut 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 II 20 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. 21 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 23 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- 24 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 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. 25 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, 26 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) 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. 62 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. 63 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 : i 64 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. L •i^*^ vw. fcion. Vadala nan, 14 A. R. »26 0. R. 61 JucJ^'e may (1894) A. C.